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[p.6]
THE COURT,
composed as above, after deliberation,
delivers the following Judgment:
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. In its Application, Qatar founded the jurisdiction of the Court upon two
agreements between the Parties 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 (hereinafter
referred to as the "Bahraini formula").
3. 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.
4. By an Order dated 11 October 1991, the President of the Court, having
consulted the Parties in accordance with Article 31 of the Rules of Court,
and taking into account the agreement reached between them concerning
procedure, decided that the written pleadings should first be addressed to
the questions of the jurisdiction of the Court to entertain the dispute and
of the admissibility of the Application. By the same Order, the President
fixed time-limits for a Memorial by Qatar and a Counter-Memorial by Bahrain
on the questions of jurisdiction and admissibility, and those pleadings were
duly filed within the time-limits so fixed.
5. By an Order dated 26 June 1992, the Court, considering that the filing of
further pleadings 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 time-limits therefor; those pleadings were duly
filed within the time-limits so fixed.
6. 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.
7. At public hearings held between 28 February and 11 March 1994, the
Parties were heard on the questions of the Court's jurisdiction and the
admissibility of the Application.
8. The following submissions were presented by the Parties in the oral and
written proceedings:
On behalf of Qatar:
"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." [p 9]
On behalf of Bahrain:
"The State of Bahrain respectfully requests 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."
9. By its Judgment of 1 July 1994, the Court found 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, were international agreements creating
rights and obligations for the Parties; and that, by the terms of those
agreements, the Parties had undertaken to submit to the Court the whole of
the dispute between them, as circumscribed by the Bahraini formula. Having
noted that it had before it only an Application from Qatar setting out that
State's specific claims in connection with that formula, the Court decided
to afford the Parties the opportunity to submit to it the whole of the
dispute. It fixed 30 November 1994 as the time-limit within which the
Parties were jointly or separately to take action to that end; and reserved
any other matters for subsequent decision.
10. Judge ad hoc Ruda died on 7 July 1994 and, by a letter dated 5 September
1994, the Agent of Qatar informed the Court that his Government had chosen
Mr. Santiago Torres Bernardez to replace him.
11. By a letter from the Agent of Bahrain dated 11 July 1994, and a letter
from the Agent of Qatar dated 2 November 1994, the Court was informed of
various measures taken by the Parties with a view to complying with its
Judgment of 1 July 1994.
12. On 30 November 1994, within the time-limit laid down in the Judgment of
1 July 1994, the Agent of Qatar filed in the Registry a document entitled
"Act to comply with paragraphs (3) and (4) of operative paragraph 41 of the
Judgment of the Court dated 1 July 1994". In the document, the Agent
referred to "the absence of an agreement between the Parties to act jointly"
and declared that he was thereby submitting to the Court "the whole of the
dispute between Qatar and Bahrain, as circumscribed by the text ... referred
to in the 1990 Doha Minutes as the 'Bahraini formula'". He continued thus:
"The matters which would be referred to the Court were exhaustively defined
in the Tripartite Committee (see paragraph 18 of the Court's Judgment of 1
July 1994). The subject matters of the dispute were described in identical
terms in Bahrain's written pleadings and in a draft special agreement
proposed by Bahrain on 20 June 1992 (see Bahrain's Rejoinder, Annex 1.3, p.
113).
The following subjects fall within the jurisdiction of the Court by virtue
of the rights and obligations created by the international agreements of
December 1987 and 25 December 1990 and are, by virtue of Qatar's Application
dated 5 July 1991 and the present Act, submitted to the Court:
1. The Hawar Islands, including the island of Janan;
2. Fasht al Dibal and Qit'at Jaradah;
3. The archipelagic baselines;
4. Zubarah; [p 10]
5. The areas for fishing for pearls and for fishing for swimming fish and
any other matters connected with maritime boundaries.
It is understood by Qatar that Bahrain defines its claim concerning Zubarah
as a claim of sovereignty.
Further to its Application Qatar requests the Court to adjudge and declare
that Bahrain has no sovereignty or other territorial right over the island
of Janan or over Zubarah, and that any claim by Bahrain concerning
archipelagic baselines and areas for fishing for pearls and swimming fish
would be irrelevant for the purpose of maritime delimitation in the present
case."
Qatar's "Act" was accompanied by the texts of several letters and documents
exchanged between the Parties after the Judgment of 1 July 1994 "with a view
to reaching an agreement to ensure the submission to the Court of the whole
of the dispute by way of a joint act".
13. On 30 November 1994, the Registry also received, by facsimile, a letter
from the Agent of Bahrain communicating to the Court a document entitled
"Report of the State of Bahrain to the International Court of Justice on the
attempt by the Parties to implement the Court's Judgment of 1st July, 1994".
In that "Report", the Agent stated that his Government had welcomed the
Judgment of 1 July 1994 and understood it as confirming that the submission
to the Court of "the whole of the dispute" must be "consensual in character,
that is, a matter of agreement between the Parties". Yet, he observed,
Qatar's approach to the discussion had been dominated by two features from
which it had "resolutely declined to move in any way acceptable to Bahrain".
First, Qatar's proposals had "taken the form of documents that can only be
read as designed to fall within the framework of the maintenance of the case
commenced by Qatar's Application of 8th July, 1991"; and, second, Qatar had
denied Bahrain "the right to describe, define or identify, in words of its
own choosing, the matters which it wishes specifically to place in issue",
and had opposed "Bahrain's right to include in the list of matters in
dispute the item of 'sovereignty over Zubarah'". The Agent of Bahrain
emphasized moreover that, following the breakdown of the negotiations, the
last draft joint act proposed by Bahrain had been withdrawn and was no
longer open to acceptance. Finally, the Agent explained that, in his
Government's opinion, the Judgment of 1 July 1994 implied that the Parties
"should bring their dispute before the Court on the basis of new, and
agreed, terms of reference". He confirmed Bahrain's conclusion that "the
Court does not have jurisdiction in the case commenced by the Qatari
Application of 8th July, 1991" and affirmed that, without Bahrain's consent,
there could be no curing that defect of jurisdiction by means of an
individual act of Qatar making reference to sovereignty over Zubarah,
whether through an amendment to its original application or a fresh
application.
The original of the "Report" of Bahrain was received in the Registry, by
courier, on 1 December 1994; it was accompanied by a separate volume of "all
documents which have passed between the two sides since 1st July 1994". Most
of those documents were also appended to the Qatari "Act".
14. By letter dated 5 December 1994, which reached the Registry the same day
by facsimile, the Agent of Bahrain transmitted to the Court a document [p
11] entitled "Comments by the State of Bahrain on the Qatari 'Act' of 30th
November, 1994". In that document the Qatari "Act" was termed "inherently
defective". Bahrain's Agent explained the position of his Government as
follows:
"Nor does the Judgment use the words 'either of the Parties' to indicate
that one Party alone could complete the process of reference to the Court.
It is to 'the Parties' - and not to either or one of them - that the Court
afforded the opportunity to seise it of the Case. This reflects the Court's
adherence to the dominant requirement of the consent of the Parties, no less
of the Respondent than of the Applicant.
It is the belief of Bahrain that when, in its Judgment, the Court spoke in
paragraph 41(4) of 'separately', and in paragraph 38 of 'separate Acts' (in
the plural) by the Parties, the Court had in mind the prospect that the
Parties would conclude an agreement submitting the Case to the Court but
recognized the possibility that the Parties might decide to express that
agreement between them by concordant, and effectively identical, but
nonetheless separate Acts";
and, he continued,
"It is Bahrain's submission that the Court did not declare in its Judgment
of 1st July, 1994 that it had jurisdiction in the Case brought before it by
virtue of Qatar's unilateral application of 1991. Consequently, if the Court
did not have jurisdiction at that time, then the Qatari separate Act of 30th
November, even when considered in the light of the Judgment, cannot create
that jurisdiction or effect a valid submission in the absence of Bahrain's
consent. Clearly, Bahrain has given no such consent."
Bahrain's Agent concluded thus:
"Every State possesses the sovereign right to determine whether it consents
to the jurisdiction of the Court and to determine the limits, conditions and
method of implementation of its consent. Every State also possesses the
sovereign right to decline to appear before the Court. Bahrain possesses
this right in the same measure as any other State. Bahrain has given reasons
for its decision not to appear before the Court in the circumstances that
have developed only out of respect for, and as an act of courtesy towards,
the Court. However, it remains a fact that the absoluteness of Bahrain's
sovereign prerogative in this respect cannot be questioned."
15. A copy of each of the documents produced by Qatar and Bahrain and
mentioned in paragraphs 11 to 14 above was duly transmitted to the other
Party by the Registry upon receipt.
**
16. The Court begins by calling to mind that, by its Application filed in
the Registry on 8 July 1991, Qatar instituted proceedings before the Court
against Bahrain
"in respect of certain existing disputes between them 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". [p 12]
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", the Court, according to Qatar, is in a
position "to exercise jurisdiction to adjudicate upon those disputes".
Bahrain maintained on the contrary that the 1990 Minutes did not constitute
a legally binding instrument. It went 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. According
to Bahrain, the Court therefore lacks jurisdiction to adjudicate upon the
dispute.
17. As stated above (paragraph 9), by its Judgment of 1 July 1994 the Court
found that the Parties had undertaken to submit to it the whole of the
dispute between them. It decided to afford the Parties the opportunity to
submit to it the whole of that dispute, and fixed 30 November 1994 as the
time-limit within which they were, jointly or separately, to take action to
this end.
18. By a declaration made on the very day on which the Judgment was
delivered, the Minister for Foreign Affairs of Bahrain expressed his
appreciation of the decision thus reached and invited the representatives of
Qatar "to a meeting at the earliest possible opportunity in order to work
towards the signing of a joint submission". On 6 July 1994, the Agent of
Qatar, for his part, wrote to the Agent of Bahrain, expressing the hope that
they might meet "as early as possible ... to discuss together whether it
would be possible to act jointly so as to ensure that the whole of the
dispute is placed before the Court" and expressing the conviction that they
would be able "to agree on a joint compliance with the decision of the
Court". After various exchanges of correspondence, the persons concerned met
in London on 6 October, 22 October and 14 November 1994.
19. During the meeting of 6 October 1994, the Agent of Qatar proposed that
the two Agents should submit to the Court by a joint letter the whole of the
dispute, as circumscribed by the Bahraini formula, in the terms suggested by
Bahrain during the meeting of the Tripartite Committee on 6 and 7 December
1988, namely:
"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."
On the occasion of that same meeting, the Agent of Bahrain proposed the
signature by the two Governments of a draft of a Special Agreement whose
object would be to seise the Court of all of the issues as defined by [p 13]
each of the Parties. Article II of the draft contained an introductory
phrase worded as follows: "The above request covers the following matters in
dispute:-". But the sentence broke off there, with the result that the
questions forming the subject-matter of the dispute were not enumerated. The
Bahraini draft moreover raised various other questions, i.e., the system of
geographic co-ordinates to be used for the maritime delimitation; the
appointment of an expert by the Court for that delimitation; the
organization of the written proceedings; the final and binding character of
the Judgment; the entry into force and notification of the Special
Agreement, and its translation into Arabic from the original English.
20. At the second meeting, held on 22 October 1994, the Agent of Qatar
proposed a new text similar to its first, but dealing in addition with the
system of geographic co-ordinates to be employed, the language of the
written pleadings and the fixing of time-limits for their simultaneous
filing. The Agent of Bahrain proposed, for his part, a joint initiative
taking the form of an Act signed by the two Agents and requesting the Court
to decide any question which might be a matter of difference between the
Parties. The Bahraini draft enumerated those matters, adopting the list
proposed by Bahrain at the meeting of the Tripartite Committee on 6 and 7
December 1988, but specifying in addition, as to points 1 and 4, that the
request to the Court concerned sovereignty over the Hawar islands and
sovereignty over Zubarah. The document included certain simplifications with
respect to the procedural questions raised in the first text. It requested
the Court to amend the title of the case to make it clear that it would be
dealt with, not pursuant to an Application by one Party, but to a joint
initiative by the two Parties, and in order to comply with "the pattern of
names in other cases placed before the Court jointly by the Parties".
In the course of the same meeting, the Agent of Qatar once again proposed
that the subject of the dispute should be described in the Joint Act in
accordance with the terms contemplated in 1988, but further suggested that
two annexes should be appended thereto in which the Parties could set forth
their claims in detail, and which would enable Bahrain to specify its
intention to lay claim to sovereignty over Zubarah. Bahrain rejected "the
proposal made by Qatar for a Joint Act, with two annexes, whether with, or
without, the itemization of the issues of dispute in the main body of the
Joint Act" and insisted that "sovereignty over Zubarah" ought to appear in
the main body of the Joint Act.
21. In a memorandum of 12 November 1994, Bahrain restated its position
particularly with respect to the appointment of a technical expert by the
Court, the fixing of procedural time-limits and the modification of the
title of the case; attached to this memorandum was the text of a new draft
joint act, which differed from the draft of 22 October only in respect of
the system of geographic co-ordinates to be used. No progress was made at
the third meeting, held on 14 November 1994, during which Qatar, for its
part, presented a revised version of its 22 October text. Subsequently, on
19 November 1994, the [p 14] Agent of Qatar sent the Agent of Bahrain a
fourth draft which included, after the enumeration of the matters as they
had previously been defined, a sentence in which the two Parties declared:
"We understand that Bahrain defines its claim concerning Zubarah as a claim
of sovereignty."
By a letter dated 25 November 1994, the Agent of Bahrain rejected that new
proposal, recalling its position both on that point and on several others,
and invited the Agent of Qatar to give a positive response to his offer of
12 November. The Agent of Bahrain then informed the Agent of Qatar, on 27
November 1994, that it seemed pointless to hold a fourth meeting on 28
November.
22. As already mentioned (paragraph 12 above), after the breakdown of those
negotiations, Qatar addressed to the Court on 30 November 1994 an "Act to
comply with paragraphs (3) and (4) of operative paragraph 41 of the Judgment
of the Court dated 1 July 1994". In its observations of 5 December 1994 on
Qatar's Act, set out in paragraph 14 above, Bahrain stressed, however, that
in its view
"the Court did not declare in its Judgment of 1st July, 1994 that it had
jurisdiction in the Case brought before it by virtue of Qatar's unilateral
application of 1991. Consequently, if the Court did not have jurisdiction at
that time, then the Qatari separate Act of 30th November, even when
considered in the light of the Judgment, cannot create that jurisdiction or
effect a valid submission in the absence of Bahrain's consent."
23. The Court recalls that, in its Judgment of 1 July 1994, it reserved for
subsequent decision all such matters as had not been decided in that
Judgment. It notes moreover that Bahrain maintains the objections that it
raised with respect to the Application of Qatar. Accordingly, it falls to
the Court to rule on those objections in the decision it must now give on
the one hand, on its jurisdiction to adjudicate upon the dispute submitted
to it and, on the other, on the admissibility of the Application.
***
24. As stated above (paragraph 9), in its Judgment of 1 July 1994, the Court
found
"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"
and [p 15]
"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 October 1988, and accepted by Qatar
in December 1990, referred to in the 1990 Doha Minutes as the 'Bahraini
formula'" (I.C.J. Reports 1994, pp. 126-127, para. 41 (1)-(2)).
The Court must therefore pursue its examination of the content of the
obligations entered into by the Parties by the terms of the Agreements of
1987 and 1990, in order to determine whether it has jurisdiction to
adjudicate upon the dispute.
25. Paragraph 1 of the Doha Minutes places on record the agreement of the
Parties to "reaffirm what was agreed previously between [them]". Qatar and
Bahrain both acknowledge that that expression covers the commitments entered
into by them in 1987; but Bahrain considers that its scope is much more
extensive and that, in particular, it covers everything agreed upon by the
Parties in the course of the meetings of the Tripartite Committee.
26. The Court will proceed, first of all, to define the precise scope of the
commitments which the Parties entered into in 1987 and agreed to reaffirm in
1990. In this regard, the essential texts concerning the jurisdiction of the
Court are points 1 and 3 of the letters of 19 December 1987. By accepting
those points, Qatar and Bahrain agreed, on the one hand, 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"
and, on the other, that a Tripartite Committee be formed
"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".
Neither Qatar nor Bahrain denies having committed itself in accordance with
those texts; however, they differ as to the meaning to be given to those
texts when read together and, hence, as to the scope of that commitment.
Qatar maintains that, by that undertaking, the Parties clearly and
unconditionally conferred upon the Court jurisdiction to deal with the
disputed matters between them. The work of the Tripartite Committee was
directed solely to considering the procedures to be followed to implement
the commitment thus made to seise the Court, and there was nothing to show
that any particular method or procedure ought to have been followed to that
end, provided that the seisin of the Court took place "in accordance with
its regulations and instructions". Bahrain on the contrary maintains that
the texts in question expressed only the Parties' consent in principle to a
seisin of the Court, but that such consent [p 16] was clearly subject to the
conclusion of a Special Agreement marking the end of the work of the
Tripartite Committee, setting forth the questions to be put to the Court by
mutual agreement and settling a number of related procedural questions.
Bahrain maintains that its interpretation of the texts is corroborated by
the subsequent conduct of the Parties, in so far as the work of the
Tripartite Committee, in which the two Parties participated, was concerned
exclusively with the drawing up of a Special Agreement to submit the
disputed matters to the Court.
27. The Court cannot agree with Bahrain in this respect. Neither in point 1
nor in point 3 of the letters of 19 December 1987 can it find the condition
alleged by Bahrain to exist. It is indeed apparent from point 3 that the
Parties did not envisage seising the Court without prior discussion, in the
Tripartite Committee, of the formalities required to do so. But the two
States had nonetheless agreed to submit to the Court all the disputed
matters between them, and the Committee's only function was to ensure that
this commitment was given effect, by assisting the Parties to approach the
Court and to seise it in the manner laid down by its Rules. By the terms of
point 3, neither of the particular modalities of seisin contemplated by the
Rules of Court was either favoured or rejected. Moreover, there would have
been nothing to prevent Bahrain's saying in its reply of 26 December 1987
that its acceptance of the Court's jurisdiction was subject to the
conclusion of a special agreement providing for joint seisin of the Court.
