Qatar vs. Bahrain

CASE CONCERNING CON CERNING MARITIME MARIT IME DELIMI DEL IMITA TATION TION AND TERRITORI TERRI TORIAL AL QUESTIONS BETWEEN QATAR AND BAHRAIN (QATAR v. BAHRA BAHRAIN IN)) (JURISDICTION AND ADMISSIBILITY) Judgment o ! Ju"# !$

%$The Court delivered a Judgment in the case concerning Maritime Delimitation and Territorial Territorial Questions between Qatar and Bahrain. The Court was co mposed as follows: President  follows: President  Bedjaoui  Bedjaoui Vice-President  !chwebel Judges  !chwebel Judges "da#  "da# !ir $obert Jennings# Tarassov# Tarassov# %uillaume# !hahabuddeen# &guilar Mawdsle'# (eeramantr' (eeramantr'## $anjeva# )erc*egh# !hi# !h i# +leischhauer# ,oroma Judges ,oroma Judges ad  ad hoc -alticos# -alticos# $uda Registrar  $uda Registrar  -alencia"spina.   -alencia"spina. The operative paragraph of the Judgment reads as follows: /01. +or these reasons# T)2 C"3$T# 415 B' 16 votes to 1#  Finds that  Finds that the e7changes of letters between the ,ing of !audi &rabia an d the &mir of Qatar dated 18 and 91 December 18;# and between the ,ing of !audi &rabia and the &mir of Bahrain dated 18 and 9< December 18;# and the document headed /Minutes/ and signed at Doha on 96 December 188= b' b ' the Ministers for +oreign &ffairs &ffairs of Bahrain# Qatar and !audi &rabia# are international agreements creating rights and obligations for the >arties ... 495 B' 16 votes to 1#  Finds that  Finds that b' the terms of those agreements the >arties have underta?en to submit to the Court the whole of the dispute between them# as circumscribed b' the te7t proposed b' Bahrain to Qatar on 9< "ctober 18# and accepted b' Qatar in December 188=# referred to in the 188= Doha Minutes as the /Bahraini formula/ ... 4@5 B' 16 votes to 1#  Decides to  Decides to afford the >arties the opportunit' to submit to the Co urt the whole of the dispute ... 405 B' 16 votes to 1#  Fixes @=  Fixes @= Aovember 1880 as the timelimit within which the >arties are# jointl' or separatel'# to ta?e action to this end ... 465 B' 16 votes to 1#  Reserves an'  Reserves an' other matters for subseuent decision./ Those who voted in favour were: Presi were: President  dent  Bedjaoui  Bedjaoui Vice !chwebel Judges !ir  !ir $obert $ob ert Jennings# Tarassov# Tarassov# %uillaume# !hahabuddeen#  President  !chwebel Judges &guilar Mawdsle'# (eeramantr'# (eeramantr'# $anjeva# )erc*egh# !hi# +leischhauer# ,oroma Judges ,oroma Judges ad hoc -alticos# hoc -alticos# $uda and &gainst: Judge "da.  Judge !hahabuddeen appended a declaration to the Judgment -ice>resident !chwebel and Judge ad hoc -a hoc -alticos lticos appended separate opinions Judge "da appended a dissenting opinion.  History of the the case (&''* case (&''* !+!%)

n its Judgment the Court recalls that on  Jul' 1881 the Minister for +oreign &ffairs of the !tate of Qatar filed in the $egistr' of the Court an &pplication instituting proceedings against the !tate of Bahrain in respect of certain disputes between the two !tates relating to sovereignt' over the )awar islands# sovereign rights over the shoals of Dibal and QitEat Jaradah# and the delimitation of the maritime areas of the two !tates. The Court then recites the histor' of the ca se. t recalls that in its &pplication Qatar founded the  jurisdiction of the Court upon two agreements between the >arties stated to have been concluded in December 18; and December 188= respectivel'# the subject and scope of the commitment to  jurisdiction being determined# according to the &pplicant# b' a formula proposed b' Bahrain to Qatar on 9< "ctober 18 and accepted b' Qatar in December 188=. Bahrain contested the basis of jurisdiction invo?ed b' Qatar. The Court then refers to the different stages of the proceedings b efore it and to the submissions of the >arties.  Summary of the circumstances in which a solution to the dispute between Bahrain and Qatar has been sought over the past two decades (&''* !,+-.) 