Non -Corrigé
Unco rrected
International Court Cour internationale
of Justice de Justice
THE HAGUE
Public si t ting
held on Friday 11 March 1994, at 10 a.m., at the Peace Palace,
President Bedjaoui presiding
in the case concerning Maritime Delimitation and Territorial Questions
Between Qatar and Bahrain
(Qatar v. Bahrain)
VERBATIM RECORD
ANNEE 1994
Audience publique
tenue le vendredi 11 mars 1994, à 10 heures, au Palqis.de la Paix,
sous la présidence de M. Bedjaoui, Président
en l'affaire de la Délimitation maritime et des questions territoriales
entre le Qatar et Bahreïn
(Qatar c. Bahrein)
COMPTE RENDU President Bedjaoui
vice-President Schwebel
Judges Oda
Ag0
Sir Robert Jennings
Judges Tarassov
Gui11aume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Judges ad hoc Valticos
Ruda
Registrar Valencia-OspinaPrésents r M. Bedjaoui, Président
M. Schwebel, Vice-président
MM. Oda
Ag0
sir Robert Jennings
MM. Tarassov
Guillaume
Shahabuddeen
Aguiiar Mawdsley
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma, juges
MM. Valticos,
Ruda, juges ad hoc
M. Valencia-Ospina, GreffierThe Goverament of Qatar is be repreoented by:
H.E. Dr. Najeeb Al-Nauimi, Minister LegalAdviser,
as Agent and Counsel;
Mr. Adel Sherbini, Legal Expert,
as Legal Adviser;
Mr. Sami Abushaikha, LegalExpert,
as Legal Adviser;
Mr. Jean-Pierre Quéneudec, Professor of InternationalLaw at the
University of Paris 1,
Mr. Jean Salmon, Professor at the Universitélibre de Bruxelles,
Mr. R. K. P. Shankardass,Senior Advocate, Supreme Court of India,
Former Presidentof the International BarAssociation,
Sir Ian Sinclair, K.C.M.G., Q.C., Barrister at Law, Member of the
Institute of InternationalLaw,
Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritusof
InternationalLaw at the Universityof London,
as Counsel and Advocates;
Mr. Richard Meese, Advocate, partner in Frere Cholmeley, Paris,
Miss Nanette E. Pilkington, Advocate, Frere Cholmeley,Paris,
Mr. David S. Sellers, Solicitor,Frere Cholmeley, Paris.
The Government of Bahrain is represented by:
H.E. Dr. Husain Mohammed Al Baharna, Minister of State for Legal
Affairs, Barrister at Law, Member of the InternationalLaw
Commission of the United Nations,
as Agent and Counsel ;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus
in the University of Cambridge,
Mr. Keith Highet, Member of the Bars of the District of Columbia and
New York,Le Gouvernement du Qatar est représenté par :
S. Exc. M. Najeeb Al-Nauimi, ministre conseiller juridique,
comme agent et conseil;
M. Adel Sherbini, expert juridique,
comme conseiller juridique;
M. Sami Abushaikha, expert juridique,
comme conseiller juridique;
M. Jean-Pierre Quéneudec, professeur de droit international à
l'université de Paris 1,
M. Jean Salmon, professeur à l'Université libre de Bruxelles,
M. R. K. P. Shankardass, Senior Advocate à la Cour suprême
de l'Inde, ancien président de l'International Bar Association,
Sir Ian Sinclair, K.C.M.G., Q.C., Barrister at Law, membre de
l'Institut de droit international,
Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., professeur émérite de
droit international à l'université de Londres,
comme conseils et avocats;
M. Richard Meese, avocat, associé du cabinet Frere Cholmeley à Paris,
Mlle Nanette E. Pilkington, avocat, du cabinet Frere Cholmeley à
Paris,
M. David S. Sellers, Solicitor, du cabinet Frere Cholmeley à Paris.
Le Gouvernement de Bahreïn est représenté par :
S. Exc. M. Husain Mohammed Al Baharna, ministre d'Etat chargé des
affaires juridiques, Barrister at Law, membre de la Commission du
droit internationalde l'Organisation des Nations Unies,
comme agent et conseil;
M. Derek W. Bowett, C.B.E.,Q.C., F.B.A., professeur émérite, ancien
titulaire de la chaire Whewell à l'université de Cambridge,
M. Keith Highet, membre des barreaux du district de Columbia et de
New York,Mr. Eduardo Jiménez deAréchaga, Professor of International Lawat
the Law School, Catholic University, Montevideo, Uruguay,
Mr. Elihu Lauterpacht, C.B.E., Q.C., Honorary Professorof
InternationalLaw and Director of the Research Centre for
InternationalLaw, University of Cambridge; Member of the Institut
de droit international, .
Mr. Prosper Weil, Professor emeritus atthe Université de droit,
d'économie et de sciences sociales de Paris,
as Counsel and Advoca tes;
Mr. Donald W. Jones, Solicitor, Trowers & Hamlins, London,
Mr. John H. A. McHugo, Solicitor, Trowers & Hamlins, London,
Mr. David Biggerstaff,Solicitor, Trowers & Hamlins, London,
as Counsel.M. Eduardo Jiménez de Aréchaga, professeur de droitinternational à
la faculté de droit de l'universitécatholique de Montevideo,
Uruguay,
M. Elihu Lauterpacht,C.B.E., Q.C., professeur honoraire dedroit
internationalet directeur du ResearchCentre for International Law
de l'universitéde Cambridge;membre de l'Institut de droit
international,
M. Prosper Weil, professeur émérite à l'Universitéde droit,
d'économie et de sciences socialesde Paris,
comme conseilset avocats;
M. Donald W. Jones, Solicitor, du cabinet Trowers et Hamlins à
Londres,
M. John H. A. McHugo, Solicitor, du cabinet Trowers et Hamlins à
Londres,
M. David Biggerstaff, Solicitor, ducabinet Trowers et Hamlins à
Londres,
comme conseil S. -8-
The PRESIDENT: Pleasebe seated. The Court will hold this morning
its last hearing in the course of which it will hear Bahrain in its
second round of oral proceedings. 1 give therefore thefloor to the
Agent, His Excellency Minister MohammedAl Baharna.
Mr. AL BAHARNA: [Greetings] Mr.President,Members of the Court, in
opening this second round of oral pleadingson behalf of the State of
Bahrain I should like to outline theorder in which counsel will address
the Court :
- firstly, ProfessorWeil will return to the question of consent to the
jurisdictionof the Court;
- secondly, Professor Bowett will concentrateon the 1987 Agreement and
the work of the Tripartite Committee;
- Dr. Jiménez de Aréchaga will consider the question of the subject of
the dispute and refute Qatar's contention that this is defined in
paragraph 2 of the 1990 Minutes; and
- Professor Lauterpacht will address the status and effect of the 1990
Minutes.
Finally, 1 will conclude by summarizingBahrain's perception of the
principal points in thiscase.
Mr. President, 1 should be grateful if you would kindly cal1 on
Professor Weil to address this Court.
The PRESIDENT: Thank you, Your Excellency. J'appelle à la barre le
professeur ProsperWeil. -9-
M. WEIL :Monsieur 1.ePrésident,Messieurs lesjuges, le second tour
des plaidoiries oralesest l'occasion de faire le point et de dresser le
bilan des convergenceset des divergencesentre les Parties.
Premièrement : les Parties s'accordent à voir dans notre affaireune
question de compétence,et non pas une question de procédureou de
recevabilité.
Deuxièmement : les Parties s'accordent à voir dans le consentement
des Parties la condition de la compétence de la Cour.
Troisièmement : ce qui nous sépare de nos adversaires,c'est qu'ils
soutiennent que l'engagementpris par les Parties en 1987 de soumettre
leurs différends à la Cour doit recevoir effet, fût-ce au prix d'une
saisine unilatérale nonvoulue par lesParties et, en tout cas, jamais
acceptée par l'une d'elles. Nous estimons, pour notre part, que le titre
de juridictionrésultant de l'accord de principe des Parties de recourir
au règlement de leurs différends parla Cour de préférence à tout autre
mode de règlement resteimparfait, «inchoates ai-je dit, aussi longtemps
que les Parties ne se sont pas mises d'accord aussi sur l'objet et la
portée des différendset sur la méthode par laquelle la Cour sera saisie.
Quatrièmement : tout en insistant sur le caractère complet et
définitif de l'engagementpris en 1987 de recourir au règlement de leurs
différends par la Cour, le Qatar continue à prétendre que de
l'assentimentqu'il a donné à la formule bahreïnite est né le
consentementdes Parties à l'objet et à la portée des différends
(CR 94/7, p. 45 et 58). Nous avons montré que ce n'était là l'objet et
l'effet de la formule bahreïniteque dans la perspective du compromis en
cours de négociation. Le conseil du Qatar est allé hier jusqu'à avancer
l'idée, assurément inattendue,que cette formule (la formule bahreïnite) - 10 -
était <plus appropriée à la saisine de la Cour par voiede requêtew, et
<qu'elle se prêtait beaucoupmieux à servir de base à une requête
unilatérale de chacune desParties» qu'à une saisine par voie de
compromis (CR 94/7, p. 59). Je pose la question, Monsieur le Président :
est-ce que les gouvernementsont l'habitudede rédiger les clauses par
lesquelles ils prévoient que la Cour pourra être saisie unilatéralement,
par requête de l'une ou de l'autre Partie, sur le modèle du langagede la
formule bahreinite : &Les Parties prient la Courde trancher toute
question ... etc. ?%
Cinquièmement : le consentement à la compétence implique-t-ilun
consentement spécifique à la saisine, et plus précisément à la saisine
unilatérale ? Sur cette question, qui se trouveau coeur de notre
affaire, la pensée de nos adversairesparaît avoirquelque peu évolué.
De la distinction radicaleentre la compétenceproprement dite, dont le
Qatar reconnaîtqu'elle relève du principe consensualiste,et la saisine,
simple «question de procédure», qui, à ce titre, ne relèverait pas au
même degré de l'exigencevolontariste, il n'a fort heureusement plus été
question.
Mais si la thèse extrême, négatrice de toute exigence du consentement
à la saisine, paraît avoir été abandonnée, le Qatar ne s'est pas pour
autant rallié à la conception,que j'ai eu l'honneurd'exposer devant la
Cour, du consentement à la saisine, composante à part entière du principe
général de la juridiction consensuelle. Surce point, l'ambiguïté des
thèses du Qatar demeure entière, et le Qatar continue à jouer sur les
deux registresdu consentement réel, fût-il implicite, et du consentement
simplement présumé. D'un côté, en effet, le procès-verbal de Doha a
continué hier à être présenté commeexprimant l'accord des Parties sur la - 11 -
possibilité d'une ou de deux requêtes unilatérales. D'un autre côté, et
concomitamment,on nous a répété hier que, puisque les Partiesn'ont pas
pris expressémentposition sur lemode de saisine et n'ont pas
formellementexclu» (CR 94/7, p. 63) la saisine unilatérale, le
consentement à cette dernière devait êtreprésumé.