Yet the Court notes that Bahrain's letter expresses its unreserved adhesion
to the proposals made by the King of Saudi Arabia.
28. The Court is not able either to accept the conclusions that Bahrain
draws from the subsequent conduct of the Parties. Indeed, while it is
undeniable that the Tripartite Committee focused exclusively upon the
attempt to finalize the text of a special agreement determining the
subject-matter of the dispute, this does not at all mean that the Parties
took that approach to be the only one sanctioned by the Agreement of 1987.
On the contrary, everything tends to suggest that, if the Committee explored
that possibility, it did so simply because that course appeared to it, at
the time, to be the most natural and the best suited to give effect to the
consent of the Parties.
29. The Tripartite Committee met for the last time in December 1988, without
the Parties having reached agreement either as to the "disputed matters" or
as to the "necessary requirements to have the dispute submitted to the
Court". Furthermore the minutes of the meetings of the Committee were
diplomatic documents recording the state of progress of the negotiations,
which possessed no legally binding force. The Court concludes that, from the
standpoint of its jurisdiction, the only prior commitment that the Parties
intended to reaffirm in the international agreement constituted by the
Minutes of 25 December 1990 was the commitment entered into in 1987, in
accordance with the "Principles for the Framework for Reaching a Settlement"
of 1983, to submit to the Court "all the disputed matters" and to comply
with the judgment to be handed [p 17] down by the Court. The Tripartite
Committee ceased its activities in December 1988 at the instance of Saudi
Arabia and without opposition from the Parties. As the Parties did not, at
the time of signing the Doha Minutes in December 1990, ask to have the
Committee re-established, the Court considers that paragraph 1 of those
Minutes could only be understood as contemplating the acceptance by the
Parties of point 1 in the letters from the King of Saudi Arabia dated 19
December 1987, to the exclusion of point 3 in those same letters.
*
30. The Doha Minutes not only confirmed the agreement reached by the Parties
to submit their dispute to the Court, but also represented a decisive step
along the way towards a peaceful solution of that dispute, by settling the
controversial question of the definition of the "disputed matters". This is
one of the principal objects of paragraph 2 of the Minutes which, in the
translation that the Court will use for the purposes of the present
Judgment, reads as follows:
"(2) The good offices of the Custodian of the Two Holy Mosques, King Fahd
Ben Abdul Aziz, shall continue between the two countries until the month of
Shawwal 1411 A.H., corresponding to May 1991. Once that period has elapsed,
the two parties may submit the matter to the International Court of Justice
in accordance with the Bahraini formula, which has been accepted by Qatar,
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."
31. The long negotiations which preceded the conclusion of the 1990 Minutes
showed the difficulties the Parties had constantly met in their attempts to
define the entire dispute, because for each of them there were sensitivities
about the express mention of certain aspects of that dispute. The Bahraini
formula was carefully constructed by Bahrain, and proposed by it in October
1988, as a form of words which, whilst specifically avoiding any express
reference to those sensitive issues, would nevertheless sufficiently clearly
comprehend the entire dispute. Paragraph 2 of the Minutes, which formally
placed on record Qatar's acceptance of the Bahraini formula, put an end to
the persistent disagreement of the Parties as to the subject of the dispute
to be submitted to the Court. The agreement to adopt the formula showed that
the Parties were at one on the extent of the Court's jurisdiction. The
formula had thus achieved its purpose: it set, in general but clear terms,
the limits of the dispute the Court would henceforth have to entertain.
32. The Parties nonetheless continue to differ on the question of the method
of seisin. For Qatar, paragraph 2 of the Minutes authorized a [p 18]
unilateral seisin of the Court by means of an application filed by one or
the other Party, whereas for Bahrain, on the contrary, that text only
authorized a joint seisin of the Court by means of a special agreement.
33. It is accordingly incumbent upon the Court to decide the meaning of the
text in question by applying the rules of interpretation that it recently
had occasion to recall in the case concerning the Territorial Dispute
(Libyan Arab Jamahiriya/Chad):
"in accordance with customary international law, reflected in Article 31 of
the 1969 Vienna Convention on the Law of Treaties, a treaty must be
interpreted in good faith in accordance with the ordinary meaning to be
given to its terms in their context and in the light of its object and
purpose. Interpretation must be based above all upon the text of the treaty.
As a supplementary measure recourse may be had to means of interpretation
such as the preparatory work of the treaty and the circumstances of its
conclusion." (I.C.J. Reports 1994, Judgment, pp. 21-22, para. 41.)
34. Throughout the proceedings, the Parties have devoted considerable
attention to the meaning which, according to them, should be given to the
expression "al-tarafan" as used in the second sentence of the original
Arabic text of paragraph 2 of the Doha Minutes. Qatar translates those words
as "the parties" and Bahrain as "the two parties". Both however recognize
that the problem is not one of choosing between two translations which do
not, in themselves, provide an answer to the question raised, but rather one
of interpreting these Arabic terms in their context. The dual form in Arabic
serves simply to express the existence of two units (the parties or the two
parties), so what has to be determined is whether the words, when used here
in the dual form, have an alternative or a cumulative meaning: in the first
case, the text would leave each of the Parties with the option of acting
unilaterally, and, in the second, it would imply that the question be
submitted to the Court by both Parties acting in concert, either jointly or
separately. Qatar and Bahrain each proceeded, before the Court, to a
detailed analysis both of the more remote context (paragraphs 1 and 3 of the
Doha Minutes, and earlier texts produced in the case) and the more immediate
context (other expressions used in paragraph 2 of the Minutes) within which
the words "al-tarafan" were employed. Qatar deduces from this that those
words have an alternative meaning in the text under consideration, and
Bahrain, a cumulative meaning implying a joint action.
35. The Court will first analyse the meaning and scope of the phrase "Once
that period has elapsed, the two parties may submit the matter to the
International Court of Justice." It notes the use in that phrase of the verb
"may", which, in its ordinary meaning, envisages a possibility, or even a
right. Accordingly, the expression "the two parties may submit the matter to
the ... Court" suggests in the first place, and in its most natural sense,
the option or right for them to seise the Court. Taken as such, in its most
ordinary meaning, that expression does not require a seisin by [p 19] both
Parties acting in concert, but, on the contrary, allows a unilateral seisin.
In the view of the Court, that interpretation is reinforced both by the form
of words and by the logical implications of the expression "Once that period
has elapsed", which constitutes the other component of the phrase in
question. Indeed, those words imply that the option or right to move the
Court was capable of being exercised as soon as the time-limit expired; this
in turn necessarily implies the existence of an option or a right of
unilateral seisin. Any other interpretation would encounter serious
difficulties: it would deprive the phrase of its effect and could well,
moreover, lead to an unreasonable result.
In fact, the Court has difficulty in seeing why the 1990 Minutes, the object
and purpose of which were to advance the settlement of the dispute by giving
effect to the formal commitment of the Parties to refer it to the Court,
would have been confined to opening up for them a possibility of joint
action which not only had always existed but, moreover, had proved to be
ineffective. On the contrary, the text assumes its full meaning if it is
taken to be aimed, for the purpose of accelerating the dispute settlement
process, at opening the way to a possible unilateral seisin of the Court in
the event that the mediation of Saudi Arabia -sometimes referred to, as in
the text under discussion, as "good offices" - had failed to yield a
positive result by May 1991.
36. The Court however considers that it still ought to look into the
possible implications, with respect to that latter interpretation, of the
conditions in which the Saudi mediation was to go forward according to the
actual text of the Minutes. According to the first sentence of paragraph 2,
the good offices of the King of Saudi Arabia were to "continue between the
two countries until the month of ... May 1991", and in the terms of the
third sentence of that same paragraph, those good offices were moreover to
"continue during the period when the matter is under arbitration" (meaning,
in fact, before the Court). The text did not however specify whether the
good offices were likewise to continue between the expiry of the May 1991
time-limit and the seisin of the Court.
In the view of the Court, this text can be read as affecting not only the
right of the Parties to seise the Court, but also the continuation of the
mediation. On that hypothesis, the process of mediation would have been
suspended in May 1991 and could not have resumed prior to the seisin of the
Court. However, if that seisin had itself been subject to the negotiation,
and then to the conclusion, of a special agreement, any mediation would have
been ruled out during the course of that negotiation, which could well have
taken a long time. What was more, mediation would have become impossible if
no agreement was reached between the Parties and if as a result the Court
was never seised. It could not have been the purpose of the Minutes to delay
the resolution of the dispute or to make it more difficult. From that
standpoint, the right of unilateral seisin was the necessary complement to
the suspension of mediation. [p 20]
Even if paragraph 2 of the Minutes were taken not to have suspended the
Saudi mediation between the expiry of the May 1991 time-limit and the seisin
of the Court, and that time-limit exclusively affected the right of the
Parties to resort to the Court, this interpretation would still be
consistent with the conclusions reached by the Court in the previous
paragraph as to the modalities of seisin.
37. The Court will now apply itself to an analysis of the meaning and scope
of the terms "in accordance with the Bahraini formula, which has been
accepted by Qatar, and with the procedures consequent on it", which conclude
the second sentence of paragraph 2 of the Doha Minutes. As has already been
indicated (paragraph 31 above), the Minutes, in specifying that the Parties
might seise the Court "in accordance with the Bahraini formula, which has
been accepted by Qatar", placed on record both Qatar's acceptance of that
formula and the agreement of the Parties on the subject of the dispute which
could be referred to the Court. The Court must, however, ascertain whether,
as is maintained by Bahrain, that reference to the Bahraini formula and, in
particular, to the "procedures consequent on it", further had the aim and
effect of ruling out any unilateral seisin. Bahrain recalls that the
Bahraini formula, proposed by it in 1988 - prior to the fifth meeting of the
Tripartite Committee -was designed for inclusion in the text of a special
agreement which was then under negotiation. It stresses that the
introductory sentence of the formula and, in particular, the words "the
Parties request the Court to decide", clearly imply a joint seisin of the
Court. Bahrain explains moreover that the terms "and the procedures
consequent on it" as employed in paragraph 2 of the Doha Minutes, and which
were inserted into those Minutes at its request, relate to the Bahraini
formula and are intended precisely to indicate that the Parties ought
jointly to take other measures to give effect to the formula and bring the
case before the Court. Qatar for its part emphasizes that the very object of
the Bahraini formula was to enable each Party to submit its own claims to
the Court; it considers that the words "and the procedures consequent on it"
relate solely to the proceedings before the Court in general, as the Parties
merely intended to defer, with regard to those matters, to the Statute and
Rules of the Court, rather than to rules they might themselves have defined
by mutual agreement.
38. The Court is aware that the Bahraini formula was originally intended to
be incorporated into the text of a special agreement. However it considers
that the reference to that formula in the Doha Minutes must be evaluated in
the context of those Minutes rather than in the light of the circumstances
in which that formula was originally conceived. In fact, the negotiations
carried on in 1988 within the Tripartite Committee had broken down and the
Committee had ceased its activities. If the 1990 Minutes referred back to
the Bahraini formula, it was in order to determine the subject-matter of the
dispute which the Court would have to entertain. But the formula was no
longer an element in a special agreement, which moreover never saw the light
of day; it henceforth became [p 21] part of a binding international
agreement which itself determined the conditions for seisin of the Court.
39. The Court furthermore considers, like Bahrain, that the words "on it"
that were used in paragraph 2 of the Doha Minutes in the expression "the
procedures consequent on it", can only - grammatically - relate to the
Bahraini formula. It must then determine what are, from a procedural
standpoint, the necessary implications of the Bahraini formula which have
survived the change of context. The Court notes that the very essence of
that formula was, as Bahrain clearly stated to the Tripartite Committee, to
circumscribe the dispute with which the Court would have to deal, while
leaving it to each of the Parties to present its own claims within the
framework thus fixed. It was on that basis that Qatar, during the sixth
meeting of the Tripartite Committee, had suggested that the proposed special
agreement should be accompanied by two annexes, with each State defining, in
its annex, the matters in dispute that it wished to refer to the Court.
Bahrain, for its part, undertook to study that suggestion. Given the failure
to negotiate that special agreement, the Court takes the view that the only
procedural implication of the Bahraini formula on which the Parties could
have reached agreement in Doha was the possibility that each of them might
submit distinct claims to the Court.
40. This conclusion accords with that drawn by the Court from the
interpretation of the phrase "Once that period has elapsed, the two parties
may submit the matter to the International Court of Justice." Consequently,
it seems to the Court that the text of paragraph 2 of the Doha Minutes,
interpreted in accordance with the ordinary meaning to be given to its terms
in their context and in the light of the object and purpose of the said
Minutes, allowed the unilateral seisin of the Court. In these circumstances,
the Court does not consider it necessary to resort to supplementary means of
interpretation in order to determine the meaning of the Doha Minutes,
particularly paragraph 2 thereof; however, as in other cases (see for
example Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J.
Reports 1994, p. 27, para. 55), it considers that it can have recourse to
such supplementary means in order to seek a possible confirmation of its
interpretation of the text. The Parties have moreover themselves referred at
length, in support of their respective arguments, to the travaux
preparatoires of the Minutes of December 1990, as well as to the
circumstances in which they were signed.
**
41. The travaux preparatoires of the Doha Minutes must be used with caution
in the present case, on account of their fragmentary nature. In the absence
of any document relating the progress of the negotiations, they appear to be
confined to two draft texts submitted by Saudi Arabia and Oman successively
and the amendments made to the latter. Qatar [p 22] denies that the Saudi
Arabian draft can be regarded as an element of the travaux preparatoires,
since it says that it was never sent the draft in question. The Omani draft
unquestionably served as the basis for the text finally adopted at Doha; the
only amendment was to the second sentence of the second paragraph of that
draft which read as follows: "Once that period has elapsed, either of the
two parties may submit the matter to the International Court of Justice."
It is not a matter of dispute between the Parties that the words "in
accordance with the Bahraini formula, which has been accepted by Qatar" were
added at the request of Qatar; nor do the Parties deny that it was at
Bahrain's initiative that the expression "al-tarafan" was substituted for
the words "either of the two parties" and that it was also Bahrain which
requested the insertion of the words "and with the procedures consequent on
it" at the end of the sentence. On the other hand, the Parties disagree on
the consequences to be drawn from these amendments for the interpretation of
the text of the Minutes. Bahrain maintains that its amendments are clear
evidence of its consistent adoption of an approach excluding any possibility
of referring the dispute to the Court by means of a unilateral application;
it emphasizes that Qatar made no objection whatsoever to the adoption of
those amendments. Qatar, for its part, contends that the Omani draft
provides ample proof that there was no plan to hold other negotiations in
order to induce the Parties to agree to submit the dispute jointly to the
Court. On the contrary, according to Qatar, the draft clearly envisaged the
possibility for the Parties to seise the Court unilaterally, and if neither
Qatar nor Saudi Arabia nor Oman raised any objections to the amendments
proposed by Bahrain, it was because none of them considered that those
amendments substantially altered the rights and obligations of the Parties
or the aims pursued by the draft; rather, in Qatar's view, the insertion of
the words "and with the procedures consequent on it" reflected Bahrain's
intention to enable each Party to formulate its own claims and to submit
them to the Court in order to safeguard its own interests.
The Court notes that the initial Omani draft expressly authorized a seisin
by one or the other of the Parties, and that that formulation was not
accepted. But the text finally adopted did not provide that the seisin of
the Court could only be brought about by the two Parties acting in concert,
whether jointly or separately. The Court is unable to see why the
abandonment of a form of words corresponding to the interpretation given by
Qatar to the Doha Minutes should imply that they must be interpreted in
accordance with Bahrain's thesis. As a result, it does not consider that the
travaux preparatoires, in the form in which they have been submitted to it -
i.e., limited to the various drafts mentioned above - can provide it with
conclusive supplementary elements for the interpretation of the text
adopted; whatever may have been the motives of each of the Parties, the
Court can only confine itself to the actual terms of the Minutes as the
expression of their common intention, and to the interpretation of them
which it has already given. [p 23]
42. In support of their arguments, the Parties have also invoked the
circumstances in which the Minutes were signed. In the opinion of the Court
those circumstances do not - any more than the travaux preparatoires -
provide any conclusive supplementary elements for the interpretation of the
text. The Court realises that the principal concern at the meeting of the
Co-operation Council of Arab States of the Gulf, held at Doha in December
1990, was not the achievement of a settlement between Bahrain and Qatar but
the conflict between Iraq and Kuwait; moreover, it takes the view that this
circumstance could explain why the Parties were not able to reach agreement
on a more explicit text. However, the Court does not consider, in the light
of the information contained in the record, that more precise conclusions
capable of otherwise supporting the interpretation of the Minutes given
above can be drawn directly from the particular situation created by the
Gulf crisis and the consideration of that situation at Doha.
**
43. The Court has still to examine one other argument put forward by Bahrain
to contest its jurisdiction in this case. According to Bahrain, even if the
Doha Minutes were to be interpreted as not ruling out unilateral seisin,
that would still not authorize one of the Parties to seise the Court by way
of an Application. Bahrain argues, in effect, that seisin is not merely a
procedural matter but a question of jurisdiction; that consent to unilateral
seisin is subject to the same conditions as consent to judicial settlement
and must therefore be unequivocal and indisputable; and that, where the
texts are silent, joint seisin must by default be the only solution. Qatar,
for its part, distinguishes between seisin and jurisdiction and explains
that, while the wishes of the Parties, as expressed in the agreements in
force, are of decisive importance for the purpose of establishing
jurisdiction, the validity of the seisin must on the other hand be evaluated
essentially from the standpoint of the Statute and the Rules of Court,
subject to any special provision to which the Parties may have agreed.
The Court does not consider it necessary to dwell at length on the links
which exist between jurisdiction and seisin. It is true that, as an act
instituting proceedings, seisin is a procedural step independent of the
basis of jurisdiction invoked and, as such, is governed by the Statute and
the Rules of Court. However, the Court is unable to entertain a case so long
as the relevant basis of jurisdiction has not been supplemented by the
necessary act of seisin: from this point of view, the question of whether
the Court was validly seised appears to be a question of jurisdiction. There
is no doubt that the Court's jurisdiction can only be established on the
basis of the will of the Parties, as evidenced by the relevant texts. But in
interpreting the text of the Doha Minutes, the Court has reached the
conclusion that it allows a unilateral seisin. Once [p 24] the Court has
been validly seised, both Parties are bound by the procedural consequences
which the Statute and the Rules make applicable to the method of seisin
employed. It is therefore not necessary to examine Bahrain's arguments based
on the discretionary nature of the choice of a method of seisin or the
drawbacks for Bahrain of being placed in the position of respondent.