2ndeavours to find a solution to the dispute too? place in the conte7t of a mediation# sometimes referred to as /good offices/# beginning in 18;<# b' the ,ing of !audi &rabia with the agreement of the &mirs of Bahrain and Qatar# which led# during a tripartite meeting in March 18@# to the approval of a set of />rinciples for the +ramewor? for $eaching a !ettlement/. The first of these  principles specified that /&ll issues of dispute between the two countries# relating to sovereignt' over the islands# maritime boundaries and territorial waters# are to be considered as complementar'# indivisible issues# to be solved comprehensivel' together./ Then# in 18;# the ,ing of !audi &rabia sent the &mirs of Qatar and Bahrain letters in identical terms# in which he put forward new proposals. The !audi proposals which were adopted b ' the two )eads of !tate# included four points# the first of which was that /&ll the disputed matters shall be referred to the nternational Court of Justice# at The )ague# for a final ruling binding upon both parties# who shall have to e7ecute its terms./ The third provided for formation of a Tripartite Committee# composed of representatives of the !tates of Bahrain and Qatar and of the ,ingdom of !audi &rabia# /for the purpose of approaching the nternational Court of Justice# and satisf'ing the necessar' reuirements 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/. Then# in 18# following an initiative b' !audi &rabia# the )eir &pparent of Bahrain# when on a visit to Qatar# transmitted to the )eir &pparent of Qatar a te7t 4subseuentl' ?nown as the Bahraini formula5 which reads as follows: /Question The >arties reuest the Court to decide an' matter of territorial right or other title or interest which ma' be a matter of difference between them and to draw a single maritime boundar'  between their respective maritime areas of seabed# subsoil and superjacent waters./ The matter was again the subject of discussion two 'ears later# on the occasion of the annual meeting of the Cooperation Council of &rab !tates of the %ulf at Doha in December 188=. Qatar then let it be ?nown that it was read' to accept the Bahraini formula. The minutes of the meeting which then too? place stated that the two parties had reaffirmed what was agreed  previousl' between them had agreed to continue the good offices of ,ing +ahd of !audi &rabia

until Ma' 1881 that after this period# the matter might be submitted to the nternational Court of Justice in accordance with the Bahraini formula# while !audi &rabiaEs good offices would continue during the submission of the matter to arbitration and tha t# should a brotherl' solution acceptable to the two parties be reached# the case would be withdrawn from arbitration. The good offices of ,ing +ahd did not lead to the desired outcome within the timelimit thus fi7ed# and on  Jul' 1881 Qatar instituted proceedings before the Court against Bahrain. &ccording to Qatar# the two !tates: /have made e7press commitments in the &greements of December 18; ... and December 188= ...# to refer their disputes to the ... Court/. Qatar therefore considers that the Court has been enabled /to e7ercise jurisdiction to adjudicate upon those disputes/ and# as a conseuence# upon the &pplication of Qatar. Bahrain maintains on the contrar' that the 188= Minutes do not constitute a legall' binding instrument. t goes on to sa' that# in an' event# the combined provisions of the 18; e7changes of letters and of the 188= Minutes were not such as to enable Qatar to seise the Court unilaterall' and concludes that the Court lac?s jurisdiction to deal with the &pplication of Qatar. The nature of the e7changes of letters of 18; and of the 188= Doha Minutes 4paras. 91@=5 The Court begins b en!uiring into the nature of the texts u"on #hich Qatar relies before turning  to an analsis of the content of those texts$ %t observes that the Parties agree that the exchanges of letters of December &'() constitute an international agreement #ith binding force in their mutual relations* but that Bahrain maintains that the +inutes of , December &''. #ere no more than a sim"le record of negotiations* similar in nature to the +inutes of the Tri"artite Committee/ that accordingl the did not ran0 as an international agreement and could not* therefore* serve as a basis for the 1urisdiction of the Court$  2fter examining the &''. +inutes 3see above* "$ 45 the Court observes that the are not a sim"le record of a meeting* similar to those dra#n u" #ithin the frame#or0 of the Tri"artite Committee/ the do not merel give an account of discussions and summari6e "oints of agreement and disagreement$ The enumerate