Non-Corrigé
Uncorrecteci
International Court Cour intarnationale
of Juetice de Justice
LA HAYE
YEAR 1994
Public sitting
held on Friday 4 March 1994, at 10 a.m., at the Peace Palace,
Presfdcnt Bedjaoui presiding
in the cane concerning Iiaaritime Delimitation and Territorial Questions
Between Qatar and Bahrain
(Qatar v. Bahrain)
VERBATIM RECORD
Audience publique
tenue le vendredi 4 mars 1994, d 10 heures, au Palais 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. Bahreïn)
- -
COMPTE RENDUPrf-er~L President Bedjaoui
Vice-President Schwebel
Judges Oda
Ag0
Sir Robert Jennings
Judges Tarassov
Gui1laume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjen
Herczegh
Shi
Fleischhauer
Koroma
Judges ad hoc Valticos
Ruda
Registrar Valencia-Ospinapr6ae- : M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Ag0
sir Robert Jennings
MM. Tarassov
Gui11aume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma, juges
MM. Valticos,
Ruda, juges ad hoc
M. Valencia-Ospina, Greffierme GoverPrnentof Qatar is be represented by:
H.E. Dr. Najeeb Al-Nauimi, Minister LegalAdviser,
as Agent and Counsel;
Mr. Adel Sherbini, Legal Expert,
as Legal Adviser;
Mr. Sami Abushaikha, Legal Expert,
as Legal Adviser;
Mr. Jean-Pierre Quéneudec, Professor of InternationalLaw at the
University of Paris 1,
Mr. Jean Salmon, Professor at the Universitélibre de Brwelles,
Mr. R. K. P. Shankardass, Senior Advocate, SupremeCourt of India,
Former President of 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 emeritus of
International Law at the University of 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 Goveznment 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 représentépar :
S. Exc. M. Najeeb Al-Nauimi, ministre conseillerjuridique,
comme agent et conseil ;
M. Adel Sherbini, expert juridique,
comme conseillerjuridique;
M. Sami Abushaikha, expert juridique,
comme conseillerjuridique;
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 del'InternationalBar 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'universitéde 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, ministredlEtat chargé des
affaires juridiques,Barrister at Law, membre de la Commission du
droit internationalde l'organisation des Nations Unies,
corne agent et conseil;
M. Derek W. Bowett, C.B.E., Q.C., F.B.A., professeurémérite, ancien
titulaire de la chaire Whewell à l'universitéde Cambridge,
M. Keith Highet, membre des barreaux du district de Columbiaet de
New York,Mr. Eduardo Jiménez de Aréchaga, Professor of International Law at
the Law School, CatholicUniversity, Montevideo, Uruguay,
Mr. Elihu Lauterpacht, C.B.E., Q.C.,Honorary Professorof
International Law and Director of the Research Centre for
International Law, University of Cambridge; Memberof the Institut
de droit international,
Mr. Prosper Weil, Professor emeritusat the Université de droit,
d 'économie et de sciences social es de Paris,
as Counsel and Advocates;
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 droit international à
la faculté de droitde l'université catholiquede Montevideo,
Uruguay,
M. Elihu Lauterpacht, C.B.E., Q.C., professeur honoraire de droit
internationalet directeur du Research Centre for InternationalLaw
de l'Université de Cambridge; membre de l'Institut de droit
international,
M. Prosper Weil, professeur émérite à l'Université de droit,
d'économie et de sciences sociales de Paris,
comme conseils et 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,du cabinet Trowers et Hamlins à
Londres,
comme consei1S. - 8 -
The PRESIDENT: Please be seated. Thismorning the Courtresumes the
hearings in the Qatar/Bahraincase in order to hear Bahrainin its first
round of oral arguments.1 therefore givethe floor to
H. E. Minister Al-Baharna.
Mr. AL-BAHARNA: Mr. President and Members of the Court,
1. 1 have the honour to appear beforeyou as the Agentof the State
of Bahrain. In that capacity,may 1 begin by offeringyou,
Mr. President,and you, Mr. Vice-President,the respectful
congratulationsof my country onthe highoffices towhich you have been
elected andto which you bring so much distinction. 1 would also like to 1
congratulate JudgeShi, Judge Fleischhauerand Judge Koromaon their
recent electionto the Court andto offer them my Governmentlsbest
wishes. My Governmentdesires to express its highesthope, regards and
respect for thisCourt -sentimentsabout which there has not been the
slightestdoubt £rom the moment thatjoint recourseto this tribunalwas
first contemplated by the Mediator and theParties in 1987.
2. At such a time asthis, my Government also wishes to recall its
admirationand appreciationof the wise andconstructive contribution
made asMediator by the Kingdom of Saudi Arabia. Itsown view of its
continuingactivityand the role which it attributesto this Court is
evidencedby the further attempt that it made in September1991, in full
knowledgeof the unilateral application made by Qatar in this case, to
persuade theParties to adhere to the course which had for so long been
their solepreoccupation,narnely, that of concludingan agreementto
submit their dispute jointlyand comprehensivelyto this Court. The
draft Agreement which Saudi Arabia propost ed the Parties in -9-
September 1991 appears as No. 9 in the Hearing Book. This is the red
loose-leaf binder that is before you and which, for convenience, 1 and my
colleagues will cal1 "the Hearing Bookw. It contains copies of a number
of documents that will be referred to in the course of our arguments.
Al1 these documents are either already filedin the case or are merely
outlines or lists of which we shall be making use as we speak.
3. I cannot, on such an occasion as this, even though we may be in
disagreement, fail to emphasise the brotherly relationship that exists
between the State of Bahrain and the State of Qatar. We are convinced
that this relationship shouldalways be maintained in the peace,
affection and cohesion to which the countries of the Gulf aspire.
4. It is a high privilege forme to appear on behalf of the State of
Bahrain. 1 and my colleagues much look forward to giving the Court al1
the assistance we can in the discharge of its important task.
5. So many points have been coveredin the Qatari argumentthat it is
impossible to respond to them all. Silence on our part should,
therefore, not be regarded as agreement. 1 shall not, for example,
spend time respondingto the Qatari complaint thatBahrain's letter to
the Court of 18 August 1991 was an irregular communication,that Bahrain
has failed to cornplywith the Rules of the Court, that Bahrain failedto
appoint an agent and that it did not make a preliminary objection. While
1 totally reject these charges, 1 must say that they have nothing at al1
to do with the matters now before the Court. The same goes .forthe
historical and geographical observationsof the Agent of Qatar. 1 shall
not comment on them - not because 1 accept them but only because they are
out of place in the present proceedings. But 1 would add thatBahrain's
view was that it could not appoint an Agent on the basis of Qatar's - 10 -
unilateral Application. However, following the helpful meeting with the
then President, when it was agreed that jurisdictionwould be dealt with
first, then Bahrain felt able to do SO.
6. It is a source of disappointmentand regret to my Governmentthat
it should on this occasion - the first in which it appears in this
Court - come not to sustain your jurisdiction,but to oppose it. 1 can
assure the Court that the position that has been forced upon my
Government does not reflect any objection, in principle, to the
settlementby the Court of the whole of the dispute that presently
divides the States of Bahrain and Qatar. Bahrain would be proudto be
one of the first two Gulf States to join in the submissionof a case to
the Court. Bahrain hasmade plain beyond doubt on no less than £ive
occasions itspositive wish to participate in the joint submission to the
Court of its differenceswith Qatar: in December 1987; in March 1988;
in October 1988; in September 1991and most recently on 20 June 1992,
when Bahrain offereda further draft jointsubmission (HearingBook,
No. 10). This offer lay open for acceptance by Qatar until six weeks
ago, but Qatar made no reply to it. Nor, it would seem did Qatar reply
to the earlier Saudidraft of September 1991which 1 mentioned a moment
ago. Why not? Why should Qatar place Bahrain in a position in which
Bahrain has to justify its oppositionto the jurisdictionof the Court
when unilaterally invoked by Qatar, yet Qatar regards itself as free to
refrain from any explanationas to why it cannot either accepta
perfectly reasonableproposa1 for a joint submission or even indicatea
willingness to discuss the subject? Why should Qatar assume that if
points remain to be negotiated, the discussionshould be peremptorily
terminatedwith al1 points being resolvedin Qatar's favour? Why should - 11 -
they not equally be resolved in favour of Bahrain? Do we not also share
in the "justiceM to which Sir Francis Vallat so appropriately referred in
his closing peroration?
7. Bahrain has joined fully in the attempt to implement the 1987
Agreement in accordance with its terms. What Bahraincannot accept is
the distortion by Qatar of the 1987 Agreement by attempting to bring
Bahrain before the Court without its consent and on conditions
unfavourable to it on the basis of a unilateral application by Qatar that
was never contemplated by Bahrain and wasnever discussed with it.
8. Rather than lay such heavy emphasis on the reasons for its
unilateral application, as Qatar does, let us at the outset invite an
answer to the question: Why did Qatar not show the same willingness as
Bahrain to participate in a joint submission to the Court? Why has Qatar
instead sought to gain advantage by rejecting not only the draft joint
agreement presentedin 1991 by the Mediator but also the draft offeredby
Bahrain in 1992? If Qatar wanted to expedite the resolution of its
dispute with Bahrain it has gone about it in the most inefficient and
counter-productiveway. For one thing, it never ensured that Bahrain
received direct noticeof its intention to start these proceedings, as
normal practice requires. Contrary to what counsel for Qatar implied in
the oral pleadings no intimation whatever was received by Bahrain of the
content of letters that Qatar sent to Saudi Arabia in May and June 1991.
For another, it must be evident that if Qatar had responded,positivelyto
the Saudi draft joint submission of September 1991 the case would by now
have proceeded even beyondthe exchange of Counter-Memorials. Even if
Qatar had only accepted the Bahraini offer of a joint submission in
June 1992, the case would by now have passed the exchange of the - 12 -
Memoriais. There would not have been the delay while the present
jurisdictional objection is considered. Evidently,therefore, it was not
an anxiety to proceed by the speediest route that led to Qatar's
unilateral action. Qatar must have been hoping forsome greater benefit
which it has not yet revealed.
9. But revelation by Qatar of its reasons for acting as it has are
perhaps not far to seek. Qatar wantedto set up the case in a way that
suits it. It wanted to control the range of the issues which the Court
would be asked to decide. It wanted to be the first to file a Memorial
and thus have the advantage of being able to state its case in a manner
which would not be open to the immediate balancing effectof a
simultaneously filed pleading by Bahrain (a preference at that time that
is in no way affected by Qatar's statementtwo days ago that it is now
prepared to accept simultaneous pleadings if Bahrain starts separate
proceedings) . It wanted to be sure to be the Party that had the first
word in the oral hearings. It wished to be free of the inhibition of a
specific reaffirmation of the rule prohibiting the production of evidence
of proposals for settlement made during past negotiations. It wanted to
get to the Court withoutgiving the Bahrain Governmenttime to go through
the procedures requiredby Article 37 of the Bahrain Constitution. Those
appear to be the reasons why Qatar did not honour its commitment to
negotiate a joint submission under the 1987 Agreement and insteadjumped
the gun in July 1991 with a unilateral application. It is idle for
Professor Salmon to pretend in this connection that there is no such
thing as strategic and tactical advantage in international litigation.