Je ne reviendrai pas surl'impossibilitéjuridique à admettre l'idée
inacceptabled'un consentement simplementprésumé. La question se ramène
en conséquence à celle de savoir si à Doha les Parties - les deux Parties
- ont ou non donné leur consentement à la saisine unilatérale. Ce
consentement, nous sommesd'accord avec la Partieadverse là-dessus,peut
être implicite, à condition d'être certain compte tenu des circonstances
de l'espèce. Il peut avoir étédonné sous n'importe quelle forme. Mais
encore faut-il qu'il ait été effectivementdonné, qu'il soit «non
équivoque» et «indiscutable».
Nous avons montré, dans le premier tourde nos plaidoiries, qu'il ne
pouvait pas être question d'une «rencontre des volontés», d'un «meeting
of minds», à Doha sur la saisine unilatéralepuisque Bahreïna obtenu à
Doha l'accord du Qatar à la substitutiondes mots : «les Parties» aux
mots «l'une ou l'autre Partie» ou «chacune des Parties» proposés par
Oman. Ce fait, je l'ai déjà dit, n'est pas contesté par le Qatar
(réplique du Qatar, par. 3.66; CR 94/3, p. 20) et a été reconnu tant dans
les écrituresque dans les plaidoiriesdu Qatar. Je me permets de le
répéter : un *non» explicite ne peut pas être compris comme un *oui*
implicite.
Embarrassé sans nul doute par lecaractère dévastateur de ce fait
établi et non contesté, l'agentdu Qatar a tenté d'en minimiser la
portée. Pour tout juriste, pour tout hommede bon sens, écarter, au - 12 -
cours de la négociation d'une clause juridictionnelle, aeitherof the
Partiess au profit de «the Partiess signifieque c'est l'action des deux
Parties, et non pas celle de l'une ou l'autre d'entre elles agissant
seule, qui est exigée. Pour le Qatar, au contraire, le sens naturel et
ordinaire des termes doitêtre inversé, puisque, à en croire l'agent du
Qatar, c'est dans le but de permettre la saisine unilatéraleque ce
changement auraitété opéré :
c On the Omani draft [a déclaré hier l'agent du Qatar1
Bahrain simply changed«either of the parties» to «the parties»,
thus making clear that both Qatar and Bahrain hadthe right to
make a unilateral application to the Court.» (CR 94/7, p. 16.)
M. Quéneudec, quant à lui, dans sa démonstrationvisant à établir que les
Parties avaient «laissé ouverte la possibilité d'une saisine unilatérale2
(CR 94/7, p. 601, a passé sous silencece changement hautement
significatif apporté à la rédaction du procès-verbalde Doha, changement
dont je dirais qu'il a fermé - plutôt que laissé ouvert - toute
possibilité de saisine unilatérale.
Sir Ian Sinclaira mis en garde contre la tentation, dans
l'interprétationd'un traité, de faire prévaloirl'intention subjective
des négociateurssur la volonté des Parties telle qu'elle est exprimée
dans le texte (CR 94/7, p. 34 et suiv. ). Laissant de côté la question de
la nature juridique duprocès-verbalde Doha, j'observeraisimplement que
c'est à une donnée objective, qui a trouvé expression dans les textes,
que je me suis référé lorsque j'ai insisté sur l'importance crucialedu
changement de texte opéré à Doha à l'initiative de Bahreïn et accepté par
le Qatar. J'ajouterai que si les Parties avaient vraimententendu, à
Doha, vouloir autoriser désormaischacune d'elles à agir unilatéralement
et séparément, ce n'est à coup sûr pas à la formule figurant dans le - 13 -
procès-verbal de Doha qu'elles auraient recouru, mais à la formule
classique, usuelle, claire et simple «l'une ou l'autre Partie» - or,
c'est cette formulequ'elles ont précisémentécartée.
Dans l'espoir d'établir contre ventset marées un semblant de
consentement à la saisine unilatérale à Doha, le Qatar a avancé au second
tour des plaidoiries unargument quelque peunouveau,.repris avec une
insistance quin'aura pas échappé à l'attentionde la Cour : l'engagement
pris en 1987 de porter le différend devantla Cour, nous a-t-on expliqué
longuement hier, ne pouvait pas resterinexécuté du simple fait de
l'échec des négociationspour la rédaction du compromis;la voie du
compromis étant abandonnée,nous a-t-on dit en toutes lettres, il ne
restait «d'autre issue que la voie de la requête» (CR 94/7, p. 63 ;
cf. p. 20 1.
La Cour aura remarqué que ce thème du caractère inéluctablede la
saisine unilatérale, à la suite de l'échec de la négociation pour la
rédaction du compromis,paraît avoir remplacé, dans la pensée de nos
adversaires, le thème primitifd'après lequel, les Parties étant d'accord
sur l'essentiel,il n'y a plus rien aujourd'huiqui fasse obstacle à ce
que la Cour exerce sacompétence. Jusqu'ici, c'était l'accord des
Parties sur presque tout qui était invoqué pour justifier le dépôt de la
requête; à présent, c'est l'échec complet des négociationsdont on nous
dit qu'il ne laissait plusd'autre issue.
C'est là, une fois de plus, nier l'exigencedu consentement à la
saisine. Cette thèse revienten effet à soutenir que sideux
gouvernements désireuxde soumettre un différend déterminé au Règlement
de la Cour ne parviennent pas à s'accorder sur la rédaction d'un
compromis, ils sont présumésipso facto avoir consenti à la saisine - 14 -
unilatérale,puisquoil n'y avait plus d'autre issue pour porterl'affaire
à la Cour. En d'autres termes, l'échec de la soumission conjointese
transforme, selon la thèse de nos adversaires, par une mystérieuse
alchimie, en un accord sur la soumission unilatérale;ou, si l'on
préfère, le consentement à la saisine unilatéraleest inféré de l'échec
des négociationspour la rédaction d'un compromis.
Ce n'est plus parce que les Parties auraient décidéd'un commun
accord, fût-ce implicitement,d'autoriser la saisine unilatéraleque le
procès-verbal de Doha est, à l'extrême fin de cette procédure, présenté
comme légitimantla requête unilatérale du Qatar, mais parce que, les
Parties n'étant pas parvenues à s'accorder sur la rédaction d'un
compromis, le dépôt d'une requête était devenu le seulmoyen encore
disponible pour mettre en oeuvre la décision de principede 1987 de
recourir au règlement judiciaire. La Cour appréciera la singulière
logique de cette argumentation.
Le consentement à la saisine, élément constitutifdu principe
fondamental de la juridiction consensuelle ne repose pas, contrairement à
ce qu'a dit le professeur Salmon, sur «un dogme présenté commeune vérité
révélée : que l'action doit être introduiteconjointement» (CR94/7,
p. 51). Il constitue une règle de droit qui occupe une place centrale
dans le système juridique international.
Monsieur le Président,Messieurs les juges, à la suite de l'exposé
que j'ai eu l'honneur de faire devant la Cour, j'attendais - pour être
franc, je redoutais - une contradictionsur la nécessité du consentement
à la saisine en tant que troisièmeaspect essentieldu consentement à la
compétence et une contradictionaussi sur l'identificationdu titre de - 15 -
compétence dont se prévaut leQatar. Les plaidoiries que nous avons
entendues hier ont déçu mon attente mais ... dissipé mes appréhensions.
La non-exigence du consentement à la saisine a été réaffirmée sans
qu'il y ait été apporté le moindre commencement de preuve.
Quant au titre de juridiction - question importante dans undébat sur
la compétence - on s'est contenté de nous dire que ehercher à faire une
place à la requête du Qatar dans un «schéma prédéterminé» - entendez par
là : le «schéma» décrit dans l'arrêt Différend frontalier terrestre,
insulaire et maritime (El Salvador/Honduras) - «revient à oublier que
l'article 36, paragraphe 1, du Statut n'a jamais été interprété de
manière littérale» (CR 94/7, p. 61 ). A cette dernière analysede
l'article 36, paragraphe 1, j'avais moi-même souscrit,dans les mêmes
termes, en ajoutant que c'est la réalité du consentementplus que son
véhicule formel quiest déterminante (CR 94/6, p. 20-21).
Sur le titre de juridiction invoqué par le Qatar nous restons donc
sur notre faim.
Quant à dire que j'ai procédé à la manière des «anciens apothicaires»
qui «aiment les bocaux bien rangés avec leurs étiquettesbien distinctes»
(CR 94/7, p. 61), je prends ceci pourun compliment, car je me suis
efforcé de suivre la ligne tracée par la Cour et par d'éminents auteurs
qui ont tous procédé à une classification rigoureuse des titres de
juridiction. Je voudrais en tout cas rendre hommageau talent et à
l'élégancede mon ami et collègue Jean-PierreQuéneudec, puisque c'est
avec lui plus particulièrementque j'ai eu le plaisir de croiser le fer.
Monsieur le Président,Messieurs les juges, permettez-moi de redire à
la Cour combien je suis heureux et combien je me sens honoré d'avoir pu,
grâce à la confiance du Gouvernementde Bahreïn, prendre la parole devant - 16 -
elle. Je vous remercie de votre patienteattention, et je vous prie,
Monsieur le Président, de bien vouloir appeler à la barre le professeur
~owett .
Le PRESIDENT : Merci, professeur Weil. 1 give now the floor to
Mr. Bowett.
Mr. BOWETT : Thank you Sir. Mr. President,Members of the Court,
both Parties agree that, pursuant to the 1987 Agreement, they accepted no
more than a commitment in principle to refer al1 their disputes to the
Court. It is common ground that the 1987 Agreement was not per se a
basis of jurisdiction: it required implementation tobecome effective
Both Parties agree that, within the Tripartite Committee, the Parties
agreed that the method ofimplementationshould be a Special Agreement.
The question arises, therefore,of how Qatar attempts to show that
this clear agreement to proceed to the Court under a Special Agreement
was changed. The central Qatari argument depends upon the use in the
Doha Minutes of the phrase "al tarafan". Professor Lauterpachthas
demonstrated that this argument is totally unpersuasive
In addition, however, Qatar has to explain away two further phrases
in the Doha Minutes which, 1 submit, are clearly inconsistent with
Qatar's interpretation. 1 take the first phrase:
(i) "That which had previously been agreed between the two Parties wae
re-affirmedm
Given that the Parties had previously agreedto proceed via a Special
Agreement, this phrase inthe Doha Minutes must confirm that common
intention. 1 take the second phrase:(ii) "the two Parties may submit the case to the International Court of
Justice, in accordance with the Bahraini Formula..."
