Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) - Judgment on Jurisdiction and Admissibility

INTERNATIONAL COURT OF JUSTICE

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Communiqué

UDOfficial
for tmm84iate relea••

No. 95/6

15 February 1995

Case concerning Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Qatar v. Bahrain)

Jydgrnent on Jurisdiction and Acimissjbility

The following information is comrnunicated to the Press by the Registry of
the International court of Justice:

Today, 15 February 1995, the Court, composed as follows:
President Bedjaoui; Vice-President Schwebel; Judges Oda,
Sir Robert Jennings, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry,
Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos,

Torres Bernârdez; Registrar Valencia-Ospina, delivered its Judgment on
jurisdiction and admissibility in the above case. The operative paragraph of
the Judgment reads as follows:

"50. For these reasons,

THE COURT,

(1) By 10 votes to 5,
•
EindQ that it bas jurisdiction to adjudicate upon the dispute

submitted ta it between the State of Qatar and the State of Bahrain;

(2) By 10 votes to 5,

~ that the Application of the State of Qatar as formulated
on 30 November 1994 is admissible.

"

Those who voted in faveur: President Bedjaoui;
Judges Sir Robert Jennings, Guillaume, Aguilar Mawdsley, Weeramantry,
Ranjeva, Herczegh, Shi, Fleischhauer; ~ ad hoc Torres Bernârdez; '
- 2 -

Against: Vice-President Schwebel; ~ydges0da,1 Shahabuddeen,
Koroma; ~ad hoc Valticos.

*

vice-President Schwebel, Judses Oda, Shahabuddeen and Koroma, and

~ ad hoc Valticos appended dissenting opinions tc the Judgment of the
Court. (Brief summaries of the opinions may he: found in Annex 1 ta this
Press Communiqué.)

The printed text of the Judgment will become available in due course

(orders and enquiries should be addressed to the Distribution and Sales
section, Office of the united Nations, 1211 Gen~va 10; the Sales Section,
United Nations, New York, N.Y. 10017; or any appropriately specialized

bookshop) .

A summary of the Judgment is given below. It has been prepared by the ~

Registry and in no way involves the responsibility of the Court. It cannat be
quoted against the text of the Judgment, of which it does not constitute an
interpretation.

*

Summary of the Judgment

History of the case and submissions {paras. 1-1·5)

ln its Judgment the Court recalls that on ~ July 1991 Qatar filed an
Application instituting proceedings against Bahrain in respect of certain

disputes between the two States relating ta sovereignty over the Hawar
islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the
delimitation of the maritime areas of the two States.

The Court theo recites the history of the 1ase. It recalls that in its •
Application Qatar founded the jurisdiction of t~e Court upon two agreements
between the Parties stated ta have been concluded in December 1987 and

December 1990 respectively, the subject and scope of the commitment to
jurisdiction being determined by a formula proposed by Bahrain to Qatar on
26 October 1988 and accepted by Qatar in Decemher 1990 (the "Bahraini

formula ") . Bahr ain contes ted the bas i s of j ur i.s diction invoked by Qatar .

By its Judgment of 1 July 1994, the Court found that the exchanges of

letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and
21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain
dated 19 and 26 December 1987, and the document' headed "Minutes" and signed at

Doba on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain,
Qatar and Saudi Arabia, were international agreements creating rights and
obligations for the Parties; and that, by the 'terms of those agreements, the

Parties bad undertaken ta submit ta the Court t'he whole of the dispute betweenir'

- 3 -

them, as circumscribed by the Bahraini formula. Having noted that it had
before it only an Application from Qatar setting out that State's specifie

claims in connection with that formula, the Court decided to afford the
Parties the opportunity tc submit to it the whole of the dispute. It fixed
30 November 1994 as the time-limit within which the Parties were jointly or

separately to take action to that end; and reserved any ether matters for
subsequent decision.