It is no disrespect to the Court to recognize that manoeuvre is an - 13 -
element in the conductof the case - and that is preciselywhat Qataris
engaged in.
10. Perhapseven more than larger States,Bahrain has a deep interest
in the rule of law in international relations.But these rules of law
must operate on a predictable basis. One of the fundamental
considerationsin this connectionis that this Court will not exercise
jurisdictionover a State without its consent. While Bahraindoes not
deny thatin the 1987Agreementit expressedits willingnessin principle
to join in the submissionof its differences with Qatar to the impartial
adjudicationof this high tribunal,it did not agree to do so on the
terms or in the manner now dictatedby the unilateralapplicationof
Qatar.
11. The issue is not simply oneof equalityand sovereigndignity.
When Bahrain agreedin 1987 that this Courtshould be the forumof last
resort it did not do so on the understanding,or in theexpectation,that
it would be placed in the position of a defendant,with al1 the
implicationsthat may attend such a position - particularlyin a case
involving questions of title to territory and the boundarieo sf maritime
areas.
12. Certainly Bahrain feels affronte bdy what it sees as a deliberate
and substantialdepartureby Qatar fromunderstandings clearly
establishedsome years agoand consistently followed in subsequentyears.
13. 1 can well understand.thatthe Court may be askingïitsekfthe
question: if Bahrain is willing to agree to a joint submissionof the
case to theCourt, why is it not preparedto participate ina case begun
by unilateralapplication? Will it not be asked: is not Bahrain
adoptinga rather formal and technical position when the substantive - 14 -
issues to be consideredand the substantive lawto be applied may be much
the same whichever procedureis followed? I believe that the Court is
entitled to an answer to this question; and1 hope that what follows
will appear as reasonable,proper and acceptable to the Court as it seems
to Bahrain.
14. First, there is a reason of principle - respect forthe pledged
word. Bahrain firmly believes thatQatar agreed in 1987, and confirmed
by its conduct thereafter,that the procedure for the submission to the
Court would be the subject of a further specific agreement. As a matter
of principle, especially in view of the prospect of ongoing and, it is
hoped, amicable relations between the twoStates, Bahrain cannot
acquiesce in a unilateral alterationby Qatar of established
understandings. If this is allowed to happen without the firmest
opposition on thisoccasion, there can be no subsequent confidencein the
maintenance of any undertakinggiven by the other side. The obligation
to respect the pledged word will be equated with the right to repudiate
the pledged word. That is self-evidentlyunacceptable.
15. The second reason forrejecting a unilateral application is that
Qatar has presented the question in a self-servingand incomplete marner.
Thus, in paragraph 41 of its Application,Qatar asked the Court to decide
that Qatar is sovereign over the HawarIslands and thatit has sovereign
rights over the Dibal and Jaradah shoals. Qatar also asked the Court,
with due regardto the dividing linedrawn by Britain in 1947, to draw a
single maritime boundary between Qatar and Bahrain. Permit me,
Mr. President,to explain the unacceptabilityof this presentationof the
issues by Qatar. - 15 -
16. It was, of course, a major element in the First Principleof
Mediation that "al1 issues of dispute between the two countries ... are
to be considered as complementary,indivisible issues, to be solved
comprehensivelytogether". Notwithstanding this,Qatar's listing of the
issues in its Applicationdisregards importantquestions which Bahrain
had raised and which formpart of theoverall dispute between the two
sides: principally the question of Bahraints claims concerning Zubarah.
Nor has Qatar recalled that there are issuesbetween the Parties relating
to the traditional pearlingand fishing banks.
17. Coming back to the matter of Zubarah which Qatar has excluded
£rom the issues raised by its Application, there is no mystery about it.
1 am confident that the files of Qatar, no less than those of Bahrain,
have ample materials on the whole history of the Zubarah issue.
Obviously, it would be inappropriate for me to enter into any detail on
this substantive questionin the course of proceedings the scope of which
is limited to jurisdictional issues. But the Court may be assured that
there is here an issue of substance. A general indication of the
character of the dispute is given in Bahrain's Counter-Memorialon the
question of jurisdiction,at pages 15-17. The principal issues as to the
nature and extent of Bahrain's claims concerningZubarah can be
identified £rom a reading of the historical documents thatappear in
Volume III of the Bahraini Counter-Memorial. Bahrain's claims are rooted
in its past presence in, and control over, Zubarah. They go back for
virtually two centuries. There exists a treaty on Zubarah between the
two countries - the "standstill"agreement concludedin 1944, of which
Qatar has long been in breach. There were diplomatic exchanges on the
subject between Bahrainand Britain, as the protecting Power, until thetime when in the early 1970s Britain withdrewfrom the Gulf. And Qatar
knew of these exchanges. Theexistenceof a disputewas acknowledged by
Qatar and was duly noted inthe minutesof the Sixth Meeting of the
TripartiteCornmittee held on 6 December 1988 (CMB,Vol. II, p. 111). It
is no good Qatar claimingthat it is insufficientlyaware of the
existenceand natureof Bahrainlsclaims concerningZubarah.
Sir Francis Vallatls closing review of the history of relationsbetween
the two countries showsthat Qatar is fullycapableof recalling the
events of the 1930s and 1940s, and is unlikely tohave forgotten itsown
attack on Zubarah in 1937 or its own violationsof the 1944 Agreement.
The people of both Bahrain andQatar, and particularly members of the
Al Naim tribe, will be aware of this history.
18. Qatar puts forwardan entirely spuriouscomplaint whenit says
that
"neitherthe Court norQatar yet knows on what basis it could be
determined whetherBahrain'sclaims concerningZubarah are
admissibleor not, under the Bahraini formula whichis
incorporated by referencein the 1990 Minutes''.
The factof thematter is that Qatar, as the effectiverespondentto any
Bahraini claim concerningZubarah,has no interestin itself bringing the
Zubarah claimsbefore the Court. Whether Bahrain's claims concerning
Zubarah areadmissibleor not does not inany way justifyQatar in
proceeding by wayof unilateralsubmissioninsteadof participatingin a
joint action. In short, if the provisionsof the First Principleof
Mediationare to be met and al1 issues of dispute betweenthe two
countriesare to be consideredas cornplementary,ndivisibleissues,to
be solved comprehensively together,the formulationof the issues
presentedby Qatar in its Applicationis inescapablydefectivein this - 17 -
major respect, not to mention others. The only proper way of securing
the presentation of the Zubarah question to the Court is within the
framework of the proper application of the Bahraini formula, with Bahrain
being responsible for the expressionof its own claim.
19. The distinguished Agentof Qatar has argued (CR 94/1) that it is
open to Bahrain to file its own application to the Court in respect of
Zubarah and that 'the Court may at any time direct that ... the two cases
be joinedw (ibid.,see also RQ, para. 4.114). There are four important
reasons why this argument cannot in any way justify Qatar's unilateral
action.
20. Firstly, the validity and effect of an application has to be
judged within the frameworkof the application itself and notby
reference to events subsequent to the application which may or may not
occur. The only exception is a forum prorogatum situation which is, of
course, not relevant here. Qatar is not arguing that its Application in
the present case is perfectto dispose of al1 matters in issue. What
Qatar argues is that a fundamental conditionof Bahrainls consent to
participate in any case before the Court, namely, that that case covers
al1 outstanding issues betweenthe Parties, can be satisfied if Bahrain
itself brings an additional and separate case against Qatar.
21. This Qatari approachis quite misconceived. The imperfection of
an application is not removed by the possibility of subsequent curative
conduct by the other party, but only by the actual conductof the-ather
party, if it chooses so to act. Sir Ian Sinclair in his argument on
behalf of Qatar (CR 94/11 placed great emphasison the rule that the
jurisdictional positionof a party is to be determined as at the moment
of the filing of the application. True, his reference to the statements - 18 -
to this effect in the Rights of Passage and the Nottebohm cases wasmade
in support of his argument that,once a valid jurisdictionallink has
been invoked by an applicant, subsequent conductby the respondent cannot
divest the Court of jurisdiction. But the rule is the same whether one
is testing the existence of jurisdictionunder the optional clause (as in
the two cases just mentioned) or determining whether the application
meets the conditions agreed between the parties forthe submission of the
case to the Court. It is the conditions whichexist at the moment of
application that matter; not the possibility of some subsequent conduct
on the part of the respondent.
22. Secondly, in any case Bahraindoes not share Qatar's view that
the 1987 Agreement and the 1990 Minutes entitle Bahrain to file its own
application to the Court any more than it justifies Qatar's own
application. No doubt, Qatar urgesthat Bahrain is so entitled because
that is what Qatar itself claims to be able to do. But this presupposes
that Qatar is right in its interpretationof the effect of the
1990 Minutes. Bahrain believesthat Qatar is wrong. It would,
therefore, be inconsistent with Bahrain's position for it to act in the
manner urged by Qatar.
23. Thirdly, even if Bahrain were to make its own separate
application, Qatar has kept open itsright to object to the aàmissibility
of Bahrainos claim concerning Zubarah. It is to this that Bahrain
objects. The position.would be quite different if the Parties.had joined
in formulating a joint submission to the Court. It is implicit in such a
formulation that neither side will raise any question of admissibility in
relation to any issue necessarily related to that question. The same
principle applies when thejoint submission permits each Party to - 19 -
formulate its own questions (as the Bahraini Formula does). But the
insistence of Qatar on reserving the right to object to the admissibility
of any claim that Bahrain may make in respect of Zubarah immediately
places Bahrain in a position of disadvantage andinequality; and thus
emphasizes the inadequacyof Qatar's "two applications" approach as a
substitute for a single agreed joint submission in the terms of the
Bahraini formula.
24. Fourthly, Qatar repeats in its oral arguments what it says in its
Reply, namely, that "there should ... of course be no obstacle to joinder
if Bahrain were to file its own applicationw (RQ, para. 4.115). This is,
of course, an admission both that joinder would be necessary and that
joinder is not a certainty. Joinder is a matter for the Court, in its
discretion, and neither party is entitledto assume the certainty of
joinder for the purpose of validating an earlier defectiveapplication.
25. In the light of these comments, it can be seen why the gap in the
Qatari Application cannotbe cured by a subsequent Bahraini application
limited to the question of Zubarah. It is no mere technicality which
leads Bahrain thus to object to Qatar's unilateral application.