It has to be recalled that there were three distinctelements to this
formula. These were
First, a "neutralg0 framing of the issues,
Second, a clear ucderstanding that it was designed by Bahrain to
allow Bahrain to bring its claims concerning Zubarah, an understanding
Qatar does not deny, and
Third, a common acceptance that the Bahraini formula was to be
contained in Article II of a Special Agreement.
Now, insofar as Qatar wished to accept this formulaat Doha, Qatar
had to accept al1 three elements: the "definitional"element, the
element of intent or purpose, and the element of context. It was not
open to Qatar to accept just the first element, and reject the second and
third. In fact, Qatar has not really accepted eventhe first element.
Qatar's Application is not in the neutral terms of the Bahraini formula.
The issues put to the Court by Qatar in its Application are not an
accurate reflection of that formulabut are rather selective and self-
serving. Qatar pays no more than lip-service to the requirement - the
fundamentalrequirement - that the Parties must be agreed on the subject-
matter of the dispute which they refer to the Court. Thus, this phrase,
too, runs counterto Qatar's interpretationof the Doha Minutes. Qatar
cannot, at the same time, "accept"the Bahraini formula with its three
elements and disavow the need for a Special Agreement, bringing a
unilateral claim excludingZubarah.
So, Qatar's interpretationfaces these considerable obstacles - quite
apart from the meaning of "al tarafanu - which arise from the - 18 -
inconsistency betweenQatar's interpretationof what was agreedat Doha
and these two, clear phrases in the Agreed Minutes.
How does Qatar explain these inconsistencies? Qataroffers two
explanations:
First, Qatar argues that the "re-affirmation"was confined to the
1987 Agreement and the commitment in paragraph 1 of that Agreement to
have recourse to the Court. Thus al1 the agreements reachedin the
Tripartite Committee, including the agreement to proceedby way of
Special Agreement, can be ignored.
In the argument of the Agent for Qatar yesterdaywe were given the
reasoning behind this extraordinary interpretation of what was
re-affirmedat Doha. The reasoning seemsto run as follows. Qatar says
that the GCC members knew of the 1987 Agreement, but did not know of the
other agreementsreached in the Tripartite Committee.
Therefore, says Qatar, at Doha the Parties' re-affirmationof their
previous agreementswas confined to the 1987 Agreement. Mr. President, 1
see no logic in that: and it is certainly not what the Doha Minutes Say.
Why two parties, in re-affirmingpoints of agreement they have previously
negotiated, should wish to confine thatre-affirmationto points third
parties may know about is not clearto me at all.
Second, Qatar argues that the Tripartite Committee was at an end and,
in consequence, the understanding that the Parties would proceedvia a
Special Agreementhad been abandoned.
Mr. Shankardass,as counsel forQatar (CR 94/7, p. 20) suggested that
this failure had occurred by the end of 1988.
In the first round 1 had suggested (CR 94/5, pp. 35-36) that this
reasoning was unacceptable. The Minutes Say nothing about terminating - 19 -
the Committee, and, on the contrary, disclose that Bahrain would go away
and think about the Qatari idea for twoannexes. Moreover, SaudiArabia
could not uriilaterallyterminate a dispositive provisionin a tri-party
agreement without the consentof both Qatar and Bahrain. And, finally,
at Doha both King Fahd andShaikh Mohammed stated that the Tripartite
Committee was still in being.
Qatar's answer to these points is that the consent of Qatar and
Bahrain to the termination of the TripartiteCommittee established in
paragraph 3 of the 1987 Agreement by Saudi Arabiawas not needed.
Because Saudi Arabia was given "another role and duty" under paragraph 4;
1 cite Mr. Shandardass.
Mr. President, 1 am baffled. Paragraph 4 provided for Saudi Arabia
to continue its good offices. How that can be interpretedas including a
power to terminate paragraph 3, without the consent of the other Parties,
escapes me.
Then as to the statementsmade by King Fahd and Shaikh Mohammed at
Doha, suggesting the Tripartite Committee was still in being,
Mr. Shankardass suggeststhe statement was ~obviouslymade in the context
that it was a duty the Committee had failed to discharge" (CR 94/7,
p. 21).
That is not what King Fahd is reported as saying. 1 can only request
the Court to read the textof the report (CMB,Vol. II, p. 160).
Mr. President, the suspension of the work of the Tripartite Committee
in 1989-1990has been satisfactorilyexplained by both Parties: it was
due to the active resumptionof Saudi mediation on the merits. There is
no possible basis for assuming that thib sody, establishedby treaty, has
been terminated. Indeed, Qatar overlooksa rather elementary point. The - 20 -
termination of the Tripartite Committeewould not in any event terminate
al1 that had been provisionallyagreed in that Committee. Why should it?
To bring to an end the machinery for negotiationdoes not automatically
bring to an end the contentof agreement already reachedvia that
machinery.
So, if the Committee remainedin being this.carries the clear
implication that its workwas unfinished. What, then, was its work? It
had decided that the preferred way to implement the 1987 Agreement in
principle to go to the Court wasvia a Special Agreement: and its work
was to complete that Agreement. Qatar has not disputedthat.
Of course, Mr. Shankardass keepsrepeating that it was not stated in
the 1987 Agreement to be the only way. 1 accept that. But the point is
that, within the Tripartite Committeethey decided this was the way to be
followed. After someinitial uncertainty Dr. Hassan Kamel entirely
accepted that. And 1 see no basis in the records for suggestingthat the
method of seisin was still an open question at the Sixth Meeting.
It must by now be clear to the Court that Qatar wishes to rid itself
of the embarrassmentof having agreed, in the Tripartite Committee, to
seek a Special Agreement.
Bahrain does not argue that these agreements reached in the
Tripartite Committeewere treaty commitments,beyond revocation.
The process of negotiations in the Tripartite Committee,like the
negotiations of any agreement or treaty, is one in which, step by step,
the component elements are agreed. Obviously at each stagethat
agreement is "provisionalu,in the sense that both Parties will want to
look at the whole text, with al1 its components,before saying "we have
an agreed text." And, even then, the Parties will be fully bound only - 21 -
when they havegiven their forma1 acceptance - by ratification,
acceptance or signature - whatever method the relevant final clauses
stipulate.
Applying this to the negotiations in the Tripartite Committee,
Bahrain does not argue that each agreedstep was fully binding the moment
it was agreed. Thus, when the Parties agreed to draw up a Special
Agreement, therewas no final commitmentat that stage.
But in this case there are additional factors to be taken into
account. At Doha the Parties re-affimed that agreement. Moreover, in
accepting the Bahraini formula, Qatar knew that, because of the whole
history of negotiations in the Tripartite Committee, this would be
understood as accepting article II of a Special Agreement.
Thus, what Qatar cannot Say is that, at Doha, it confirmed its
acceptance of the prior, albeit provisional, agreementto proceed by way
of a Special Agreement and, at the same time, argue that it obtained at
Doha Bahrain1s consent to proceeding withouta Special Agreement, by
unilateral application. It is a simple questionof consistency. The
Qatari argument has to be rejected because it is simply inconsistent.
1 would emphasize that, in showing thatQatar's arguments are
inconsistent, 1 attach no greater legal quality to the Doha Minutes than
to the Tripartite Committee Minutes. They al1 recorded agreed steps en
route towards a final agreement. 1 reject entirely Sir Ian Sinclairls
view that the Doha Minutes werebinding, unlike the Tripartite
Committeels,because at Doha they were intended to "pin domu the
Parties. Mr. President, al1 agreed minutes "pin downu signatories in
this provisionalway, and the Doha Minutes are no different from the
Minutes of the Tripartite Committee. - 22 -
Mr. President, Members of the Court, this concludes my statement, and
Could 1 now invite you to
1 thank you for your courtesy and patience.
cal1 on Professor Jiménez de Aréchaga?
The PRESIDENT: thank you Professor Bowett. 1 give the floor to
Professor Jiménez de Aréchaga.
Mr. JIMENEZ DE ARECHAGA: Mr. president,Members of the Court, my
learned friend Professor Salmon has contendedin the second round that
the "subject of the disputen, which an applicant is required to indicate
in its application, is defined in paragraph 2 of the Doha Minutes in the
phrase which merely says "the question".
This is a new thesis, not alleged in the Application itself which, in
trying to define the subjectof the dispute, refers only to the Bahraini
formula. In any event, an elliptical reference to "the question" is
absolutely insufficient for the Court to determine whether there isthe
required consentof both Parties with respect to "the subject of the
disputeN.
Realizing the insufficiencyof this contention Professor Salmonalso
had recourse to the Bahraini formula, incorporatedin the Doha Minutes.
But the Bahraini formula has also been drafted ina general and
abstract way. It is a formula which requires to be completed and filled
in with an indication of concrete issues.
Both Parties agreethat the Bahraini formula was designed to include
Zubarah; it constituted an answer to the late Dr. Hassan Kamel1s
reservation opposingthe Bahraini claim of sovereignty with respect to
Zubarah. - 23 -
But, as a general and abstract formulation it does not assist the
Court in itstask of determining whether thereis consent of the Parties
concerning the subjectof the dispute.
Professor Salmon's simple answer is to Say: let Bahrain completethe
subject of the dispute by filing its own claims, including Zubarah. As
to Qatar's claims, concerning the Hawar 1slands.and.whatQatar calls the
shoals, they have been filed with theCourt.
But there is a missing elementin this view of the case by Qatar.
What is missing is an all-encompassing,agreed referenceto the Court,
such as the Act of Lima, authorizingexpressly each Partyto submit its
own claims. The Doha Minutes, contrary to Professor Salmon's
supposition,cannot perform thatrole because their very terms do not
contemplatenor authorize such an exceptionalprocedure. To support
Qatar's interpretationthe relevant phrase inthe Doha Minutes should
have provided asfollows: "Once that period has elapsed each Party may
submit its own claims to the ICJ". But this was not the formulationthat
was adopted at Doha.
In its future judgmentthe Court has todetermine whether Bahrainhas
consented to "the subject of the dispute" as that dispute has been
defined in the Qatari Application. This is so, because Qatar's final
submission is to the effect that thecase should go on as it stands, on
the basis of the Application Qatarhas filed, thus limited to its own
claims.
