Public sitting held on Friday 11 March 1994, at 10 a.m., at the Peace Palace, President Bedjaoui presiding

Document Number
087-19940311-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
1994/8
Date of the Document
Bilingual Document File
Bilingual Content

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.

Document Long Title

Public sitting held on Friday 11 March 1994, at 10 a.m., at the Peace Palace, President Bedjaoui presiding

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