26. Nor is this the end of the list of reasons why Bahrainls
objection to Qatar's unilateral Applicationis real and substantial. The
Court will, of course, know that the general practice of States in .
relation to territorial and boundary disputes isto bring them before the
Court by special agreement. In this way neither party is plaintiff or
defendant. The initiation of proceedings in relation to such matters
under pre-existing clauses of compulsory jurisdiction or under the
Optional Clause is exceptional. For this there is good reason. States
likely to be faced by boundary questions arereluctant to accept - 20 -
compulsory jurisdictionalclauses permittingthe unilateral institution
of proceedings relatingto such matters. Such cases are widely deemedto
be so sensitive that internationaltribunals can deal with them only on
the basis of deliberate, clear and unequivocalconsent to jurisdiction.
No such consent has been given in the present case.
27. 1 should now like to turn to a quite different matter: the
question of the diplomatic quality and role of the 1990 Minutes
(HearingBook, No. 8). At a later stage in the argument,
Professor Lauterpacht will present to the Court more detailed submissions
regarding the interpretationand effect of this document.
28. As the Court no doubt already appreciates,the nature and effect
of the 1990 Minutes lieat the centre of this case. Without the
1990 Minutes, it is inconceivablethat Qatar could have launched the
present proceedings. Even with the 1990 Minutes, it is Bahrainos
contention that there is no basis for Qatar's unilateral application.
29. 1 shall consider two aspects of the 1990 Minutes. The first is
the intention and understandingof Bahrain in the discussionsat Doha in
December 1990 leading to the signatureof the 1990 Minutes. It is a
matter of record that the principal Bahraini representative involvedin
these talks was the Bahraini Minister for Foreign Affairs,
H. E. Shaikh Mohammed. The Foreign Ministeros account of the course of
the relevant discussions at the Doha Meeting is set out in his statement
appended to Bahrain's Counter-Memorial (HearingBook, No. 12.1.
Professor Lauterpacht will refer to it more fully later. The point that
1 should like to stress from the outset is the significanceof the
changes that were made inthe successive drafts of the text that
eventually emerged as the 1990 Minutes. As Mr, Shankardass rightly - 21 -
emphasized in his argument, there is no more cogent an indication of
intention than, as he put it, "the categorical rejection" of a proposal.
30. As appears £rom the Foreign Ministerls statement, he was, on
24 December 1990, presented by Saudi Arabia with a first draft of the
Minutes. This is included in the Hearing Book, No. 5. This draft
contained a statement to the effect that the consultations
"had concluded with the agreementof the two parties on the
formulation of the question which will be presented to the
International Courtof Justice by each of themn.
Although the Minister added the words "as specified in the Bahrain
memorandum" in order, as he put it, "to emphasize that the question
formed part of a larger document (i.e.,the Special Agreement) and was
not an independent item", he rejected the Saudi draftas a whole. For
the Minister, the only way of coming to the Court was by Special
Agreement, that is to Say, by a joint submission. The presence of the
words "which will be presented to the Court by each of them" was
incompatible withthis basic concept and rendered the whole draft
unacceptable.
31. Later the same day, 24December, the Foreign Minister of Oman
presented the Foreign Ministerof Bahrain with the document that we cal1
"the Omani draftn (HearingBook, No. 6). This draft also containedthe
words "either of the two Partiesmm - words which could haveopened the way
to the commencement of proceedings by unilateral application. This time
the Foreign Ministerof Bahrain-specificai-lc yhanged.the words "Either of'
the two parties" to the words "the two partiesVm("al tarafan"). The
purpose of making this change to "the two parties", as excluding the
commencement of proceedings'byeither party alone, could not have been
lost upon anyone involved. 32. Qatar asserts that it was not aware of the original Saudi draft.
This is quite strange but if such be the case, it makes little
difference, for what mattersis that Qatar does not deny knowledge of the
Omani draft. It seems, therefore, inconceivablethat Qatar could have
failed to notice, or understand the significance of, the change from the
words "either of the partiesn to the words "the two parties"
("altarafan"). Professor Lauterpacht will deal presently with the
suggestion by the Agent for Qatar (CR 94/11 that the change of words was
quite acceptable to Qatar.
33. As appears from my statement, when the final ûmani version of the -
draft appeared on 25 December, 1 recommended the addition of the words
"and the procedures arisingtherefromn after the words "acceptedby the.
State of Qatarv at the end of the second sentenceof paragraph 2. That
is to Say, 1 proposed words which, when properlytranslated into English,
could only mean "the procedures arising£rom the implementationof the
Bahraini formulam. As 1 have said in my Statement,
"these words were intended to refer to the procedures to be
followed in order to implement the Bahraini Formula, meaning
that after the expiry of the period mentioned in the agreed
Minutes, the Parties together with SaudiArabia - the Mediator -
had to conduct further consultations aimedat concluding a
Special Agreement on the basis of which the two Parties might
refer the matters of difference between themto the CourtN.
The suggestion was acceptedand was incorporated intothe text without
objection, qualification or comment by Qatar. It should be noted that
Professor Badawi and Dr. Holes, Bahrainrs experts, considered that the
correct translation of the relevantArabic word in paragraph 2 of the
1990 Minutes was "proceduresIrnot lrproceedingslas proposed by Qatar.
The connection between the word "procedures"and the Bahraini Formula is
even clearer in the Arabic than it is in English. The United Nationstranslation used the word "arrangements" - closer, in this context, to
uprocedures"than to 18proceedings".
34. Mr. President, at one point in his argument on 1 March (CR 94/2,
p. 331, Sir Ian Sinclair soughtto attach, as he put it, 'some
significance"to my appearance in Doha on 25 December 1990. Sir Ian
suggested that
laone[that is Bahrain] does not suddenly summons one's most
senior law officer to participate in the drafting of a mere
diplomatic document not intended to have any legal effect".
The answer to this point is so obvious that 1 am surprised that Sir Ian
troubled to make it. If you don't want to enter into a legal commitment,
who better than a lawyer to tell you how to avoid it? That8s myself.
There was a danger that whatever Shaikh Mohammed might sign could be
given legal weight. He was obviously anxious to avoid being caught in a
legal trap. What could havebeen more natural and prudent than to summon
some legal advice?
35. Mr. President and Members of the Court, 1 now turn to the second
matter on which 1 should like to address you, namely, the constitutional
requirements of Bahrain relatingto the conclusion of treaties and
international agreementsin so far as these could have affected the
intention of the Foreign Minister. Although the subject isone within my
special knowledge as Minister of State for Legal Affairs, 1 am not here
to give expert evidenceon the law of Bahrain, but to speak, as may any
other counsel representing,.a State, about.the constitutional law within
that State.
36. 1 emphasize the words that 1 have just said - 'in so far as these
constitutional requirements could have affected thi entention of the
Foreign Minister8'. The context within whichthese comments are relevantis as follows. In addition to the evidence of the understanding and
intention of the Bahraini Foreign Minister, bothsubjective and
objective, in subscribing to the 1990 Minutes which will be more fully
recalled later by Mr. Lauterpacht, there are a numberof further items
that support the statements made by Shaikh Mohammed and myself regarding
the political and non-legal quality of the 1990 Minutes. One of these is
the considerationmentioned by Shaikh Mohammed in his Statement (Hearing
~ook No. 12, para. 13), when he said the following:
"Nor did 1 forget that my authority as Foreign Minister was
limited and that 1 was not permitted to sign a treaty taking
effect on signature. The Bahrain Constitutionquite clearly
provides that treaties Iconcerningthe territory of the State'
can corneinto effect only aftertheir positive enactment as law.
That was why the Bahraini draft Special Agreementof
19 March 1988 [Hearing Book No. 3, Article VIII] included the
provision that the agreement would only enter into forceon 'the
date of the exchange of instruments of ratification in
accordance with the respective constitutional requiremento sf
the Parties '."
37. 1 should emphasize one point at the outset. The Foreign Minister
of Bahrain does not here refer to the terms of the Bahraini Constitution
for the purpose of invoking Article 46 of the Vierna Convention on the
Law of Treaties. This Article,as the Court has been reminded,
presupposes both the consent of the State and the intention of the
Statels representativesto bind the State. In the present case, Bahrain
maintains that there was no consent and no intention to be bound. That
is the difference.
38. The relevance of the reference to the Bahrain Constitutionis
that the Minister for Foreign Affairshad in mind the pertinent
provisions of that Constitution. He knew that he did not have the
authority to commit Bahrain in the marner allegedby Qatar. That
knowledge operated to exclude any intention on his part so to commit - 25 -
Bahrain. If he did not have such an intention, where is the intention of
Bahrain to be found? The disembodied person of the State cannot be
entirely separated £rom the intention of some relevant real person.
39. Qatar must also haveknown of the limitation on the Minister's
authority imrnediatelyto bind Bahrain. Qatar could not have been
unfamiliar with the Constitutionof its near neighbour. Even more to the
point, however, it had seen the Bahraini draft agreement of 19 March 1988
(HearingBook, No. 3) in which Bahrain had expressly provided in
Article VIII, that the agreement would "enter into force at the date of
exchange of instruments of ratification in accordance with the respective
constitutional requirementsof the Partiest1. The comparableprovision in
the Qatari draft special agreement of 15 March 1988, Article VI
stipulated that "the present agreement shallenter into force on the date
of its signature". If Qatar had compared the two drafts, as surely it
must have, it would undoubtedlyhave noticed this difference of approach
and would have been put on notice of Bahrainls constitutional
requirements in relation to this kind of undertaking.
40. This point, about the relationship betweena constitutional
provision and theintention of the negotiator, is indeed, virtually the
same as the one made by El Salvador in the Land, Island and Maritime
Frontier Dispute case, to the effect that the constitutionalposition of
El Salvador was material as excluding the likelihoodof an intention on
the part of the Foreign Ministerof El Salvador to have agreed to sign a
special agreement providingfor the delimitation of a maritime boundary
within the Gulf of Fonseca. Sir Ian Sinclair argued on 1 March (CR94/2,
p. 48) that the Chamber in that case did not rely on the Foreign
Minister's statement regardinghis intention. But, as Sir Ian stated,the Tribunal foundthat Honduras had not discharged the burden of
demonstratingthat a special meaninghad been intendedby the parties
when using the phrase "determinethe legal situation of the maritime
spaces". It is a fact that the El Salvador Foreign Minister's statement
was directed towards his intention when usingthis expression - an
intention reflecting his wish not to violate his countryls Constitution.
The Chamber did not have to specify every considerationpertinent to its
conclusion that Honduras had not proved its point. If the Chamber had
wanted to establish that such evidence of the Ministerls intention was
without weight, it could have said so. But it did not.
