INTERNATIONALCOURTOFJUSTICE
CASECONCERNINGMARITIMEDELIMITATION
AND TERRITORIAQUESTIONS
BETWEEN
QATARANDBAEiRAiN
(QATARV.BAHRAIN)
THESTATE OF QATAR
(QuestionsofJut-isdictionandAdmissibility) TABLEOFCONTENTS
INTRODUCTION ............................................................
..1................................................
CHAPTER 1'.. THE PROCEEDlNGSBEFORE THE COURT ..........................
SECTIO 1. Qatar'sApplicationfiled on 8July 1991and Bahrain's
lettersof 14Julyand 18August 1991 ..........................................
SECTIO 2. The Order of the Court of il October 299....................................
SECTIO 3. Questionsof"jurisdictionand admissibilityin this ........ ........
SECTIO 4. Structure ofQatar'sMernorial...............................6.........................
PARTI THE DISPUTE3 SUBMIïTEDBY QATARTO THE COURT ..................
CHAPTER II THE ORIGIN AND HISTORYOFTHEDISPUTES ....................
Introductio..................................................................9...............
..............
SECTIO 1. Qatar and Bahrainup to the 1930.............................................
A. The Separate Identities ofQatar and Bahrain in
the Agreements of1868 .......................................................
B. Qatar and Bahrain duringthe Turkish Presence in
Qatar..............................................................
...................
C. Qatar and Bahrainbythe United Kingdomdeandties of
Turkeyin 1913.....................................................................
D. The Agreement of 1916 ........................................................
The Disputes.............................................17.......
A. Introduction.........................................1......................
......
B. The Dispute relatingto Sovereigntyover the
Hawar Islands.........................................9......................
....
1. Bahrain'sfirsclairto the Hawar island...................
2. Bahrain'sattempt to annextheHawar islands
and the protests of Qa................................
3. making their decjsionof 11July1939.............-22.....
4 . The aftermath ofthe decisioof 11July
1939.................................................................
............ C. The Dispute relating to Maritime Delimitatio..................
1. The British decisionof 23 December 1947.................
2. The aftermath of the 1947 . .isio.............................
. . D . The Dispute relatingto the DibaI and Qit'at
Jaradah Shoals.........................................29......................
......
1. The Britishdecisionof 23December 1947 on
theDibal and Qit'at Jaradah shoal...........................
2. The aftermath of the 1947decisionon the
Dibal and Qit'atJaradah shoals.....................1.......
Conclusions.................................................................
...1............................................
CWTER II1 EFFORTSTOSETTLETHE DISPUTES ...................................
SECTIO 1. The Continuityof the Disputes and Attempts to solve
them prior to the SaudiMediation...........................33....*
SEC~IO2 N. The Mediation of SaudiArabia ..............................35.......................
A. The 1978 Principlesforthe Framework to reach a
Settlement.....................................................
B. The Gulf Cooperatjon CouncilResolutions of
1982 ..................................................39............
..................
C. The Meeting in May1983 ................................9..............
D. The 1986Incident concerningthe Dibal Shoal ............0.......
SECTIO 3. The Agreement af 1987 accepting the Jurisdiction of the
Court...................................................................
...........................
A. The Agreement ofDecember 1987 .....................4..............
B. The Purpose and Content of the December 1987
Agreement .............................................4....................
.........
SECTIO 4N approach the International CourtofJustice...................5............
SECTIO 5. The Doha Agreement .......................................5............................
A . The Backgroundand Negotiatjonof the
Agreement .............................................5.....................
.......
B. The Contents oftheDoha Agreement .................-57..........
SECTIO6 N. From December 1990to 8July 1991 .........................59...........PARTII THEBASISOP THEJURISDICTIONOF THE COURT IN TRE
PRESENTCASE ...................................................6.....
..........................
CHAPTER IV DOHACONAGREEMENTS AND THE COURT'S 1987 AND
JURISDICTION .................................. ..........3...............
SECTIO 1. Introductio..............................................63..............
..............
A. The Question ofthe Court's Jurisdiction..............63.............
B. Consent asthe Basisof the Jurisdiction of the
Court..............................................................
...................
C. Heads ofJurisdictionunder Article 36 of the
Statute..............................................66...............
................
D. The Essential Aspectsof Consent............................
TConventionsunder Article 36.paragraph 1.of thed
Statut...............................................................
.........................
A. The Interpretation of Consent........................68....................
1. Approachesto interpretation......................9..
2. The aim ofthe Court'sinterpretatioin
relatioto questions ofjurisdict.................71.............
3. Rules on interpretatiof treaties and
conventionsunder Article 36 of the Statute......72......
B. Form of Consent......................................7............................
C. Reciprocityof Consent................................81...........................
D. Irrevocabilityof Consen..............................84...................
Decembernt1987s1greementand the Dohaunder the
Agreement ................................................6................
.................
A. The Circumstanceofthe Saudi Mediation ..............8..........
Consent to refer the Disputes to the Court
B. ..............88...........
C. Consent to the Subjectand Scope of the
Disputes ............................................89.....................