the commitments to #hich the Parties have co nsented$ The thus create rights and obligations in international la# for the Parties$ The constitute an international agreement$  Bahrain maintains that the signatories of the &''. +inutes never intended to conclude an agreement of that 0ind$ The Court does not ho#eve r find it necessar to consider #hat might have been* in that regard* the intentions of the Foreign +inister of Bahrain or* for that matter* those of the Foreign +inister of Qatar$ 7or does it acce"t Bahrain8s contention that the  subse!uent conduct of the Parties sho#ed that the never considered the &''. +inutes to be an agreement of this 0ind$ The content of the exchanges of letters of 19! and of the 199" #oha $inutes %paras. &1'&9( Turning to an analsis of the content of these texts* and of the rights and obligations to #hich the give rise* the Court first observes that* b the exchanges of letters of December &'() 3see above* ""$ 9-45* Bahrain and Qatar entered into an underta0ing to refer all the dis"uted matters to the Court and to determine* #ith the assistance of :audi 2rabia 3in the Tri"artite Committee5* the #a in #hich the Court #as to be seised in accordance #ith the underta0ing thus given$ The !uestion of the determination of the ;dis"uted matters; #as onl settled b the +inutes of  December &''.$ Those +inutes "laced on record the fact that Qatar had finall acce"ted the  Bahraini formula$ Both Parties thus acce"ted that the Court* once seised* should decide ;an matter of territorial right or other title or interest #hich ma be a matter of difference bet#een
The formula thus ado"ted determined the limits of the dis"ute #ith #hich the Court #ould be as0ed to deal$ %t #as devised to circumscribe that dis"ute* but* #hatever the manner of seisin* it left o"en the "ossibilit for each of the Parties to "resent its o#n claims to the Court* #ithin the  frame#or0 thus fixed$ >o#ever* #hile the Bahraini formula "ermitted the "resentation of distinct  claims b each of the Parties* it nonetheless "re-su""osed that the #hole of the dis"ute #ould be  submitted to the Court$ The Court notes that at "resent it has before it solel an 2""lication b Qatar setting out the  "articular claims of that :tate #ithin the frame#or0 of the Bahraini formula$ 2rticle 4. of the Court8s :tatute "rovides that #hen cases are brought before the Court ;the sub1ect of the dis"ute and the "arties shall be indicated;$ %n the "resent case the identit of the "arties "resents no difficult* but the sub1ect of the dis"ute is another matter$  %n the vie# of Bahrain the Qatar 2""lication com"rises onl some of the elements of the sub1ectmatter intended to be com"rised in the Bahraini formula and that #as in effect ac0no#ledg ed b Qatar$ The Court conse!uentl decides to afford the Parties the o""ortunit to ensure the submission to the Court of the #hole of the dis"ute as it is com"rehended #ithin the &''. +inutes and the  Bahraini formula* to #hich the have both agreed$ The Parties ma do so b a 1oint act or b  se"arate acts/ The result should in an case be that the Court has before it ;an matter of territorial right or other title or interest #hich ma be a matter of difference bet#een; the  Parties* and a re!uest that it ;dra# a single maritime boundar bet#een their res"ective maritime areas of seabed* subsoil and su"er1acent #aters;$  ??????????  Declaration of Judge !hahabuddeen  + "reference #ould have been for the issue of 1urisdiction to be full decided at this stage$ % have* ho#ever* voted for the Judgment* understanding the intent to be to offer to the Parties an o""ortunit* #hich merits acce"tance* to submit the #hole of the dis"ute to the Court$ The reasons for the "reference are accordingl not set out$  ??????????  !eparate opinion of -ice>resident !chwebel Vice-President :ch#ebel* #ho voted for the o"erative "aragra"hs of the Judgement as ;unob1ectionable;* described the Judgment as novel and dis!uieting$ %t lac0ed an essential !ualit of a 1udgment of this or an court@ it did not ad1udge the "rinci"le issues submitted to it$  %t #as a commanding feature of the "ractice of the Court that its 1udgments dis"osed of the  submissions of the "arties* but this Judgment failed to do so* because it neither u"held nor declined 1urisdiction$ Vice-President :ch#ebel !uestioned #hether the 1udicial function is served  b such an innovation$  ??????????  !eparate opinion of Judge -alticos  %n his se"arate o"inion* Judge Valticos too0 the vie# that the case in hand #as confused and that  it #as not reall clear #hether the t#o :tates had agreed to refer their dis"ute to the Court or #hether their agreement had also related to the sub1ect of the dis"ute and the method of seisin$ Ane could of course acce"t that an agreement #as reached but* as regards the +inutes of the  Doha meeting* it #as couched in ambiguous terms$ There #as* in "articular * a "roblem relating to the 2rabic term ;al tarafan; used in that connection b the Parties$  %n an case* the Court should onl "roceed to deal #ith the merits of the "resent case if both :tates #ere to seise it of their dis"utes* #hether 1ointl or se"aratel* and in accordance #ith the

 formula #hich has been acce"ted b them and #hich "rovides that each :tate is to submit to the Court the !uestions #ith #hich it #ould li0e the Court to deal$  ??????????  Dissenting opinion of Judge "da  Judge Ada finds himself unable to vote in favour of the "resent Judgment as it transforms the unilateral 2""lication b Qatar into a unilateral filing of an agreement #hich is found to h ave been im"ro"erl drafted$ %n his vie# the Court should rather have determined #hether it had  1urisdiction to entertain that unilateral 2""lication$ The Court no# a""ears - for the first time in its histor- to render an interlocutor 1udgment$ Judge Ada maintains* ho#ever* that it cannot ta0e this course #ithout first having settled the 1urisdictional issue$ hat #ill ha""en if the  Parties do not ;ta0e action; to submit the #hole of the dis"ute to the Court ill either or both  Parties be considered not to have com"lied #ith the "resent Judgment/ or #ill the Court sim"l decide to discontinue the "resent case #hich has alread been entered in the eneral Eist and of #hich it #ill assume that it has been seised %t seems to Judge Ada that the Court is sim"l ma0ing a gesture of issuing an invitation* in the guise of a Judgment* to the Parties to "roceed to the submission of a ne# case inde"endentl of the "resent 2""lication$ The !uestion in the "resent case is #hether the ;&'() 2greement; or the ;&''. 2greement; are of the nature of ;treaties and conventions in force; #ithin the meaning of 2rticle 9 3&5 of the :tatute* i$e$* #hether the contain a com"romissor clause$ 2fter an examination of the nature and contents of the &'() and &''. documents* Judge Ada comes to the conclusion that neither  2greement falls #ithin this categor$ hat #ere Qatar and Bahrain then tring to achieve in the negotiations b endorsing those documents  2fter examining the negotiations #hich had been going on for more than t#o decades* Judge Ada concludes that if an mutual understanding #as reached bet#een Qatar and Bahrain in  December &'()* it #as sim"l an agreement to form a Tri"artite Committee* #hich #as to  facilitate the drafting of a s"ecial agreement/ he further concludes that the Tri"artite Committee #as unable to "roduce an agreed draft of a s"ecial agreement/ and that the Parties in signing the minutes of the Doha meeting agreed that reference to the %nternational Court of Justice #as to be an alternative to :audi 2rabia8s good offices* #hich did not* ho#ever* im"l an authori6ation such as to "ermit one Part to ma0e an a""roach to the Court b unilateral a""lication* ignoring ;#hat #as agreed "reviousl bet#een the t#o "arties;* that is to sa* the drafting of a s"ecial agreement in accordance #ith the Bahraini Formula$  %n conclusion* Judge Ada is confident that neither the ;&'() 2greement; nor the ;&''.  2greement; can be deemed to constitute a basis for the 1urisdiction of the Court in the event of a unilateral a""lication under 2rticle 9( 3&5 of the Rules of Court and that the Court is not em"o#ered to exercise 1urisdiction in res"ect of the relevant dis"utes unless the are 1ointl referred to the Court b a s"ecial agreement under 2rticle 9' 3&5 of the Rules of Court #hich* in his vie#* has not occurred in this case$ The Court has nonetheless o"ted for the role of conciliator instead of finding* as he believes it ought to have done* that it lac0s 1urisdiction to entertain the 2""lication filed b Qatar on ( Jul &''&