On 30 November 1994, the Agent of Qatar filed in the Registry a document
entitled "Act to comply with paragraphe (3) and (4) of operative paragraph 41
of the Judgment of the Court dated 1 July 1994". In the document, the Agent

referred to "the absence of an agreement between the Parties to act jointly"
and declared that he was thereby submitting to the Court "the whole of the
dispute between Qatar and Sahrain, as circumscribed by the text ... referred

tc in the 1990 Doba Minutes as the 'Bahraini formula'".

He enumerated the subjects which, in Qatar's view, fell within the

Court's jurisdiction:

"1. The Hawar Islands, including the island of Janan,·

2. Fasht al Dibal and Qit'at Jaradah;

3. The archipelagic baselines;

4. Zubarah;

s. The areas for fishing for pearls and for fishing for swimming

fish and any ether matters connected with maritime boundaries.

It is understood by Qatar that Bahrain defines its claim

concerning Zubarah as a claim of sovereignty.

Furthe.r tc its Application Qatar requests the Court tc adjudge

and declare that Bahrain has no sovereignty or ether territorial
right over the island of Janan or over Zubarah, and that any claim by
Bahrain concerning archipelagic baselines and areas for fishing for

pearls and swimming fish would be irrelevant for the purpose of
maritime delimitation in the present case.•

On 30 November 1994, the Registry also received from the Agent of Bahrain
a document entitled "Report of the State of Bahrain ta the International Court
of Justice on the attempt by the Parties tc implement the Court's Judgment of

1st July, 1994". In that "Report", the Agent stated that his Government had
welcomed the Judgment of ~ July 1994 and understood it as confirming that the
submission to the Court of "the whole of the dispute" must be "consensual in

character, that is, a matter of agreement between the Parties". Yet, he
observed, Qatar's proposais bad "taken the form of documents that can only be
read as designed to fall within the framework of the maintenance of the case

commenced by Qatar's Application of Bth July, 1991"; and, further, Qatar bad
denied Bahrain "the right ta describe, define or identify, in words of its own
choosing, the matters which it wishes specifically to place in issue", and bad

opposed "Bahrain's right tc include in the list of matters in dispute the item
of •sovereignty over Zubarah'". - 4 -

Bahrain submitted observations on Qatar's Act to the Court on
5 December 1994. lt said that

"the court did not declare in its Judgment of lst July, 1994 that it
bad jurisdiction in the case brought before it by virtue of Qatar•s
unilateral Application of 1991. Consequently, if the Court did not

have jurisdiction at that time, then the Qatari separate Act of
30th November, even when considered in the light of the Judgment,
cannat create that jurisdiction or effect a valid submission in the

absence of Bahrain's consent".

A copy of each of the documents produced by Qatar and Bahrain was duly
transmitted ta the ether Party.

Jurisdiction of the Court (oaras, 16-441

The Court begins by referring to the negotiations held between the
Pa.rties following the Court ' s Judgment of 1 July 19 94, to the "Act" addressed e

by Qatar ta the Court on 30 November 1994, and to the comments made thereon by
Bahrain on 5 December 1994.

The Court then recalls that, in its Judgment of 1 July 1994, it reserved
for subsequent decision all such matters as had not been decided in that
Judgment. Accordingly, it must rule on the objections of Bahrain in its

decision on its jurisdiction to adjudicate upon the dispute submitted ta it
and on the admissibility of the Application.

Inte~retation of paragraph 1 of the Doba Minutes (paras 25-29)

Paragraph 1 of the Doba Minutes places an ~ecor dhe agreement of the
Parties to ";::-eaffirm what was agreed previously b!:tween [them]"·

The Court proceeds, first of all, to define the precise scope of the
commitments which the Parties entered inta in 1987 and agreed to reaffirm in
the Doba Minutes of 1990. !n this regard, the essential texts concerning the

jurisdiction of the Court are points 1 and 3 of the letters of
19 December 1987. By accepting those points, Qatar and Bahrain agreed, on the •
one band, that