**
44. In its Judgment of 1 July 1994, the Court found that the exchanges of
letters of December 1987 and the Minutes of December 1990 were international
agreements creating rights and obligations for the Parties, and that by the
terms of those agreements the Parties had undertaken to submit to it the
whole of the dispute between them. In the present Judgment, the Court has
noted that, at Doha, the Parties had reaffirmed their consent to its
jurisdiction and determined the subject-matter of the dispute in accordance
with the Bahraini formula; it has further noted that the Doha Minutes
allowed unilateral seisin. The Court considers, consequently, that it has
jurisdiction to adjudicate upon the dispute.
***
45. Having thus established its jurisdiction, the Court still has to deal
with certain problems of admissibility. Bahrain stated before the Court that
it was prepared not to contest the admissibility of the Application as
framed by Qatar on 8 July 1991, reserving the right to review its position
if Qatar itself were to challenge the admissibility of any claim Bahrain
might intend to submit at a later stage. However, Bahrain has reproached
Qatar with having limited the scope of the dispute, which the Bahraini
formula was meant to cover, only to those questions set out in Qatar's
Application.
46. In its Judgment of 1 July 1994, the Court, after referring to the
Principles for the Framework for Reaching a Settlement adopted by the
Parties in 1983, emphasized that, according to the 1987 Agreement, "all the
disputed matters shall be referred to the International Court of Justice, at
The Hague". Turning to an analysis of the Minutes of December 1990, the
Court found that "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 ...
within the general framework thus adopted" (I.C.J. Reports 1994, pp.
124-125, para. 37).
The Court consequently decided in the same Judgment:
"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 [p 25] 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'." (Ibid., p. 125, para. 38.)
It also fixed 30 November 1994 as the deadline for joint or separate action
by the Parties to submit the whole of the dispute to the Court.
47. Following the failure of the negotiations between the Parties summarized
in paragraphs 18 to 21 above, Qatar, by a separate act of 30 November 1994,
submitted to the Court "the whole of the dispute between Qatar and Bahrain,
as circumscribed" by the Bahraini formula. Accordingly, it referred the
following matters to the Court:
"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."
48. The dispute is thus described in the very terms used by Bahrain at the
sixth meeting of the Tripartite Committee held on 6 and 7 December 1988. Nor
does it differ from the dispute described in the draft joint acts proposed
by Bahrain on 22 October and 12 November 1994, and subsequently withdrawn by
it, except in so far as these latter related to sovereignty over the Hawar
islands and sovereignty over Zubarah. It is clear, however, that claims of
sovereignty over the Hawar islands and over Zubarah may be presented by
either of the Parties, from the moment that the matter of the Hawar islands
and that of Zubarah are referred to the Court. As a consequence, it appears
that the form of words used by Qatar accurately described the subject of the
dispute. In the circumstances, the Court, while regretting that no agreement
could be reached between the Parties as to how it should be presented,
concludes that it is now seised of the whole of the dispute, and that the
Application of Qatar is admissible.
49. Within the framework thus defined, it falls to Qatar to present its
submissions to the Court, as it falls to Bahrain to present its own. To this
end, after it has ascertained the views of the Parties, the Court will issue
an Order fixing the time-limits for the simultaneous filing of the written
pleadings, in accordance with paragraph 39 of the Judgment of 1 July 1994.
*** [p 26]
50. For these reasons,
THE COURT,
(1) By 10 votes to 5,
Finds that it has jurisdiction to adjudicate upon the dispute submitted to
it between the State of Qatar and the State of Bahrain;
IN FAVOUR: President Bedjaoui; Judges Sir Robert Jennings, Guillaume,
Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer; Judge
ad hoc Torres Bernardez;
AGAINST: Vice-President Schwebel; Judges Oda, Shahabuddeen, Koroma; Judge ad
hoc Valticos.
(2) By 10 votes to 5,
Finds that the Application of the State of Qatar as formulated on 30
November 1994 is admissible.
IN FAVOUR: President Bedjaoui; Judges Sir Robert Jennings, Guillaume,
Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer; Judge
ad hoc Torres Bernardez;
AGAINST: Vice-President Schwebel; Judges Oda, Shahabuddeen, Koroma; Judge ad
hoc Valticos.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this fifteenth day of February, one thousand nine
hundred and ninety-five, 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.
Vice-President SCHWEBEL, Judges ODA, SHAHABUDDEEN and KOROMA, and Judge ad
hoc VALTICOS append dissenting opinions to the Judgment of the Court.
(Initialled) M. B.
(Initialled) E. V. O.
[p 27]
Dissenting opinion of vice-president Schwebel
I regret that I have been unable to join in supporting the Judgment of the
Court.
In the law of treaties, "the primary object of interpretation, namely, the
revealing of the intention of the parties", is, in the words of that late,
great Judge and authority on the law of treaties, Sir Hersch Lauterpacht,
paramount:
"The intention of the parties � express or implied � is the law. Any
considerations � of effectiveness or otherwise � which tend to transform the
ascertainable intention of the parties into a factor of secondary importance
are inimical to the true purpose of interpreta-tion." (H. Lauterpacht,
"Restrictive Interpretation and the Principle of Effectiveness in the
Interpretation of Treaties", British Year Book of International Law, 1949,
Vol. XXVI, p. 73.)
As Lord McNair, no less an authority on the law of treaties and an eminent
former President of this Court, put it:
"Many references are to be found ... to the primary necessity of giving
effect to the 'plain terms' of a treaty, or construing words according to
their 'general and ordinary meaning' . . . But this so-called rule of
interpretation like others is merely a starting-point, a prima facie guide,
and cannot be allowed to obstruct the essential quest in the application of
treaties, namely to search for the real intention of the contracting parties
in using the language employed by them." (Lord McNair, The Law of Treaties,
1961, p. 366.)
"The intention of the parties", in law, refers to the common intention of
both parties. It does not refer to the singular intention of each party
which is unshared by the other. To speak of "the" intention of "the parties"
as meaning the diverse intentions of each party would be oxymoronic.
In the jurisprudence of this Court, jurisdiction can be conferred upon it
only by the common intention of both parties to the case. As held by a
Chamber of this Court in the case concerning the Land, Island and Maritime
Frontier Dispute "it is only from the meeting of minds . . . that
jurisdiction is created" (I.C.J. Reports 1992, p. 585, para. 378). That
intention may be jointly expressed, as by the conclusion of a special
agreement. It may be unilaterally expressed, as by the invocation of
overlapping or identical acceptances of the Court's compulsory jurisdiction
under the optional clause or through treaty proviso. But if that common
intention [p 28] is lacking, if the intention to submit to the Court's
jurisdiction is that of one but not both parties, the Court is without
jurisdiction to decide the merits of the dispute.
In my view, these axiomatic considerations combine to defeat the Court's
jurisdiction in this case.
Before explaining why I so conclude on the facts of this case, an
exposition of elements of the law respecting the interpretation of treaties
may be in order.
Preparatory Work in the Perspective of the Vienna Convention
The Vienna Convention on the Law of Treaties is accepted by this Court as an
authoritative codification of international law. Its provisions on
interpretation of treaties however were particularly contested, to some
extent in the International Law Commission which composed them, and much
more acutely in the United Nations Conference on the Law of Treaties itself.
Nevertheless they were adopted by large majorities. The Convention, as of
this writing, has 78 parties, not including Bahrain and Qatar (and not
including the United States of America, the principal critic of those
provisions).
In his Third Report on the Law of Treaties, the distinguished Special
Rapporteur of the Commission, Sir Humphrey Waldock, set out an approach
which was sustained in the further work of the Commission on treaty
interpretation and ultimately by the Vienna Conference itself:
"Writers also differ to some extent in their basic approach to the
interpretation of treaties according to the relative weight which they give
to �
(a) the text of the treaty as the authentic expression of the intentions of
the parties;
(b) the intentions of the parties as a subjective element distinct from the
text; and
(c) the declared or apparent objects and purposes of the treaty.
Some, like Sir H. Lauterpacht, place the main emphasis on the intentions of
the parties and in consequence admit a liberal recourse to the travaux
pr�paratoires and to other evidence of the intentions of the contracting
States as means of interpretation. Some give great weight to the objects and
purposes of the treaty and are in consequence more ready, especially in the
case of general multilateral treaties, to admit teleological
interpretations of the text which go beyond, or even diverge from, the
original intentions of the parties as expressed in the text. The majority of
modern writers, however, insists upon the primacy of the text as the basis
for the interpretation [p 29] of a treaty, while at the same time giving a
certain place to extrinsic evidence of the intentions of the parties and to
the objects and purposes of the treaty as means for correcting or, in
limited measure, supplementing the text." (Yearbook of the International Law
Commission, 1964, Vol. II, pp. 53-54, para. 4.)
At the same time, Sir Humphrey continued,
"recourse to many of these principles is discretionary rather than
obligatory, and the interpretation of documents is to some extent an art,
not an exact science"(ibid., p. 54, para. 6).
By no means were the intentions of the parties to be depreciated; on the
contrary,
"the text must be presumed to be the authentic expression of the intentions
of the parties; ... in consequence, the starting point and purpose of
interpretation is to elucidate the meaning of the text, not to investigate
ab initio the intentions of the parties. While not excluding recourse to
other indications of the intentions of the parties in appropriate cases, it
makes the actual text the dominant factor in the interpretation of a
treaty." (Ibid., p. 56, para. 13.)
He further explained his proposals which, in substance, today are reflected
in the text of the Vienna Convention, as follows:
"where either the natural and ordinary meaning of the terms in their context
does not give a viable result or for one reason or another the meaning is
not clear ... it is permissible to fix the meaning of the terms by reference
to evidence or indications of the intentions of the parties outside the
ordinary sense of their words ..." (ibid., p. 57, para. 16).
Accordingly, the text proposed:
"recognizes the propriety of recourse to extraneous evidence or indications
of the intentions of the parties for the purpose of: (a) confirming the
natural and ordinary meaning of a term; (b) determining the meaning of an
ambiguous or obscure term or of a term whose natural and ordinary meaning
gives an absurd or unreasonable result; and (c) establishing the use of a
term by the parties with a special meaning" (ibid., p. 58, para. 20).
Sir Humphrey pointed out that,
"Moreover, it is the constant practice of States and tribunals to examine
any relevant travaux pr�paratoires for such light as they may throw upon the
treaty . . .[p 30]
Recourse to travaux pr�paratoires as a subsidiary means of interpreting the
text ... is frequent both in State practice and in cases before
international tribunals." (Yearbook of the International Law Commission,
1964, Vol. II, p. 58, paras. 20 and 21.)
He continued:
"Today, it is generally recognized that some caution is needed in the use of
travaux pr�paratoires as a means of interpretation. They are not, except in
the case mentioned, an authentic means of interpretation. They are simply
evidence to be weighed against any other relevant evidence of the intentions
of the parties, and their cogency depends on the extent to which they
furnish proof of the common understanding of the parties as to the meaning
attached to the terms of the treaty." (Ibid., p. 58, para. 21.)
The subsequent evolution of what came to be Articles 31 and 32 of the Vienna
Convention, in the Commission and in the light of the commentaries and
proposals of Governments, and climactically at the Conference itself, is
well known and fundamentally consonant with what has been described. But it
may be instructive for present purposes to quote a few more elements of the
travaux pr�paratoires of the Vienna Convention, as they are first of all to
be found in the exchanges in the body which prepared the draft of it:
"It was true that there existed a number of apparently consistent
pronouncements by the International Court of Justice and arbitral tribunals
to the effect that travaux pr�paratoires had only been used to confirm what
had been found to be the clear meaning of the text of a treaty. However,
that case-law would be much more convincing if from the outset the Court or
tribunal had refused to admit consideration of travaux pr�paratoires until
it had first established whether or not the text was clear, but in fact,
what had happened was that on all those occasions the travaux pr�paratoires
had been fully and extensively placed before the Court or arbitral tribunal
by one or other of the parties, if not by both. In the circumstances, to
state that the travaux pr�paratoires had been used only to confirm an
opinion already arrived at on the basis of the text of the treaty was coming
close to a legal fiction. It was impossible to know by what processes judges
reached their decisions and it was particularly difficult to accept the
proposition that the travaux pr�paratoires had not actually contributed to
form their opinion as to the meaning of a treaty which, nevertheless, they
stated to be clear from its text, but which, as the pleadings in fact
showed, was not so. At all events, it could be supposed that all
practitioners of international law were free in their use of travaux
pr�paratoires." (Yearbook of the [p 31] International Law Commission, 1964,
Vol. I, Mr. Rosenne, p. 283, para. 17.)
"the clearness or ambiguity of a provision was a relative matter; sometimes
one had to refer [to] the preparatory work or look at the circumstances
surrounding the conclusion of the treaty in order to determine whether the
text was really clear and whether the seeming clarity was not simply a
deceptive appearance" (ibid., Mr. Yasseen, p. 313, para. 56).
"In his view, it was unrealistic to imagine that the preparatory work was
not really consulted by States, organizations and tribunals whenever they
saw fit, before or at any stage of the proceedings, even though they might
afterwards pretend that they had not given it much attention ... the
reference to confirmation and, a fortiori, verification tended to undermine
the text of a treaty in the sense that there was an express authorization to
interpret it in the light of something else; nevertheless that was what
happened in practice." (Ibid., Sir Humphrey Waldock, p. 314, para. 65.)
The text of the Convention adopted in Vienna respecting "Supplementary
means of interpretation" (Art. 32) provides that,
"Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the application of article 31,
or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure ..."
But what was not settled was, what happens when the travaux pr�paratoires
turn out not to confirm but contradict the meaning arrived at by application
of the general rule of interpretation? There are a few passages in
statements of the Special Rapporteur that appear to cut one way or another;
quoted above is an indication by him that the process of confirmation or
verification could indeed tend to "undermine" the text of a treaty.
Surprisingly little attention was directed to this critical question. The
most pertinent answer may have been that proffered by the representative of
Portugal at the Vienna Conference:
"What would happen if, though the text of a treaty was apparently clear, in
seeking confirmation in the preparatory work and other surrounding
circumstances a divergent meaning came to light? It was impossible to be
sure in advance that those circumstances would confirm the textual meaning
of the treaty. If the emphasis were placed on good faith, it would appear
that in such a case those circumstances should be taken into consideration,
although they did [p 32] not lead to the confirmation of the meaning ..."
(United Nations Conference on the Law of Treaties, First Session, 1968,
Official Records, p. 183.)
It is significant for the case now before the Court that it does not seem to
have occurred to counsel on either side that their concentration on the
content of the travaux pr�paratoires could be questionable or beside the
point. Neither Party suggested that the text of the treaty was so clear that
the Court would be justified in declining to weigh the preparatory work in
the scales of justice. Mired as they were in the ample ambiguities of the
text, that suggestive omission is understandable. Nor did either Party
suggest that the preparatory work was fragmentary, inconclusive, or
otherwise open to discounting or disregard.
The Facts and Law of This Case
The Court founds its jurisdiction upon the commitments entered into by Qatar
and Bahrain in 1987 and in 1990. It has concluded that the 1987 exchanges of
letters and the 1990 Doha Minutes are international agreements creating
rights and obligations for the Parties. It does not conclude � nor, for that
matter, did Qatar maintain � that the commitments undertaken in 1987 of
themselves suffice to sustain the Court's jurisdiction. Thus it is
undisputed that the consent of Qatar and Bahrain to the provision 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 ..."
of itself is not determinative. As the Parties agree, and the Court records,
what those disputed matters were was not settled in 1987. Moreover, the 1987
exchanges of letters provided for the creation of 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 Bahrain's view, the latter provision imported that the Tripartite
Committee would prepare a special agreement, an interpretation, it
contends, that is borne out by the subsequent activities of the Tripartite
Committee which were in fact exclusively directed towards conclusion of a
special agreement. Why create the machinery of a Tripartite Committee if not
to prepare, and only to prepare, a special agreement? If the intention had
been to authorize unilateral application, no committee at all would have
been needed or established.
Qatar in these proceedings has however maintained that, by reason of [p 33]
the cumulative commitments undertaken in 1987 and 1990, the Parties
unconditionally conferred jurisdiction on the Court to deal with the
matters in dispute between them. Qatar contends that, in the intention of
the Parties, a special agreement was but one possible mode of approaching
the Court and satisfying its requirements for submission of the dispute, a
position with which the Court agrees in today's Judgment.
Yet, in 1987, in the draft letter to the Court's Registrar which it
presented to Bahrain for its agreement with a view to submitting the case to
the Court, Qatar provided for "preparing the necessary Special Agreement in
this respect. . ." (Memorial of Qatar, Ann. II.18, p. 2; emphasis added).
Qatar's letter hardly supports the Court's conclusion in this Judgment that
"everything tends to suggest that, if the Committee explored that
possibility [of a special agreement], it did so simply because that course
appeared to it, at the time, to be the most natural and the best suited to
give effect to the consent of the Parties" (para. 28).
On the contrary, the contemporaneous evidence of Qatar itself indicates that
the Parties � Qatar no less than Bahrain � saw conclusion of a special
agreement as "necessary". So the Court's conclusion in this regard may be
one of several that is not so "clear".
Be that as it may, it remains uncontested that of themselves the 1987
exchanges of letters are accepted by the Parties as insufficient to found
the jurisdiction of the Court. If it had been the meaning of the 1987
exchanges to authorize immediate and unilateral application to the Court,
one or the other Party presumably would have exercised that authority. Yet
it took Qatar another four years to submit its Application. Moreover, in
the oral hearings, Qatar's counsel acknowledged that:
"Qatar has not asserted that the terms of the 1987 Agreement by themselves
provided an immediate basis for enabling the Court to exercise its
jurisdiction." (CR 94/1, p. 49.)