41. Having said that, 1 should emphasize that there is a clear
distinctionbetween referringto a constitutionallimitation as a factor
likely to exclude an intention on the part of a Foreign Minister to
conclude a particular treaty, on the one hand, and the question of the
Minister's full powers on the other. Bahraindoes not contend that its
Foreign Minister didnot have full powers to conclude a treaty. Bahrain
says that such a contentionhas no relevance here, where the sole issue
is whether the Minister had any intention to enter into a treaty. But
since Sir Ian Sinclair sawfit to cite Dr. Blix, it is appropriate that 1
should recallwhat thatlearned authority had to Say on the subjectof a
Foreign Minister's full powers:
"The rule seems to have emerged in practice, however, and
to have receivedthe support of some countries, that at preaent,
by his position, in which no full power is required, a foreign
minister is competent under internationallaw - unless thereis
evidence in the particular case to the effect that manifestly he
is not competent, or this is known to the other party - to bind
his state by an agreement falling withinthe treaty making
powers of the executive ..." (Treaty-MakingPower, p. 40). It hardly needs repeating that in Our case the limitation on the
Foreign Ministerls power was known to Qatar.
42. 1 should at this point also mention an aspect of the preparation
of the 1990 Minutes that is relevant in the present connection. In its
Repïy (para. 4.57), Qatar stated that
"When the two States were engaged in the drafting of the
Doha Agreement at the initiative of Saudi Arabia and with the
assistance of Oman, Qatar heard nothing about any reservation
which Bahrain might have had concerning the binding characterof
the instrument."
This sentence conveys a false impressionof the circumstances surrounding
the preparation of the Minutes.
43. It is not correct to Say that "the two States (Qatarand Bahrain)
were engaged in the drafting of the Doha Agreement1'. What happened at
Doha cannot be likened to a treaty-drafting exercise. 1 leave aside the
fact that the document in question is called an "agreement"only by
Qatar. The point is that the words used by Qatar suggest a process of
"draftingUthat involved significant face-to-facediscussions between the
two sides. In fact there was never any direct, face-to-face discussion
between the two sides other than at the first open meeting of the Gulf
Co-operation Council Sumrnit. Thereafter, the two Foreign Ministers met
only to sign the Minutes. The whole discussionwas carried on by each
side separately with the Saudiand Omani representatives,who acted as
go-betweens. Although Qatar cannot provea negative, it remains unlikely
that there is any basis for its statementthat it I1heard nothing about
any reservation which Bahrainmight have hadconcerning the binding
character of the instrument". But the real point is that it was not up
to Bahrain to spell out the character of a document which was seen by it
as nothing more than a part of a series of documents in comparable form - 28 -
which had never previouslybeen specifically characterized, or thought
of, as individually givingrise to legally binding obligations.It was
Qatar which was seeking to alterthe whole patternof thenegotiating
relationshipthat hadhithertoprevailed between the two sides. SO it
was up toQatar to ensure that wording was used which manifestly
demonstrated inclear and unequivocal languagethe legallybinding
qualityof the documentand equallymanifestlyexpressed the substantive
objectivethat it sought to achieve,namely, that either side might
proceed alone.
44. The Court may consider it strangethat such a document,which
Qatar would now have the Courtbelieve had such far-reachingeffects,
should have been "negotiated"withoutprior notice by Qatar and without
any direct contact between the two sides - and 1 put the word
"negotiated" inquotationmarks so as not to accord theoutcomeof the
discussionsa status thatit does not possess.
45. Mr. President,1 cannot end without referringto the insistent
Qatari demand to know what wouldhave beenthe object and purpose of the
1990 Minutes if it were not to achieve a change of approachto the
questionof bringing the case to the Court - a change from joint action
to separateaction.
46. Bahrain has already answered this questionin paragraph 6.70 of
its Counter-Memorial and paragraphs 5.42-5.48 of its Rejoinder. Our
present reply remainsa simple and a common sense one. The Minutes
representeda minimal responseto an ill-timedand ill-conceived
initiativeon the part of the State of Qatar. At a moment when the rest
of the Gulf communitywas entirelytaken up with thefar more pressing
and urgent situationarising from Iraq's invasion andseizureof Kuwait - - 29 -
an event which posed a direct threat to the integrity and stability of
the whole of the region - the State of Qatar was preventing consideration
of these vital problems by raisingthe matter of its relations with
Bahrain. Apart fromSaudi Arabia and Bahrain none of the other Gulf
States had any realknowledge of the problem.
47. In doing so, Qatar was trying to push Bahrain intoaccepting a
formula which would have enabled Qatar to proceed unilaterally to the
Court on any terms it wished, - notwithstanding the fact that there was
no agreement betweenthe two sides on the admissibility of the Zubarah
issue, on the exclusion of evidence relatingto settlement proposals,or
on meeting Bahrain's constitutionalrequirements. In effect, Qatar was
wanting Bahrainto place itself in Qatar's hands.
48. This development was quite unacceptable to Bahrain. It dug its
toes in. It insisted on a change in the wording of the proposed text in
order to protect itself against unilateral action. Bahraincould, of
course, have refused to sign any document at all. But such a complete
refusa1 would have been diplomatically difficultas being something that
the other Gulf States might not have understood. Moreover, there were
two aspects of the proposals containedin the draft textwhich Bahrain
was glad to see. The first was the Qatari acceptanceof the Bahraini
formula. The second was the further extensionof the mandate given to
the Mediator to continue his efforts towards achieving a substantive
settlement of the dispute.
49. Given the natureof persona1 relationshipsin the region, Bahrain
was willing to make a gesture. Provided that thegesture would not
result in Bahrain being taken to the Court unilaterally by Qatar, on
terms that Bahrain could not accept, Bahrain was willing to participate - 30 -
in a face-savingdevice that reopenedthe way to the renewal by the
Mediator of his attempts to reacha substantive settlement. If those
attempts failed, then it was agreed that the two parties couldtogether
take their case to the Court with the blessing of the Mediator.
50. That, in the final result, was theobject and purpose of the
1990 Minutes. The fact that events didnot subsequentlyturn out that
way could not have been foreseen in December 1990. And it is by
reference to the understandingof the Parties at that time that the Court
should now take a view of the matter. What the Court should not do,
however, is to impose upon Bahrain an agreement that it never intended to
make and that it did not make. Bahrain did nothing whatsoeverto change
the pre-existingobjective of the Parties whichwas to negotiate a
special agreement providing for a joint submission.
51. Bahrain will be happy to come to the Court, but not as a captive
of Qatar. An agreement is an agreement. From 1987 we had been in
agreement that we would come to the Court on the basis of a special
agreement for a jointsubmission. For this there were, and remain, good
substantive reasons. And on this, with al1 respect to the Court, we
venture to continue to insist.
52. This brings me to the end of my opening remarks. 1 should be
grateful, Mr. President, if you would cal1 upon Counsel for Bahrainin
the following order:
Professor Bowett will address you first on the 1987 Agreement and the
meetings of the TripartiteCornmittee. Professor Lauterpachtwill examine
the nature, content andeffect of the 1990 Minutes, after which
Professor Bowett will return to consider the relationshipof the
1987 Agreement andthe 1990 Minutes. He will be followed by - 31 -
Professor Jiménez de Aréchaga, who will demonstrate the absence of
concordance betweenthe questions as formulated by Qatar and the
requirements of the Bahraini formula purportedly accepted by Qatar.
Next, Professor Weil will speak on the extent of the consent given by
Bahrain to the jurisdiction of the Court and the inability of Qatar to
The
bring its unilateral Application within the scope'of that consent.
disadvantages to Bahrain of being placed in theposition of a defendant,
in contrast with the advantages of being an equal party to a joint
submission, will then be developed by Mr. Highet.
Mr. President and Members of the Court, 1 thank you for the patience
with which you have heard me. 1 should be grateful, Mr. President, if
you would now cal1 upon Professor Bowett. Thank you.
The PRESIDENT: Thank you, Your Excellency. It is about 11.15 a.m.,
a little bit early for Our customary break. 1 would like to ask
Professor Bowett if he would like to start after the break or right now
for let us Say, about 20 minutes.
Mr. BOWETT: 1 would prefer to start after the break.
The PRESIDENT: Al1 right. The Court will adjourn for 15 minutes.
The Court adjourned from 11.15 a.m. to 11.30 a.m. - 32 -
Mr. PRESIDENT: Pleasebe seated. 1 give the floor to
Professor DerekBowett.
Mr. BOWETT: Thank you, Sir. Mr President,Members of the Court, my
task this morning is twofold. 1 shall firstexplainhow the 1987
Agreementcame about, and what it involved for thetwo Parties tothis
dispute. And then 1 shall go on to considerthe work of the Tripartite
Conunittee.
As you will already realize,there were twosuccessive stages inthe
evolutionof the dispute: inthe first stage the hopes of a successful
resolutionof the dispute,through the mediationof Saudi Arabia, were
high; in the second stage those hopes, althoughnot abandoned,were
temperedby failure,and far moreattentionwas paid to securing
agreementon the methodof resortingto this Courtas a means of
obtaininga binding settlement.
1. THE PRINCIPLES FOR T#E FWWEWORK FOR REACHING
A SETTLKMENT OF 1983
The originsof the 1987 Agreementgo back severalyears, to the
principleson which the mediation proposed by Saudi Arabia in 1978 were
finally acceptedby both Partiesin 1983.
Those mediation principles (CMB,Vol. III, p. 3) containedcertain
obligationsof restraintfor both Parties - not to engage in hostile
propaganda,not to impedenegotiations,and so on - and they providedfor
a Committee whichwas to attempt to reach a negotiatedsolution. But
there were two principles of direct relevanceto thepossibilityof
third-partysettlement,and towhich 1 should like to direct theCourt's - 33 -
attention. The first principle embodied thecornmitmentto solve al1
issues of dispute comprehensively.
And the fifth principle, as amended and acceptedby the Parties in
1983, provided that if negotiations for a political solution failed
negotiations would starton determining the best means of settlement on
the basis of internationallaw. . .
Now, it is these two principles in particular which are of interest.
The first demonstrates that what was intendedwas a comprehensive
settlement or solution. It was to embrace "al1 issues of disputet1, so
that they could be solved "comprehensively". Thatwas the essential aim.
The descriptive words containedin the first principleof the Saudi
proposa1 - that is the phrase "relating to sovereignty over theislands,
maritime boundaries, and territorial waters" - were not intended by Saudi
Arabia to be a definitive, exclusive definitionof the dispute. The
Saudis at this stage did not know enough about the dispute to attempt a
precise definitionso as to bind and limit the Parties, nor was this
their intention. Any precise definitionwould be a matter for the
Parties to agree upon. The overriding aim was to settle al1 issues in
dispute. It follows from this thatany idea that one Party, by
unilateral act or application, could limit thematters in dispute was
never contemplated. It would have been totally at variance with the
primary aim of seeking a comprehensive settlement.