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

and, on the ether, that a Tripartite Committee pe formed

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

regulations and instructions so that a 1inal ruling, binding
upon bath parties, be issued". - 5 -

Qatar maintains that, by that undertaking, the Parties clearly and
unconditionally conferred upon the Court jurisdiction to deal with the
disputed matters between them. The work of the Tripartite Committee was

directed solely to considering the procedures to be followed to implement the
commitment thus made to seise the Court. Bahrain on the contrary maintains
that the texts in question expressed only the Parties' consent· in principle to

a seisin of the Court, but that auch cons_ent was clearly subject to the
conclusion of a Special Agreement marking the end of the work of the
Tripartite Committee.

The Court cannet agree with Bahrain in this respect. Neither in point 1
nor in point 3 of the letters of 19 December 1987 can it find the condition

alleged by Bahrain to exist. It is indeed apparent from point 3 that the
Parties did not envisage seising the Court without prier discussion, in the
Tripartite committee, of the formalities required to do so. But the two

States had nonetheless agreed to submit to the Court all the disputed matters
between them, and the Cammittee's only function was to ensure that this
commitment was given effect, by assisting the Parties to approach the Court

and to seise it in the manner laid dawn by its Rules. By the terme of
point 3, neither of the particular modalities of seisin contemplated by the
Rules of Court was either favoured or rejected.

The Tripartite Commit"tee met for the last time in December 1988, without
the Parties having reached agreement either as to the "disputed matters" or as

to the "necessary requirements ta have the dispute submitted to the Court".
It ceased its activities at the instance of Saudi Arabia and without
opposition from the Parties. As the Parties did not, at the time of signing

the Doba Minutes in December 1990, ask to have the Committee re-established,
the Court considera that paragraph 1 of those Minutes could only be understood
as contemplating the acceptance by the Parties of point 1 in the letters from

the King of Saudi Arabia dated 19 December 1987 (the commitment ta submit to
the Court "all the disputed matters" and ta comply with the judgment to be
handed dawn by the Court), to the exclusion of point 3 in those same letters

Interpretation of para9raph 2 of the Doba Minutes {paras. 30-42)

The Doba Minutes not only confirmed the agreement reached by the Parties
to submit their dispute to the Court, but also represented a decisive step

along the way towards a peaceful ~olution of that dispute, by settling the
controversial question of the definition of the "disputed matters". This is
one of the principal abjects of paragraph 2 of the Minutes which, in the

translation that the Court will use for the purposes of the present Judgment,
reads as follows:

"{2) The good offices of the Custodian of the Two Holy Masques,
King Fahd Ben Abdul Aziz, shall continue between the two countries
until the month of Shawwal 1411 A.H., corresponding ta May 1991.

Once that period has elapsed, the two parties may submit the matt.er
to the International Court of Justice in accordance with the Bahraini
formula, which bas been accepted by Qatar, and with the procedures

consequent on it. The good offices of the Kingdom of Saudi Arabia
will continue during the period when the matter is under

arbitration." - 6 -

Paragraph 2 of the Minutes, which formally placed on record Qatar's acceptance
of the Bahraini formula, put an end to the persistent disagreement of the
Parties as to the subject of the dispute to be submitted to the Court. The

agreement to adopt the Bahraini formula showed that the Parties were at one on
the extent of the Court's jurisdiction. The formula bad thus achieved its
purpose: it set, in general but clear terms, the limits of the dispute the

Court would henceforth have to entertain.

The Parties nonetheless continue to differ'on the question of the method

of seisin. For Qatar, paragraph 2 of the Minutes authorized a unilateral
seisin of the Court by rneans of an application filed by one or the ether
Party, whereas for Bahrain, on the contrary, that text only authorized a joint

seisin of the Court by means of a special agreement.