D . The Seisinofthe Court in the Doha Agreement .........91.......CHAPTER V OBSERVATIONSON BAHEUIN'SCONTENTIONS ...............
Introduction........ ............................................................97..
....................................
SECTIO 1. Bahrain'sDenial that the Doha Agreement is an
International Agreement ...........:.........................8...........
A. Agreement........................................
>.'
B. The Allegationthat the Doha Agreement isnot "ln
Force"...................................................1..............
............
SECTIO 2. Agreementbecause oft tLackohof CompIiancewith theng
Requirements of Bahrain's Constitution.....................10.......
A. The General Framework of the Vienna
Convention ............................................106..................
..
B. The Conclusionof a Treaty isgovernedby
InternationalLaw ......................................1........................
C. The Requirements of Bahrain'sConstitution .....................
D. Article46 of the Vienna Conventionisnot
Relevant in thefresent Case ...........................109....
SECTIO 3. Bahrain's Denial that the Text of the Doha Agreement
containsConsentbyBahrain to the Unilateral Seisin of
the Court byQatar .........................................111..............
A. Court couldlbegseisedexceptbyevaSpecialted that the
Agreement ............................................1......................
......
1. Bahrain'scontention that the Mediâtion could
onlylead toa specialagreement ....................11.........
2. Agreement onlycontemplatesa joint
submissionto the Court on the basis of the
Arabicexpression"al-tarafan" .....................114...........
a) Linguisticreasons ............................1...............
b) ofthe Agreementfr............................11..................
c) General rule ofinterpretation of a
treaty........................................1..........................
.d) Preparatory works ...........................................
3. Bahrain'scontentionas tothe rneaning of the
words"theproceedings (orthe procedures)
arisingtherefrorn"................................1................. B. Bahrain'sDenial that the Bahraini Formula isan
Agreement on the Subject of the Disputes to be
submitted to the Court..................................2........
1. formula had lapsedastantoffer......................23.......
2. Bahrain'scontention that the acceptance by
Qatar of the Bahraini formula inot sufficient
to establish acceptance of the subject and .,,
Courto..............................................4.....................
......
3. Bahrain's contentionthat the text of the
Bahrainiformulawasdevised for a special
agreement anddoes not fit a unilateral
application........................................2.........
4. Bahrain'scontention that Qatar's unilateral
applicationprevents Bahrain from seisingthe
Court withitsown claims............................................
5. Bahrain'scontention that Qatar's unilateral
evidenceiinan inadmissiblemannersub...............1.0.....
PARTIIi SUMMARY ..........................................................133...
..............................
SECTIO 1. Thereare ExistingDisputesbetween Qatar and
Bahrain, and Qatar's Applicationis Admissible................3.......
SECTIO 2. The Jurisdictionof the Court has been established by
Agreement between the Parties .............................13..................
SECTIO 3. The Failure of the Tripartite Cornmittee'sApproach to
Agreement C................................................13...................
.............
SEC~IO 4. The Doha Agreement allowedthe Seisinof the Court
byQatar ....................................................3.............
..................
SUBMISSIONS ...................................................................
...............................................
LISTOFDOCUMENTARY ANNEXES ...........................................14.....................
....
LISTOF OPINIONS ...............................................................1....................
..........
LISTOF ILLUSTRATIV E APS ..................................................1................
................ INTRODUCTION
This Meinorial isfiled in accordance with the Order of the Court dated
11Octuber 1991whichfixed 10Febriiary 1992as the tiine-limitfor the Meinorial
of the State of Qatar.
%*,
CHAPTER1 ii i
.
THE PROCEEDINGS BEFORE THECOURT
SE~:~'IO1.N Qatar'sAaplicatiunfiled un 8Julv 1991 aiid Bahrain's letters of
14 Julv and18August1991
1 As stated i1the Order of tlie Court, on 8July 1991 the State of Qatar
("Qatar") filed inthe Registty of the Court the Application institiitingproceedings
ligainstthe State of Bahrain ("Bahrain")inrespect of certain disputes between the
two States relating to sovereignty over the Hawar islands, sovereign rights over
the shoals of Dibal and Qit'sttJaradah, and the delimitation of the maritime arelis
of the twu States. Paragrnphs 2 to 30of the Application contained a very brief
indication of the geographical and historical background to the disputes, and
paragraphs 11 to 25 gave a brief description of the subject of the disputes.
Paragraphs 26 to 35)outlined the efforts to settle the disputes which until now
have failedto result in a settlement.
1.02 As stated inparagraph 40 of the Application, Qatar founds the jurisdiction
of the Court upon certain Agreements between the Parties concluded in
Deceinber 1957 ("the 1957 Agreement") and Dece~nber 1990 ("the Doha
Agreement"). These Agreements are referred tu in paragraphs 32 and 33 of the
1
Application and paragraphs 37and 35ofthe Application respectively .
