Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) - Jurisdiction and admissibility

INTERNATIONAL COURT OF JUSTICE

Peace Palace, 2517 KJ The Hague. Tel.(070-302 23 23).Cables: lntercowt, The Hague.

Telefax (070-364 99 28). Telex 32323.

Communiqu~
unofficial
for immediate releaae

No. 94/16

1 July 1994

case concerning Maritime Delimitation and Territorial
Questions between Qatar and Bahrain

(Jurisdiction and admissibilityl

The following information is communicated to the Press by the
Registry of the International Court of Justice:

Today, 1 July 1994, the Court, composed as follows: President
Bedjaoui; Vice-President Schwebel; Judges Oda, Sir Robert Jennings,

Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry,
Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos,
Ruda; Registrar Valencia-Ospina, delivered a Judgment in the above case.

The operative paragraph of the Judgment reads as follows:

"41. For these reasons,

THE COURT,

(1) By 15 votes to 1,

Finds that the exchanges of letters between the King of Saudi Arabia

and the Amir of Qatar dated 19 and 21 Oecemb~r 1987, and between the King
of Saudi Arabia and the Amir of Bahrain dated 19 and 26 December 1987,
and the document headed "Minutes" and signed at Doha on 25 December 1990

by the Ministers for Foreign Affaire of Bahrain, Qatar and Saudi Arabia,
are international agreements creating rights and obligations for the
Parties;

(2) By 15 votes to 1,

Finds that by the terme of those agreements the Parties have
undertaken to submit to the Court the who1e of the dispute between them,

as circumscribed by the text proposed by Bahrain to Qatar on
26 october 1988, and accepted by Qatar in December 1990, referred to in
the 1990 Doha Minutes as the "Bahraini formula"; •

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(3) By 15 votes to 1,

Decides to afford the Parties the opportunity to submit to the Court

the whole of the dispute;

(4) By 15 votes to 1,

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

(5) By 15 votes to 1,

Reserves any ether matters for subseque~t decision."

Those who voted in favour were: President Bedjaoui; Vice-President
Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen,
Aguilar Hawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer,

Koroma; Judges ad hoc Valticos, Ruda; and

Against: Judge Oda.

*

Judge Shahabuddeen appended a declaration to the Judgment;

Vice-President Schwebel and judge ad hoc Valticos appended separate
opinions; Judge Oda appended a dissenting opinion.

The text of the declaration and a brief summary of the opinions may
be found in the Annex to this Press Communiqué.

*

The printed text of the Judgment and of the declaration and opinions
appended to it will become available in due course (orders and enquiries
•
should be addressed to the Distribution and Sales Section, Office of the
United Nations, 1211 Geneva 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 bèen prepared by
the Registry for the use of the Press and in no way involves the

responsibility of the court. It cannat be q~oted against the text of the
Judgment, of which it does not constitute an interpretation. - 3 -

summary of the Judgment

:7 His tory of the case (~r-1·4-L.

In its Judgment the court recalls that on 8 July 1991 the Minister

for Foreign Affaire of the State of Qatar filed in the Registry of the
Court an Application instituting proceedings against the State of Bahrain
in respect of certain disputes between the two States relating to

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

The Court then recites the history of the case. It recalls that in
its Application Qatar founded the jurisdiction of the Court upon two

agreements between the Parties stated to have been concluded in
._. Oecember 1987 and December 1990 respectively, the subject and ecope of
~ the commitment to jurisdiction being determined, according to the

pplicant, by a formula proposed by Bahrain to Qatar on 26 October 1988
and accepted by Qatar in December 1990. Bahrain contested the basie of
urisdiction invoked by Qatar.

\J
The Court then refera to the different stages of the proceedings
before it and to the submissions of the Parties.

Summary of the circumstances in which a solution to the dispute between
Bahrain and Qatar bas been sought over the past two decades

(paras. 15-20)

Endeavours to find a solution to the dispute took place in the

context of a mediation, sometimes referred to as hgood offices",
beginning in 1976, by t.he King of Saudi Arabis with the agreement of the
Amirs of Bahrain and Qatar, which led, during a tripartite meeting in

March 1983, to the approva1 of a set of "Principles for the Framework for
Reaching a Settlement". The first of theee principles specified that

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

Then, in 1987, the King of Saudi Arabis sent the Amirs of Qatar and
Bahrain letters in identical terme, in which he put forward new

proposais. The Saudi propoeals which were adopted by the two Heads of
State, included four points, the first of which was 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

terme."---------------------------

- 4 -

The third provided for formation of a Tripartite Committee, composed of

representatives of the States of Bahrain and Qatar and of the Kingdom of
Saudi Arabia,

"for the purpose of approaching the Intèrnational Court of
Justice, and satisfying the necessary réquirements to have the
dispute submitted to the Court in accordance with its

regulations and instructions so that a final ruling, binding
upon both parties, be issued".