Second, at this early stage therewere some hopes of a political
settlement. The resort to legal settlement, envisagedin the
fifth principle, was an option to be considered only if political
negotiation failed. And, clearly, the form of legal settlementhad not
been decided upon. There was no express mention of the InternationalCourt - indeed theearlier talk hadbeen aboutarbitration. The
possibilityof arbitrationwas mooted in 1986, following the Dibal
incident (CMB,Vol. 1, p. 30). And, of course,with arbitrationany
notion of a unilateralapplicationwas out of the question. A special
agreement,a compromis d'arbitrage,would be needed.
This, then, is the background against which the 1987 Agreementmust
be seen. We know that the politicalnegotiationsfailed,and so, in
1987, the time had come to implementthe idea of a legal settlement,the
idea containedin the fifth principleof mediation.
2. THE 1987 AGREEMENT
The 1987Agreement alsostemrned from a Saudi proposal. Theproposa1
was contained in two identicalletters,dated 19December 1987, sent by
King Fahd of Saudi Arabia to the Amirs of Qatar and Bahrain (CMB,
Vol. II, p. 5).
Having notedthe failure to reach an agreed solution,and referring
back to theprevious agreementto resort to legalsettlementin that
event - that, of course,was the fifth principleof mediation - the King
proposed referenceof the dispute to this Court. The proposa1was in
quite general terms:
"1. The issues subject to dispute shallbe referredto the
InternationalCourt of Justice at the Hague for the issuanceof
a final and binding judgement whose provision must be applied
by the two parties."
Now, the Qatar translation of thisproposai indicatesquite clearly
how Qatar understoodthis proposal. "Firstly,al1 the disputed matters
shall be referredto the InternationalCourt of Justice at the Hague ..."
(ml Vol. II, p. 17). - 35 -
The word "all" is significant. It conforms to what 1 have suggested
was the clear intentionof the earlier Principlesof Mediation: the
settlement was to be a comprehensive settlement, comprising al1 the
disputed issues.
You will note that the Kingof Saudi Arabia made no attempt to define
what these issues were. Although, 1.may--add ;he-clearly.-hw by this
stage that, for Bahrain, the disputed matters includedZubarah. 1 Say
this because, in October of 1986, in response to a Saudi request, Bahrain
had submitted a Memorandum to the King of Saudi Arabia, clearly
identifying Zubarah amongst the disputed matters(CMB,Vol. 1, p. 17).
Bahrain has not filed this Memorandumwith the Court for the reason that
it goes to the merits of Bahrainls claims, and so would be quite out of
place in a hearing confinedto jurisdiction and adrnissibility.
There can be little doubt that King Fahdsaw no reason for him to
identify al1 the disputed matters. That wouldbe for the Parties to do
when they agreed on the reference to the InternationalCourt.
Certainly the modality of this reference to the Court was not laid
dom by the King inhis proposal. This was a task assigned to the
Committee envisagedin paragraph 3 of the proposal. Its task consisted
of "completingthe requirements forthe referral of the dispute thereto
[that is, to the Court1 in accordance with theCourt's regulations and
instructions ..." (U.N. Translation, CMB, Vol. II, p. 18).
1 will shortly take the Court through,theMinutes of the.meetingsof
the Tripartite Committee, to show how they saw their task. The essential
point to be made now is that the 1987 Agreement was notseen as a
binding, unconditional agreementto refer the disputeto the Court. The - 36 -
agreement was one of principle: the parties agreed, in principle, to
refer their dispute to the Court.
But the agreement was conditional, foras paragraph 3 recognised,the
requirements for the referral remainedto be completed. This was
precisely the task assigned to the Committee. Had the obligation of
referral been unconditional, therewould have beenno need for the
Committee. And, indeed, as we shall see, much remained to be done:
first and foremost, the Parties had to agree on what the disputed matters
were. Regrettably, the Qatari Application to the Court suggests that, to
this day, they have failedto agree on this, so the most fundamental
requirement of al1 remains unsatisfied.
Before the Tripartite Committeefirst met both Parties had prepared
documents which revealedhow they understood the 1987 Agreement.
In December 1987 Bahrain presented to the Gulf Cooperation Council,
meeting in Riyadh, a draft "procedural"agreement (MQ, Vol. III, p. 113,
Annex 11.17). This was an attempt to set out Bahrain's own views of how
the Tripartite Committee shouldbe composed, and how it should set about
its task. The crucial phrase is found in paragraph 1: in Qatar's
translation of the document theaim of the Committee was
"the aim of contacting the InternationalCourt of Justice and
fulfilling al1 the requirementsnecessary to have the dispute
submitted to the Court ...".
The phrase may be vague, but it does recognise that there were
requirements still to be fulfilled: the 1987 Agreement wasnot operative
as a basis of jurisdiction as it stood, and this Qatar accepts.
The second document, also put before the GCC Summit Meeting, wasa
draft by Qatar: not a draft of an agreement, like Bahrain's,but a draft
of a letter dated 27 December 1987, which Qatar proposed the two ForeignMinisters of Qatar and Bahrain should send to the Registrar of this Court
(MQ, Vol. III, p. 119, Annex 11.18). For the convenienceof the Court
the operative paragraphs of this letter are set out as the first item in
Annex 1 in your Hearing Book. This was much more explicit: the two
operative paragraphs recited the agreement of the Parties:
"1. To submit their aforesaid.~differences -to the
International Courtof Justice (or a Chamber composed of £ive
judges thereof), for settlement in accordance with International
Law.
2. To open negotiations between themwith a view to
preparing thenecessary Special Agreement in this respect, and
transmitting to you a certified copy thereof whenit is
con~luded.~
That could scarcely be clearer. Qatar certainly saw the 1987
Agreement as merely an agreement in principle, an understanding to -
negotiate in good faith so as to conclude a Special Agreement. So two
further steps needed to be taken. First, to decide whether to go to the
Full Court, or to a Chamber; and second, to negotiate a Special
Agreement.
Qatar's recognition that a Special Agreementwas needed is important.
For if the obligation to negotiate a Special Agreement flowed £rom the
1987 Agreement, and was agreed by the Parties to be the means of
implementing that Agreement, and if the 1987 Agreement remainsin force -
as both Parties Say it does - it must follow that, in the absence of some
new agreement on a different mode of implementation,the Parties are
legally bound to refer their disputeto the Court via a Special
Agreement, and in no other way! And from this it follows that an attempt
by one Party to take the dispute to the Court by unilateral application
is a violation of the 1987 Agreement. Let us now turn to the negotiations in the Tripartite Committee to
see how, in that body, the Parties saw their task.
3. THE MEETINGS OF THE TRIPARTITE COMMITTEE
Mr. President, 1 now turn to the work of the Tripartite Committee.
It held six meetings, between January and December 1988. As the Court
has heard, its task was defined in the 1987 Agreement as that of
"communicatingwith the InternationalCourt of Justice and
completing the requirements for the referral of the dispute
thereto in accordance with the Court's regulations and
instructions ..." (U.N. translation).
In my submission, it is vital thatwe see exactly how the two Parties
understood that task. It is for this reason that 1 will take the Court
carefully through theMinutes of each meeting. Inyour Hearing Book; at
Annex 1, 1 have reproduced, for your convenience,the most crucial of the
extracts £rom what Qatar said in those Minutes. What they show, beyond a
shadow of doubt, is a common intentionto proceed to the Court by way of
a Special Agreement. At no stage was a unilateral application ever
contemplated, even by Qatar.
The Firat Tripartite CommitteeMeeting, 17 January 1988
When the first meeting began the Parties had already exchanged drafts
indicating, in their view, what the Committee shoulddo. 1 refer to
Bahrain's tlproceduraln agreement and Qatar's draft letter which had been
before the GCC and which 1 mentioned earlier. As wehave seen, both the
Bahraini draft, as amended and Qatar'sdraft letter envisaged the
negotiation of a special agreement.
Not surprisingly, therefore, in the First Tripartite Cornmittee
Meeting there was no disagreement on this point. The only disagreementwas over whether, in additionto a Special Agreement, there was a need
for a letter of "contact" to be sent to the Court. Bahrain said this was
not necessary and even unwise: because the Qatari draftof a letter of
"contact" sought to specify the subjects of the dispute before that had
been agreed and embodiedin the Special Agreement. Bahrain thoughtit
would be sufficient to notify the-Special--Agreement-tp-the Court in due
course. Qatar thought an initial letter of "contact" should be sent,
followed later by the Special Agreement.
There was never any doubt about this. 1 want to cite the Qatari
representative,the late Dr. Hassan Kamel - the citations are reproduced
in your Hearing Book.
"an agreement shouldbe made to submit the case to the Court ..."
(p. 6).
"Commitmentto submit the caseto the Court is a moral
commitment ratherthan a legal commitment. There will be a
legal commitment when 1 register at the Courtto submit the
dispute to the Court." (P. 22).
There you see a clear recognitionby Qatar that the 1987 Agreement,
in so far as it related to taking the dispute to the Court, was only a
llmoral"commitment. It required somethingmore to translate it into a
binding legalcommitment. Dr. Hassan Kamel was absolutely righton that
point.
But he was confused overwhat he regarded as the necessary
"registration"or "notification"of the dispute to the Court. Whatever
his confusion was, the agreed and signed Minutes, drawn up by the
Mediator, left no doubt as to what the Parties had to do. 1 cite from
the text .
"1t was agreed ... that each side will submit the draft
agreement it proposes for referring the dispute to the
International Courtof Justice...la(CMB, Vol. II, p. 39.) And this they did. Qatar submitted a detailed draft Special
Agreement on 15 March 1988: the full text is in the written pleadings
(CMB, Vol. II, p. 43) and in your Hearing Book. Bahrain's draft came
four days later, on 19 March (ibid.,p. 47).
So, when the Parties next met this preliminarymisunderstanding had
been cleared away. The idea of a letter of "contactuwas dropped and
both Parties were working on the basis that a special agreement was
necessary.
Second Meeting of the Tripartite Comdttee, 3 April 1988
When the Parties met on 3 April they went straight to the two drafts
of a special agreement. Let me again quote Dr. Hassan Kamel, Qatar's
representative:
"1 concur that the aim of this most important meeting is to
discuss means to achieve an agreed formulato put Our
differences beforethe Court." (P. 71.)
Qatar nad no aoubt that this was tobe done via a special agreement.
The written observations on Bahrain's draft of a special agreement,
submitted by Qatar on 27 March 1988 said this:
"First, with regard to Article II:
(1) What was agreed between Our three States was to prepare
a joint Special Agreementto refer the matters of the
difference existing betweenus to the ICJ ..." (RejB,
P. 87.)
The problem was rather thatthe Parties could not agree on how,
within the Special Agreement, they should define these matters in
dispute.