This means that it is necessary for the Court to determine with
respect to the present Application whether there is, here and now,
consent by Bahrain to have its sovereignty overHawar Islands and Dibal,
and Qit'at Jaradah, submitted to judicial decision in these proceedings. We venture to suggest, Mr. President, that, in taking its decision,
the Court should recall that Bahrain is asked to do what few States have
done, or are prepared to do, namely to put in issue before theCourt
territories over which it exercises long-standingsovereignty. This is
the reason why 1 said in my previous interventionthat:
"Bahrain has never consented, through .the Bahraini -formula
or otherwise, to submi t to the Court i ts sovereign rights over
these essential parts of its territory which are the Hawar
Islands, and Dibal and Qit 'at Jaradah. By its formula, and
relying on the 7 December 1988 Minutes, Bahrain was prepared to
go to Court only if and when its own claims with respect to
Zubarah, the Janan island as part of the Hawar group of islands,
the archipelagic basel ines and the pearl ing and fishing areas,
were equally considered and decided by the Court, at the same
time, within the same set of judicial proceedings"
"with al1 issues of dispute to be considered as complementary,
indivisible issues, to be solved comprehensivelytogether",
as it is demanded by the First Principle of Mediation, accepted by the
Parties
It follows that the presentone-sided Application is not an equitable
and valid basis for proceedings intendedto achieve a final judicial
settlement of the existingdispute. what is required under Article 40 of
the Statute is to reject the present Application, in order to have a
balanced case encompassingwhat Sir Ian Sinclair has called "the whole
dispute", including the complete list of issues which were defined in the
agreed Minutes adoptedon 7 December 1988 at the Sixth Meeting of the
Tripartite Committee.
Mr. President, that is the end of my statement. 1 thank you and the
Members of the Court for their patience andattention. And 1 ask you, if
you wish, to cal1 to the bar Professor Lauterpacht. - 25 -
The PRESIDENT: Thank you, Professor Jiménezde Aréchaga. 1 give the
floor to Professor Lauterpacht.
Mr. LAUTERPACHT: Mr.President,Members of the Court, every case
must have a heart. At the heart of this affair lies the text that we
cal1 the 1990 Minutes. At the heart of the 1990 Minutes liesparagraph
2. At the heart of paragraph 2 lies the sentence (in the United Nations
translation)
"Once that period has elapsed the two parties may submit
the case to the InternationalCourt of Justice, in accordance
with the Bahraini formula adopted by theState of Qatar and the
arrangements relating thereto."
And at the heart of that sentence lie the words "the two parties". No
matter how much Our distinguished opponentsmay suggest the independent
force of the 1987 Agreement; no matter how much they may decry the
activity of the Tripartite Committee and attempt to consign it to a
premature grave; no matter how much they may seek to exaggerate or
disregard a limited consent; no matter how much they may pretend that
the quality of an application rests not uponits own content but upon the
possibility of subsequent conducton the part of the Respondent State
which for good reason it has declared it will not pursue, and which, in
any event, anticipates a degree of complianceby the Court that no
litigant has the rightto assume; none of these things can affect the
heart of the matter. They are all, so to speak, adipose tissue -on the
identificationof which 1 can rightly claim to be an expert. Unless the
Applicants in this case can get the heart of the matter to beat firmly
and steadily the corpse cannottake life.
Fated as 1 have hitherto beento aeal with the issues relating to the
1990 Minutes, it falls to me to examine the patient in the light of the - 26 -
treatment thathe has receivedat the hands of the doctors on the other
side. It is my submission,but with no regret, that his condition is
mortal and that his demise is imminent.
Analogies are al1 very well, Mr. President, but there is one major
flaw in this one. It may suggest that Our patient was once alive. The
premise is false. He was always dead.
In carrying out this enquiry - 1 am not sure whether tocal1 it
post-mortem or ante-mortem - 1 shall deal with only a few symptoms of the
disease identified by learned counsel for Qatar. And here,
Mr. President, 1 re-enter the vocabulary of the law.
TO REAFFIRM WHAT WAS PREVIOUSLY AGREED BETWEEN THE PARTIES
May 1 begin by disposing briefly of one point thatarises on
paragraph 1 of the Doha Minutes: ItThatwhich had previously been agreed
between the two parties was reaffirmed."
Bahrain has argued that that reaffirmationmust have been intendedto
cover more than the 1987 Agreement. This provision, it will be recalled,
first appeared in the Omani draft of the 1990 Minutes. Bahrainargued
that, although Oman would have known of the 1987 Agreement, it could not
have known of the content of whatever might have beensubsequentlyagreed
between the Parties in the Tripartite Committee. Omanwould, therefore -
so Bahrain continued - not have intendedto limit the range of "matters
previously agreed" to matters of which it had itself persona1 knowledge,
but would have wantedto cover whatever might have been agreed.
To this the Agent of Qatar responded yesterdayby agreeing that Oman
would not have known of "the various so-called agreementsw reached during
the Tripartite Committee meetings. - 27 -
For that reason, he argued, the phrase in question must be understood
as referring to the one item about whichOman knew, namely, the
1987 Agreement. Inreply, 1 ask 'Why so?" In particular, 1 venture to
reinforce the submissions that 1 have previously made tothe Court, by
the following observation. If, as Qatar suggests, the only item which
Oman had in mind as having been previously agreedwas the 1987 Agreement,
the obvious and natural thing for it to have done would have been to have
named it specifically. The fact that it did not do so, but instead used
a more obscurantist general expression,is a perfectly understandable
reflection of its uncertainty about what might have been agreed, of
showing a disinclinationto be specific and, therefore, of keeping the
position open to cover the possibility that there might have beenother
matters agreedupon besides those covered by the 1987 Agreement.
THE LEGAL STATUS OF THE 1990 MINUTES
The second matter to be considered is closer to the centre of things.
It is whether the 1990 Minutes can properly be regarded as a legally
binding treatyor international agreementfalling within the scope of
Article 36 of the Statute of the Court.
The specificpoint for consideration is the question raised by Sir
Ian Sinclair as to whether the state of mind of the Bahraini Foreign
Minister in signing the Doha Minutes could haveany relevance to their
legal quality. Sir Ian constantly invokes therules of the Vienna
Convention dealing with the interpretationof treaties for the purpose of
determining whether there exists an intent to create a treaty. In
passing to the specific point 1 want to make, 1 must observe that this
technique suffers frorri major flaw. The process of interpretinga - 28 -
treaty assumes that a treaty exists, that there has beena meeting of
minds to bring into being. Here, the issue is rather different. It is
whether the treaty has come into existenceby reason of a conjunctionof
wills or intentions. The rules for interpretinga treaty really cannot
be applied in an entirely different situation.
However, for the sake of argument, 1 shall pick up the authority that
Sir Ian cites and note one very pertinent element in it. The reference
is to the comment of the InternationalLaw Commission on what is now
Article 31 of the Vienna Convention headed "GeneralRule of
interpretationl'.This commentary States that "The article ...is based
on the view that the text mustbe presumed to be the authentic expression
of the intentions of the parties." 1 would point to the word "presumedl'.
Whatever the text may Say, it can only be presumed to be the authentic
expression of the intentions of the parties. The commentarydoes not Say
that the text is the conclusive expression of the intention. Nor does it
Say that the presumption is irrebuttable. It is no more than a
presumption. Behind the presumed intention there must be a real
intention. If that real intention can be proved, then there is no reason
to disregard it.
As 1 have already submittedin the first round, the evidence of the
ahr rai Mninister is perfectly admissible. The only question is the
weight to be given to it. What the Minister has said has not been
challenged by comparable evidence. My submission is that the Courtmay
take that statement into account asan indication that the 1990 Minutes
are not intended to be a legally binding instrument.
That said, however, let it not be thought that Bahrain is unwilling
to respond to the substance of Qatar's comments on the legal quality of - 29 -
the 1990 Minutes. As Sir Ian has correctly observed, "a cracked
gramophone record is no substitute for reasoned argument". Well, 1 must
suggest that the reiterationby Qatar of its view that the 1990 Minutes
were intendedto be legally binding partakes moreof the former than of
the latter quality.
The Court is told that on this matter 1 distorted my learned friendls
argument by complaining thathe had not specifically demonstratedthe
intentions of theParties and that he had, instead, concentratedon
analysing theoperative provisions of the text. However, 1 respectfully
adhere to the submission that there is a clear distinction between
content and intent. The mere fact thatthe "content"of an instrument is
of a kind that could be legally binding if deliberately made so does not
mean that it is legally binding. Theresult depends upon context, form
and expression. Sir Ian was good enough to bring to the attention of the
Court an article that I had quite forgotten that 1 had written some
eighteen years agoentitled "Gentlemen'sAgreements". How the follies of
one's youth return to haunt one. Unfortunately,apart from reminding me
of its existence, Sir Ian did not provide me with a text and time has not
permitted me to look it up again. But now that he has put the idea inmy
mind, 1 can of course recallthat there are many international texts of
what may be called usub-bindingvquality. Often they are called "soft
laww - prescriptionswhich are clearly intendedto be a guide to conduct,
often very specificin content, but not intendedto have legal force.
The Stockholm Declaration on the Environment wouldbe one example. The
so-called nCompromisde Luxembourguon voting within theCouncil of the
European Commuriitywould be another. Other examples will, 1 am sure,
readily occur to the Members of the Court. - 30 -
As 1 suggested last Friday, there was no reason why the Bahraini
Foreign Minister on 24 December 1990 should have thought that the
Doha Minutes weregoing to differ legally from previousminutes of
similar character adoptedon previous occasions. No, says Sir Ian. The
minutes emanated from "a serious and profound discussion". "Some
progress had been made - or so ft must have seemedto the vast majority
of the participants" - though how that last fact, this is me not him, how
that last fact is to be established beforeyou 1 do not know. "Three
important elements had certainly been agreed.I1 And then, hey presto,
I1Bahrain1s negotiators would or should have known that the Doha Minutes
were intended to embody legally binding undertakings." What would the
negotiators at Stockholm or at Luxembourg havethought?
Here is the old cracked recordagain. What is it that converts the
features mentionedby Sir Ian into "intent to embody legallybinding
obligations"? Sir Ian speaks of a kind of intent that appears to be
something different fromconsensus ad idem. We must remember, 1 would
suggest, that we are in the contractual sphere here where intent has to
be bilateral. There has to be intent on both sides and the two
intentionsmust be identical. We are not in the sphere of criminal law
where we are concerned only withthe separate intention of the individual
criminal. Qatarmay have intendedto create legalrelations. But unless
Bahrain can be shown to have shared that intent - in content and
character - there is no binding legalobligation. THE VALUE OF THE STATEMENTS MADE BY THE
BAHRAINI FOREIGN MINISTER AND BY THE
MINISTER OF STATE FOR LEGAL AFFAIRS
Closely related to the point that1 have just been discussing is the
question of the evidentïal force and valueof the statements made by the
Bahraini Foreign Minister and by Dr. Al Baharna. The Agent for Qatar has
criticized those statements on a number of grounds and has suggested that
the anonymous narrative statementsmade in the Qatariwritten pleadings
are at least of equal value.
One criticism was thatthe Bahraini statements were made 18 months
after the events. But the first Qatarinarrative was itself filedas
part of the Qatari Memorial only about 3 months previous to the date of
the Ministerls statements, so the delay in preparation can hardly be
regarded as a significant factor.
Moreover, it remains a fact, as Bahrain has indicated, that the
accuracy of the statements has never been challenged. Qatarhas referred
to the footnote on page 34 of its Reply as being a denial of such
accuracy. But if it is read, it will be seen that this footnote is
forma1 and comprehensive. It is notable inthe generality of its
expression. It cannot possibly have been intended as a denial of al1
that the Minister said, otherwise it would have been denying facts which
it - Qatar - itself admitted. Nowhere does it seek to contradict the
statements in any material detail.