Thus any finding of jurisdiction can be based only on the combined effect of
the 1987 and 1990 commitments. It is accordingly necessary to examine the
meaning of the 1990 Doha Minutes. In pertinent part, they provide:
"The good offices of the Custodian of the Two Holy Mosques, King Fahd Ben
Abdul Aziz, shall continue between the two countries until. .. May 1991.
Once that period has elapsed, the two parties may submit the matter to the
International Court of Justice in accordance with the Bahraini formula,
which has been accepted by Qatar, 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." [p 34]
The main difference between the Parties in this phase of the case, the focus
of dispute in their exchange of written pleadings and of expert opinions and
in oral argument, was over the meaning of the phrase, "the two parties", as
it was rendered in the original Arabic by the expression "al-tarafan". As
the Court recalls in its Judgment, this provision derived from a draft
presented at Doha by the Government of Oman, which, as proposed by Oman,
read: "Once that period has elapsed, either of the two parties may submit
the matter to the International Court of Justice." Bahrain required the
amendment of this provision to specify in place of "either of the two
parties" the expression "al-tarafan", i.e., "the two parties". Bahrain thus
insisted on deletion of authorization for "either of the two Parties to
seise the Court. Qatar accepted that amendment.
There are three views about the significance of the change in the Omani text
which was brought about in this way.
Bahrain maintains that its insistence, as the price of its signature of the
Doha Minutes, on changing "either of the two parties" to "the two parties"
demonstrates that its intention was to exclude unilateral recourse to the
Court. In my view, that interpretation is not only plausible but
persuasive.
Qatar claims that the purpose of the change was to make "clear that both
Qatar and Bahrain had the right to make a unilateral application to the
Court". The Agent of Qatar maintained in the second round of the hearings �
in the ultimate word of Qatar on this crucial question � the following:
"Now, what about the Omani draft? Again, there is no evidence of a rejection
of unilateral application. On the Omani draft, Bahrain simply changed
'either of the parties' to 'the parties', thus making clear that both Qatar
and Bahrain had the right to make a unilateral application to the Court.
Bahrain also added a reference to the Court's procedures. I believe that
these objective changes to the text are not at all rejections of the
agreement reached during discussions at Doha that reference to the Court
could now be by unilateral application, but rather subjective statements of
the alleged intentions of Bahrain's negotiators." (CR 94/7, p. 16.)
One has only to read this argument to reject it.
If the object of the Parties � if their common intention � was to make clear
that "both Qatar and Bahrain had the right to make a unilateral application
to the Court", the provision that "either of the two parties may submit the
matter" would have been left unchanged. That wording achieved that object
clearly, simply, and precisely. As it was, that unchanged phraseology
authorized either of the two Parties to make unilateral application to the
Court. To suggest that the change of that [p 35] phraseology to "the two
parties" rather imports that each of the Parties � because of that change �
is entitled to make a unilateral application to the Court is unintelligible.
And for the Qatari Agent to state that these "objective changes to the text"
of the Omani draft � to the text � are "subjective statements of the alleged
intentions of Bahrain's negotiators" is equally incomprehensible. How could
recorded changes in a text accepted by both sides have been no more than
"subjective statements of the alleged intentions of Bahrain's negotiators"?
Moreover, even if, as Qatar appears to argue, the change in the text is
taken to have manifested the intentions only of Bahrain's negotiators, and
not Qatar's, does not this argument of Qatar concede that a common
intention of both Parties to authorize unilateral application was lacking?
For its part, the Court states:
"the Court does not consider it necessary to resort to supplementary means
of interpretation in order to determine the meaning of the Doha Minutes . .
. however, as in other cases ... it considers that it can have recourse to
such supplementary means in order to seek a possible confirmation of its
interpretation of the text" (Judgment, para. 40).
It then summarizes the arguments of the Parties on the travaux
pr�paratoires, and concludes:
"The Court notes that the initial Omani draft expressly authorized a seisin
by one or the other of the Parties, and that that formulation was not
accepted. But the text finally adopted did not provide that the seisin of
the Court could only be brought about by the two Parties acting in concert,
whether jointly or separately. The Court is unable to see why the
abandonment of a form of words corresponding to the interpretation given by
Qatar to the Doha Minutes should imply that they must be interpreted in
accordance with Bahrain's thesis. As a result, it does not consider that the
travaux pr�paratoires, in the form in which they have been submitted to it
� i.e., limited to the various drafts mentioned above � can provide it with
conclusive supplementary elements for the interpretation of the text
adopted; whatever may have been the motives of each of the Parties, the
Court can only confine itself to the actual terms of the Minutes as the
expression of their common intention, and to the interpretation of them
which it has already given." (Para. 41.)
In my view, such explanation as the Court thus offers in support of its
position that the travaux pr�paratoires do not provide it with conclusive
supplementary elements for interpretation of the text is unconvincing.
Because "the text finally adopted did not provide that the seisin of the
Court could only be brought about by the two Parties acting in con-[p
36]cert. . .", the Court "is unable to see why the abandonment of a form of
words corresponding to the interpretation given by Qatar to the Doha Minutes
should imply that they must be interpreted in accordance with Bahrain's
thesis". But since deletion of the specification, "either of the two parties
may submit the matter to the International Court of Justice" in favour of
the adopted provision, "the two parties may submit the matter ..." surely
manifested Bahrain's intention that "either of the two parties" may not
submit the matter, the Court's inability to see so plain a point suggests to
me its unwillingness to do so.
In preceding passages of the Judgment, the Court holds that an
interpretation other than that it chooses "would deprive the phrase of its
effect and could well, moreover, lead to an unreasonable result" (para. 35).
But in interpreting the meaning of the deletion of the phrase, "either of,
the Court deprives that deletion � and hence the text adopted by the Parties
� of its effect and produces what in my view is "an unreasonable result". If
it was not the intention of Bahrain to require joint seisin of the Court by
insisting on, and achieving, the excision of the provision permitting
"either of the two Parties to submit the matter to the Court, what was its
intention?
The Court concludes that,
"whatever may have been the motives of each of the Parties, the Court can
only confine itself to the actual terms of the Minutes as the expression of
their common intention, and to the interpretation of them which it has
already given" (para. 41).
The Court's choice of the word "motives" is revealing of its devaluation of
the intention of the Parties. But the fundamental flaw in its reasoning, as
I see it, is the contention that it adheres to the actual terms of the
Minutes "as the expression of their common intention" when I believe that it
is demonstrable � and has been demonstrated � that their common intention
could not have been to authorize unilateral application to the Court.
Thus in my view the Court's construction of the Doha Minutes is at odds with
the rules of interpretation prescribed by the Vienna Convention. It does
not comport with a good faith interpretation of the treaty's terms "in the
light of its object and purpose" because the object and purpose of both
Parties to the treaty was not to authorize unilateral recourse to the Court.
It does not implement the Convention's provision for recourse to the
preparatory work, because, far from confirming the meaning arrived at by the
Court's interpretation, the preparatory work vitiates it. Moreover, the
Court's failure to determine the meaning of the treaty in the light of its
preparatory work results, if not in an unreasonable interpretation of the
treaty itself, in an interpretation of the preparatory work which is
"manifestly . . . unreasonable".
Since, by using evidence submitted by both sides whose accuracy and
comprehensiveness is contested by neither, Bahrain has demonstrated that its
intention in signing the Doha Minutes was to exclude unilateral [p 37]
application to the Court, since Qatar's rebuttal of that demonstration is
unconvincing, and since the Court's analysis on that critical point is no
more convincing, it follows that the 1987 exchanges of letters and 1990
Minutes do not suffice to support a finding of the Court's jurisdiction.
The requisite common, ascertainable intention of the Parties to authorize
unilateral reference to the Court is absent. Its absence is � or should have
been � determinative.
The Court may believe itself justified in discounting the travaux
pr�paratoires because the meaning of the actual terms of the Doha Minutes
as it construes them is "clear". But if that is the purport of the Court's
Judgment, that position is hardly tenable. The expression in the Doha
Minutes of "al-tarafan", however translated, is quintessentially unclear; as
the Court itself acknowledges, it is capable of being construed as meaning
jointly or separately. The term is inherently ambiguous. Is the Court's
analysis of other provisions of the Doha Minutes such as to render clear
what is opaque?
Not in my view. The Court's analysis consists of several, cumulative
arguments. The first turns on the provision of the Doha Minutes that, "Once
that period has elapsed, the two parties may submit the matter to the
International Court of Justice." The Court maintains that the word "may", in
its ordinary meaning, envisages a possibility, or even a right. Accordingly,
in the first place, and in its most natural sense, the provision suggests
the option or right for them to seise the Court:
"Taken as such, in its most ordinary meaning, that expression does not
require a seisin by both Parties acting in concert but, on the contrary,
allows a unilateral seisin." (Para. 35.)
True enough. But equally, that expression does not require a unilateral
seisin, or disallow a joint seisin. What clear light then does the word
"may" shed?
The Court then maintains that the proviso, "Once that period has elapsed",
imports that unilateral application is in order. Any other interpretation
would, the Court maintains, deprive the provision of its effect. But that is
not so, if the provision is interpreted to mean no more than that, during
the renewed five-month period of the good offices of the Saudi Arabian
Government, there may be no recourse to the Court; once that period has
elapsed, there may be.
The Court continues that the purpose of the Doha Minutes was "to advance the
settlement of the dispute by giving effect to the formal commitment of the
Parties to refer it to the Court" and that this purpose implies that
unilateral application is permitted since joint application had been shown
to have been unachievable. But does not the Court thereby assume what is in
dispute, namely, that the purpose of both Parties in signing the Doha
Minutes was to advance settlement of the dispute by [p 38] authorizing
unilateral application? An equally plausible construction of the events that
transpired at Doha was that Bahrain inexorably maintained its position that
the dispute could be settled only by joint referral to the Court by way of
special agreement of the dispute in all its elements. If that position
constituted no "advance", it may nevertheless have constituted Bahrain's
position.
All this is not to say that the Court's construction of the provision that,
once the period for the renewed good offices of Saudi Arabia has elapsed,
the two Parties may submit the case to the Court, is implausible. It is to
say that it is not the sole, or necessarily the most, plausible construction
that can be made. It may alternatively be maintained that these provisions
of the Doha Minutes rather mean that (a) the good offices of Saudi Arabia in
addressing the substance of the dispute between Bahrain and Qatar shall
continue until May 1991; (b) during that period, the case cannot be
submitted to the Court; (c) once that period has elapsed, the two Parties
may submit the case to the Court; (d) during the time of the consideration
of the case by the Court, Saudi Arabia may continue its good offices
directed to a substantive settlement; and (e) if such a settlement is
attained, the case shall be withdrawn from the Court.
What do these provisions, so interpreted, do that would not have obtained
without them?
They do indicate that, not only would Saudi Arabia extend its efforts to
bring about a substantive settlement, but that, during the five months of
that period, the case could not be brought; thereafter it could be. The text
has its striking ambiguities about whether the case then could be brought
jointly or separately. But these provisions of themselves do not demonstrate
that the meaning of the Doha document is that, after the end of the
five-month period, each of the two Parties unilaterally could submit the
case and effectively seise the Court of it. For five months, the Parties
agreed to deny themselves recourse to the Court in deference to a renewed
Saudi Arabian effort to settle their differences; after that period, "the
two parties may" � not shall but may � submit it to the Court. The word
"may" imports uncertainty and permissiveness rather than certainty and
obligation. Why? It may be argued, because, given the record of their
negotiations, it was clear that the Parties might or might not reach
agreement on the terms of a special agreement. Thus, contrary to the Court's
interpretation, the word "may" can be interpreted to cut not in favour but
against the Qatari contentions.
What the text and context of the Doha Minutes leave so unclear is, however,
crystal clear when those Minutes are analysed with the assistance of the
travaux pr�paratoires. None of the usual arguments mar-[p 39]shalled in
opposition to the use of travaux apply. The preparatory work in this
instance is not fragmentary, it is complete. Neither of the Parties
suggested that there is a scrap more; the whole of the record has been
placed before the Court. The preparatory work is not composed of partial,
self-serving statements made by one side or another in the course of a
complex multilateral negotiation. Rather, a negotiation leading to
signature of what has been held by the Court to be an international
agreement � essentially bilateral, in form trilateral, but certainly not
the complex type of multinational agreement that emerges from a global
conference � produced a terse but comprehensive preparatory document which
comprises all that the two Parties directly concerned had to say on the
matter at that juncture of their relationship. None of the preparatory work
at issue was or is secret, or known to one but not another Party. Finally,
the preparatory work of itself is not ambiguous; on the contrary, a
reasonable evaluation of it sustains only the position of Bahrain.
The Court provides no more explanation of why the travaux pr�paratoires do
not provide it with conclusive supplementary elements for the interpretation
of the text adopted than described above. But it also implies � in referring
"to resort to supplementary means of interpretation � in order to seek a
possible confirmation of its interpretation of the text" � that it discounts
the travaux pr�paratoires on the ground that they do not confirm the meaning
to which its analysis has led. In my view, such a position, if it be the
position, would be hard to reconcile with the interpretation of a treaty "in
good faith" which is the cardinal injunction of the Vienna Convention's rule
of interpretation. The travaux pr�paratoires are no less evidence of the
intention of the parties when they contradict as when they confirm the
allegedly clear meaning of the text or context of treaty provisions.
These considerations have special force when the treaty at issue is one that
is construed to confer jurisdiction on the Court. Where the travaux
pr�paratoires of a treaty demonstrate the lack of a common intention of the
parties to confer jurisdiction on the Court, the Court is not entitled to
base its jurisdiction on that treaty.
(Signed) Stephen M. Schwebel.
[p 40]
Dissenting opinion of judge Oda
1. To my regret I am unable to concur with the Court's Judgment. My position
has already been clearly stated in the dissenting opinion which I attached
to the Judgment of 1 July 1994. I shall now give my reasons for having to
disagree with the present Judgment and shall be unable to avoid a certain
amount of repetition of what was said in my previous opinion.
I. The Procedures Leading to the Present Judgment
2. The Court has before it the unilateral Application filed by Qatar on 8
July 1991 in which Qatar presented both an agreement of December 1987 (a
series of documents dating from December 1987) and an agreement of December
1990 (the Doha Minutes of the Tripartite Committee), which it claimed to
constitute the basis of the Court's jurisdiction (Judgment, 1 July 1994,
para. 3). Bahrain, in its letters of 14 July and 18 August 1991, contended
that the Court's jurisdiction could not be based on such documents (ibid.,
para. 4).
On 11 October 1991 the Court ordered that the written pleadings at the first
stage should be addressed to the questions of the jurisdiction of the Court
to entertain the dispute and to the admissibility of the Application (ibid.,
para. 5). Upon the closure of the written proceedings, oral arguments were
heard in February-March 1994 (ibid., para. 11).
On 1 July 1994 the Court delivered a Judgment � Maritime Delimitation and
Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility � which, however, did not seem to be addressed either to the
unilateral Application of Qatar or to the objection raised by Bahrain, and
which in my view was not so much a "Judgment" of the Court as a record of
the Court's attempted conciliation (cf. paras. 5 and 36 of my dissenting
opinion appended to the Judgment of 1 July 1994).
The Court is now delivering a second Judgment entitled Maritime Delimitation
and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility. What is one then to think of the "Judgment" of 1 July 1994,
with exactly the same title?
3. The "Judgment" of July 1994 indicated that "[by 30 November 1994] the
Parties [were], jointly or separately, to take action to [effect the
submission] to the Court [of] the whole of the dispute between them, as
circumscribed by [the 'Bahraini formula']" (Judgment, 1 July 1994, operative
paragraph 41 (4), read in conjunction with 41 (2) and (3)).
I submit that the Court did not, in fact, have any competence to oblige [p
41] the Parties to take any action until the Court had established its
jurisdiction to entertain the case.
By 30 November 1994 the Parties had failed to take any action, either
jointly or separately, in response to the July 1994 "Judgment". It is
certainly obvious that, when it stated that the Parties were jointly or
separately to take action to effect the submission to the Court of the whole
of the dispute, the Court cannot have meant that any one Party was to take
independent action. If it were permissible for any Party to simply take an
independent action, then the Court would not have suggested that "the
Parties are, jointly or separately, to take action . . ." (emphasis added).
On 30 November 1994, the Registry received from Qatar a document entitled
"Act to comply with paragraphs (3) and (4) of operative paragraph 41 of the
Judgment of the Court dated 1 July 1994" and from Bahrain a "Report of the
State of Bahrain to the International Court of Justice on the attempt by the
Parties to implement the Court's Judgment of 1st July, 1994".
4. I must now examine the legal effect of these two documents. Bahrain's
document is simply a report of what had previously been attempted by the
Parties and, as such, was not intended to have any legal effect.
On the other hand, one may be led to wonder whether the "Act" of Qatar was
intended to modify the original submissions presented in the Qatari
Application which read:
"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" (Application, para. 41),
or the submissions presented in the course of the written proceedings which
were identical to those presented in the later stage of the oral
proceedings, reading:
"the State of Qatar respectfully requests the Court to adjudge and declare .
. . that �
The Court has jurisdiction to entertain the dispute referred to in [p 42]
the Application filed by Qatar on 8 July 1991 and that Qatar's Application
is admissible." (See Judgment, 1 July 1994, para. 13.)
5. The Act of 30 November 1994 of Qatar states that:
"The following subjects fall within the jurisdiction of the Court by virtue
of the rights and obligations created by the international agreements of
December 1987 and 25 December 1990 and are, by virtue of Qatar's Application
dated 5 July 1991 and the present Act, submitted to the Court:
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."
Further to its Application, Qatar requests the Court
"to adjudge and declare that Bahrain has no sovereignty or other territorial
right over the island of Janan or over Zubarah, and that any claim by
Bahrain concerning archipelagic baselines and areas for fishing for pearls
and swimming fish would be irrelevant for the purpose of maritime
delimitation in the present case".
Qatar has suggested the following interpretation of these submissions:
"As a result 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'."
6. The Court was confronted by the unilateral Application of Qatar in July
1991 and if there was any difference between the situation after 30 November
1994 and that prior to the July 1994 "Judgment", it related solely to the
modification of and addition to the original submissions of Qatar. The basis
of jurisdiction of the Court on which Qatar attempted to rely remained the
same.