As the record shows, Qatar's objections centred on Article 2,
defining the subject matter of the dispute, and Article 5, designed to
exclude evidence of compromise proposaismade during earlier attempts atreaching a settlement. And, as to Article 2, it was Zubarah which Qatar
objected to: Qatar did not want Zubarah to be part of the dispute.
Equally, Bahrain did not want the Hawars to be part of the dispute, for
Bahrain felt that its sovereigntyover the Hawars was beyond question.
There was no agreement at thispoint in time for both Parties' drafts
were self-serving. And so a further meeting-was agreed and the issues to
be put before it were summarized by the Mediator, PrinceSaud, as
follows :
"The question to be put to both countriesis the following:
could al1 the points evoked by the two countries be includedin
a common documentto be put before the Court?" (P. 87.)
The emphasis on the need for a common document is clear. Neither
side disputed this, indeed, this was the aim. The need for a special
agreement was accepted. The question was: what should be the terms of
that agreement?
The Third Meeting of the Tripartite Codttee, 17 April 1988
The Committeemet for a Third Meeting, two weeks later on 17 April.
Qatar continued io oppose both Articles2 and 5 of the Bahraini
draft, and no real progress was made. But it is absolutely clearthat
both Parties saw their task as trying to agree a special agreement.
Again, 1 cite Dr. Hassan Kamel.
"We are meeting ... to pursue Our task. That is to come to
an agreement on the format of the special agreementby which the
substantive aspects of the dispute between Our two countries cari
be referred to the InternationalCourt of Justice ..."
(P. 113.)
"it was agreed between us that by special agreementwe refer Our
dispute to the InternationalCourt of Justiceu (p. 114).
"this special agreementrnustbe acceptable to bothsides" (p. 115). "we have to agree on a reasonable formula acceptableto both sides"
(p. 116).
"We have come here to formulate a special agreement ..."
(P. 132.)
In the whole meeting there is not one word about either Partybeing
entitled to proceed by unilateral application.
The Fourth Meeting of the Tripartite Conmittee,
28 June 1988
The Fourth Meeting had beforeit two new proposals. One was
Bahrainus revised draft of Article II of the earlier draft Special
Agreement of March 1988 (CMB,Vol. II, p. 83). The other was Qatar's
draft for the same Article II (Qatar'sT.C.M. Documents, p. 189). Thus,
both Parties were again concerned with one thing: to agree on the text of
a special agreement.
There was no doubt about this. As Prince Saud, the Mediator said
"the main aim of this Committee is the preparation of a Draft Agreementu
(p.7 Unhappily, as the Minutes make clear, no progress was made.
Nevertheless, prior to the next meeting, Bahrain tried again,
submitting a new formula for Article IIin October 1988 (CMB, Vol. 11,
p. 91). This was a short, general formulaof a "neutral" character,
designed to allow each Party to formulate itsown claims in its own way.
It was this which became hown as "the Bahraini formula". But, and 1
stress this because it is important, it was designed as Article II of a
Special Agreement. The Fifth Meeting of the Tripartite Cornmittee,
15 November 1988
Qatar welcomed Bahrain's new formula for Article II, and
Dr. Hassan Kamel responded on behalf of Qatar with a written statement,
which he read out. In his words
"Qatar welcomes discussing -it-as-a-possible-basis for
negotiations aimed at reaching a mutually acceptabletext for
Article II of the draft special agreement." (P. 199.)
Now that is important! The Court will observe that the Bahraini
formula was to be discussed, not as an isolated draft, and not as the
basis for any unilateralapplication,but as part of the draft of a
special agreement.
Later in the same meeting Dr. Hassan Kamel was to repeat the-need for
a special agreement, as the basis for any reference to the Court.
"the duty of Our Tripartite Committee is to draft a mutually
acceptable text for thespecial agreementunder which we will
refer the matters of dispute ... to the 1.C.J." (p. 204).
"the special agreement under which we willrefer Our dispute to the
Court should includea clear complete presentationof the matters of
Our dispute ..." (p. 204).
However, whilst Qatar fully acceptedthat the Bahraini formula was to
find its place withina special agreement, Qatar raised a number of
questions as to the meaning of this formula (pp. 199-200, 204-206). It
was felt that, since these were questions of a legal nature, the next
meeting shouldbe preceded by a meeting of the legal advisers of the two
Parties. The Sixth Meeting of the Tripartite Committee,
6 December 1988
And this is what happened. When the Sixth Meeting took place on
6 December, the meeting was in two parts. First, there was a meeting of
legal experts, followed by a meeting of the political representatives.
In the meeting of legal experts Dr;-Hassan ,Kame1xepresented Qatar,
and Dr. Husain Al Baharna, Bahrain. Dr. Hassan Kamel had no doubt about
the aim.
"It is hoped that a joint formulabe found for Article II
of the agreement which will be submitted to the International
Court of Justice. (P.233.)
Dr. Husain Al Baharna explained that, with a "ne~tral~~ formula for
Article 2, each Party could formulate its own claims in its written
pleadings. Mr. Shankardass (CR 94/2, pp. 10-11) has unfortunately
misread what Dr. Al Baharna said. He did not Say each Party wouldbe
free to file its own application, bringing its own separate case. There
is a world of difference betweentwo separate cases, filed unilaterally,
and two sets of pleadings in the same case, brought under an agreed
formula jointly .
Moreover, Dr. Hassan Kamel wanted to know whether the Bahraini
formula would allow Bahrain to claim sovereigntyover Zubarah:
he also
wanted clarification of the archipelagic baselines.
When the main political meetingmet later on the same day Qatar
clearly felt it had not received the clarification it sought.
Dr. Hassan Kamel again sought clarificationas to Bahrain's claim in
relation to Zubarah: it seemed as though Qatar was prepared to allow
matters of private rights to be submitted to the Court, but not the
question of sovereignty. Qatar proposed a solution. This would lie in having Bahrain's
general formula as Article II, but then allowing each Party to submit its
own annex in which it would spell out its claims more precisely. But, of
course, these would be annexes to a special agreement.
The discussionproduced no final, agreed draft, but the Minutes,
signed by both Parties, recorded the following:
"There followed a discussion aimed at defining the subjects
to be submi tted to the Court, which shall be confined to the
following subjects:
1. Hawar Islands, including Janan Island.
2. Dibal Shoal and Qit'at Jaradah.
3. Archipelago baselines.
4. Zubarah.
5. Fishing and pearling areas and any other matters relatedto
maritime boundaries.
The. two parties agreed on these subjects. Qatar's delegation
proposed that the agreement which would be submitted to the Court
should have two annexes...Il (P. 282.)
It should be added that the Minutes continued by notingBahrain's
wish to study Qatar's proposed amendment - that is the idea of the
two annexes. And Qatar again placed on record the fact that it could not
agree to the question of sovereignty over Zubarah being raised.
But the important thing to note is the reference to "the agreement
which would be submitted to the Court". That could only mean a special
agreement. One can safely conclude that, whatever else remained in
dispute, the Parties were agreed on the fact that they would come before
this Court under a special agreement.
Now that was the lastof the meetings of the Tripartite Comrnittee.
During the next two years, as Qatar's Reply has noted (RQ,Vol. 1,
pp. 32-33) Saudi Arabia, as Mediator, renewed attempts to reach a
settlement on the substance of this dispute, but without success. - 46 -
However, the six meetings of the Tripartite Cornmitteehad made some
progress. At least some points were agreed. These were the following:
(1) The Parties would use the full Court, not a Chamber.
(2) The Parties were to take their disputeto the Court by means of
a Special Agreement.
(3) The idea of a unilateral applicationwas not within the .
contemplationof either Party.
(4) The Bahraini formula - the general formula forArticle II -
represented a possible solution to the principal rnatterin
dispute. But it remained to be settled whether this was to be
supplemented by one annex, or two, and whether Qatar would
consent to Bahrain having the right to question Qatar's
sovereignty over Zubarah.
Bahrain requested timeto study the Qatari proposa1 for two annexes
to accompany the amended text for Article II. And the expectation was
that further meetingsof the Tripartite Committeewould be held. The
records contain nothing to suggest that the workof the Tripartite
Committee was at an end.
The fact that in 1989 and 1990 no further meetingswere held was due,
quite simply, to the renewed attemptby Saudi Arabia to produce a
settlement on the merits. As Qatar explains in its own Memorial (Vol. 1,
p. 55) King Fahd of Saudi Arabia proposeda period of six months, and
later a period of two months, during which he would seek to bring about
an agreed settlementon the merits. It was for this reason that the work
of the Tripartite Cornmitteein trying to agree the terms of a special
agreement was suspended. But that work never terminated, and the - 47 -
Tripartite Comrnitteehad made considerable progress towards agreeing the
terms of a special agreement.
Clearly both parties were anxious to preserve this area of agreement.
It was not complete, and of course it remained provisional until such
time as the text of the whole Special Agreement was negotiated and
accepted by both parties with b~nding -effectaccording ta their
constitutional requirements. Nevertheless, it was because both parties
wished to hold on to this area of agreement - including their agreement
to proceed by way of a special agreement - that they recorded in the
Minute of their meeting in Doha on 25 December 1990, as Point 1, the
following: "1. That which had previously been agreed between the two
parties was reaffirmed." (CMB, Vol. II, p. 118.)
That linkage between the measure of agreement reached in the
Tripartite Comrnitteemeetings, and what was agreed at Doha, is vital to
an understanding of this case. And 1 will return to that point in due
course.
But first, Mr. President, 1 believe the Court should hear Bahrain's
version of what really happened at Doha.
That concludes al1 1 need to Say at this stage. Could 1 now ask that
you now cal1 on Mr Lauterpacht?
The PRESIDENT: Thank you, Professor Bowett. 1 give the floor to
Professor Elihu Lauterpacht.
Mr. LAUTERPACHT: Mr. President and Members of the Court.
1. May 1 begin by expressing my sense of privilege at appearing
before you on this occasion on behalf of the Government of Bahrain.
Mr. President, it is a great pleasure to al1 friends of the Court to see
qb/CR94/4/029 - 48 -
you installed in your high office, and likewise Vice-President Schwebel
in his. May 1 offer you both my congratulationsand good wishes - as 1
do also to Judge Shi, Judge Fleischhauer and Judge Koroma upon their
recent election.
This time of morning, Mr. President, is not the best one at which to
start a submission to any tribunal.;even one so.-toi-eran as this Court.
Nonetheless, 1 hope that 1 may sufficiently engage the Court'sinterest
for it to be patient with me - 1 hope not to go beyond 1 o'clock.
2. Mr. President, 1 pick up the matter at the point at which my
colleague, Professor Bowett, has left it. He has made it quite plain
that prior to the events of December 1990 there was nothing in the
relationship of the Parties on which Qatar could have claimed to rest a
unilateral application to the Court. Everything that had been done
between the Parties was on the basis that they were trying to reach
agreement on a joint submission.