The distinguishedAgent of Qatar has asked howQatar could provide
evidence to contradict a statement concerningdiscussions at which it was
not present. That would be fair comment if it were relevant. But it
does not meet the point that Bahrain is making. The Bahraini statements - 32 -
were by no means limited to describing matters which took place it nhe
absence of Qatar. It would still have been possible forQatar to have
provided a statement by someone involved in thenegotiations to explain
why Qatar thought that the Minutes were intended to be a legally binding
instrument and, even more important,why Qatar acceptedthe change of
wording from "either of the Parties", I1ayyun min al-tarafayn",to "the
PartiesM, to "al-tarafan",without raising any question or lodging any
objection. The Court will also remember that 1 drew to its attention the
evidently recentlymanufactured explanation givenby Qatar to the effect
that the change to "al-tarafanIo was acceptable to Qatar because, so it
claimed, it removed the risk that theParty startingthe proceedings
might have to present both its own case and that of the opposite Party.
Could not Qatar have provided a statement to that effect by someone
involved in the negotiations to show that that was what was inQatar's
mind at that time? We have not heard anotherword from Qatar on the
subject.
Qatar produces the riposte that IlthePrime Ministerof Bahrain did
not provide a written statement". Quite true. But the Foreign Minister
did; and it is on what he says that Bahrain is relying. Qatar, by
contrast, has produced no statement at all.
Again, Qatar complainsthat the statementsmade by the Bahraini
Foreign Ministerand Dr. Al Baharna were not made in the form of an
affidavit and under oath, and for that reason could not be made the
subject of cross-examination. What price formalitynow! On the one
hand, a treaty can assume any form that Qatar favours; on the other,
Qatar jibs at the fact that a statement is not formally filed as an
affidavit. - 33 -
The truth remainsexactly as Bahrain said it was. No one on the
Qatari side has been preparedto give evidence of what happenedon 23 to
25 December 1990. This, as the Court willunderstand must, necessarily,
have a direct impact on theinterpretationof the central provisionsof
the 1990 Minutes, to which 1 shall now turn.
Mr. President, this is a slightly long section on which 1 am about to
embark, you may perhaps find it convenient to take the coffee break now.
The PRESIDENT: Thank you, Mr. Lauterpacht. 1 believe it is the
moment to have a break and the Court will resumeshortly.
The Court adjourned from 11.05 a-m. to 11.25 a-m.
The PRESIDENT: Please be seated. Professor Lauterpacht.
Mr. LAUTERPACHT: Thank you, Mr. President. 1 turn now to the
interpretationof the central provisionsof the 1990 Minutes.
LINGUISTIC ISSUES
The central question in the case may properly be described as the
meaning of the provision in paragraph 2 of the 1990 Minutes:
"Once that period haselapsed, the two parties may submit
the case to the IC'Jin accordancewith the Bahraini Formula
accepted by Qatar and the arrangements relating thereto.l8
(Emphasisadded .)
In my opening speech 1 indicated that the two sides were essentially
in agreement that the attribution of a meaning to the expression
"al-tarafanu was dependent uponthe context in whichit was used
In pursuit of the context, 1 began by demonstrating thata "pattern
of usage" relating to the words had corneinto existenceon the basis of - 34 -
the manner in which the words had been employedin earlier texts of
comparable character. Qatardoes not deny that "al-tarafan" as used in
those earlier texts has the meaning which Bahrain attributesto the
expression, namely, "the parties together",not "either of the parties".
However, Qatar makes a number of points which it is desirable to answer
one by one.
First, Qatar contends that none of the examples taken from the
historical context arerelevant because in each case "al-tarafan" was
used where an obligation was placed on both Parties, whereas in the 1990
Minutes the words are used permissively in a phrase which gives a right
to both Parties. But although Qatar States that this isa "fundamental
differencen of wording, it does not explain why this difference in
wording should result in a fundamentaldifference of result.
The Qatari Agent observed that the 1990 Minutes use the word "yajuzU
("may")which, he points out, was "net even mentioned byBahrainls
counselN. Quite true. 1 did not mention the word "yajuz" because it did
not occupy the front row of our argument, nor am 1 going to be tempted
into placing it there now.
But 1 should recall in passing, that Bahrain has in fact dealt
cornprehensively with the meaning of "yajuz" in its expertevidence.
Unlike Qatar, Bahrain has provided the Court witha comprehensive
analysis of the meaning of the crucial sentence and has shown how the
elements which make it up, when construed together - which is the only
permissible way to construe them - are only susceptibleof the
interpretation advancedby Bahrain. This analysiswas submitted as long
ago as the Bahraini Counter-Memorial,but Qatar has not chosen to answer - 35 -
it and has not producedits own analysis (CMB,Vol. II, pp. 264-272;
RejB, pp. 176-1781.
1 return to the Qatari argument. The Qatari Agent, though accurately
pointing to the difference betweenthe word "mayfland the word "must" as
an abstract matter of language does not prove anythingother than that
the two words are different. If the Agent wants that distinction to
influence the meaningof "al-tarafan" as between "either of the parties"
or "the two partiesu1, he must prove it in some way. But he does not even
embark on that exercise. He assumes that it is a self-evident
proposition. Mr. President,in my submission, it is not.
Whether the actioriis obligatory or optional in either case, the
action could be joint or unilateral, depending on the context. Suppose,
for a moment, that the rejected Omanitext, I1either of the two partiesu
("ayyun min al-tarafayn") had been acceptedby Bahrain, it would still
have allowed for unilateral action, whether such action had been intended
to be obligatory or optional. Likewise, the accepted text "al-tarafan"
meant joint action, regardless of whether a word for "must" or "may" was
used after it.
Passing on, it should be said that the Agent ofQatar does not help
his case by referring to the use by Dr. Al Baharna of the words
"al-tarafanu to describe the right of each Party under the Bahraini
formula to present its case or claims to the Court. It was clear that
Dr. Al Baharna, this was in the course of the Tripartite Committee
discussions,was using the expression "al-tarafanu in a different
context - that of explaining the operation of the Bahraini Formula, where
there can be no doubt that the intention is that the Parties shall act
separately, not jointly. Not in presenting a case to the Court but in - 36 -
expressing their claimswithin the frameworkof a single case. That is
the absolutely fundamental point.
Next the Agent for Qatar came to the very important point aboutthe
appearance of the words "each of the parties" in the original Saudidraft
and of the words "either party" in the Omani draft, coupled with
Bahrainas rejection of the Saudi draft and Bahrain's insistence on the
replacement of "either Party" in the Omani draftby the words "each
party'. Bahrain has asked Qatar to explain why it did not question the
change in the Omani draftor seek to qualifyit by the addition of some
words to reinstatethe idea to which Qatar was wedded, that it should be
each or either of the Parties which should have a right to bring the case
to the Court. What sort of reply has Qatar given?
First, it asks "Did Bahrain reallyreject those drafts?" Well, as
regards the Saudi draft, there is no question that it did. The Bahraini
Foreign Minister has said so in his statement; Qatar has never denied
it; and it is a fact that within hours the Saudi draft was replaced by
the Omani draft.
How does Qatar deal with the amendment to the Omani draft? There the
Agent says "again there is no evidence of a rejection of unilateral
action". What is the basis for this assertion? Only the statement that
"Bahrain simply changed the words 'eitherof the parties' to the words
'theparties'", and 1 am still within the quotation from the Agent, luthus
making clear that both Qatar and Bahrain have the right to make a
unilateral applicationu.
Mr. President and Members of the Court, 1must suggest that it is
impossible to understand - in following the argument of Qatar - how the
substitutionof the words "the parties" for the words "either of the - 37 -
partiesw achieves a change of meaning to - and 1 will now pote the Agent
again - "bath Qatar and Bahrain have the right to make a unilateral
application". Did they not have that rightby reason of the use of the
original expression "eitherof the parties"? Why change one expression
for another identical expression? The Qatari explanation simply does not
hold water
The propositionnext voiced by the Agent does not advance his
argument either:
"1 believe thatthese objective changes to the draft are
not at al1 rejections of the agreementreached during the
discussions at Doha that reference to the Court couldnow be by
unilateral application - but rather subjective statementsof the
alleged intentionsof Bahrainls negotiators."
So, what he is saying is that these objective changes tothe draft are
subjective statementsof the alleged intentionsof Bahrainls negotiators.
1 confess that 1 am quite baffled. It is a fact that changes of wording
took place. It is a fact that Qatar has repeatedly emphasizedthe
importance of giving a meaning to every word in a text. Yet, when we are
faced by the undeniable fact of a change in wording, we are told that the
change is a "subjectivestatement of the alleged intentions of Bahrain's
negotiators". The words, as 1 Say, are exactly as they appear in the
text of the distinguished Agent's speech of yesterday. The proposition
just does not make sense.
And that is the end of what the Agent has to Say on this crucially
important matter. Nor is there any answer offered to the comment that
Bahrain made on Monday regarding theextraordinary explanation£rom Qatar
that 1 mentioned a few moments ago - to the effect that the change of
wording was welcomed as alleviating the burden on the party initiatinga
unilateral action. - 38 -
Qatar makes no attempt to deny that priorto 1990 a pattern of usage
had emerged in comparable texts. Thereis not a word of comment by Qatar
on the detailed contextual studyof "al-tarafanuwithin the frameworkof
the 1990 Minutes themselves. There is not a word of response to
Bahrainus indication of the importance of theuse of the word "matteru in
the singular; not a word of comment upon the significanceof the
reference to the Bahraini formula as an indicator of intention to pursue
the procedure alwayscontemplated in the use of that formula - namely, a
joint submission by special agreement.
Nor did Qatar respond at al1 to the concept of negative context, in
which 1 mentioned thesignificanceof Qatar's failure to press for the
inclusion of words that would have made itsposition clear. Yet again,
Qatar does not grapple with the comments made by Bahrain in explanation
of the letters of the Amir of Qatar to the King of Saudi Arabia of 6 May
and 18 June 1991. It is not enough to offer a blunt rejection of the
Bahraini explanation and add that had the intention been as Bahrain
suggests, the letter would have said that
"we [i.e.,Qatar] intend to enter into contactwith Bahrain at
the end of the above-mentionedperiod with a view to the joint
submission of the matter to the Courtu.
The point is not what Qatar intended, but what Saudi Arabia would have
understood whenit read the letters. Qatar would havehad every reason
to use the same words as appeared in the Doha Minutes so as to avoid any
implication that the words did not have the meaning that Qatar wished
them to bear. CLARIFICATION OF THE MEANING OF THE 1990 MINUTES AND OF
SWSEQWNT EVENTS
Mr. President, 1 will now attempt to clarify the meaning of certain
expressions used in the 1990 Minutes and to refer to certain related
subsequent events, which have been the subject of comment by Qatar.