In the event of any modification of or addition to its submissions by Qatar,
the Court should have formally notified Bahrain of that modification or
addition and should have given Bahrain an opportunity to express its views
within a certain time. The Court does not seem to have taken any such
action.
What did happen was that the Court received Bahrain's "Comments" on the
"Act" of Qatar which were sent to the Registry on Bahrain's own initiative
on 5 December 1994, only a few days after it had received a [p 43] copy of
the "Act" of Qatar from the Registry. As no further oral proceedings were
ordered by the Court, Bahrain was not given the opportunity to express its
formal position on those modifications of or additions to the Qatari
submissions. The procedure was, I believe, unfortunate, as the Court
proceeded instead to draft the present Judgment.
II. The Basis of Jurisdiction
1. The Court's Interpretation of the Basis of Jurisdiction
7. In spite of the "Judgment" of July 1994, the Court is still confronted
with the unilateral Application of Qatar of July 1991. While the Qatari
Application now contains some amended or additional submissions, the Court
is still being asked to determine whether or not it has jurisdiction to deal
with the "disputes" unilaterally referred to it by Qatar. The question of
admissibility � or at least the confirmation of admissibility � does not
arise until the Court's jurisdiction is established.
8. The Court seems to me to be saying that the "1987 Documents" and the
"1990 Doha Minutes", together constitute an international agreement
containing a compromissory clause as contemplated by Article 36, paragraph
1, of the Statute, and, in particular, that at the close of the 1990 Doha
meeting the representatives of Qatar and Bahrain, together with the
representative of Saudi Arabia, signed the minutes of that tripartite
meeting and thereby concluded between the two countries an international
agreement as contemplated under that provision of the Statute which confers
jurisdiction upon the Court in the event of a unilateral submission by one
party.
The Court seems to have found that the subject of the dispute to be
submitted to it, which was originally covered by the expression used in the
"1987 Documents", i.e., "all the disputed matters", in fact meant "the whole
of the dispute". It now appears to consider that Qatar failed in its 1991
Application to satisfy the requirements of the "1990 Agreement" simply on
account of its not having submitted "the whole of the dispute", but that
"the whole of the dispute", as understood by Qatar, has now been
incorporated into the amended submissions as of 30 November 1994, so that
the Application of Qatar now falls within the ambit of the "1990 Agreement".
9. This is the only interpretation of the Court's position from which the
operative paragraph of the present Judgment could be derived. In my view,
however, that position is totally unfounded, and I should now like to
present my own interpretation with respect to the jurisdiction of the Court.
As my detailed analysis has already been given in the dissenting opinion
which I attached to the "Judgment" of July 1994, I will here confine myself
to giving the gist of that analysis in the expectation that reference will
be made to my previous opinion. [p 44]
2. The So-Called "Agreement of December 1987"
10. Qatar's Application takes the "Agreement of December 1987" as a basis
for the exercise of jurisdiction by the Court (Application, para. 40). On 19
December 1987 the King of Saudi Arabia addressed to the Amir of Qatar and to
the Amir of Bahrain, respectively, identical letters in which he made
certain proposals to serve as a basis for a settlement of the disputes
between Qatar and Bahrain. A reply was given by Qatar on 21 December 1987,
in which it expressed its full agreement with the proposals set out in the
King's letter, but Bahrain's response was not sent until 26 December 1987.
It is important to note that there was no exchange of letters directly
between Bahrain and Qatar 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?
I would also refer to a "draft of the announcement made public on 21
December 1987". It is not known 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 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.
11. One may ask how "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)) came to be concluded between Qatar and
Bahrain solely on the basis of this chain of events? I fail to understand
how the "Agreement of December 1987", relied upon by Qatar as conferring
jurisdiction upon the Court, can be regarded as one of the "treaties [or]
conventions in force" contemplated by Article 36, paragraph 1, of the
Statute. I am rather confirmed in my view that there was, in December 1987,
no treaty or convention within the meaning of Article 36, paragraph 1, of
the Statute.
It may further be noted that Qatar, which regards the "Agreement of December
1987" as a basis of the Court's jurisdiction, did not register that
"agreement" with the United Nations Secretariat. While there is no need at
this juncture 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.
12. Reference may also be made to "Qatar's draft letter to the Registrar of
the Court dated 27 December 1987", which is included in the documents
submitted by Qatar to the Court, and according to which the Court was to be
informed of certain differences between Qatar and Bahrain (which
incidentally did not include the question of Zubarah) [p 45] and of 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." (Emphasis added.)
The letter was not, in fact, received by the Registrar of the Court. One is,
however, led to conclude that both Qatar and Bahrain recognized that they
would have to prepare jointly a special agreement for the submission of the
dispute to the Court.
13. In my view, if any mutual understanding was reached between Qatar and
Bahrain in December 1987 (albeit not in the form of a treaty or convention)
this was simply an agreement to form a Tripartite Committee of
representatives of Saudi Arabia, Qatar and Bahrain
"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" (Saudi Arabian
letter of 19 December 1987).
In fact, at the first meeting of the Tripartite Committee which had thus
been constituted, which was held on 17 January 1988, Bahrain drew up a draft
"procedural agreement concerning the formation of the joint committee" of
which the relevant passage reads as follows:
"1. A Committee shall be formed of [Qatar, Bahrain and 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." (Emphasis added.)
3. The So-Called "Agreement of December 1990"
14. Qatar's Application also takes the "Agreement of December 1990" as a
basis for the exercise of jurisdiction by the Court (Application, para. 40).
Qatar uses the term "1990 Agreement" to denote the Minutes of a meeting held
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).
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 [p 46] as
an international agreement, protested against that registration on 9 August
1991 and that protest was also duly-registered.
15. Whether the adoption by the participants of the minutes of a
multilateral meeting can constitute an international agreement on the part
of one participating State in its relations with any other participating
State may well be arguable.
In fact, while the three Foreign Ministers, in attestation of the agreement
reached, did sign the Minutes of the meeting (i.e., the agreed record of the
discussion that had taken place during that tripartite meeting), in my view,
they certainly did so without the slightest idea that they were signing a
tripartite treaty or convention. It is clear from the statement made by the
Foreign Minister of Bahrain on 21 May 1992 and subsequently presented to
the Court, that at least the Minister for Foreign Affairs of Bahrain never
thought that he was signing an international agreement (Counter-Memorial of
Bahrain, Ann. I.25).
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) are to be used as supplementary means of
interpretation of a treaty, and given the way in which those "circumstances"
are 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 under Article 36, paragraph 1, of the Statute.
16. To what did the signatories then in fact agree in Doha in December
1990? The indications provided by the Doha Minutes are that:
"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 [ "al-tarafan "] 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." (Translation supplied by
Qatar: Memorial of Qatar, Ann. II.32.; emphasis added.)
It was understood from the minutes of that session that the parties seemed
to have agreed on the inclusion of Zubarah but to have remained [p 47]
undecided as to how that matter would be included within the subject of the
disputes to be submitted to the Court.
**
17. The Bahraini formula. It may be pertinent at this stage to look back at
the events which had led to the signing of the 1990 Doha Minutes,
particularly in relation to the "Bahraini formula".
In the course of the successive meetings of the Tripartite Committee in
1988, both Qatar and Bahrain prepared draft special agreements on 15 March
1988 and 19 March 1988, respectively, in relation to the matters which each
Government wanted the Court to decide. Those matters seem to have been quite
different in each case. In particular, different views were expressed as to
whether or not the question of Zubarah should be included.
At the fourth meeting of the Tripartite Committee on 28 June 1988, two
different texts of a revised Article II for the draft special agreements
were presented by Qatar and Bahrain respectively. The Amir of Qatar gave the
King of Saudi Arabia some explanations regarding this situation in a letter
dated 9 July 1988 which points out that:
"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." (Memorial of Qatar, Ann. II.28;
first emphasis added.)
18. Some months elapsed after the fourth meeting and then, on 26 October
1988, Bahrain proposed what became known as the "Bahraini formula" which
was related to Article II of either Qatar's draft or Bahrain's draft of a
special agreement � an essential point overlooked in the present Judgment �
or, in other words, to the matters in dispute to be referred to the Court by
a special agreement, 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 in Riyadh on 15 November 1988, Qatar welcomed the
opportunity to discuss the Bahraini formula as a possible basis [p 48] for
negotiations but expressed strong reservations as to 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 by a special agreement
to the International Court of Justice � even at the fifth meeting of the
Tripartite Committee in November 1988.
At the sixth meeting on 6 December 1988 Qatar proposed an amendment of the
Bahraini formula so that it would read as follows:
"The Governments of the State of Qatar and the State of 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.)
19. 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
ought to have defined the matters in dispute to be referred to the Court.
The Tripartite Committee was unable to produce an agreed draft of such a
special agreement to be notified to the Court. After the sixth meeting of
the Tripartite Committee in December 1988, 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.
**
20. This leads us to the Doha Minutes of December 1990, as referred to
above. It was agreed at the Doha meeting of the Tripartite Committee, in
what became known as the "Agreement of December 1990" (as quoted in
paragraph 16 above), that the good offices of Saudi Arabia were to be
continued until May 1991 but that thereafter the parties ("al-tarafan")
could submit the case to the International Court of Justice in accordance
with the "Bahraini formula". This should be interpreted as meaning that, in
the event of a failure of the good offices of Saudi Arabia for the
settlement of the dispute, the Parties could come before the International
Court of Justice, and this is confirmed in the letter of Qatar addressed to
Saudi Arabia on 30 December 1990, 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".
In other words, the submission to the International Court of Justice could
have been an alternative to the good offices of Saudi Arabia prior to May
1991. However, this could not be taken to authorize a unilateral [p 49]
application by either Party, failing to take account of the fact that the
"Bahraini formula" could have constituted Article II of a special agreement
as explained in paragraph 18 above.
21. In May 1991, i.e., after the lapse of this five-month period allowed for
the continued good offices of Saudi Arabia, Qatar and Bahrain could have
resumed negotiations to work out a draft of a special agreement. In fact, in
September 1991, Saudi Arabia suggested a draft special agree-ment to both
countries and a draft special agreement was also drawn up by Bahrain on 20
June 1992.
Qatar arrived at a different interpretation of the 1990 Doha Minutes and
took steps to seise the Court by unilaterally filing a written application
in the Registry of the Court on 8 July 1991, and requesting the Court to
adjudge and declare what it had already asserted in Article II of its March
1988 draft special agreement. It seems to me that Qatar took this action
without due regard to the discussion held with Bahrain on the text of
Article II of both Qatar's and Bahrain's draft special agreements, at the
ensuing session of the Tripartite Committee.
III. Conclusions
22. The Judgment seems to imply that no evidence could be found that in the
meetings of the Tripartite Committee the Parties had expressly ruled out the
possibility of unilateral seisin by either of them. I would rather question
whether the Court really found and indicated in the present Judgment any
evidence to show that in the meetings of the Tripartite Committee the two
Parties conferred jurisdiction upon the Court to deal with their dispute as
unilaterally submitted by either one of them.
23. I am convinced that neither the "Agreement of December 1987" nor the
"Agreement of December 1990", which were relied upon by Qatar as
constituting a basis of the Court's jurisdiction, in fact confer
jurisdiction upon the Court in the event of a unilateral application under
Article 38, paragraph 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, paragraph 1, of the Rules � which has not been done in this
case.
24. I must also add that, even if the "1990 Agreement" can constitute a
basis on which the Court may be seised of the dispute, there seems to be
nothing in the present Judgment to show that the amended or additional
submissions of Qatar filed on 30 November 1994 in fact comprise "the whole
of the dispute" � an expression used in the 1994 "Judgment" (see para. 8
above) � as compared to the opposite position which seems to have been taken
by Bahrain (note: Bahrain has not had an opportunity to give any official
expression to its views on this point other than in its [p 50] "Comments" of
5 December 1994, which it voluntarily and hastily sent to the Registry, as
already stated in paragraph 6 above).
25. While I must reject the unilateral Application of Qatar, I am, however,
second to none in urging that the relevant disputes between Qatar and
Bahrain should be settled by the International Court of Justice through
their joint submission (as agreed in the 1990 Doha Minutes), after they have
reached a common understanding of what constitutes "the whole of the
dispute".
(Signed) Shigeru Oda.
[p 51]
Dissenting opinion of judge Shahabuddeen
The Judgment of the Court opens the way to the peaceful settlement of a
long-standing dispute between two neighbouring States. It is with regret
that I feel prevented by my appreciation of the legal issues from joining in
support of it. With many of its elements I do indeed agree. For example, I
accept that the Parties have conferred jurisdiction on the Court to
adjudicate on the whole of the dispute. I have the misfortune, however, to
be of a different mind on the question whether the claims presented by Qatar
are within the jurisdiction so conferred and, even if they are, whether the
jurisdiction has been duly invoked by the method of seisin employed.
Pursuant to Article 57 of the Statute of the Court, the reasons which
disable me from accompanying the majority are respectfully set out below.
I. Preliminary
The limited nature of the Court's Judgment of 1 July 1994 has to be kept in
view. The main question was one of jurisdiction. The Court decided certain
issues having a bearing on jurisdiction; it did not decide the question of
jurisdiction itself (see paragraph 23 of today's Judgment). What it decided
was "to afford the Parties the opportunity", in the light of its decision on
those issues, "to submit to the Court the whole of the dispute" (I.C.J.
Reports 1994, p. 127, para. 41 (3)).
Although, as I then stated, my own "preference would have been for the issue
of jurisdiction to be fully decided at [that] stage" (ibid., p. 129), I
would not dispute the right of the Court to proceed as it did. True, there
is a "principle that it is the duty of the Court ... to reply to the
ques-tions as stated in the final submissions of the parties . . ." (Request
for Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, I.C.J. Reports 1950, p. 402). But the principle, I apprehend, is
not violated where, as in this phase of the case, the Court had not as yet
concluded its determination; the Court introduced an intermediate procedure
prior to making its final decision.
Nor, despite an appearance of novelty, is the competence of the Court to
introduce that intermediate procedure open to serious question. In the Free
Zones of Upper Savoy and the District of Gex, the Court, being duly seised
of a matter and having heard arguments on the interpretation of a treaty
provision, gave "indications" of its reaction to the question of
interpretation, and then allowed the parties a period of time to come to a
consensual solution of the main problem in the light and with the benefit [p
52] of those "indications". When they failed, it resumed consideration of
the matter, and formally decided the question of interpretation along the
lines previously indicated (see P.C.I.J., Series A, No. 22, pp. 12, 13,
16-21; P.C.I.J., Series A, No. 24; and P.C.I.J., Series A/B, No. 46, pp. 98,
102-105, 136, 141, 149, 152, 171). The distinguishing circumstance that the
"indications" were given and the deferment of a final decision made at the
request of the parties does not obscure a recognition by the Court that it
may adopt a procedure designed to enable the parties themselves to find a
solution to the particular problem before it in the light of its views on
introductory issues.
As was pointed out by Sir Hersch Lauterpacht, the Court is "debarred from
directly acting as an important instrument of peace" (Sir Hersch
Lauterpacht, The Development of International Law by the International
Court, 1958, p. 5); it is a court of justice, and must remain within the
limits of such a body. But, as he also noted in the opening sentence of his
major work, "the primary purpose of the . . . Court. . . lies in its
function as one of the instruments for securing peace in so far as this aim
can be achieved through law" (ibid., p. 3). As it was put by President
Basdevant, "It is asked of the Court that it should contribute to peace by
deciding the disputes submitted to it" (I.C.J. Pleadings, Reparation for
Injuries Suffered in the Service of the United Nations, p. 46; and see
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, I.C.J. Reports 1986, p. 153, Judge
Nagendra Singh, separate opinion). The intermediate procedure introduced in
this case, though obviously to be resorted to sparingly and in special
circumstances, did not exceed the function of a court charged with the
mission of applying the rule of law for the judicial settlement of
international disputes on a consensual jurisdictional basis.
However, it of course remains the responsibility of the Court to return to
the matter in due time in order to determine whether the intermediate
procedure has yielded a solution of the problem. In today's Judgment, the
Court considers that an "Act" filed by Qatar at the end of that pro-cedure
has disposed of any difficulties. With much regret, I do not feel persuaded.
II. Whether the "Act" Filed by Qatar Satisfies the Judgment of 1 July 1994
Clause 4 of the dispositif of the Court's Judgment of 1 July 1994 fixed a
time-limit within which the Parties were, "jointly or separately, to take
action" for the purpose of submitting to the Court "the whole of the
dispute" (I.C.J. Reports 1994, p. 127, para. 41 (3) and (4)). Did the word
[p 53]
"separately" contemplate the possibility of "the whole of the dispute" being
submitted by one Party alone?
The dispositif may be interpreted in the light of the motifs (Polish Postal
Service in Danzig, Advisory Opinion, 1925, P.C.I. J., Series B, No. 11, pp.
29-30). Hence, any doubt about the meaning of the word "separately" in
clause 4 of the dispositif may be resolved by recourse to paragraph 38 of
the Judgment, which reads:
"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."
The term "separate acts" visualized acts done by each Party acting
separately, but not an act done by one Party alone where the other did
nothing; each Party would have to act so as to complement the act of the
other and in that way to submit "the whole of the dispute".
This reading is consistent with the fact that it was to "the Parties" that
the Court decided "to afford ... the opportunity to submit to the Court the
whole of the dispute" (I.C.J. Reports 1994, p. 127, para. 41 (3)). It is
also in keeping with Qatar's post-Judgment statement to Bahrain that "the
Court leaves an option to the Parties to take separate action to place the
whole of the dispute before the Court" and that, failing agreement "on a
joint compliance with the decision of the Court", it "will of course be open
to our two countries to take appropriate separate action to com-ply with the
Court's Judgment" (letter from the Agent of Qatar to the Agent of Bahrain,
dated 6 July 1994). The implication follows that the Judgment rendered five
days earlier was accepted as requiring action from each Party.
There are reasons of substance why the Court could not have intended that
one Party alone could act. A special agreement, notified by one party with
the authority of the other, may submit the claims of both sides; but that is
not the mode pursued in this case. Also, if an agreement so provides, a
dispute may be submitted in its entirety by unilateral application (e.g.,
Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the
Court, Judgment, I.C.J. Reports 1973, p. 3). That format seems to explain
the Court's present Judgment; but does it correspond to the thinking
underlying its Judgment of 1 July 1994? Did that Judgment contemplate that
an acceptable course would be for Qatar to file another unilateral document
provided that "the form of words used [in it] . . . accurately described the
subject of the dispute" (cf. paragraph 48 of today's Judgment)?