3. In particular, Professor Bowett has emphasizedthat the Bahraini
Formula had one function and one function only - to permit each of the
two parties to express the contents of the question that it wanted to put
to the Court (and 1 stress the wording "express the content of the
question") in its own way, but within the frameworkof a single case.
The Formula was, indeed, comparable to that used in the Beagle Cha~eï
Arbitration, in which each party was enabledto state its claim in its
own words within a single agreed framework. The Bahraini Formula was
emphatically nota device which permitted each partyto initiate a
distinct claim bya separate application. If it had been, Qatar would,
on its own analysis of the situation, have been freeto have accepted the
Formula at any time after it was presented by Bahrain and to have started - 49 -
proceedings unilaterally withoutany need for the 1990 Minutes. Qatar's
initiative in promoting the adoptionof the 1990 Minutes is yet another
indication of the fact that in December 1990 it had not occurred to Qatar
to read the Bahraini Formula in the extended way that seemingly it is now
doing .
The Approach to the ,1990-Minutes
4. Notwithstandingthis, Qatar's principal argument still accords a
central and dominant role to the 1990 Minutes. On this basis, Qatar must
satisfy two requirements. The first is to show that the 1990 Minutes
constitute a legally bindingagreement. The second is to show that its
contents constitute a consent under Article 36, paragraph 1, of the
statute of the Court to the exerciseby the Court of jurisdiction on the
basis of a unilateral application. Each requirement is essential to
Qatar's case. If it does not meet either one its case must fail.
Bahrain submits that Qatar fails to satisfy both requirements.
5. It is, of course, open to the Court to approach these two
questions in whichever order it pleases. If the Court decides that the
Minutes do not constitute a legallybinding agreement, then it will be
unnecessary for it to examine the question of whether the Minutes accord
to Qatar the right unilaterally to commence the present proceedings.
Conversely, if the Court beginswith the second question and decides that
the Minutes do not give Qatar the right unilaterally to commence
proceedings, therewill be no need to consider whether the Minutes amount
to an agreement.
6. In truth, however, there is a certain amount of material common to
both questions - in particular, the evidenceof those on the Bahraini
side who were most closely involvedin the adoption of the Minutes, - 50 -
namely, the Bahraini Minister for Foreign Affairs, H. E. Shaikh Mohammed,
and the Bahraini Minister of State for Legal Affairs,
H. E. Dr. H. M. Al-Baharna, who is our Agent in the present case. This
evidence covers both the legal quality and the legal contentof the
Minutes. It will, therefore, be convenient if, in preference to choosing
to take one or the other question first, 1 begin by.concentratingon the
evidence of the Foreign Minister. The text of his statement is
reproduced as Item 12 in your Hearing Book. Mter that 1 shall return to
the remaining points connected, first, with the legal status and, second,
with the legal contentof the 1990 Minutes.
The ahr rai nForeign Minietergs Stateunent
7. Two conclusions are to be drawn £rom the ~oreign Minister's
statement. First, the 1990 Minutes are not an international agreement
because, when the Minister discussed andsigned this text, he had no
intention that it should create legally bindingobligations of the kind
now asserted by Qatar. Second, the Minutes do not accord to Qatar a
right unilaterally to institute proceedings principally because that
possibility was expressly considered and equally expressly excludedin
the process of establishing the text of the Minutes.
8. The Minister's statement setsout his recollectionand
understanding of what transpiredat Doha in late December 1990. It is of
great importance. Unfortunately, time does not permit me to read it to
you word by word and to comment on it as 1 go along. However, it needs
to be studied carefully and that is why 1 have put it in the
Hearing Book. Now, 1 limit myself to some commentson it.Accuracy never challenged
9. My first comment isthat the accuracy of the statement has never
been challenged, with the exceptionof one small factual detail of no
material importance, which 1 shall mention later. Qatar could, of
course, have filed a responsive statementin its Reply, but it did not do
so. Bahrain, in its Rejoinder, pointed to.Qatar's non-responsivenesson
this central matter. Qatar could still then have sought leave to file
additional evidence priorto this hearing, but it did not do so. Qatar
could even have introducedoral testimony at the present hearingsbut,
yet again, it has not done so.
10. There is another important point supporting the cogency of the
statements of both Shaikh Mohammed and Dr. Al-Baharna. When these
statements were filed with theBahraini Counter-Memorialin June 1992, it
was not known to Bahrain that they wouldbe the only first-hand accounts
presented to the Court by perçons who had actually been involvedin the
Doha negotiations. True, at the date of the filing of the Counter-
Memorial it was not known that there would be a written Reply and
Rejoinder. But it was known that there would be an oral hearing and
Bahrain certainlycould not haveassumed that Qatar would refrain from
introducing any oral testimony to contradict what Bahrain had said. The
Court will, therefore, appreciate that neither H. E. Shaikh Mohammed nor
H. E. Dr. Al-Baharna would have risked making any mis-statement that
could subsequently havebeen contradicted in any material respect by
Qatar, by Oman or by Saudi Arabia.
11. In consequence,it is now impossible forQatar, with any pretence
at persuasiveness, to contend that the Court should qualify, question or
reject the evidence of these statements regarding what happenedat Doha, - 52 -
or the understandingthat the Minister hadof the effect of the texts or
the nature of his intentions. And Qatar has rightly chosen not to
advance any such contentions. Instead, Qatar has on the whole bypassed
the statements. Instead, Qatar has preferred to rely on an assessment of
the 1990 Minutes by reference to other considerations allegedto be more
relevant or cogent. 1 shall come to these in due course. For the
moment, 1 concentrate on the Foreign Minister's statement.
No prior notice of Qatari.initiative at Dohr
12. My second comment is that the Minister8s Statement shows that the
introduction at the Gulf CO-operation Council Summit Meeting of the issue
of the dispute between Bahrain andQatar came virtually without notice.
Qatar's attempt to place the matter on the agenda at the Foreign
Minister's preliminary meeting early in December was rejected - a fact
not even mentioned in Qatar's narrative of developments as expounded in
these hearings. Between that meeting and the main summit two weeks
later, Qatar gave no indication that it would raise the matter again.
Qatar never approached the Mediator with a request for a further
Tripartite Committee Meeting. Qatarever approached Bahrain directlyor
indirectly to propose an agreement in the terms that Qatar now says has
come into effect. Such lack of warning and of diplomatic preparation is
hardly consistent withQatar's claim that it intended to secure at the
Doha Conference a legally binding instrument containing a fundamental
change of approach to the method of referring the dispute to the.Court:
£rom an approach by a joint agreement to one permitting unilateral
application. Nor did Qatar give any prior indication of its new found
inclination to accept the Bahraini Formula or of the extended
interpretationthat it now seems inclinedto place upon that formula. It - 53 -
would have been easy for Qatar to have sent boththe Mediator and Bahrain
notes in the period between 8 December and 22 December 1990, to give sorne
warning of the new approach. But no such notes were sent. Such an
absence of initial preparationhardly suggests an intention to procureby
legal agreement a radicalchange of position. Instead, just before the
opening of the sumrnitmeeting at which, as host in his own capital, the
mir of Qatar was presiding, he unexpectedlyinsisted that thematter be
discussed.
Absence of knowledge of matter on part of GCC
13. Third comment: Qatar choseto raise the matter in a body whose
mernbers - apart from Saudi Arabia and Bahrain - knew nothing of the
subject. 1 shall explain the significanceof this point in a few
minutes.
Sequence of events at Doha meeting
14. Fourth comment: The Statement sets out very clearly the sequence
in which the various drafts were presentedto the Bahraini Foreign
Minister .
Saudi Arabian draft
15. First, on 24 December SaudiArabia presentedDraft Minutes on
headed paper ofthe Saudi Arabian ForeignMinistry. This draft contained
two importantelements: one was the text of the Bahraini Formula, which
the Arnirof Qatar had said that he was accepting.
16. The other important elementin the Saudi draft appearedin the
paragraph introducingthe full quotationof the Bahraini formula. This
was the statement that "the question ... will be presented to the
InternationalCourt of Justice by each of thern",that is to Say, each of
the Parties. - 54 -
Rejection by Bahrain of Saudi draft
17. mile in itself the statementof Qatar's acceptance of the
Bahraini Formula was obviously a step forward, it could not be accepted
by Bahrain because it was coupled with the second element in the draft
Minutes, namely, the reference to the submission of the question to the
Court by each of the Parties. These words were read.asopening up the
possibility that each State might unilaterallyinstitute proceedings
before the Court.
18. After consultationwith his colleagues, ShaikhMohammed tells US
that he rejected the draft as unacceptable - and this is stated in
paragraph 8 of his statement.
The ûmani draft
19. Mr. President, 1 turn then to the next step which was the
presentation by Oman, later on the same day, of a fresh proposa1 which
you will find also attachedto the Minister's statement as Attachment B
(Hearing Book No. 12). Mr. President 1 have given you the wrong
references for the Saudi Arabian andthe Omani draft minutes. Although
they were initially presented to the Courtas annexes to
Shaikh Mohammed's statement, they are separately reproducedin the
Hearing Book as items 5 and 6, respectively. This draft containedthree
provisions:
Reaffirmation of what wae praviouely agreed
(il The first provision containedin the ûmani draftresolution was
"To reaffirm what was previously agreed betweenthe two partiest1. This
provision was wide enoughto cover the earlier agreementof the Parties
to negotiate a joint agreement to submit the caseto the Court. In this
connection 1 may explain the significanceof the point that 1 made a few - 55 -
moments ago about the fact that the only members of the GCC Summit who
knew anything about theproblem were Saudi Arabia and thetwo Parties
Other members could hardly have been expected to make any
themselves.
significant contributionto the settlement of the problem. This point is
directly relevant tothe role which, within hours of the matter being
raised by Qatar, Oman began toplay. The.Court-.,wilrlecall..thatthe
distinguishedAgent of Qatar stated two days ago that the Omani draft,
presented to Bahrainon the night of 24 October, had been "preparedquite
independentlyby Oman" (CR 94/3, p. 38). Yet, prior the open discussion
in the Summit Meeting that morning Oman had not previouslybeen involved
in any significant,if any at all, discussions on the matter, whether
with the Parties directlyor in the Tripartite Committee. Bahrainis
left wondering how Oman could, in a matter of hours, have acquired
sufficient knowledgeof the whole history of the matter to have been able
to produce a draft without interest from some interestedparty which
could not, in the circumstances,have been either Saudi Arabiaor
Bahrain. And this in its turn musthave some effect on what Oman could
have had in mind when it proposed the first operative paragraphof the
Minutes that 1 have just read. Someone uriawareof the details of the
previous discussions (as Qatar implies that Oman was) could hardly have
intended to limit the scope of the phrase "what had previously been
agreed" to the 1987 Agreement alone (as Qatar contends is the case).