Although what 1 Say here will, to some extent overlap with the forma1
reply that Bahrain will, in due course, file to the questions posed by
Vice-President Schwebel,my observations can be regarded as, in part,
supplementary to that reply.
At the beginning ~t is necessary to recall that the1990 Minutes are
not seen by Bahrain as constitutinga legally binding agreement. Rather
their status is comparable to earlier Minutes adopted inthe Tripartite
Committee which had identical headings, had virtually identical
preambular paragraphs and bore the same signatures. Those Minutes were
not forma1 agreements but recorded tentativecommitments accepted for the
purpose of moving the discussion forward en route to an eventual agreed
joint submission to the Court. Professor Bowett hasalready amply
developed this point.
But bearing inmind this characterizationof the Minutes, we may turn
to the interpretationof its operative provisions. One is that "the good
offices" of the King of Saudi Arabia "in addressing the dispute between
the two countries shall continue until May 1991" and the other sentence
is that
"Once that period [i.e.,the period expiring on
15 May 19911 has elapsed, the two parties may submit the case to
the Court, in accordance with the Bahraini formula accepted by
the State of Qatar and the arrangements relating thereto."
1 concentrateon the second sentence - it has three aspects - 40 -
First Specific Aspect: The Position of Saudi Arabia
The position of Saudi Arabia is determined principally by the
preceding sentence: "The good offices of Saudi Arabia shall continue ..."
But there is no doubt in themind of Bahrain and, it would seem also
in the mind of Qatar, that the extension of the Mediator's mandate, in
the second sentence, related to the substance,not to the mode, of the
settlement. The extensionthus granted to the Mediator wascomparable
to the two earlier extensions requestedof him in December 1988 and
December 1989.
There were two featuresof this extension. On the one hand, Bahrain
and Qatar were making the request together; and, on the other hand,
Saudi Arabia was agreeing to resume the exercise of its function of
mediation in relation to the substance of the dispute. The renewal of
this exercise was to last for 5 months.
Second Specific Aspect: The Position of the Parties during
the Period of the Extension
The Parties undertookthat during the period of the extension they
would not submit the case to the Court. This was a joint undertaking.
They would not take the matter to the Courtjointly. It went without
saying, at any rate for Bahrain, that neither Party could take the matter
to the Court separately.
Third Specific Aspect: The Position after the Expiration
of the Period
After the end of the period, the Parties were released frorntheir
commitment not to go to the Court. Saudi Arabia was, in effect,
acknowledgingin the Minutes -because, after all, Saudi Arabia was a
signatory of the Minutes - that "after the period of 5 months, we al1 go back to the position
prior to the Doha Minutes in which the two Parties are free to
conclude their neqotiations for a joint submission to the
Court l.
The Implementation of the Doha Minutes
Although there is relatively little material to show what happened
after 25 December 1990, it may be helpful to piece the story together as
best one can from the informationon the record.
The fact that, during the 5 months after Doha, Saudi Arabia did not
actively pursue its mediation is understandable. Saudi Arabiawas
rightly preoccupiedby the hostilities withIraq, leading to the
liberation of Kuwait.
The Court will recall thatthe first part of the period £rom December
1990 to May 1991 coincided with the Allied reaction to the Iraqi invasion
of Kuwait. Operation Desert Storm began on 15 January 1991 and, of
course, in the weeks leadingupto January 15, there was an immense amount
of activity that would have competed for the attention of the
Saudi authorities and this operation continued until about 28 February
1991. Also within that period of five months was the period of Ramadan
which ended only about one month before the terminal date, 15 May.
However, although no mediatory activity took place before the end of
the £ive months, it is clear that there was some discussionof the
substance of the dispute in the weeksimmediately following 15 May 1991.
If the Court will now look at its Hearing Book, if it is convenient to do
so, you will see in Item 19 a copy of a letter from the Amir of Qatar to
the King of Saudi Arabia dated 6 May 1991. In it the Amir recalls,
first, the terms of the 1990 Minutes and that is the content of the first
full paragraph on the page 1 will now read to you. The Court, you will - 42 -
recall, has already looked at this letter in a different comection when
1 pointed out on 7 March last that the words "al-tarafan" as used here by
the Amir of Qatar, would have been unlikely to have put the Kingof Saudi
Arabia on notice of any striking developmentin Qatar's thinking, since
the King of Saudi Arabia would have readthe words intheir established
sense as meaning "the two parties together".
But my present reference tothis letter is to a different aspectof
this matter. 1 need only read toyou the opening sentenceof the second
paragraph before taking you, in a moment, to the next letter. The
sentence reads:
"As the agreed periodis approaching its end [that will be
the letter written on 6 May for a period endingon 15 May], 1
felt 1 should write to you hoping thatyou will kindly renew
your good offices in the nearest possible time in accordance
with Our latest agreement in Doha [thatbeing of course the
Doha Minutes] .
We may now turn to the next itemin the book, the letter of
18 June 1991, Item 20 in the Hearing Book, from the Amir of Qatar to the
King of Saudi Arabia. This letter is written nearly a month or perhaps
more than a month after the end of the stipulatedperiod for the renewal
of the immediate reactivity. Now, evidently somethinghad happened in
the period between 15 May and 18 June; we can deduce this from various
indications in this letter and also from the statement of the Foreign
Minister of Bahrain.
First, on 3 June, the King of Saudi Arabia and the Amir of Bahrain
met in the eastern province of Saudi Arabia. This appearsfrom
paragraph 15 of the statement made by the Bahraini Foreign Minister,
which is Item 12 in the Hearing Book and it is desirable thatyou should
turn to it now. If you turn to Item 12, paragraph 15, there you will see - 43 -
that after the meeting in Doha, Bahrain heard nothing fromthe Mediator
regarding the dispute until His Highness the Arnirof Bahrain met with
King Fahd of Saudi Arabia in theeastern provinceof Saudi Arabia on
3 June.
"King Fahd confirmed thathe had been approached several
times by the Amir of Qatar regarding thematter and that he had
asked the Amir of Qatar not to be in such a.rush. King Fahd
also confirmedthat he had sent Prince SaudAl-Faisal, the Saudi
Foreign Minister,to Qatar with Saudi Arabia's proposals
concerning the matter and when Saud Al-Faisal returned he would
send him to Bahrain."
That is al1 1 need to quote now, and that conversationtook place on
3 June.
Next we learn £rom the same letter sent by the Amir of Qatar to the
King of Saudi Arabia (Item 20 in the Hearing Book) that Prince Saud
Al-Faisal visited Doha the next day, 4 June (andthat is where we learn
that PrinceAl-Faisal visited Doha on 4 June - that is the day after the
King of Saudi Arabia had seen the Amir of Bahrain), and the Prince bore
with him certain proposals witha view to settling thedispute. Bahrain
does not know what those proposals are and has never received a copy or
even an intimation of their content.
Then, also from this same letter, it appears that the Amir of Qatar
visited Saudi Arabiaon 5 June, the very next day. Something that Prince
Saud Al-Faisal had said had obviously stirredup the Amir of Qatar. The
second paragraph of the Amir's letter of 18 June to the King of
Saudi Arabia, expresses theArnir'sthanks for the King's welcome and
hospitality on that date. During that visit, it appears that the Amir of
Qatar must have made some statement to the King expressingthe Arnirls
positive attitudeand warm welcome towardsthe King's "last propos al^^^. The same letter then goes on to reflect the possibility that the Amir
of Qatar may himself have made some counter-proposalsbecause he says, in
the next paragraph (whichis the one which begins at the bottom of the
first page and goes over the page):
"While hoping thatwe achieve in the nearest time the
friendly desiredsettlement, 1 would like to point out that, in
the light of the history of Our former negotiations withOur
brethren in the sister State of Bahrain, we cannot await their
answer to Our last proposals for more than the period of three
weeks which we agreed upon at Our last meeting in Dahran on
June 5, 1991, as we resolve, after the lapse of this period, to
take the necessary measures to submit the dispute to the
InternationalCourt of Justice in accordance with the [Dohal
Agreement. ''
As the Bahraini Foreign Minister has said in his statement,nothing
further was heard by Bahrain until the morning of 8 July when he was
informed of the filing of Qatar's Application (see HearingBook, Item 12,
para. 15). Mr. Shankardasshas taken it upon himself to question the
truth of this statement by the Bahraini Foreign Minister in the form of a
question
"is it conceivable that when, at King Fahd's request, the Amir
of Qatar later agreed to give Bahrain threemore weeks to
respond to Qatar's latest proposals [as is explained in the
Arnirlsletter of 18 June 19911, King Fahd would not have
informed Bahrain of the proposals on the extended time-limitV1?
1 have to Say, Mr President, that it is a fact that Bahrain was not told
of the proposals. Whether it is "conceivable"or not that this should
be so is not a matter for Bahrain to answer but for Saudi Arabia, always
assuming that Saudi Arabia ever receivedthe Amir's letter.
And, incidentally,to be noted in passing, where did Mr. Shankardass
derive the information that the delay of three weeks referred to in the
letter was given "at King Fahd's request"? The letter does not Say so.
It speaks only of "the period of three weeks agreedupon at Our last - 45 -
meeting ... on June 5". It does not Say that the Agreement wasa
response to a request by King Fahd. Does Mr. Shankardassknow something
that has not been revealedto the Court or to Bahrain? So much for the
events subsequent to 25 December, except perhaps to Say that it is clear
that something was going on, that themomentum of activity between the
two sides was certainly not dead but in fact-might-have-beendeveloping
and yet, out of the blue, comes the unilateral Applicationby Qatar.
THE SIGNIFICANCE OF THE FIVE-MONTH TIME-LIMIT
So, Mr. President, that enables me to turn to, 1 hope, my final point
which is the significanceof the five-month time-limit that appears in
the Doha Minutes. This point, which was raised by Sir Ian Sinclair
provides us with an admirable illustrationof Qatar's, if 1 may put it
this way, monocular viewof a situation which can only be properly
perceived by binocularvision.
One of the major weaknesses ofthe Bahraini first round, we are told
by Counsel for Qatar is "that it offers no believable explanationof the
five-month time-limit in the Doha Minutes afterwhich the parties would
be at liberty to refer matters in disputeto the Courtvv. 1 take it that
that observation is relating to the length of the period of five months.
And Sir Ian pointedout, that in contrast with theearlier minutes
extending theperiods of the Mediator's activity, this one containeda
consequence,that the partiesmight, after its expiry, submit the matter
to the Court. Nothing of that kind having been said in relation to the
earlier extensions. So, it is said, Bahrain couldnot have anticipated
that the consequenceof failure of the Saudi Mediation effort would have
been the same as in the earlier cases. - 46 -
1 should begin by saying that 1 question whether it is really the
responsibilityof Bahrain to explain why the period was five months
rather than six, or seven or twelve or eighteen. That was the period
that was written into the Omani draft Minute seen by Qatar before Bahrain
saw it and Bahrain acceptedthat aspect of it. Let us begin by recalling
that the original Saudi draftMinutes of 24 Decemb-er,firstly, contained
no provision for an extension of the Mediatorls mandate. Secondly, the
Saudi draft did not contain a reaffirmationof what had been agreed.