The Parties have devoted considerable attention to the meaning which,

according to them, should be given to the expression "al-tarafan"
[Qatar: "the parties"; Bahrain: "the two parties"] as used in the second
sentence of the original Arabie text of paragraph 2 of the Doba Minutes. The

court observes that the dual form in Arabie serves simply to express the
existence of two units (the parties or the two parties), so what bas tc be
determined is whether the words, when used here in the dual form, have an

alternative or a cumulative meaning: in the fifst case, the text would leave
each of the Parties with the option of acting unilaterally, and, in the
second, it would imply that the question be subtnitted tc the court by beth

Parties acting in concert, either jointly or separately.

The Court first analyses the meaning and scope of the phrase "Once that
period has elapsed, the two parties may submit the matter tc the International
Court of Justice". It notes that the use in that phrase of the verb "may"

suggests in the first place, and in its most material sense, the option or
right for the Parties tc seise the Court. In fact, the Court has difficulty
in seeing why the 1990 Minutes, the abject and purpose of which were ta
advance the settlement of the dispute by giving effect to the forma!

commitment of the Parties tc refer it tc the Court, would have been confined
tc opening up for them a possibility of joint action which not only had always
existed but, moreover, bad proved tc be ineffective. On the contrary, the

text assumes its full meaning if it is taken ta be aimed, for the purpose of
accelerating the dispute settlement process, at opening the way ta a possible
unilateral seisin of the Court in the event that the mediation of Saudi Arabia •

had failed ta yield a positive result by May 1991. The Court also looks into
the possible implications, with respect to that. latter interpretation, of the
conditions in which the Saudi mediation was to go forward, according tc the

first and third sentences of paragraph 2 of the Minutes. The Court further
notes that the second sentence can be read as affecting the continuation of
the mediation. On that hypothesis, the process of mediation would have been

suspended in May 1991 and could not have resume? prier tc the seisin of the
Court. For the Court, it could not have been the purpose of the Minutes ta
delay the resolution of the dispute or ta make it more difficult. From that

standpoint, the right of unilateral seisin was the necessary complement ta the
suspension of mediation.

The Court then applies itself tc an analysis of the meaning and scope of
the terms "in accordance with the Bahraini formula, which bas been accepted by
Qatar, and with the procedures consequent on it;•, which conclude the second - 7 -

sentence of paragraph 2 of the Doba Minutes. The Court must ascertain
whether, as is maintained by Bahrain, that reference to the Bahraini formula
and, in particular, to the "procedures consequent on it", bad the aim and

effect of ruling out any unilateral seisin. The court is aware that the
Bahraini formula was originally intended to be incorporated into the text of a
special agreement. However it considera that the reference ta that formula in

the Doha Minutes must be evaluated in the context of those Minutes rather than
in the light of the circumstances in which that formula was originally
conceived. If the 1990 Minutes referred back ta the Bahraini formula it was

in order to determine the subject-matter of the dispute which the Court would
have to entertain. But the formula was no longer an element in a special
agreement, which moreover never saw the light of day; it henceforth become

part of a binding international agreement which itself determined the
conditions for seisin of the Court. The Court notes that the very essence of
that formula was, as Bahrain clearly stated to the Tripartite Committee, to

circumscribe the dispute with which the Court would have to deal, while
leaving it to each of the Parties to present its own claims within the
framework thus fixed. Given the failure to negotiate a special agreement, the

court takes the view that the only procedural implication of the Bahraini
formula on which the Parties could have reached agreement in Doba was the

possibility that each of them might submit distinct claims to the Court.

Consequently, it seems to the Court that the text of paragraph 2 of the

Doha Minutes, interpreted in accordance with the ordinary meaning to be given
to its terms in their context and in the light of the abject and purpose of
the said Minutes, allowed the unilateral seisiri of the Court.

In these circumstances, the Court does not consider it necessary to
resort to supplementary means of interpretation in order ta determine the

meaning of the Doba Minutes but has recourse ta them in arder to seek a
possible confirmation of its interpretation of the text. Neither the travay20
préparatoires of the Minutes, however, nor the circumstances in which the

Minutes were signed, can, in the Court's view, provide it with conclusive
supplementary elements for that interpretation.