The real ground on which the Judgment of 1 July 1994 held that "the whole of
the dispute" was not before the Court was that the Court then had "before it
solely an Application by Qatar setting out the particular claims of that
State . . ." (I.C.J. Reports 1994, p. 123, para. 34; emphasis added). It
seems to me that the opportunity afforded by the Court to "the Parties ...
to submit ... the whole of the dispute" visualized that all of [p 54] the
claims of each Party would be submitted by it or with its authority so as to
ensure that the dispute in all of its component elements would be properly
presented and considered. Bahrain's claim to sovereignty over Zubarah is
referred to in Qatar's Act; but it has not been submitted to the Court by or
with the authority of Bahrain. This is recognized in paragraph 48 of the
Judgment: although the Court takes the view that it is now "seised of the
whole of the dispute", it also states
"that claims of sovereignty over the Hawar islands and over Zubarah may be
presented by either of the Parties, from the moment that the matter of the
Hawar islands and that of Zubarah are referred to the Court".
This looks to a possible future submission of such claims.
Meanwhile, however, the Court has held that Qatar's unilateral Application,
read with its unilateral Act of 30 November 1994, is both within
jurisdiction and admissible. The Court could accordingly proceed to the
merits and determine Qatar's request, presented in its Act, that the Court
should "adjudge and declare that Bahrain has no sovereignty or other
territorial right . . . over Zubarah . . .". That request is less in the
nature of a claim by Qatar than in the nature of the formal conclusion of
its defence to Bahrain's claim to sovereignty over Zubarah. Were the Court
to grant the request, it would be upholding Qatar's defence to Bahrain's
claim without the latter having been submitted to it by or with the
authority of Bahrain. The Judgment of 1 July 1994 did not contemplate that
the right to sovereignty claimed by Bahrain would be submitted to the
judicial process in that indirect way.
I conclude that the Judgment of 1 July 1994 did not envisage action being
taken by one Party alone. In view of this, it is not necessary to go on to
consider a related argument by Bahrain as to whether Qatar is attempting
unilaterally to amend its original Application, and as to whether it may
competently do so. It is obvious, however, that such an objection was not
likely to be made if action had been taken by both Parties, as in my
opinion was contemplated by the Judgment of 1 July 1994.
III. Jurisdictional Consequence of Failure to Make Due Submission of "the
Whole of the Dispute"
If Qatar's unilateral Act of 30 November 1994 did not satisfy the Court's
Judgment of 1 July 1994, it follows that all that the Court has before it is
Qatar's unilateral Application of 8 July 1991. The Court has already found
"that the subject-matter of [that] Application corresponds to only part of
the dispute contemplated by the Bahraini formula" and that this "was in
effect acknowledged by Qatar" (I.C.J. Reports 1994, p. 124, para. 36). What
is the jurisdictional consequence? [p 55]
The agreement finally reached on the subject-matter of the dispute falls to
be regarded as going back to and attracting the application of a 1983
principle that all matters in dispute were "to be considered as
complementary, indivisible issues, to be solved comprehensively together".
Bahrain correctly argued that there was no agreement to confer jurisdiction
in such a way as to enable the Court to consider part of the dispute without
having to consider the remainder at the same time. Since the Court has only
part of the dispute before it, it follows that it has no jurisdiction.
IV. Did Qatar Have a Right of Unilateral Application under the Doha Minutes?
Assuming the foregoing to be wrong, the Court is still faced with the fact
that it is Qatar alone which has acted so far. It therefore remains
necessary to deal with Bahrain's submission that Qatar has no right of
unilateral application under the Doha Minutes. To that submission, Qatar
responded that (i) the Parties agreed to a right of unilateral application;
(ii) alternatively, once consent has been given to jurisdiction, the Court
may be unilaterally seised unless this is shown to have been excluded by the
Parties, and that, in this case, even if the Doha Minutes did not provide
for a right of unilateral application, they did not exclude it. Holding in
favour of Qatar on (i), the Court did not pass on to (ii). Being of a
different view on (i), completeness of treatment of Qatar's case requires me
to deal with (ii) also.
(i) Did the Parties Agree to a Right of Unilateral Application?
It is, of course, necessary to consider the actual terms of the texts. These
include the Bahraini formula. The "Question" to be put to the Court, as it
was set out in the Bahraini formula, began with the words "The Parties
request the Court to decide . . .". The implication was that the case was to
be submitted by both Parties.
I agree with the Court that the Bahraini formula has to be read not by
itself, but in the context of the Doha Minutes, in which it is referred to.
A main element of the context is set out in paragraph 2 of those Minutes.
This stated that "the two parties may submit the matter to the
International Court of Justice in accordance with the Bahraini formula . .
." (Judgment, para. 30; emphasis added). Hence, the Doha Minutes implied
that the act of submitting the matter to the Court was to be in accordance
with the Bahraini formula. At this point, the reader is thrown back by the
Doha Minutes on to the text of the Bahraini formula in order to see what it
required to be done for the matter to be submitted to the Court. On [p 56]
being so thrown back on to the text of the formula, he would of course
appreciate the need to respect the definition there laid down of the
subject-matter of the dispute; but he could not miss the meaning of the
opening words of the formula that the submission to the Court was to be made
by both Parties. Unless the submission was made in that way, the requirement
of the Doha Minutes that the submission of the matter to the Court was to be
"in accordance with the Bahraini formula" could not be satisfied. Thus, the
Doha Minutes themselves enjoined conformity with the implication of the
Bahraini formula that the submission to the Court was to be made by both
Parties.
On this point, paragraph 38 of the Judgment states that "[i]f the 1990
Minutes referred back to the Bahraini formula, it was in order to determine
the subject-matter of the dispute which the Court would have to entertain",
with the implication that the reference did not also operate to import the
requirement of the formula as to the mode of seisin. It seems to me that
more persuasive reasons speak for the prima facie meaning that the reference
to the matter being submitted to the Court "in accordance with the Bahraini
formula" included the admitted requirement of the formula for the
submission to be made by both Parties. Since it was Qatar which introduced
that reference, something in the nature of the principle of interpretation
contra proferentem applies to the resolution of any ambiguity. As the books
caution, the principle needs to be applied with circumspection to the
interpretation of treaties (Charles De Visscher, Probl�mes d'interpr�tation
judiciaire en droit international public, 1963, pp. 110-112, referring to
Brazilian Loans, P.C.I.J., Series A, No. 21, p. 114); yet, a certain
irreducible logic in its substance is not altogether banished (see Polish
Agrarian Reform and German Minority, Order of 29 July 1933, P.C.I.J., Series
A/B, No. 58, p. 182, last paragraph, Judge Anzilotti, dissenting opinion;
and Lord McNair, The Law of Treaties, 1961, pp. 464-465).
The meaning suggested above seems clear. There is no need for recourse to
the travaux pr�paratoires. The latter do, however, supply confirmation of
that meaning. Alternatively, if indeed the text is not clear, such recourse
can help to resolve the difficulty to the extent permitted by Article 32,
paragraphs (a) and (b), of the Vienna Convention on the Law of Treaties
1969.
In the course of drafting the Doha Minutes, the words "either of the [two]
parties" were changed by Bahrain, with the knowledge and consent of Qatar,
to read, in the Arabic original, "al-tarafan", meaning "the parties"
(according to Qatar) or "the two parties" (according to Bahrain). Accepting
Qatar's version for present purposes, the question is whether the agreed
provision nevertheless visualized that "either of the [two] Parties" could
make an application, just as if no change had been made.
The fact that the amendment was made, with the words "either of the [two]
parties" being consensually discarded, signified that Bahrain continued to
adhere to its previous opposition to the idea of either of the two [p 57]
Parties having a right of unilateral application; nothing suggests that at
the last moment it capitulated on that important point. The situation brings
to mind the words of the Court in the Aegean Sea Continental Shelf case:
"When read in that context, the terms of the Communique do not appear to the
Court to evidence any change in the position of the Turkish Government in
regard to the conditions under which it was ready to agree to the submission
of the dispute to the Court." (I.C.J. Reports 1978, p. 43, para. 105.)
Reaching further back, one might also recall the statement of the Permanent
Court of International Justice in the Free Zones of Upper Savoy and the
District of Gex:
"It is scarcely reasonable to suppose � indeed, such a supposition would be
irreconcilable with the documents before the Court � that, at the moment
when the dispute was about to be submitted to a judicial organ, Switzerland
abandoned the legal position which she has constantly maintained in regard
to the very point on which the two Parties are now divided." (P.C.I.J.,
Series A/B, No. 46, p. 138.)
Weighty circumstances are required to establish that a party intended
abruptly to abandon a position long held by it.
In Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the
Court, in the course of negotiating the terms of an agreement for referring
a possible dispute to the Court, the United Kingdom proposed to insert, at
the appropriate place in the text,
"the words 'at the request of either party' in order to make it clear that
the jurisdiction of the Court could be invoked by means of a unilateral
application and need not require a joint submission by both parties" (I.C.J.
Reports 1973, p. 11, para. 19).
Iceland preferred the words "at the request of the several parties". The
United Kingdom insisted on its own wording, and Iceland finally accepted it
as part of the agreed compromissory clause. It could scarcely be suggested
that the acceptance by Iceland of the United Kingdom wording was a matter of
no consequence to the meaning of the final text. In proceedings
unilaterally instituted by the United Kingdom, the Court carefully recalled
the exchanges between the parties relating to the alteration which was made;
it did so in a branch of the Judgment which, in the absence of Iceland,
concluded with a finding "that the Court has jurisdiction" (ibid., p. 14,
para. 23). In the somewhat opposite situation here, the amendment proposed
by Bahrain and accepted by Qatar falls to be interpreted as intended to
exclude the possibility of a right of unilateral application.
Comparison may also be made with the Act of Lima (Asylum case, Judgment,
I.C.J. Reports 1950, pp. 267-268). The Act referred to the inability of the
parties to reach agreement on a joint reference and then [p 58] recorded
their agreement "that proceedings . . . may be instituted on the application
of either of the Parties". It would have been natural for some such language
to be used in the Doha Minutes if this was intended to be read as proposed
by Qatar. On the contrary, an attempt to make the Minutes read that way
failed; it is difficult to read the text which finally emerged as if the
attempt had all the same succeeded.
The danger of relying on inadequate preparatory material must not be
overlooked. On the other hand, however full the material may be, it is
almost always possible to say that it could be still fuller. The travaux
pr�paratoires in this case are not as ample as they might be; but I am not
persuaded that, on the pertinent points concerning the fashioning of the
text of the Doha Minutes, they are so fragmentary as to be useless. They
show the state of the original draft; who presented it; who changed what;
and in what sequence the changes were made. Those are the steps which
normally occur in the drafting of a negotiated text. The material indicates
that Bahrain maintained its previous opposition to the idea of a right of
unilateral application. The travaux pr�paratoires are therefore
confirmatory of the interpretation of the Doha Minutes proposed above;
alternatively, they operate to resolve any ambiguity in favour of that
interpretation.
The Court's key argument is that paragraph 2 of the Doha Minutes envisaged
that the matter could be submitted to the Court as soon as the period of
good offices expired. I accept this view; but it does not follow that a
unilateral application was the only method by which that could be done. The
matter could be so submitted if the Parties were to proceed on the basis
that the Doha Minutes themselves constituted a special agreement which
could be jointly notified as soon as the period ended. The Court is not
limited to choosing between different interpretations proposed by each side
(Free Zones of Upper Savoy and the District of Gex, Judgment, 1932,
P.C.I.J., Series A/B, No. 46, p. 138; Corfu Channel, Merits, Judgment,
I.C.J. Reports 1949, p. 51, Judge Winiarski, dissenting opinion; and South
West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 354, Judge
Jessup, dissenting opinion). Elaborate provisions are not needed for a
special agreement (see the relevant elements of the agreement in Territorial
Dispute (Libyan Arab Jamarihiya/Chad), Judgment, I.C.J. Reports 1994, pp.
9-10). Whether a case is brought by noti-fication of a special agreement or
by written application, all that Article 40, paragraph 1, of the Statute
requires is that "the subject of the dispute and the parties shall be
indicated". To use the language of Article 39, paragraph 2, of the Rules of
Court, the Doha Minutes, together with their incorporated instruments, make
apparent "the precise subject of the dispute and identify the parties to
it". Article 46, paragraph 2, of the Rules of Court provides for a case in
which a special agreement is silent on the number and order of the
pleadings.
The solution suggested (of treating the Doha Minutes as themselves [p 59]
constituting a special agreement) attracts the criticism that it offers an
in-built veto to one party over the other. That is so, but no more so than
in the case of any other special agreement which has to be jointly notified.
Account being taken of the principle of good faith, the veto is not
absolute; this helps to answer the questions raised in paragraph 36 of the
Judgment relating to the continued availability of the mediation process.
In any case, the criticism would not justify recourse to the principle of
effectiveness in order to support a right of unilateral application. The
literature acknowledges the concept of "a treaty embodying a compromise
attempted but not actually achieved" (Sir Hersch Lauterpacht, The
Development of International Law by the International Court, 1958, p. 227).
The principle of effectiveness does not assist in such cases. Discussing the
principle, Lord McNair observed:
"Many treaties fail � and rightly fail � in their object by reason of the
words used, and tribunals are properly reluctant to step in and modify or
supplement the language of the treaty." (Lord McNair, The Law of Treaties,
1961, p. 383.)
Thus, the fact that a treaty has a discernible object does not mean that it
has to be interpreted so as to accomplish that object at all costs. A treaty
must of course be interpreted "in the light of its object and purpose"; but
it is not for the Court to make it more effective for achieving its apparent
purpose than the parties themselves saw fit to do (see De Visscher, op.
cit., p. 77). It is apposite to recall the words of Judge Lauterpacht in the
Admissibility of Hearings of Petitioners by the Committee on South West
Africa case:
"The clauses of the Peace Treaties of 1947 relating to settlement of
disputes were, as shown in their wording and the protracted history of their
adoption, formulated in terms which clearly revealed the absence of
agreement to endow them with a full measure of effectiveness." (I.C.J.
Reports 1956, p. 58, separate opinion.)"
(ii) Is It Correct to Say that, Once Consent Has Been Given to Jurisdiction,
the Court May Be Unilaterally Seised unless the Right to Do So Is Shown to
Have Been Excluded by the Parties?
The argument for Qatar was put by counsel thus:
"As for the mode of seisin � notification of a special agreement or filing
of an application � it does not necessarily have the same voluntarist basis.
The method of seisin may, to be sure, be agreed between the parties; but,
in. the absence of any agreement between them on that point, as is the case
here, it is for the Court to appreciate the regularity of the seisin, the
mode of submission of a case to the Court being regulated by the provisions
governing its functioning.
Appreciation of the regularity of the act by which proceedings are
instituted consist accordingly in verifying, as was done in the Corfu [p 60]
Channel case (I.C.J. Reports 1947-1948, p. 28), that a particular method of
seisin is not ruled out by a text that is binding on the parties to the
case.
In the light of that preliminary observation, one can say that Qatar has
been able validly to bring the present case before the Court by an
application instituting proceedings, because unilateral seisin is the
inevitable corollary of compulsory jurisdiction. For such a seisin to be
possible, it is necessary that the States concerned should have accepted the
jurisdiction of the Court and it suffices that that possibility not be
expressly or implicitly ruled out by the provisions conferring compulsory
jurisdiction on the Court.
In consequence, if Qatar has been able validly to seise the Court by means
of a unilateral application, it is because the competence of the Court was
definitively accepted by both States and because that method of seisin was
not ruled out by the relevant texts, even if the latter have not expressly
provided for it." (CR 94/2, pp. 63-64, Professor Queneudec.)
The question whether, in a particular case, jurisdiction under Article 36,
paragraph 1, of the Statute is compulsory really depends on whether the
parties have agreed, expressly or impliedly, to its being capable of
exercise by unilateral seisin. Thus, the proposition that "unilateral
seisin is the inevitable corollary of compulsory jurisdiction" does not show
that a right of unilateral seisin can rest on anything other than the
agreement of the parties. The question whether there is such an agreement in
this case has been examined and answered in the negative under (i) above.
Accordingly, I would now pass on to consider the alternative question
whether, absent such an agreement, a right of unilateral seisin is available
provided jurisdiction has been accepted and the parties have not excluded
that right.
It is necessary to bear in mind the distinction between jurisdiction and
seisin. The use of the correct method of seisin is a condition-precedent to
the exercise of jurisdiction. If seisin is not properly effected in a case
that is sought to be brought, the agreed jurisdiction becomes unavailable to
the Court, with the result that, in that particular case, the Court has no
jurisdiction (see Aegean Sea Continental Shelf, Judgment, I.C.J. Reports
1978, p. 45, para. 109; and Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jama-hiriya),
Judgment, I.C.J. Reports 1985, p. 216, para. 43). But, despite this
functional link between the concepts, it remains true that seisin is not
jurisdiction. Thus, consent to jurisdiction does not by itself include
consent to seisin being effected by any particular method.
This is so even in a case in which, the agreement to litigate being silent
on seisin, the parties proceed to effect seisin jointly; in such a case,
they are acting not pursuant to any right to act jointly which has been
conferred by the giving of consent to jurisdiction (such a right is
scarcely [p 61] needed), but in exercise of their normal freedom to act as
they both see fit. This freedom is exercised through the consensual act by
which the case is jointly submitted; the mutual consents involved are
distinct from consent to jurisdiction. A right of unilateral application
likewise depends on consent other than consent to jurisdiction, even if, as
is likely, consent is in both respects given in the same instrument.
What, if anything, do the cases show? In Certain German Interests in Polish
Upper Silesia, Germany made a unilateral application under a treaty which
provided that "differences of opinion . . . shall be submitted to the
Permanent Court of International Justice". On that wording, a question could
have arisen as to whether a joint submission or a unilateral one was
visualized. However Poland, the Respondent, did "not dispute the fact that
the suit [had] been duly submitted to the Court in accordance with Articles
35 and 40 of the Statute" (P.C.I.J., Series A, No. 6, p. 11). The case is
slight authority for the proposition that the mere existence of jurisdiction
operates to confer a right of unilateral application.