Now the Court will remember that Sir Ian had pointed out that it was in
the plenary meeting of the Doha Summit that agreement had been reachedon
three things, the two that 1 have just mentioned, the extension of the
Mediator1s mandate, secondly the reaffirmationof what had beenagreed,
and thirdly, the idea of the parties going to the Court. Now, contrary to
what Sir Ian was in fact suggesting, it would seem that Saudi Arabia did
not think enough of these alleged agreementsconcluded inthe plenary
meeting to record them in the draft of the minutes which it submitted to
the two Parties.
Now let us go on to the Omani draft. It is here thatwe find for the
first time the reference to the two items that 1 have just mentioned, the
extension of the Mediatorls mandate and the reaffirmationof what had
already been agreed, plus the provision that at the end of the five-month
period either party could go to the Court. The referenceto either party
in this draftwas, as the Court well knows, unacceptable to Bahrainand
was replaced by the expression "al-tarafanu which, in the understanding
of Bahrain - not to Say also as a matter of objective interpretation -
meant thatproceedings could only be started by the two parties
togetheru. - 47 -
So we come to Sir Ianls question:
"Why a time-limit at al1 with a particular consequence
attached to it, if the consequencewas not to permit either
party to institute proceedings before the Couro tn the expiry of
the time limit?"
The answer lies, 1 submit, in the whole pattern of the solution
embodied in the Doha Minutes. Those Minutes were aimed primarily at the
revival of the Saudi Arabian mediationactivity. This processwould
exclude any recourse to the Court by the Parties. The processduring
which time Saudi Arabia alone could take any initiative,was not foreseen
as being oneof indefinite duration. So a term was set to the period -
one month after the end of Ramadan. When that period wasended, the
Parties were free to pursue their own pathswith a view to going to the
Court or otherwise - but, now, with the added and important helpof the
Qatari acceptance of the Bahraini formula.
But if the Parties went to the Court, this would not put an end to
the Saudi role, because the last sentence of paragraph 2 expressly
provided thatif the matter went to arbitration SaudiArabia's good
offices would continue.
If, however, the efforts of the Parties led to a brotherly solution,
the case, if by then the Parties had submitted it to arbitration,would
be withdrawn.
The idea that each party should be able unilaterally to submit the
case to theCourt was not an essential element in this pattern. The
arrangements could still operate if the previous understanding,that the
case could not be brought jointly, was maintained. The change from
"either of the two Parties" to "the Partiesu did not give rise to any
need for consequentialalterations in the text. The basic pattern of the - 48 -
renewed mandate to Saudi Arabia followedby the freedom of the Parties to
go to the Court on the basis of the Bahraini formula was preserved.
Mr. President, there is, of course, a great deal more that could be
said about the Qatari reply, but 1 believe that 1 have already
sufficiently imposedon the Court's time.
1 thank you, Mr. Presidentand Members of theCourt, and would ask
you, Mr. President, please to cal1 on the Agent of Bahrain.
The PRESIDENT: Thank you, Mr. Lauterpacht. 1 give the floor to the
Agent of Bahrain.
Dr. AL-BAHARNA: Mr. President, distinguishedMembers of the Court,
as we near the end of these proceedings 1 take the floor with a sense of
disappointment. As Agent for the State ofBahrain 1 had hoped that, from
Qatar's pleadings, we might derive some explanation, some reasons, which
would explain why Qatar embarked upon its change of policy at Doha.
1 make no secret of the fact that thissudden change of policy caused
the deepest dismay -and even distrust - in Bahrain. So 1 would have
been happy if 1 could have returnedto my Government at the conclusion of
these proceedings with an explanation for Qatar's conduct which would
lessen that dismay, and eliminate thatdistrust.
It was for this reason that, in concluding Bahrain's First Round
presentation, 1 posed a number of questions to my friend and colleague,
the Agent for Qatar (CR 94/6, pp. 62-65). The replies we received were
disappointing in the extreme. Let me, by way of illustration,take three
of the central questions. - 49 -
1 asked why Qatar did not accept eitherthe Saudi draft of a special
agreement of September 1991, or the Bahraini draft of 20 June 1992 - both
of which contained theBahraini formula.
The answer 1 recei.vedis that Qatar had already filed its unilateral
Application and furthermore thatthe 1992 Bahraini draft was intended as
a trap for Qatar. Professor Salmon suggested the,Bahrainidraft was a
Trojan horse .
The Agent for Qatar suggested thatthe Court would be astonished that
Bahrain had changed the Bahraini formula despite Qatar and Bahrain's
acceptance of it in December 1990. He added that the draft was far from
being a perfectly reasonableproposa1 for a joint submission. Further,
he said Bahrain was using its draftspecial agreementnot only in an
attempt to withdraw its consentunder the Doha Agreement, but perhaps
also to evade its consent under the 1987 Agreement. He complained that
Bahrain had not made any change to Article V as previously proposed.
No reason whatever is given for Qatar's lack of reaction to the Saudi
draft of September 1991. Mr. Shankardass drew attention towhat he calls
the strange and somewhat mystifyingcircumstancesin which the draft made
its appearance and stressed that it was without prejudice to the rights
of the Parties to go to Court.
Patently the true answer why Qatar has notresponded either to the
Saudi draft orto the Bahraini draft is thatit hoped by its unilateral
Application to obtain advantageswhich would notbe available to it if a
special agreement were negotiated betweet nhe Parties. Clearly this
overrode Qatar's desire to bring the dispute quickly to a judicial
resolution by this Court. Given that Qatar's unilateral Applicationhad
already been filed andBahrain had already made itsposition known there - 50 -
could be no trap whatsoever for Qatarhad it responded to either the
Saudi Arabian draftor the Bahraini draft. The Bahraini formula had not
changed. What Qatar complainsof is, in fact, the addition, only, of the
words
"THE ABOVE REQUEST REFERS TO THE FOLLOWING MATTERS OF
DIFFERENCE: THE HAWAR ISLANDS (INCLUDINGJANAN) ; ZUBARAH;
FASHT AD DIBAL; QIT'AT JARADAH; ARCHIPELAGIC BASELINES; AND
FISHING AND PEARLING AREAS.
These are exactly the list of items agreed betweenthe Parties in the
1988 Sixth Tripartite Meeting as being those constituting the dispute.
Where is the trap andwhere is the Trojan horse?
Then 1 asked why Qatar expects Bahrain toput its sovereigntyover
the Hawars in issue before the Court, but refuses to put Zubarah in
issue.
No answer has been givento this question. While counselfor Qatar
reiterate that Bahrain is free itself to introduce its claimsto Zubarah,
they equally made plain thatQatar will challenge the admissibilityof
Zubarah before the Court. Qatar will not accept that the issues of the
Hawar Islandsand Zubarah be treated on the basis of equality. Bahrain
is criticized for seeking a blank cheque in respectof the admissibility
of Zubarah but at the same time Qatar makes it clear, for example, that
in its view Zubarah was not in issue in 1978 or 1983 and throws doubton
whether Bahrain had raised the question of Zubarah with SaudiArabia at
the time of the 1987 Agreement. The message to Bahrain is clear - Qatar
is not willingto agree to Zubarahbeing includedin a joint submission;
hence Qatar's unilateral Application. - 51 -
Then 1 asked why Qatar objected to Article V of Bahrain's draft,
endorsing the general principlethat offers or proposals for compromise
be not disclosed in litigation.
The only answer 1 received - and it was not really an answer - was
that Bahrain failed to introduce it into the Doha Minutes. Once again,
this demonstrates that Qatar's unilateral Applicationto the
InternationalCourt of Justice is aimed at having in issue only those
matters which suit it and on its own terms. Qatar hasat no time in the
oral proceedingsor in the writtenpleadings soughtto deny its statement
in its memorandumof 27 March 1988 (RejB, Ann. 1.2, p. 921, which is
Item 22 in the Hearing Book, that it intends to use, without any
reservation,
"al1 the negotiations,contacts, agreements, actions, proposals
and reactions relatingto the dispute £rom its beginning until
it was submitted to the Court".
If 1 find Qatar's answers disappointing,1 find Qatar's cavalier-like
rejection of the work of the Tripartite Committee no less disappointing.
To portray the work of the Tripartite Committee asa failure - as an
abortive attempt to secure a special agreementthat was frustratedby
Bahrain's unreasonableness,and as having beendeliberately and
conclusivelybrought to an end - is a travesty of the truth.
Bahrain was not unreasonable. Bahrainhad provided a draft special
agreement and, when an impasse had arisen over Article II, it was Bahrain
who produced the compromise in the Bahraini formula - a compromise Qatar
welcomed .
The records show that the Parties were, in fact, on the verge of
reaching an agreement. There were, in truth, only three itemsof
difference betweenthe Parties - 52 -
The first was Article II, defining the subject-matterof the dispute.
As to that, the Bahraini formula had already been agreed as the best way
forward in December 1988 - and the rangeof items which could be brought
within the scope of its operation had also been agreed. The suggestion
from Qatar that it should be supplementedby annexes was not, frankly,
very helpful.
It was not necessary, because the b ah rai fnormula gave both Parties
the freedom they needed to outline theirclaims, in their own way, in the
pleadings that they would submit within the framework of a single, agreed
reference to the Court. And if the Court had been faced by two
incompatible annexes toa Special Agreement this would have posed
difficulties for the Court.
Of course, the reason for Qatar's hesitation was Zubarah. But,
Mr. President, if Bahrain was to have its title and long possession over
the Hawar brought intoquestion before the Court, why, in justice, should
Bahrain not be free to present its claims over Zubarah? That was the
real stumbling-block. It was createdby Qatar, not Bahrain.
Now, at Doha, Qatar seemed to relent. It seemed that, at long last,
Qatar was inclinedto accept the Bahraini formula withoutreservation.
If that acceptance of the Bahraini formula had been genuine, the
problem of Article II would havebeen resolved. The Partieswould have
been within an inch of concludinga Special Agreement. The tworemaining
issues, though important, could certainly have beennegotiated to a
successful conclusion.
As to Article V, the principle of that article could scarcely be
disputed. - 53 -
Bahrain would gladly have given Qatar the assurance that Article V
was not intended to exclude evidence of the negotiations and mediation
over the procedure for referring theirdispute to the Court. Bahrain
would have been fully prepared to explain the phases, or periods, of
negotiation it had in mind. 1 do not believe, Mr. President, that
agreement couldnot have been reached quickly on Article V.