Links between jurisdiction and seisin (para. 43)

The Court still bas to examine one other argument. According to Bahrain,
even if the Doha Minutes were to be interpreted as not ruling out unilateral
seisin, that would still not authorize one of the Parties to seise the Court

by way of an Application. Bahrain argues, in effect, that seisin is not
merely a procedural matter but a question of jurisdiction; t.hat consent ta
unilateral seisin is subject ta the same conditions as consent tc judicial
set.tlement and must therefore be unequivocal and indisputable; and that,

where the texts are silent, joint seisin must by default be the only solution.

The court considera that, as an act instituting proceedings, seisin is a

procedural step independant of the basis of jurisdiction invoked. However,
the Court is unable to entertain a case so long as the relevant basis of
jurisdiction bas not been supplemented by the necessary act of seisin: from

this point of view, the question of whether the Court was validly seised
appears ta be a question of jurisdiction. There is no doubt that the court's

jurisdiction can only be established on the basis of the will of the Parties, .

,

- 8 -

as evidenced by the relevant texts. But in interpreting the text of the Doba
Minutes, the Court bas reached the conclusion that it allows a unilateral
seisin. Once the Court bas been validly seised, bath Parties are bound by the

procedural consequences which the Statute and the Rules make applicable to the
method of seisin employed.

In its Judgment of 1 July 1994, the Court found that the exchanges of
letters of December 1987 and the Minutes of December 1990 were international
agreements creating rights and obligations for the Parties, and that by the

terms of those agreements the Parties bad undertaken to submit to it the whole
of the dispute between them. In the present Judgment, the Court bas noted
that, at Doba, the Parties bad reaffirmed their consent ta its jurisdict.ion

and determined the subject-matter of the dispute in accordance witb the
Bahraini formula; it bas further noted that the Doba Minutes allowed
unilateral seisin. The court considera, conse~ently, that it bas

jurisdiction to adjudicate upon the dispute.

*
•

Admissjbility (paras. 45-48)

Having thus established its jurisdiction, the Court still bas to deal
with certain problems of admissibility, as Babrkin bas reproached Qatar with

having limited the scope of the dispute only tc, those questions set out in
Qatar•s Application.

In its Judgment of 1 July 1994, the Court decided:

"ta afford the Parties the opportunity t.o ensure the submission to

the Court of the entire dispute as it is comprehended within the 1990
Minutes and the Bahraini formula, to which: they have bath agreed ''.

Qatar, by a separate act of 30 November 1994, submitted ta the Court "the
whole of the dispute between Qatar and Bahrain,: as circumscribed" by the
Bahraini formula (see above, pp. 3-4). The ter~s used by Qatar are similar ta •

those used by Bahrain in severa! draft texts, ekcept in so far as these
related to soveisnty over the Hawar islands and: soverejgnty over Zaharah. It
appears ta the Court that the form of words used by Qatar accurately described
the subject of the dispute. In the circumstances, the Court, while regretting

that no agreement could be reached between the Parties as to how it should be
presented, concludes that it is now seised of t~e whole of the dispute, and
that the Application of Qatar is admissible. o::'-

Diseentinq gpinign gf Vise-president Schwebel

Vice-President Schwebel dissented from the Court's Judgment. Since the

terms of the treaty at issue - the Doba Minutes - were "quintessentially
unclear", the Court was bound tc weigh the preparatory work of its text, which
in fact had been the principal fccus of the argument of the Parties. That
preparatory work shcwed that, as the priee of signature of the Doba Minutes,

Bah~ain had required that the draft text as proposed at Doha be altered tc
exclude application tc the Court by "either party". in faveur of the agreed
text authorizing application by "the two parties". In proposing and achieving
this alteration, Bahrain could have only intended to debar application by

"either party" and hence to require application by beth parties.