Such a person could not possibly have intendedthe phrase to refer to
anything other than "whatever had been previously agreed" - including, of
course, the various matters agreed in the earlier meetings of the
Tripartite Committee. In the absence, as we are told, of detailed
knowledge of the whole course of discussions from 1987 to the end of - 56 -
1988, Oman simply would not have been able to know whether or not other
things had been agreed additionalto the 1987 Agreement itself; and the
mi draft could not, therefore, have intended to exclude £rom its ambit
the possibility that other matters had been agreedunless, of course, it
was reckless, which is not to be contemplated.
Either of the parties might oubmit
(ii) 1 turn to the second paragraph of the 0mani draft. This
provided that thegood offices of the Custodian of the Two Holy Mosques
will continue between the twocountries until the following May.
Thereafter either of the two partiesmight submit the matter to the
InternationalCourt of Justice. The good offices of the Kingdom of Saudi
Arabia would continueduring the period when thematter is under
arbitration. 1 shall be coming back to this paragraph in a moment.
Effect of a solution
(iii) Lastly, in the third paragraph, the Omani draft providedthat
"if a brotherly solution acceptableto the two parties is reached, the
case will be withdrawn from arbitrationu.
Amendmenta made by the Bahraini Foreign Minister
20. Shaikh Mohammed, in his Statement, paragraph 10, tell us that he
raised two objections, both relating to the wording in the second
paragraph, and made two handwritten amendments.
21. As regards one of the amendments said by Shaikh Mohammed to have
been made by him, namely, the insertion of the words "in accordance with
the Bahraini Formula, which has been acceptedby Qataru, Qatar has
pointed out that this change was in fact made by its own legal adviser,
Mr. Sherbini. On reconsidering thematter, Shaikh Mohammed does not
dispute the point,
having confusedthis second changewith the one whichhe himself had made in the previous draft, the one put forward by Saudi
Arabia.
Replacement of 'either of the two partiesm by "the two partieam
22. The other amendment made by Shaikh Mohammed, which is not
questioned,was the removal of the words "either of the two Parties" in
the phrase "either of the two parties may, at'the md of this period,
submit the matter to the International Courtof Justice". In their place
he inserted the words "the two parties". This.change indicated clearly
that it was not acceptable to Bahrainthat at the end of the period
"either"party should be able to proceed unilaterally. The use of the
words "the two partiesa1in substitution for "eitherpartyl1reflected in
the clearest manner the intentionof the Bahrain Foreign Ministerthat
proceedings could only be begun jointly by the two Parties together.
23. Qatar does not deny that this change was introduced by the
Foreign Ministerof Bahrain. Instead, Qatar has stated in its Reply (RQ,
para. 3.66) that it
"found the word 'al tarafan1 (the parties) ...perfectly
acceptable because both Parties had distinct claims to make
before the Court, and because this language would enable each
Party to present itsown claims to the Court".
The distinguishedAgent of Qatar used almost identical languagein his
speech two days ago (CR 94/3, p. 29)
24. Mr. President, Bahrain feelsbound to observe that this
explanation by Qatar of why it accepted thechange of words is more than
a little disingenuous. Given that Qatar concedes that it knew of the
change of words from "either of the Parties" to "the parties" in a usage
in Arabic that Qatar actually assertswas open to the interpretationthat - 58 -
it meant "the parties togetheru, what did Qatar think it was doing in
accepting the change without making its own position clear?
25. Qatar appears to anticipate this question with the remark that
"there was no suggestion in the amendments proposed by Bahrain either
that Bahrain was thinking of further negotiations or that it was
considering a special agreementw. Of course-there.wasno such suggestion
"in the amendments". How could there be such a suggestion "in the
amendmentsu since the amendments were limited to changing critical words
in the text? But the suggestion was manifestly implicit in the change of
wording. What else could the change£rom "either of the parties" to "the
parties" have envisaged exceptthat any reference to the Court would not
be either party alone? And if either party could not proceedalone, how
could the matter be submitted to the Court "by the two parties togetherw
unless it was preceded by an agreement alongthe lines that the parties
had discussed in detail since 1987.
Extent of Qatari Knowledge of Developmenta
26. With a view to reducing even furtherthe necessarily adverse
conclusions that must be drawn £rom the changes in language in both the
Saudi and the Omani drafts, Qatar has insistedthat it was unaware of the
Saudi Arabian draft and therefore of any changes proposedin that draft
by Bahrain. Bahrain findsthis difficult to believe. Sir Ian Sinclair
said on Tuesday that it was difficult for Qatar to believe that Bahrain
never even had a hint from Saudi officials that Qatar was meaning to
start proceedings unilaterallyin June 1991 (see Sir Ian Sinclair's
statement on Tuesday, CR 94/2, pp. 26-67). Well, Qatar's claim that it
was unaware of the Saudi draft is even more difficult to believe. After - 59 -
all, at Doha everyone was in close proximity to everyone else throughout
the short period of activity involvedin the discussions. It seems
almost inconceivablethat security should have been so tight within the
delegations thatQatar was left unaware of a step which so immediately
affected its interests.
27. In connection withthis claimeà ltunawarenesç= u.the part of
Qatar and, indeed, generally in connection with al1 the Qatari statements
regarding its knowledge and intention at thistime, Bahrain must once
again repeat the point thatit made in its Rejoinder, that nowhere does
Qatar, in the accounts which it gives in its written pleadings of what
happened between 23 and 25 December 1990, identify any particular Qatari
negotiator other than Mr. Adel Sherbini, the legal adviser to its
delegation. Qatar has notthought it necessary or desirable to support
its account of the relevant eventsby any statement for which Mr Sherbini
would have been prepared to accept persona1 responsibility,if necessary
in cross-examination.
Who Negotiated for Qatar?
28. Moreover, apart from the eventual signature of the Minutes by the
Qatari Foreign Minister, it would appear that this distinguished
personage playedno role in the discussions after the opening meeting in
the fa11 GCC Summit. No reference at al1 is made to him in the Qatari
narrative. And yet, notwithstandingthis the QatariReply States: "as
will have been apparent from the above description of events, Qatar
played a significantpart in the finalizationof the text of theDoha
Agreement1'(RQ,para. 3.67). Well, one must ask, who on the Qatari side
played this significant part? No one is narnedand no one appears to be The Court is entitled
ready to come forward and accept responsibility.
to ask itself why. 1s it far-fetched to suggest that no one on the
Qatari side is prepared to Say that Qatar remainedsilent in the face of
the changes because some particular individual eitherdid not understand
the changes in the wording, or did not care about their implications,or
even thought that they were so clear in their changed-formthat they
could give rise to no difficulty?
Limited Effect of the 1990 Winutee
Mr. President, let me turn, finally, to the Foreign Minister's answer
to the question raised by Qatar of the effect of the 1990 Minutes if it
is not what Qatar claims it to be.
29. Qatar has reacted with annoyance to Bahrain's suggestion
regarding the reasons why the Minutes were eventually adoptedin a form
that gave Qatar nothing substantive for al1 the effort that it had made.
But the fact remains that the only plausible explanationis the one
suggested by the Bahraini Foreign Minister in paragraph 24 of his
Statement. There, he says:
"Once 1 had made it plain by my strong opposition to the
wording both in the original draft conveyedby Saudi Arabia and
the further draft emanating£rom Oman that this course was
completely unacceptableto Bahrain, the problem became simply
one of producing a face-saving text that wouldavoid conveying
the impression to the other Gulf Co-operation Council Heads of
State that the Amir of Qatar had entirely failed to secure his
objective. "
30. And this unpalatable fact must also have been obvious to the
Qatari negotiators,whoever they may have been. In the end they chose to
accept whatever words they couldget, rather than insist furtheron an
untenable position and thereby riska public revelationof the failure of
their initiative. In effect, they deliberatelytook a chance on the - 61 -
wording. They must have consideredthat even a defective Minute was
better than no minute at all. They must have thought thatthey could
lose nothing by accepting the text as it then stood. Perhaps they even
thought that the text would at least serve as a platform £rom which to
catapult the presentunilateral applicationin the direction of the
Court. Well, 1 must submit, Mr. President,that-if.thiswas the line of
their thinking, they showed no lack of optimism. And if this was not
their line of thought, then the Court is entitled to expect, first, a
more convincing explanationof why Qatar acceptedthe change of wording
and, second, an explanation of why Qatar has not produced a single
individual who is prepared to come forward and testifyas to'why language
was accepted that was at the very best, from Qatar's point of view;
ambiguous .
The Bahrain ForeignMiniater's Conclusions
31. I conclude my reference, Mr. President, to the Fûrsign
Ministerls statement by recalling what he said regarding the legal
status, as opposed to the legal content, of the text thathe signed:
"At no time did 1 consider that in signing the Minutes 1
was committing Bahrain to a legally binding agreement.
Naturally, 1 was prepared to subscribe to a statement recording
a political understanding betweenthe Parties, in the same way
as 1 had signed the Minutes of previous meetings of the
Tripartite Cornmittee. But even so 1 was not willing to accepta
form of words that suggested any willingness on the part of
Bahrain to depart £rom its basic position that the only way in
which the case could come before the Court was by a joint
submission based on a properly concluded forma1 agreement
between the Parties."
Significanceof Direct and UncontradictedEvidence of Intention
32. In a situation of this kind, where -both as to the
interpretationand the legalstatus of the instrument - the principalingredient in the Court's analysis of the situation must be the intention
of the Parties, one cannot disregardthe primary role that must be
accorded to the actual intention of the very negotiators involved. Of
course other factors also have a role to play - and 1 shall return, with
your leave, to that aspect of the matter on Monday. But objective
factors, as they are called in this case; do not replace the.evidenceof
the very person whose intentions matter.
33. And this is particularly so because that evidence is not
contradicted. If it had been, the Court might have felt that it was
difficult to choose between two conflicting statements. But thatis not
the case here. Here the evidence isquite explicit: when the Foreign
Minister signed the Minutes he didnot consider that he was signing a
treaty. When he insisted on the use of the words "the two parties8'
instead of "either of the two parties''he intended to record the
conclusion that proceedings could be commenced onlyby the two parties
together.
34. But to conclude in this way is not to Say that the remaining
considerations,the factors "intrinsicuto the text, the so-called
"objectiveufactors, do not fully support what the Foreign Ministersays.
In my submission they certainly do support him. It is to those factors
that, with your permission,Mr. President, 1 should like to return on
Monday. Thank you, Mr. President. - 63 -
The PRESIDENT: Thank you very much, Professor Lauterpacht. The
Court will now rise, and will resume to hear the delegation of Bahrain
next Monday morning, 7 March, at 10 a.m.
The Court rose at 1 p.m.
Public sitting held on Friday 4 March 1994, at 10 a.m., at the Peace Palace, President Bedjaoui presiding