That would have leftBahrain's insistence that the Special Agreement
would need ratificationin Bahrain. This is a normal, reasonable
requirement,and in Bahrain such ratificationwould not involve a long
delay. 1 really cannot see how this couldhave prevented the Parties
from concluding the Special Agreement.
So, Mr. President,by the time of Doha and after the further period
of Saudi mediation on the merits, the position remainedas it had been
following the Sixth Tripartite Meeting,namely, we were almost at the end
of Our negotiations fora Special Agreement: the goal was within sight,
and within reach.
But then, what happened? Well, Mr. President, what happened is
tragic. Al1 this effort, al1 this work was placed injeopardy because
someone in Doha thought he had a bright idea! The idea was that Qatar
would simply drop the search for a Special Agreement and makea
unilateral application. And the reason for that changeof policy was
that it was hoped to get thedispute before the Courton Qatar's tems:
that is to Say, with the issues expressed ina marner favourable to
Qatar.
This radical change of policy was not, of course, explained to
Bahrain. The tactic seems to have been to try and catch out an
unsuspectingBahrain by slipping into the Doha Minutes the phrase "either - 54 -
of the two Partiesn "ayyun min al-tarafanu. Fortunately,Bahrain was not
caught out.
Having blocked this questionablemanoeuvre at Doha, you can imagine
Bahrain's dismay when, notwithstandingeverything thathappened at Doha,
Qatar neverthelessfiled a unilateral application. It was not sirnply
that Bahrain regarded thisas a breach of what had been agreed. Qatar's
"initiativeuwas worse than that. It was a waste! By that 1 mean,
Mr. President, that it wasted the veryreal opportunity whichDoha opened
up of proceeding quicklyto a Special Agreement. That was the real
tragedy of Qatar's ploy: it wasted a real opportunity to move forward to
this Court.
1 have to tell you, Mr. President,that Bahrain's dismay at Qatar's
tactics initially gave rise to discussion in Bahrain over whether Bahrain
should now renounce its commitment in principle to refer al1 its disputes
with Qatar to this Court. But on 20 June 1992, Bahrain offereda new
draft Special Agreement. Qatarchose to ignore that offer. Despite al1
this, 1 can reassure the Court that, even now, Bahrain is ready to resume
negotiations with Qatarso as to finalize the Special Agreement both
Parties had intendedto conclude. In the view of Bahrain, this can be
done quickly, provided Qatar understands that it is not entitledto get
the dispute before the Courton its own terrnsso as to gain an advantage.
Qatar must treatBahrain as an equal partner, coming to the Court on an
agreed and "neutral"basis, in the same way as most other States engaged
in territorial and boundarydisputes have done.
1 should now like, Mr. President, to summarize the principal points
in this case as we see them. Perhaps the most convenient way to do this
is in the form of a series of questions and answers.1. Do any of the Principles of the Mediation established in 1983 have a
bearing on the issues now before tne Coür:?
Yes. The first Principle provided that al1 issues of dispute between
the Parties shouldbe considered ascomplementary,indivisible issues
to be solved comprehensively together.
2. The 1987 Agreement: did i t amount to a consent to the jurisdiction of
the Court?
Yes, but incompletely. It was an essential condition of the consent
that the modalities of reference to the Court wouldbe worked out
between the Parties in the Tripartite Committee.
3. Wha t happened in the Triparti te Committee?
Certain matters were agreed as steps along the way to an eventual
submission to the Court:
(a) The reference to the Court would be by way of a special
agreement fora joint submission.
(b) There would be an agreed question. Whether it should be
supplementedby one or two separate annexes remained to be
settled.
(c) The issues to be covered by the question were agreed asthe
Hawar Islands, including Janan; Dibal shoal and Qit'at Jaradah;
Archipelago baselines; Zubarah; and fishing and pearling areas
and any other matters relatedto maritime boundaries.
4. The Bahrain formula: what is its function?
The Bahrain formula was proposed by Bahrain to enable each of the
Parties, within the frameworkof a joint submission to the Court in a
single case, to specify the matters on which it wished the Court to
decide. - 56 -
5. Did the Tripartite Committeecorneto an end in 1988?
No. The Committee, thoughinactive forthe period 1989-1990, when
the King of Saudi Arabia was understoodto be pursuing the
substantive settlementof the dispute, had not been wound up and was
referred to by the King of Saudi Arabia at the Doha Summit.
6. What is the legal status of the 1990 Minutes?
A. The 1990 Minutes were not intendedto be a treaty or
international agreementgiving consentto the Court's
jurisdiction. Qatar has produced no evidence to the contrary.
B. They were describedas "Minutes of Meeting" in the same way as
the conclusions of at least two of the Tripartite Committee
meetings; they had similar preambular paragraphs; and they were
signed in the same way by the Foreign Ministers of the three
participants.
7. What is the content of the 1990 Minutes?
First, the 1990 Minutes confirmal1 the agreements previouslyreached
between the Parties.
Second, the Minutes renewedthe mandate of the Mediator, as had been
done on two previous occasions, to pursue the settlement of the
substantive disputebetween the Parties, this time until 15 May 1991.
During that period theParties would not continue their discussions
about referring the matter to the Court.
Third, the Minutes recordedthe acceptance by Qatar of the Bahraini
formula.
Fourth, the Minutes indicatedSaudi Arabia's agreement that, after
the expiry of the extension of the Mediator's mandate, the Parties would be free to resume negotiations to take the matter jointly to
the Court.
8. Why do the 1990 Minutes not give to Qatar a right to institute
proceedings unilaterally?
First, Bahrain had not, prior to Doha, consented to the jurisdiction
of the Court on the basis of a unilateral.application by Qatar.
Second, following Doha itself, the 1990 Minutes do not amount to such
a consent. The reasons are as follows:
(i) The words "al-tarafan", translated intoEnglish as "the
two partiesu do not have the meaning "either of the partiesw
which Qatar places upon them.
(ii) This is because:
(a) The words "al-tarafanu had been used consistently in the
drafts preparedby both Parties and in their discussions
prior to 1990 to mean "the two Parties togetheru.
(b) Initially, in the Saudi draft of the 1990 Minutes and then
in the Omani draft, an attempt was madeto introduce the
idea that proceedings could be started by either Party.
The Saudi draft used the words "each of them" and the
Omani draft usedthe words "either of the two Parties".
Both of these attempts were rejected by Bahrain which
insisted on the inclusion of the words which had an
establishedmeaning, "al-tarafan" ("the two partiesm) in
the sense of "the two Parties togetheru.
(c) Qatar did not oppose the change of words to "al-tarafan".
Its expianationof its acquiescence is totally
unconvincinq because Qatar had seen the draft containing - 59 -
Parties" jointly. Further, it is evident thatSaudi
Arabia has understoodthe words "al-tarafan" in the same
way.
9. Does the Application filed by Qatar on 8 July 1991 satisfy the
requirements of Article 40 of the Statute and Article 38 (1) of the
Ru1 es of Court?
No. The Applicationdoes not conform-to.the -requirementsof the
Bahraini formula. Moreover, the formula contemplated that al1 the
issues between the Parties would be brought in one case. The
omission of Zubarah makes that impossible and this, in turn, leads to
the non-compliancewith the provisions of the Statute and the Rules
relating to the filing of the Application.
10. Why does Bahrain object to the case coming to the Court on the basis
of a unilateral application?
Bahrain objects because:
A. The scope of the proceedings is set by the application and must
be assessed as at the date of the filing of the application.
B. The case as brought by Qatar does not cover Zubarah, the
inclusion of which is a condition of Bahrain's consent.
C. Subsequent offers by Qatar not to raise any jurisdictional
objection to any separate application in respect of Zubarah, and
also not to object to the joinder of such an application, as well
as to accept an order for simultaneous pleadings,cannot change
the situation.
D. Qatar has avoided acceptanceof two major conditions for
Bahrain's consent to the jurisdiction: the so-called I1Article Vu
point and the ratificationpoint.
11. What did the 1990 Minutes achieve? - 60 -
The 1990 Minutes did notachieve the objective that Qatar had sought
They were adopted only to Save the face of Qatar which had made an
unsuccessful attempt to change in a major respect the earlier
understandings betweenthe Parties.
For Bahrain, the Minutes recordQatar's acceptance of the
Bahraini formula and the reaffirmationof.the understanding that the
matter would be referred to the Court only by the Parties together
and not by Qatar alone.
12. If consent to the jurisdiction is required, does there have to be a
specific consent to the method of seisin, in particular to unilateral
seisin?
w
Bahrain has no doubt that the answer to this is yes. Qatar's answer
that the Court's Statute does not require consent to the method of
seisin is wrong. And Bahrain's amendment at Doha clearly eliminated
the possibilityof unilateral seisin
13. What exactly is the title or basis of jurisdiction on which Qatar
rests its case?
As Professor Weil has shown, this remains a matter of complete
obscurity.
It would seem Qatar would also like the question of seisin to remain
a matter of obscurity. Professor Quéneudecwould prefer to leave the
issue of seisin unclear - he does not like the orderly certaintyof the
apothecarylsshelves. But the question whether the method of seisin
needs consent requires certainty. Al1 States have an interest in a clear
ruling by the Court on this point.
1 very much hope that this brief summary of the issues, and of how
Bahrain views them, will prove helpful to the Court. - 61 -
Mr. President, distinguished Membersof the Court, may 1 Say, on behalf
of my Government, and also on behalf of the counsel who have represented
Bahrain, that we have greatly appreciated the courtesy and patience which
the Court has shown to us during this two weeks of oral argument.
Finally, Mr. President, it falls to me as Agent for the State of
Bahrain, to read out Bahrain's Submission, as is customary. They are as
follows :
"The State of Bahrain respectfully requeststhe Court to
adjudge and declare, rejecting al1 contrary claims and submissions,
that the Court is without jurisdiction over the dispute brought
before it by the Application filed by Qatar on 8 July 1991."
The PRESIDENT: Thank you, Your Excellency. The Court takes note of
your final Submissions on behalf of the State of Bahrain. That brings us to
the end of the oral proceedings.
1 thank the Agents, H. E. Minister Najeeb Al-Nauimi and H.E. Minister
Mohammed Husain Al Baharna, and counsel and advocates of the State of
Qatar and the State of Bahrain for the great assistance which they have
given the Court. In accordance with the usual practice, 1 request the
two Agents to rernainat the disposa1 of the Court for any further
assistance it may require. With that reservation, 1 declare closed the
oral proceedings devoted to questions of jurisdiction and admissibility
in the case concerningMaritime Delimitation and Territorial Questions
Between Qatar and Bahrain. The Court will now withdraw to deliberate,
and the Agents will in due course be informed of the date on which its
Judgrnentwill be delivered. The Sitting is closed.
The Court rose at 12.40 p.m.
Audience publique tenue le vendredi 11 mars 1994, à 10 heures, au Palais de la Paix, sous la présidence de M. Bedjaoui, président