The Court, despite the compelling character of the preparatory work, gave
it inconclusive weight. In effect it set aside the preparatory work either

because it vitiated rather than confirmed the Court's interpretation, or
because its construction of the treaty's text was in the Court's view so clear
that reliance upon the preparatory work was unnecessary.

In Judge Schwebel's view, the Court's construction of the Doha Minutes
for such reasons was at odds with the rules of interpretation prescribed by
the Vienna Convention on the Law of Treaties. It did not comport with a good
faith interpretation of the treaty's terms "in the light of its object and
purpose" because the abject and purpose of beth Parties tc the treaty was not

~o authorize unilateral recou=se to the C~u=t. It did not implement the
Convention's provision for recou=se tc the p=eparatory wo=k because, far from
confir~m ting meaning a==iveci at by the Cou=t's inte=Pretation, the
p=eparato=y work vitiated it. Mo=eove=. the Cou=t's failure to determine the

mear:ing of the treaty in the light of its prepa=a:::ory work resulted, if not in
a:-. u.."J.reasonable interp=etat:ior:. of the trea:::y i::self, a:: an interpretation of
the preparatory work which was "ma:1.ifes::ly ... u::reasonable".

These considerations have spe::ia.:. force ,.,.he:re the::rea:::y a:: issue is one
t~at is construed to confe= jc=is~ic::io on ::he Cou=::. Where the preparatory
work of a treaty demonstrates - as in ::~is case - ::he la::k of a common
intention of the Parties to confer ju~isdic::i cnn ::he Cou=::. the Court is not
entitled to base its jurisdi::tion on ::ha:: trea::y.

Dieeentinq opinion of Judge Oda

It is Judge Oda's view tha:: ::he Parties in the case had, by
30 November 1994, failed to cake a:1.y action, either jointly or separately, in
response to the Court's Judgmen:: of 1 ~uly 1994 (which, in any case, in
Judge Oda's opinion was no:: sc mucha "Juègment" as a record of the Court's
attempted conciliation) .

On 30 November 19!H t:te ?.e;:ist=Y receivo:d an "Act" by Qatar and a
"Report" by Bahrain. The "Repcr':." of Bar.=ai::-. was not intended to have any
legal effect. The "Act" by Qa::a:- was, in Judge Oda's opinion, intended tc

modify or add to the o:-igi~as :~missians presented in the Qatari Application.

In the event of any mo~~ficatior of or addition to its submissions by
Qatar, the Court should have =ormally no:.ified Bahrain of that modification or

addition and should have given aa:train an oppartur.ity ta express its views
wichin a certain time. The Cccr:. èiè ~at cake any such action. f

2 -

'
What: è.id happer. was chat the Court receiveè. Bahrain' s "Commen:.s" or. the
"Act" of Qatar which were sent to the Regis:.ry on Bahr air.' s own ini :.ia ti ve c:-.
5 December ~994, only a few days after it bad received a copy of the "Act" of
Qatar from the Registry. As no further oral proceedings were ordered by the
court, Bahrain was not given the opportunity to express its formal position on

those modifications of or additions t.o the Qaeari submissions. The procedure
taken by the court appears tc Judge Oda tc have been very unfortunate, as t.he
Court proceeded instead to draft the present Judgment..

The Court seems to Judge Oda tc be saying that the "1967 Documents" and
the "1990 Doha Minutes" together constituee an international agreement
containing a ccmpromiscry clause as contemplat,ed by Article 36, paragraph 1,
cf the Statute. The Court appears further to consider that by its amended
submissions as cf 30 November 1994 Qatar has s:ubmitted nehe whole of the

dispute" tc the Court, sc that the Application of Qatar new falls within the
ambit. of the "1990 Agreement".
'
For the reasons already set out in his dissenting opinion tc the
July 1994 Judgment and partly repeated here, J~dge Oda is of the view that

neither the 1987 exç:hanges of letters nor the .~99 0 oha Minutes fall within
the category of "treaties and conventions in force'' which specially provide
for certain matters t.o be referred tc t.he Court. for a decision by means of a
unilateral applica=ion under Article 36, paragraph l, of the St.atute.