In the case of Application for Revision and Interpretation of the Judgment
of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
notwithstanding the words in a special agreement that "the two Parties shall
together go back to the Court. . .", the Court held that there was a right
of unilateral application. It is clear, however, that the Court was relying
on Article 60 of the Statute, under which there is such a right and under
which the application was in fact made (I.C.J. Reports 1985, p. 216, para.
43). The case is distinguishable.
A case more in point is that of United States Diplomatic and Consular Staff
in Tehran. There, as in Certain German Interests in Polish Upper Silesia,
the relevant treaty provision was silent on the specific method of seisin to
be used, merely stating that any dispute between the parties "shall be
submitted to the International Court of Justice . . .". By construing it as
intended by the parties to operate in the same way as standard provisions
in other treaties of the same character, the Court was, however, able to
interpret it as signifying that "what the parties intended" was that "either
party may bring a case to the Court by unilateral application" (I.C.J.
Reports 1980, p. 27, para. 52; and see Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para.
81). The case betrays no hint that the Court would have been prepared to
regard the mere existence of jurisdiction as sufficient to confer a right
of unilateral application; on the contrary, in the absence of the
respondent, the Court sought proprio motu to satisfy itself that the
applicant's unilateral application rested on the agreement of both parties
that proceedings could be instituted by such a method.
The Corfu Channel case is not helpful. First, the Court proceeded on [p 62]
the basis of forum prorogatum. In such a situation, the application has of
necessity to be made without the prior consent of the respondent; that is
because it is really in the nature of an offer to litigate. Second, even if
the respondent is prepared in principle to litigate, it could conceivably be
opposed to the idea of doing so on the basis of a unilateral application; in
this event, it is really because of its rejection of that method of seisin
that the respondent will be declining the offer to litigate. Where the
respondent accepts the applicant's offer to litigate, it is therefore also
acquiescing, albeit ex post facto, in the bringing of the case by unilateral
application; thus, absence of consent is more apparent than real. Third,
when the Court in that case said that it "cannot. . . hold to be irregular a
proceeding which is not precluded by any provision in these texts", what it
was considering at that point of its reasoning was not the regularity of the
seisin as such, but only its use as part of a two-stage procedure for
conferring jurisdiction on the Court: could jurisdiction be conferred "by
two separate and successive acts, instead of jointly and beforehand by a
special agreement" (I.C.J. Reports 1947-1948, p. 28)? It was in that
context that the Court observed that "the method of submitting the case to
the Court is regulated by the texts governing the working of the Court. .
.". The statement first mentioned possessed no such property of universality
as would qualify it to lend support to the materially different proposition
that, in a case in which jurisdiction already exists, the existence of that
jurisdiction is enough to confer a right to make a unilateral application
unless the right to do so has been excluded by the parties.
It is difficult to see how a right to make an application without the
consent of the respondent can co-exist with the right of a State not to have
its case determined without its consent if this means that, at the stage
when it appears before the Court, it should be there because it consented
to be there, even if it did so reluctantly. Conceivably, it may be prepared
to be there on the basis of the case being submitted jointly, but not
unilaterally; it may have legitimate concerns in these respects. It is not
for the Court to assess the sufficiency of the concerns; the judge of that
is the State involved. It exercises its judgment by way of consenting to
seisin being effected in a particular manner. Consent may be impliedly
given, but it is always required. For the reasons offered above, even forum
prorogatum cases are not true exceptions.
In sum, the role of consent is not the negative one of excluding a right of
unilateral application which would exist once jurisdiction has been
accepted, but the positive one of creating a right of unilateral application
which could not otherwise exist. In my opinion, it has not been shown that
the Parties to this case consented to such a right.
V. The Standard of Proof
It would not be correct to suggest that all of the evidence points in one
direction; on certain aspects, the material lies on both sides of the
dividing line. Not surprisingly, one of the things discussed at the Bar was
[p 63] the standard of proof (see paragraph 43 of the Judgment). It is
important to consider this, both as it applies to jurisdiction proper and as
it applies to seisin in relation to jurisdiction.
It is of course the law that acceptance of jurisdiction is not
"subordinated to the observance of certain forms" (Rights of Minorities in
Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I. J., Series
A, No. 15, p. 23). But that relates to the form in which consent is given;
it is without consequence for the need to establish consent itself, whatever
the form it takes. What is the applicable standard of proof?
Generally speaking, the standard of proof varies with the character of the
particular issue of fact. A higher than ordinary standard may, for example,
be required in the case of a charge of "exceptional gravity against a State"
(Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 17). What, then,
is the importance of the matter in this case? The Court lacks the compulsory
jurisdiction of municipal courts; judicial settlement is an optional means,
among others, of settling international disputes. A State has a right not to
have its case submitted to the Court unless it consents to that particular
means of settlement; it may not properly be held to have given up that
important right unless its consent is clearly established. How clearly?
The received test is whether, in the opinion of the Court, "the force of the
arguments militating in favour of [jurisdiction] is preponderant" (Factory
at Chorzow, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9,
p. 32). The precise meaning of this is another matter.
Two questions arise. First, how "preponderant" should the force of the
arguments be? Counsel for Qatar cited the Oxford English Dictionary
definition of the word "preponderant" as "meaning, in the first place,
'surpassing in weight; outweighing, heavier' and, in the second place,
'surpassing in influence, power, or importance; predominant'" (CR 94/1, p.
44, Sir Ian Sinclair, Q.C.). That is not materially different from judicial
dictionary definitions (see Vocabulaire juridique, 3rd ed., p. 621; Black's
Law Dictionary with Pronunciation, 6th ed., p. 1182; and West's Law and
Commercial Dictionary in Five Languages, Vol. "K-Z", pp. 328-329). But
"surpassing" by what margin?
In the same case in which the test of preponderance was put forward, the
Permanent Court of International Justice went on to indicate that the
intention to confer jurisdiction had been "demonstrated in a manner
convincing to the Court" (P.C.I. J., Series A, No. 9, p. 32). A year later
it spoke of consent being "inferred from acts conclusively establishing it",
and of submission of arguments on the merits falling to be "regarded as an
unequivocal indication of the desire of a State to obtain a decision on the
merits of the suit" (Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J, Series A, No. 15, p. 24). In [p
64] the Corfu Channel case, this Court described Albania's letter as
constituting "a voluntary and indisputable acceptance of the Court's
jurisdiction" (I.C.J. Reports 1947-1948, p. 27). Nor did the test of
preponderance stand in the way of its more recent reaffirmation of the
criterion of " 'an unequivocal indication' of a 'voluntary and indisputable'
acceptance of the Court's jurisdiction" (Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro)), Provisional Measures, I.C.J. Reports 1993, p. 342,
para. 34). A similarly high test had been proposed by Judge Lauterpacht in
1957, when he spoke of
"the established practice of the Court � which, in turn, is in accordance
with a fundamental principle of international judicial settlement � that
the Court will not uphold its jurisdiction unless the intention to confer it
has been proved beyond reasonable doubt" (Certain Norwegian Loans, I.C.J.
Reports 1957, p. 58, separate opinion; and see Sir Gerald Fitzmaurice, The
Law and Procedure of the International Court of Justice, 1986, Vol. II, p.
437).
The test of preponderance has to be construed in accordance with this
established jurisprudence.
The second question is how does the preponderance test impact on a situation
in which the Court is in a state of doubt. When the Permanent Court of
International Justice said that the
"fact that weighty arguments can be advanced to support the contention that
it has no jurisdiction cannot of itself create a doubt calculated to upset
its jurisdiction",
it obviously recognized that the Court could find itself in a state of
"doubt calculated to upset its jurisdiction" (Factory at Chorzow,
Jurisdiction, Judgment No. 8, 1927, P.C.I.J, Series A, No. 9, p. 32). That
recognition was also apparent when it went on to say:
"The question as to the existence of a doubt nullifying its jurisdiction
need not be considered when . . . this intention [to confer jurisdiction]
can be demonstrated in a manner convincing to the Court." (Ibid.)
Counsel for Bahrain, however, spoke of case-law having "rejected what a
judgment called 'a doubt nullifying . . . jurisdiction'" (CR 94/6, p. 12,
Professor Prosper Weil). Could that have happened in Border and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment (I.C.J. Reports 1988, p. 76, para. 16)? There the Court had before
it the "question . . . whether in case of doubt the Court is to be deemed to
have jurisdiction or not". It answered by citing the jurisprudence of the
Factory at Chorzow to the effect (already alluded to) that
"the Court will, in the event of an objection � or when it has
automatically to consider the question � only affirm its jurisdiction
pro-[p 65]vided that the force of the arguments militating in favour of it
is preponderant" (P.C.I.J., Series A, No. 9, p. 32).
What this means is that in all situations, other than those in which "the
force of the arguments militating in favour of [jurisdiction] is
preponderant", the Court will not affirm its jurisdiction. These other
situations, in which the force of the arguments militating in favour of
jurisdiction is not preponderant, will logically include situations in which
the Court is in doubt. Accordingly, where there is doubt the Court will not
affirm its jurisdiction.
I have considered the references to "doubt" in the Free Zones of Upper Savoy
and the District of Gex (P.C.I.J., Series A, No. 22, p. 13) and the Corfu
Channel, Merits (I.C.J. Reports 1949, p. 24). The way in which the matter
was considered in those cases does not overthrow the conclusion to be drawn
from the Court's jurisprudence that the Court can be in a state of "doubt
nullifying its jurisdiction". The point is not academic. In my opinion, the
attempt to establish jurisdiction in this case does not meet the requisite
standard of proof; and thus the Court has no jurisdiction. At best,
however, on that standard, it is doubtful that it has; in this event also,
it cannot find in favour of jurisdiction.
VI. Conclusion
I am of opinion that the Court lacks jurisdiction. The reasons are that (i)
"the whole of the dispute" is not before the Court in the substantial sense
that Bahrain's claim to sovereignty over Zubarah has not been duly submitted
to the Court; and (ii) there is no right of unilateral appli-cation.
If I am wrong on jurisdiction, I would hold against admissibility on the
ground that, even if Bahrain's claim to Zubarah is before the Court, it has
not been submitted in a manner which enables the Court to deal with it
judicially.
Thus, on either view, the Court may not act. In the special circumstances
of the case, it afforded the Parties an opportunity, by action to be taken
"jointly or separately", to place the whole of the dispute before it. That
opportunity could have been used to adjust the situation; this has not
happened.
It has been rightly said that
"it is the duty of the Court at all costs to safeguard the fundamental
purpose which it is designed to achieve, namely, the advancement of the
application between nations of the principle and method of judicial
decision" (Consistency of Certain Danzig Legislative Decrees with the
Constitution of the Free City, Advisory Opinion, P.C.I.J., Series A/B, No.
65, p. 60, separate opinion of Judge Anzilotti, referring to a memorandum
of Judge Moore).
However, in pursuing that high purpose, care needs to be used not to [p 66]
import the principle boni judicis est ampliare jurisdictionem; it is not
considered to be applicable to the Court (Right of Passage over Indian
Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 180,
Judge ad hoc Chagla, dissenting opinion; and Fisheries Jurisdiction
(Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports
1974, p. 226, Judge de Castro, separate opinion). Rather, there is
substance in Judge Armand-Ugon's view that "[t]o attempt to force the
meaning of texts relating to the jurisdiction of the Court would be to risk
consequences that might affect its authority and prestige" (Barcelona
Traction, Light and Power Company, Limited, Preliminary Objections,
Judgment, I.C.J. Reports 1964, p. 147, dissenting opinion). The risk should
not be exaggerated; but neither should it be underestimated. A prudent
regard for it regretfully disables me from concurring with the Judgment of
the Court.
This conclusion has been reached with great deference to the Judgment. The
respect due to the authority of the Court from which it proceeds obliges
recognition that it points the way to a resolution of the dispute between
two neighbouring countries being at last achieved.
(Signed) Mohamed Shahabuddeen.
[p 67]
Dissenting opinion of judge Koroma
I regret that I am unable to agree or to support the present Judgment of the
Court. All the more so when much of the reasoning deployed to reach the
findings on jurisdiction and admissibility should have led to the opposite
conclusions.
Although the Court in its Judgment of 1 July 1994 did not expressly state it
lacked jurisdiction in this case, it was equally unable to declare it had
jurisdiction to entertain the dispute on the basis of the Application filed
by Qatar on 8 July 1991.
The Court, in that Judgment, held that the exchange of letters of 19
December 1987, as well as the Doha Minutes of 25 December 1990, constituted
international agreements, creating rights and obligations for the Parties �
Qatar and Bahrain.
Both Parties had acknowledged the nature of the 1987 document as an
international agreement, but they also agreed that it did not by itself
provide an immediate basis for enabling the Court to exercise jurisdiction.
By the terms of that Agreement:
"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." (Application, p. 46.)
Paragraph 3 provides for the setting up of 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 ..." (Ibid.)
In construing these provisions, Qatar maintains that the Parties clearly and
unconditionally conferred upon the Court jurisdiction to deal with the
disputed matters between them; that the work of the Tripartite Committee
was directed solely to considering the procedures to be followed to
implement the commitment thus made to seise the Court; and that there was
nothing to show that any particular method or procedure ought to have been
followed to that end, provided that the seisin of the Court took place in
accordance with its regulations and instructions.
Bahrain, for its part, maintains that the texts in question expressed only
the Parties' consent in principle to a seisin of the Court, but that such
consent was clearly subject to the conclusion of a special agreement marking
the end of the work of the Tripartite Committee, setting forth the questions
to be put to the Court by mutual agreement and settling a [p 68] number of
related procedural questions. Bahrain further maintains that its
interpretation of the texts is corroborated by the subsequent conduct of
the Parties, in so far as the work of the Tripartite Committee, in which the
two Parties participated, was concerned exclusively with the drawing up of a
Special Agreement to submit the disputed matters to the Court.
The Court, in rejecting Bahrain's interpretation of paragraph 3 of the
Agreement, stated as follows:
"while it is undeniable that the Tripartite Committee focused exclusively
upon the attempt to finalize the text of a special agreement determining the
subject-matter of the dispute, this does not at all mean that the Parties
took that approach to be the only one sanctioned by the Agreement of 1987"
(Judgment, para. 28; emphasis added).
It is obvious that the drawing up of the Special Agreement, determining the
subject-matter of the dispute, was not the only one function contemplated
by the 1987 Agreement, as certain other consequences would have had to
follow if that Agreement had been drawn up and which could have been given
expression either in the Agreement itself or in a related document. But, as
recognized by the Judgment, the Tripartite Committee primarily focused on
the conclusion of the Special Agreement "because that course appeared to it,
at the time, to be the most natural and best suited to give effect to the
consent of the Parties" (Judgment, para. 28).
In my view, this clearly demonstrates that the 1987 Agreement was subject to
the following conditions:
(i) the conclusion of a Special Agreement by the Tripartite Committee for
approaching the Court;
(ii) that the consent to confer jurisdiction was conditional on reaching
such an agreement by the Tripartite Committee.
Thus, the Agreement, objectively interpreted, demonstrates that the consent
of the Parties to confer jurisdiction on the Court was conditional upon a
Special Agreement being concluded. Accordingly, the consent which the Court
had deduced from the Agreement was conditional on a joint agreement being
reached by both Parties with the assistance of the Committee. That such an
agreement was necessary was the reason the Committee held six meetings and
concentrated on that issue. It is only this reading of the 1987 Agreement
which offers adequate and sufficient explanation for the activities of the
Committee and its raison d'etre.
This interpretation of the Committee's mandate is further reinforced by the
fact that the Kingdom of Saudi Arabia was requested "to continue its good
offices to guarantee the implementation of these terms".
A similar request was made in paragraph 2 of the 1990 Doha Minutes which
read as follows:
"(2) The good offices of the Custodian of the Two Holy Mosques, King Fahd
Ben Abdul Aziz, shall continue between the two coun-[p 69]tries until the
month of Shawwal 1411 A.H., corresponding to May 1991. Once that period has
elapsed, the two parties may submit the matter to the International Court of
Justice in accordance with the Bahraini formula, which has been accepted by
Qatar, 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."
Both these provisions suggest that the role of Saudi Arabia in using its
good offices to reach an agreement on the subject-matter of the dispute was
independent of the act of seising the Court. In fact, Saudi Arabia's efforts
were to continue even if the dispute were submitted to the Court. Thus an
agreement on the subject-matter of the dispute was a condition precedent for
jurisdiction to be conferred. This condition was not fulfilled prior to the
submission of Qatar's unilateral Application on 8 July 1991.
On the matter of seisin of the Court, the Court's analysis and conclusion
of the provision "Once that period has elapsed, the two Parties may submit
the matter to the International Court of Justice in accordance with the
Bahraini formula . . .", as denoting an option or even a right of unilateral
seisin, in my view, does not bear close scrutiny, both in terms of
interpreting the provision and given the chronology of the dispute. In the
first place, the appropriate emphasis in this provision should not be given
to the word "may", which, according to the Judgment of the Court, may allow
either Party or both Parties to seise the Court, but rather on the correct
interpretation to be given to the expression "al-tarafan " in the context of
the Agreement.
The Court, in interpreting that expression, reached the conclusion that
given the failure to negotiate the Special Agreement, the Parties were to be
understood as now having agreed on a right of unilateral application.
This conclusion is reached after the Court itself had acknowledged that the
expression "al-tarafan" � "the parties", "the two parties" � was substituted
for the words "either of the two parties" in the Doha Agreement itself. I
find it hard to understand and also untenable that the Court could have
reached this conclusion in the face of those changes which were made to the
draft of the Agreement, accepted by both Qatar and Bahrain, and supported by
the travaux pr�paratoires, which is undisputed by both Parties.