Then, in 1988, following an initiative ~y Saudi Arabia, the Heir
Apparent of Bahrain, when on a visit to Qatar, transmitted to the
Heir Apparent of Qatar a text (subsequently known as the Bahraini
formula) which reade as follows:

"Question

The Parties request the Court to decide. any matter of
territorial right or ether title or interest which may be a
matter of difference between them; and.to draw a single

maritime boundary between their respective maritime areas of
seabed, subsoil and superjacent waters.~

The matter was again the subject of discussion two years later, on
the occasion of the annual meeting of the co-operation Council of Arab

States of the Gulf at Doba in December 1990. Qatar then let it be known
that it was ready to accept the Bahraini formula. The minutes of the
meeting which then took place stated that the two parties had reaffirmed

what was agreed previously between them; had agreed to continue the good
offices of King Fahd of Saudi Arabia until May 1991; that after this
period, the matter might be submitted to the,International court of

Justice in accordance with the Bahraini formula, while Saudi Arabia's
good offices would continue during the submission of the matter to
arbitration; and that, should a brotherly solution acceptable to the two
parties be reached, the case would be withdrawn from arbitration.

The good offices of King Fahd did not l~ad to the desired outcome
within the time-limit thus fixed, and on 8 July 1991 Qatar instituted
•
proceedings before the court against Bahrain:

According to Qatar, the two States: "have made express commitments

in the Agreements of December 1987 ..• and Décember 1990 •.• , to refer
their disputes to the ... Court". Qatar therefore considera that the
Court has been enabled hto exercise jurisdiction to adjudicate upon those

disputes" and, as a consequence, upon the Application of Qatar.

Bahrain maintains on the contrary that the 1990 Minutes do not

constitute a legally binding instrument. It goes on to say that, in any
event, the combined provisions of the 1987 e~chang efs letters and of
the 1990 Minutes were not auch as to enable Qatar to seise the Court

unilaterally and concludes that the Court lacks jurisdi~ toti dealn with
the Application of Qatar. - 5 -

The nature of the exchanges of letters of 1987 and of the 1990 Doba

Minutes (paras. 21-30)

The court begins by enquiring into the nature of the texte upon

which Qatar relies before turning to an analysis of the content of those
texte. It observes that the Parties agree that the exchanges of letters
of Oecember 1987 constitute an international agreement with binding force

in their mutual relations, but that Bahrain maintains that the Minutes of
25 oecember 1990 were no more than a simple record of negotiations,
similar in nature to the Minutes of the Tripartite Committee; that

accordingly they did not rank as an international agreement and could
not, therefore, serve as a basie for the jurisdiction of the Court.

After examining the 1990 Minutes (see above, p. 4) the court
observes that they are not a simple record of a meeting, similar to those
drawn up within the framework of the Tripartite Committee; they do not

merely give an account of discussions and summarize points of agreement
and disagreement. They enumerate the commitments to which the Parties
have consented. They thus create rights and obligations in international

law for the Parties. They constitute an international agreement.

Bahrain maintains that the signatories of the 1990 Minutes never

intended to conclude an agreement of that kind. The Court does not
however find it necessary to consider what might have been, in that
regard, the intentions of the Foreign Minister of Bahrain or, for that

matter, those of the Foreign Minister of Qatar. Nor does it accept
Bahrain's contention that the subsequent conduct of the Parties showed
that they never considered the 1990 Minutes to be an agreement of this

kind.

The content of the exchanges of letters of 1987 and of the 1990 Doba
Minutes (paras. 31-39)

Turning to an analysis of the content of these texte, and of the

rights and obligations to which they give rise, the court first observes
that, by the exchanges of letters of December 1987 (see above, pp. 3-4),
Bahrain and Qatar entered into an undertaking to refer all the disputed
•
matters to the Court and tc determine, with the assistance of saudi
Arabia (in the Tripartite Committee), the way in which the Court was tc
be seised in accordance with the undertaking thus given.

The question of the determination of the "disputed matters" was only
settled by the Minutes of December 1990. Those Minutes placed on record

the fact that Qatar bad final1y accepted the Bahraini formula. Both
Parties thus accepted that the Court, once seised, ehould decide "any
matter of territorial right or ether title or interest which may be a

matter of difference between [the Parties)"; and should "draw a single
maritime boundary between their respective maritime areas of seabed,
subsoil and superjacent waters".

The formula thus adopted determined the limita of the dispute with
which the Court would be asked to deal. It was devised to circumscribe

that dispute, but, whatever the manner of seisin, it left open the - 6 -

possibility for each of the Parties to present its own claims to the
court, within the framework thus fiMed. However, while the Bahraini
formula permitted the presentation of distinct claims by each of the
Parties, it nonetheless pre-supposed that the whole of the dispute would

be submitted to the Court.

The Court notes that at present it has before it solely an

Application by Qatar setting out the particular claims of that State
within the framework of the Bahraini formula~ Article 40 of the Court's
Statute provides that when cases are brought'before the Court "the
subject of the dispute and the parties shall'be indicated". In the

present case the identity of the parties presents no difficulty, but the
subject of the dispute is another matter. i

In the view of Bahrain the Qatar Application comprises only sorne of
the elements of the subject-matter intended to be comprised in the
Bahraini formula and that was in effect a.cknowledged by Qatar.