After examining the negociations which had been going on between the
Parties, Judge Oda concludes that if ~~y mutual understanding was reached
between Qatar and Bahrain in December 1987, it:was simply an agreement to form
a Tripartite Commit.tee, which was t.o facilit.ate the drafting of a special

ag-pomQ~t; he furt.her concludes that. the Tripartite Committee was unable tc
produce an agreed draft. of a special agreement; and that the Parties in
signing the minutes of the Do~a meeting agreed, t~at reference to the '
~nternat.ion Calurt of Justice was to be a~ alternative to Saudi Arabia's good
of:ices, which did net, however, imn.lv any au:;horization such as t.o permit one

Party tc make an approach co t~e Court by ~~i.l~tera lpplication.
'
Judge Oda is fu:::-t.he:::-of theview that., ev'fn if the "1990 Agreement'' can
constituee a basis on which the Cour::. may be seised c: the dispute, there
seems to be nothing in the presen::. Judgment. tc show t.hat the amended or
•
additional submissions of Qatar fileè on 30 November 1994 in fact. comprise
"the whole of the dispute", as compared to the', opposite position which seems
to have been taken by Bahrain. He is thereforè unable to vote in faveur of
the present Judgment.

piss@nting opinion of Judge Sbahabuddeen

In his dissenting opinior:..,Judge Shahabuàq-=er. ag::-eed that the Parties had

ccnferred jurisdiction o~ t~e Court ~o adjudicat:e on the whole of the dispute.
In his view, however, the wno.le o: the dispute:was not before the Court, for
the reascn that Bahrain's ela~~~o sovereignty over Zubarah bad not been
submitted tc the Court by or with the authorit.y of Bahrain; further, if t.hat
claim was before the Court, ~he manner in which it was presented did not

enable the Court to deal wit~ it judicially. ir. addition, he considered that
the Parties bad not agreed tc a righ= of unilateral application. He concluded
that the case was not wit~in the Court's jurisdiccion, alternatively, that it
was inadmissible.~[ t--

3 -

Dissenting opinion cf Judge Kcroma

In his dissenting opinion, Judge Koroma observeà that ie is well
established in international law and has been fundamental tc the jurisprudence
of the court, that the jurisdiction of the Court exists only in so far as the
Pa~~ies to a dispute have accepted it, and, more par~icularly s con~ingent

on the consent of the Respondent State. Such consent, he furthe~ observed,
must be clear and indubitable .

.In the present case, the Respondent State, Bahrain bad consistently

maintained that her consent to the jurisdiction, if at all granted, was
conditional upon reaching a special agreement with Qatar, to submit all their
disputed matters tc the Court, and seise the Court jointly or together.

The Court, in its Judgment of l July 1994, held that the relevant

documents on which the Applicant relied to found its jurisdiction, constituted
international agreements, creating rights and obligations for the Parties.
The Court was, however, unable tc found that it had jurisdiction to hear the
dispute, but instead found that the terms of those agreements tc submit the

who~e of the dispute had not been met. !t therefore decided to afford the
Par=ies the opportunity to submit the whole of the dispute, jointly or
separately.

rn his view, the 1 July 1~94 Judgmenc was a finding in favou~ of the
contention that the consent to ccnfe~ jurisdiction on the Court was subject to
the conclusion of a special agreement, defining the subject-matter of the
dispute. The Parties were unable to reach agreement to seise the Court of the

"wh9.le of the dispute" within che time-limit prescribed by the Court. It,
theiefore, follows that the Court is not i~ a position tc assume jurisdiction
:.n che matter.