If, as the Court has found, unilateral seisin was contemplated and expected,
it is incomprehensible why the proposed changes were made and agreed to by
both Parties. Moreover, if unilateral seisin was contemplated, the original
text would have remained as it was proposed and would have read as follows:
"Once that period has elapsed, [either] party may submit the matter to the
International Court of Justice ..." But "either party" was changed and
replaced with "the parties" or "the two parties", and this was accepted by
both Qatar and Bahrain. This, reason-[p 70]ably, suggests that what was
intended was a joint approach to the Court. This conclusion is even stronger
and persuasive when read together with the "Bahraini formula", according to
which: "The Parties request the Court to decide any matter of territorial
right or other title ..." That "formula" also stipulates that it is "the
Parties" not "either of the parties" that may request the Court to decide
any matter of territorial right or other title.
By way of analogy, Article III of the Optional Protocol concerning the
Settlement of Disputes of the Law of the Sea, provides as follows:
"The Parties may agree, within a period of two months after one party has
notified its opinion to the other that a dispute exists, to resort not to
the International Court of Justice but to an arbitral tribunal. After the
expiry of the said period, either Party to this Protocol may bring the
dispute before the Court by an application." (United Nations, Treaty Series,
Vol. 450, 1963, p. 172.)
Similarly, under this Protocol, "the Parties", not "either Party", first
have to agree to resort to an arbitral tribunal in case of a dispute. Where
it is intended that either party may bring the dispute before the Court
after an expired period by an application, it is so explicitly stated and
leaves no room for doubt that one party may bring the dispute before the
Court. On the other hand, the 1990 Agreement states: "After the end of this
period, the Parties may submit the matter to the International Court of
Justice in accordance with the Bahraini formula, . . ."
The similarities between this Protocol and the Doha Minutes are not only
striking and unambiguous, but the Protocol lends further clarity to the text
of Doha. Nor is this conclusion vitiated by the rules of interpretation
embodied in Article 31 of the 1969 Vienna Convention on the Law of Treaties,
that a treaty must be interpreted in good faith in accordance with the
ordinary meaning to be given to its terms in their context and in the light
of its object and purpose. The ordinary meaning of the "parties" is that the
two or both Parties jointly must submit their dispute to the Court and
neither the Doha Minutes nor the Bahraini formula has as its object and
purpose the unilateral seisin of the Court.
From a jurisdictional point of view, therefore, and for this stage of the
dispute, the crucially important issue was that of consent: whether consent
was granted conferring jurisdiction on the Court, on what conditions, and
whether those conditions were met by Qatar's unilateral Appli-cation. Both
legal principles and the fundamental jurisprudence of the Court have always
founded jurisdiction upon the clear and unambiguous consent of the parties
to a dispute. While the Court has tended to refine this principle to allow
for the intention of the parties to be determined in [p 71]particular
circumstances, it has remained constant that clear and indubitable consent
remains the basis for the assumption of jurisdiction. Not only must such
consent be clear and unambiguous, it only acquires its validity if and when
the procedure or the conditions under which it was granted have been met. In
my view, the unilateral Application of Qatar did not meet the requirements
laid down in both the 1987 Agreement and the 1990 Doha Minutes for the Court
to be in a position to assume jurisdiction in this matter.
Qatar had initiated these proceedings in accordance with Article 40,
paragraph 1, of the Statute of the Court read with Article 38 of the Rules
of Court. Article 40, paragraph 1, of the Statute provides as follows:
"Cases are brought before the Court, as the case may be, either by the
notification of the special agreement or by a written application addressed
to the Registrar. In either case the subject of the dispute and the parties
shall be indicated."
According to Article 38, paragraph 1, of the Rules of Court:
"When proceedings before the Court are instituted by means of an application
addressed as specified in Article 40, paragraph 1, of the Statute, the
application shall indicate the party making it, the State against which the
claim is brought, and the subject of the dispute."
Qatar, having brought this matter by means of a written Application, the
Application should indicate the party making it, the State against which the
claim is brought, and the subject of the dispute. It was, therefore, a
prerequisite to indicate the subject of the dispute to enable the Court to
assume jurisdiction.
When the Court by its Judgment of 1 July 1994 afforded the Parties to submit
"the whole of the dispute", based on the terms of the 1987 Agreement and the
1990 Doha Minutes, it implied that this had not been done by Qatar's
Application of 8 July 1991. It also implied that there had to be an
agreement between the Parties for "the whole dispute" whether separately or
jointly to be submitted to the Court. If this were not so, the Court could
just specifically have instructed Qatar to amend its Application, to enable
it to decide on its jurisdiction. Since no agreement was reached within the
time allotted, the Court had accordingly not been seised of "the whole of
the dispute" by "the Parties" as comprehended by the "Bahraini formula". It
would be stretching credulity too far to hold that the Applicant by its
"Act" of 30 November 1994 had completed the circle, as it were, by
mentioning "Zubarah" in its amended Application, even though no agreement
had been reached both as contemplated by the "Bahraini formula", and by the
1 July 1994 Judgment.
Bahrain did not agree to the formulation of the Zubarah issue over which it
claims sovereignty, as presented by Qatar, and, as the record shows, Zubarah
has been one of the main bones of contention that the [p 72] Parties had not
been able to reach agreement to seise the Court of the dispute. To accept
that the reformulation of this issue by Qatar alone, without the agreement
of the other Party, and for the Court to accept that such reformulation has
now invested it with "the whole dispute", does not, in my view, lend
conviction to the Court's Judgment. It is evident that the conditions
stipulated in the Agreements that "the Parties" submit "the whole dispute",
underlying the consent to confer jurisdiction had not been met and the Court
is not therefore in a position to assume jurisdiction in this matter.
The Judgment also considered the links which exist between jurisdiction and
seisin and their correlation to the issue before the Court. That the Court
will lack jurisdiction to deal with a case so long as the relevant basis of
jurisdiction has not been supplemented by the necessary act of seisin is
unimpeachable. But this statement is subject to any special provision upon
which the parties may have agreed as to the method of instituting
proceedings under a given title of jurisdiction. It is in this sense that I
would tend to agree with the submission that "seisin" is an integral part of
consensual jurisdiction.
When this principle is applied to the Doha document, and in attempting to
determine the meaning of the Arabic term "al-tarafan", which Qatar had
maintained could be interpreted to mean "the two parties" acting separately,
and Bahrain that it was intended to mean "the two par-ties" acting together
or jointly, it leaves enormous room for doubt. The disagreement relates to
the issue of the method of approaching the Court, whether separate seisin
was contemplated by the Doha Agreement as contended by Qatar, or joint
seisin was intended, as Bahrain maintains. The Judgment acknowledges that
the expression "al-tarafan " is ambiguous by itself to give the true
intention of the Parties.
Notwithstanding the serious ambiguities and lack of clarity surrounding the
crucial aspects of the Agreements, and which do not make for a decisive
resolution of the issues in contention, the Court has held that it could
validly be seised by means of a unilateral application. This conclusion is
not unimpeachable. To find as a basis for jurisdiction, the evidence must
be clear and preponderant. Here the evidence is not of such quality. Hence,
I do not find this conclusion, like the rest of the Judgment, impeccable.
Similarly, the Judgment of 1 July 1994 contemplated an agreement when it
enjoined the Parties to submit to the Court "the whole of the dispute" as
circumscribed by the "Bahraini formula". Since neither the "Act" of Qatar of
30 November nor the "Report" of Bahrain, evinced an agreement between the
two Parties to submit "the whole of the dispute" to the Court, the Court
does not accordingly have before it "the whole of the dispute", a
prerequisite for conferring jurisdiction on it in terms of the Doha Minutes,
and without which it cannot be in a position to assume jurisdiction.
In view of the foregoing, and taking into account the 1 July 1994 deter-[p
73]mination by the Court that it did not have "the whole of the dispute"
before it to enable it to assume jurisdiction on the matter, which defect
was not cured by the inability of the two Parties to reach an agreement to
submit the whole of the dispute, I am not persuaded that the Court is
entitled to assume jurisdiction in this matter. This conclusion is in
accordance with the material before the Court, and with its Judgment of 1
July 1994. The Court should accordingly have decided that it lacked
jurisdiction, and that the claim is inadmissible.
(Signed) Abdul G. Koroma.
[p 74]
Dissenting opinion of judge Valticos
[ Translation ]
1. While fully recognizing the qualities of the preceding Judgment, to which
I shall return later, I am not able to associate myself with it.
2. For I do not consider that the Court is competent to consider the dispute
between Qatar and Bahrain. Moreover, in its preceding Judgment of 1 July
1994, the Court itself did not state that it was so, but requested the
Parties to furnish it with the additional elements which, in fact, were only
furnished to it incompletely and by only one of the two Parties.
3. To be more specific, let us recall that, in the aforementioned Judgment
of 1 July 1994, the Court considered that there had been international
agreements creating rights and obligations for Bahrain and Qatar. More
precisely, it found that these two States had undertaken to submit to the
Court the whole of the dispute between them, in accordance with the
"Bahraini" formula. It did not, however, conclude that these agreements
between the two States were enough of a Special Agreement to enable the case
to be referred directly to the Court as it stood.
4. In fact, this agreement between the two States had still to be
supplemented by an agreement on the precise subject of the referral to the
Court, as well as by a joint or separate (but, as I shall indicate below,
doubly separate) act of the two Parties, as the Court itself indicated in
its Judgment of 1 July 1994.
5. If these additional measures had not been considered necessary, the Court
would not, by this Judgment, have asked "the Parties" (i.e., the two
Parties) to submit to it "the whole of the dispute ". In this respect, the
additional measures deemed necessary by the Court have only been taken in
part, since only one of the Parties (Qatar) has addressed a list of points
to the Court and, while it may on this occasion have mentioned Zubarah
together with the other questions forming the subject of the dispute, this
was in terms which did not meet with the agreement of the other Party.
Indeed, Qatar indicated that it wished the matter to be defined simply by
the word "Zubarah", with an indication that it "understands that Bahrain
defines its claim concerning Zubarah as a claim of sovereignty". Bahrain
rejected this form of words, explaining that it had asked for the term
"sovereignty" to be included in the actual wording of the question.
6. One may wonder whether this difference does not still persist, since,
towards the end of its most recent Judgment � "in cauda suave" as it were �
the Court now holds that, in reality, the question of Zubarah and that of
the Hawar islands having been submitted to it, claims of sover-[p 73]
eignty may be put forward by either Party and that it is therefore seised of
the dispute as a whole.
7. However, is it really possible to reason in this way � which,
admittedly, would solve the problem � when one of the Parties (Qatar) does
not accept this broad definition of the subject of the dispute and confines
itself to noting the more general request of the other? Can this divergence
between the Parties regarding the definition of the subject of the dispute,
a divergence that the States concerned have considered substantial enough to
prevent them reaching agreement on this point, really be set aside? For in
reality, this divergence is quite substantial: the mere indication that it
was understood by one of the Parties (Qatar) that the other Party (Bahrain)
accorded wider scope to the formulation of a question does not mean that it
agrees that this question should be submitted to the jurisdiction of the
Court. On the contrary, that Party thus reserves the possibility, in due
course, of disputing the Court's capacity to consider the question thus
worded. This being so, and bearing in mind Qatar's position, it does not
seem possible genuinely to consider that there was agreement between the two
Parties that the question of sovereignty over Zubarah should be submitted to
it.
8. Admittedly, during the long discussions between the two States, the
question of Zubarah (and Zubarah only) had arisen, but the scope of this
question � and more particularly whether it covered sovereignty � had never
been the subject of an agreement.
9. It must therefore be acknowledged that, failing an agreement on this
point, it is difficult to regard sovereignty over Zubarah as submitted to
the Court, considering the explicit position adopted by Qatar.
10. It is clear, therefore, that there is no complete agreement of the two
States as to the subject of the dispute between them and that the Court does
not have before it what it asked the Parties to submit to it, namely, a
definition of "the whole of the dispute" as formulated by them (Judgment of
1 July 1994, para. 41 (3)).
11. Moreover, in asking the Parties to submit to it the whole of the
dispute, the Court (para. 41 (4)) specified that they were "jointly or
separately, to take action to this end".
12. This brings us to the question of seisin which, in this case, has been
the source of far too much confusion. Even in the earlier proceedings of the
Court, there had been broad discussion of the meaning of the Arabic term
"al-tarafan", which had been used in the Doha Minutes and of whether this
term referred to the two Parties taken together or separately. These
discussions were inconclusive and it would thus be hazardous to base the
validity of the seisin of the Court upon a disputed translation or upon rash
deductions. Jurisdiction, which includes the seisin of the Court, cannot be
founded on doubt.
13. However, since this matter is dealt with in the Judgment, the reasons
which, in my view, to say the least raise doubts that the term "al-tarafan"
used to refer to the conditions in which the Court was apparently seised of
this case may be taken as meaning either Party, can [p 76] not be glossed
over. In fact, during the Doha discussions, a preliminary draft, drawn up by
Oman, envisaged that, after a certain time had elapsed, "each of the two
Parties" could submit the matter to the Court. At the request of Bahrain,
this text was replaced by the wording according to which "the two Parties"
(in Arabic "al-tarafan") could seise the Court. This change would have been
pointless if it meant the same thing as the initial draft. In the hectic
atmosphere of the meeting, then over-ridingly concerned by the serious
problems of Iraq and Kuwait, the previous text would not have been changed
in favour of a text with the same meaning. The new text was certainly
intended to mean something else and this could only have been that it was
"both Parties at once" (or "together") who could refer the matter to the
Court. The logic of this deduction seems to me at once elementary and
decisive. Moreover, the Court has accepted that it is not a matter of an
"explicit" text. How, in that case, can the jurisdiction be founded on
doubt, or at all events, on an uncertain interpretation?
14. For my part, it does not seem to me possible to share the point of view
according to which the amendment adopted at Doha was, ultimately, devoid of
meaning. Indeed, and according to a well-known principle of interpretation,
the changes made to a text cannot be meaningless. What should be decisive in
this case is not suppositions about the manner in which the various
interested parties are said to have understood this change, but essentially
the actual text of the amendment, the intention which inspired it and an
interpretation thus founded on its actual words and on the conditions of its
adoption.
15. Returning now to the Court's Judgment of 1 July 1994, it must be
stressed that, in deciding that "the Parties [were], jointly or separately,
to take action" (operative paragraph 41 (4)) in order "to submit to the
Court the whole of the dispute" (operative paragraph 41 (3)), the Court was
manifestly referring, in either case, to an act by the two Parties, whether
as one act effected together or as two separate acts. The request thus
addressed by the Court to the two Parties was, moreover, no more than a
logical consequence of the principle according to which the Court can only
be seised by the two Parties to a dispute, unless there is an agreement to
the contrary, which is hard to accept solely on the basis of the disputed
Doha Minutes. Indeed, even if these Minutes are considered to be an
international undertaking, this text did not specify what the matters at
issue were and hence could not suffice in itself or be considered as
authorizing each of the Parties to seise the Court of the matter. There
would still have had to be agreement on the scope of the dispute for the
Parties to be able to refer it to the Court.
16. Moreover, it is significant that, after the Doha Agreement, the two
States concerned on a number of occasions endeavoured to negotiate a special
agreement, and must therefore have considered that the Doha text was not
sufficient in itself.
17. Lastly, the agreement of the Parties to proceed in accordance with the
"Bahraini" formula does indeed presuppose a combined operation [p 77] with a
� preferably simultaneous but in any case double and parallel � seisin by
the two States.
18. Further, this whole discussion on seisin and on how and by whom it can
be effected loses its significance in the present situation, since the
Parties are not in agreement on the subject of the dispute and since the
Court cannot be considered to have jurisdiction in the absence of such an
agreement, which has never existed.
19. There would still appear to be one final question for consideration,
namely, what weight should be given to Bahrain's current emphatic refusal to
have the case referred to the Court, even though the Court has found that
the Doha Minutes constitute an international agreement creating rights and
obligations for the Parties? Can the undertaking between two States to seise
the Court constitute the basis of proceedings before it even though there
has been no complete agreement on the subject of the dispute? Are not
further negotiations and further action by the States concerned still
required before the Court can consider itself to have jurisdiction and to
have been validly seised? This is the one and only explanation of the
Judgment of 1 July 1994, in which the Court requested the Parties to take
additional action and provide additional elements which it has since not
obtained, or at least not obtained in full.
20. We are thus faced with a situation in which there is neither full
agreement of the Parties on the subject of the dispute, nor any act by which
the two Parties, acting "jointly or separately", as the Court had requested,
are submitting to the Court the whole of the dispute between them.
21. In the Judgment in question of 1 July 1994, the Court, while holding
that the two States concerned "have undertaken to submit to it the whole of
the dispute between them", did not find on its own jurisdiction. It wished,
as just stated, "to afford the Parties the opportunity to submit to the
Court the whole of the dispute". The Parties did not take this opportunity.
They have not managed to reach agreement on the matters (or more
particularly on one of the matters) to be referred to the Court. Contrary to
what was requested of them by the Court, there has been no submission,
whether joint or separate � but in the latter case by each of the Parties �
of the whole of the dispute to the Court. Only one of the States has made
such a communication, whereas the other, disagreeing with the form of words
proposed by its opponent, is formally opposed to the case being brought
before the Court. The Doha Agreement, this mere semblance of legal harmony,
thus remains incomplete.
22. I therefore consider that the Court should have concluded that it has no
jurisdiction to entertain the Application of the State of Qatar and that
this Application is inadmissible.
23. Further, in my view there is another more general reason why the above
Judgment may be debatable. This is that, with undeniable skill, the Court
has circumvented the obstacle constituted by the lack of real consent of
the Parties. In so doing, it may well have provided an opportunity for the
prevention of a conflict in danger of breaking out in an already [p 78] very
sensitive region. On the actual question of its jurisdiction, the Court
reached a conclusion which, overall, satisfies Qatar and, in fact, should
also satisfy Bahrain (at least as regards the subject of the dispute), since
it accepts that its jurisdiction covers the sovereignty over Zubarah.
24. Are these undeniable advantages enough to offset what I consider to be
the weakness, legally speaking, of the absence of actual consent by one of
the Parties and the inadequacy of the seisin? Can the very legitimate desire
to prevent a conflict allow the Court to appear to be less exacting as
regards the consensual principle which lies at the root of its jurisdiction
and of the trust placed in it by the international community?
25. Personally, I do not feel able to associate myself with a conclusion
which seems to me to exceed the Court's jurisdiction.
(Signed) Nicolas Valticos. |
|