The court consequently decides to afford the Parties the opportunity
to ensure the submission to the Court of the.whole of the dispute as it •
is comprehended within the 1990 Minutes and the Bahraini formula, to

which they have beth agreed. The Parties may do so by a joint act or by
separate acta; The result should in any case be that the Court has
before it "any matter of territorial right or.other title or interest

which may be a matter of difference between"'the Parties, and a request
that it "draw a single maritime boundary between their respective
maritime areas of seabed, subsoil and superj~cw eaters".

*

• Annex tc Press Communiqué No. 94/16

Declaration of Judge Shahabuddeen

My preference would have been for the issue of jurisdiction to be

fully decided at this stage. I have, however, voted for the Judqment,
understanding the intent to be to offer to the Parties an opportunity,
which merita acceptance, to submit the whole of the dispute tc the Court.

The reasons for the preference are accordingly not set out.

Separate opinion of Vice-President Schwebel

Vice-President Schwebel, who voted for the operative paragraphe of

the Judgment as "unobjectionable", described the Judgment as novel and
disquieting. It lacked an essential quality of a judgment of this or any
court: it did not adjudge the principle issues submitted tc it. It was

a commanding feature of the practice of the Court that its judgments
diaposed of the submiesions of the parties, but this Judgment failed tc
do eo, because it neither upheld nor declined jurisdiction.

Vice-President Schwebel questioned whether the judicial function is
served by auch an innovation.

Separate opinion of Judge Valticos

In his separate opinion, Judge Valticoa took the view that the case

in band was confused and that it was not really clear whether the two
States bad agreed to refer their dispute to the Court or whether their

agreement bad also related tc the subject of the dispute and the method
of seisin. One could of course accept that an agreement was reached but,
as regards the Minutes of the Doba meeting, it was couched in ambiguous
terme. There was, in particular, a problem relating to the Arabie term

"al tarafan" used in that connection by the Parties •

In any case, the Court should only proceed tc deal with the merita
•
of the present case if beth States were tc seise it of their disputes,
whether jointly or separately, and in accordance with the formula which
bas been accepted by them and which provides that each State is to submit

to the Court the questions with which it would like the court to deal.

Diseenting opinion of Judge Oda

Judge Oda finds himself unable to vote in faveur of the present

Judgment as it transforma the unilateral Application by Qatar into a
unilateral filing of an agreement which is found to have been improperly
drafted. In his view the Court should rather have determined whether it

bad jurisdiction to entertain that unilateral Application. The court now
appears - for 'the first time in its history - to render an interlocutory
judgment. Judge Oda maintains, however, that it cannet take this course

without first having settled the jurisdictional issue. What will happen
if the Parties do not "take action" to submit the whole of the dispute to
the Court? Will either or bath Parties be considered not tc have ~,

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complied with the present Judgment; or will :the Court simply decide to

discontinue the present case which bas already been entered in the
General List and of which it will assume that it bas been seised? It
seems to Judge Oda that the court is simply making a gesture of issuing

an invitation, in the guise of a Judgment, t~ the Parties to proceed to
the submission of a new case independently o~ the present Application.

The question in the present case is whet'her the "1987 Agreement" or
the "1990 Agreement" are of the na.ture of "treaties and conventions in

force" wi thin the meaning of Article 36 (1) of the Statuts, i.e. , whether
they contain a compromissory clause. After ~n examination of the nature
and contents of the 1987 and 1990 documents, ,Judge Oda cornes to the

conclusion that neither Agreement falls within this category.

What were Qatar and Bahrain then trying ~o achieve in the

negotiations by endorsing those documents?

After examining the negotiations which h'ad been going on for more •

than two decades, Judge Oda concludes that if any mutual understanding
was reached between Qatar and Bahrain in December 1987, it was simply an

agreement ta form a Tripartite Committee, which was to facilitate the
drafting of a special agreement; he further·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 Doba
meeting agreed that reference to the International court of Justice was
tc be an alternative to Saudi Arabia's good offices, which did not,

however, imply any authorization auch as tc permit one Party to make an
approach to the Court by unilateral application, ignoring "what was
agreed previously between the two parties", that is to say, the drafting

of a special agreement in accordance with the Bahraini Formula.

In conclusion, Judge Oda is confident that neither the "1987

Agreement" nor the "1990 Agreement" can be déemed to constitute a basie
for the jùrisdiction of the Court in the event of a unilateral

application under Article 38 (1) of the Rules of Court and that the Court
is not empowered tc exercise jurisdiction in,respect of the relevant
disputes unless they are jointly referred ta the Court by a special ....

agreement under Article 39 (1) of the Rules 6t Court which, in his view,
bas not occurred in this case. The Court ha~ nonetheless opted for the
role of conciliator instead of finding, as he believes it ought to have

darre, that it lacks jurisdiction tc entertain the Application filed by
Qatar on 8 July 1991.