Mo~eover, one of the legal instrumen=s on which the Court based itself to

found jurisdiction, bad, ac the insiscence of Bahrain, employeô the Arabie
express ion "al- tara fan", trans la ted tc mean "t!J.e t·,.;o Pa~ties" or "the
Parties", instead of "each of the two Parties" as had been proposed, as a
means of seising the court. The Court instead was seised unilaterally. This

issue was of crucial importance to the finding of jurisdiction and was at best
ambiguous. The Court should have declined to assume jurisdiction on this
ground of ambiguity.

It is well understood that the powers of the Court to assume jurisdiction
are limited by the terms of the Agreement between the Parties under which a
dispute is submitted to it. The Agreements in issue contemplated a special
agreement and joint seisin by the Parties. Those conditions were not met and
the Court, therefore, lacked the power to decide the case and should have

declared it inadmissible.

pissenting opinion of Judqe ValticoM

Judge Valticos considers that the Court is not competent to consider the
dispute, among ether th~ngs because, by ~ts preceding Judgment of 1 July 1994,
the Court had asked beth Scates to submit to it the wbole of the dispute,
whereas only one of them (Qatar) did so. Among the contentious issues thus

:ne:-.':::.ionby Qatar is the Cf.Jes~i c: n"Zuharah", which Bahrain rejected i

4 -

because the latter St.ate bad asked for the terrn "sovereiantv" to be inclu::ie:::
in the wording of the question. Although the Court considers • that the men:.io~

of Zubarah makes it possible to raise the ques~i of nsovereignty over that
territory, this is questionable since in reality Qatar proposed that it should
simply be noted that Bahrain defines its claim:concerning Zubarah as a claim
of sovereignty, which might enable it to dispute the competence of the Court

on this tepic. Renee, tbere is no full agreement of the two States regarding
the subject-matter cf the dispute. ,
1
Furthermore, the Court had indicated that, in submitting to i: the whcle

cf the dispuce, the Parties were to. react jointly or separately. This raises
the question of the Arabie term al tarafau, used in the Doha Minutes, which
had raised the problem cf whether this term re~erred tc beth Parties taken
cogether or separately. In the conditions in which this text was adopted -

following an amendment proposed by Bahrain - this term should have been
understood to mean "beth Parties at oncen.
i
As regards the Judgment of 1 July 1994, the above wording manifestly 41'

referred, in either case, to an act by the two,Parties, whether effected
jointly or separately. Moreover, this was a 19gical consequence of the
principle according to which the Court can only be seised by the two Parties

co a dispute, unless there is an agreement to the contrary, which was not the
case he~e. Furthermore, the two Parties endeavoured, unsuccessfully, to
negotiat.e a special agreement.. Also, the reference co the "Bahraini" formula
presupposes a combined operation.

There was thus neither full agreement of the Parties on the
subjeçt.-matter of the dispute, nor an act by w~ich the cwo Parties submitted
the whole of the dispute to the court.
1
1
In the Judgment of 1 July 199.:;, the c-··~- 1èi:i :.ct rule on its
jurisdict.ion, wishing "to affor:i the Pa:::-ties tb.e o;;::;;:>c:::-tull.itysubmit (to it)
the whole of the dispute becwee hem". Only 9ne of the two States responded

to this request; the ether, disagreeing "''t!: t;;.efo:::-mo: words of its
opponent, was opposed tc the case being braughi before the Court.

The Court should t.herefore had no jurisdiction to
entertain the quescion.

The Court may thus pe~haps have p:-oviàed a,n opportuni ty fa!" the
prevention of a conflict, at the same time for~ulating a thesis intended to
satisfy beth Parties, since it accepts that its jurisdiction covers

sovereignty over Zubarah. However, the Judgmerlt suffers from the legal
weakness const.ituted by the absence of actual consent by one of the Parties
and the inadequacy of the seisin.

The Court thus showed itse!f tc be insuff~rientl yxacting as regards the
consensual principle whic~ lies at the reet ofiits jurisdiction and the trust
placed in it by the int.ernatior..;.l cor.~T. t~.i