1.03 For the subject and scope of the disputes referred to the Cuiirt, the
Application (paragraph 40) relieson the Bahraini formula, an Englishversion of
wliiçli,as pruvided byBahrain, is given in paragraph 36 uf the ~~~liciition~.Tlie
torrnula was proposed by Bahrain on 26October 1988and aççepted by Qatar in
1 The relevanrtexismabeîuii~iinAniiexes11.1and 1i.16,VulIIIpp.101and 107and
Anncx 11.32, olIIIp.205hcrcto.
2 -3e alsoAiinex11.29, olILIp,191.Decernber 1990. It was incorporated into the December 1990Agreement bythe' .
words "maysubmit the mütter to the International Coiut ofJustice in accordance
with tlie Bahraini forrnula, which has been ücc'epted by Qatar". The furiniila as
quoted in paragraph 36 of the Applicatjon reads as follows: .
"The Parties request the Court to decide any inatter of territorial
right or ottier title or interest which lnaylx a inatter of differeiice
between them; and to drsiwa single maritime boiindary between
their respective rnsiritimeareas of seabed, subsoil and superjacent iI i
w:iters." -.
1.04 The formula thus adopted bythe Parties is unquestinnüblywide enough tci
cover the claimsof Qatar as presented inthe requests to the Court formiilated in
paragraph 41 of the Application. It is, indeed, a foriniila whichinay well open the
wayfor Bahrain ta submit to the Court a claiin based un any relevant dispute on
which Bahrain rnay wish to seek adjudication,but it is not for Qatar to formulate
and submit anysuch claiin.
1.05 By letters dated 14July 1991 iind 18Aiigust 1991 meritioned in the Orcler
of the court3, Bahrain coiitested the Liasisof jurisdiction invoked by Qatar. The
Ietter of 14Julywent even further and, relyingon Article 35,paragraph 5, of the
Rules of Court, rey~iested that the Application should not be entered in the
General List, and that no action should be taken in the proceedings. Article 38,
paragraph 5, being cleiirlyinapplicable inthe present cirçumstances,the case was,
in due course, given a title and entered in the Generül List as recurded in the
Order. The equally unfounded contention made in the letter of 14July, that the
continuation of the Mediation precluded a unilateral application to the Court, will
be dealt withlater inthisMemorial.
1.06 The letter of 18August 1991 çontested the jurisdiction of the Court in
strortg terms and üt some length but on grounds whiçh, as wiIl be shown
subsecluentlyin this Memorial, are ill-founded.
As ihese Iwo letleraremeiilioiiein the Orderand nowformpar1ol therecord of fie
Cciurtcopiesarenotannexed to lhiMemorial.SECTIO 2. The Order of theCourt of11October 1991
1.07 The Order, innde by the President of the'Criurt on Il October 1991,tuok
account of agreement reriched between representatives of the Parties at the
meeting held in hischarnbers on 2 October 1991that questions ofjurisdiction and
adinissibility should be separately deter~nined before any proceedings on the ,
inerits, and fixed time-limitsfor written proceedings on these questions. Clearly
referring to the "questions ofjurisdiction and admissibility",the Order also stated
-.
that "it is necessary for the Court to be informeci of al1 the conteiltjoiland
evidence of fact and law on whicli the Parties rely in that connection". This
Mernorial is accordinglyrestricted to those considerations of fact and law which
mnyrissistthe Court in decidingthe questions of "jurisdictionand admissibilityin
this case".
Ss<:.sio3. Questions of'liurisdictionandadmissibilityin thiscaset'
1.08 In the decisiongiven inthe Order these questions are more fullydescribed
as "the questions of the jurisdiction of the Court to entertain the dispute and of
the adinissibilityof the Application".It isworth notingthat the Order speaks here
of "dispute"in the singiilsr.This highlightsone of the features of tcase,which
is that the disputes subinitteto the Court by Qatar form an integral whole, as
4
they were already regarded in the course of the Mediation by Saudi Arabia .
Nevertheless, by acceptance of the Bahraini formula Qatar has also accepted in
full reciprocity the possibilityof other disputes being added by Bahrain, provideci
they are existingund established disputes Ming within the scope of thut general
forrnula. Bahrüin itself, while makinno attempt tu müke use of the breadth of
the formula, has not allegedthat the disputes submitted bQatar'sApplication go
beyond the formula. On the contrary, the fourth paragraph of the letterfrnm
Bahrain dated 18August 1991 accuses Qatar of narrowing the scope of the
"Question" (b. t,e accepted formula).
1.09 In addressing the issues of fact and law which arise at this stage of the
proceedings, it is necessary, in accordance with the Order of the Court, to
distinguishbetween questions of jurisdiction and of admissibility.It iswell-known
that it is difficult to draw a sharp and clear-cut distinction between these
questions, but help rnay be drawnfrom the Court's Statute and Rules and its - r
4 See,para3.14below.
-jurisprudence. The principal source of guidance on the meaning of "the' .
jurisdiction of the Court" inay bbefound in Article 36 of the Statute of the Court
and in thejurisprudence of the Court. Paragruyh'1of Article 36 reads -
"Thejurisdiction of the Court comprises al1cases whichthe parties
refer to itand ail matters specially provided for in the Charter of
the United Nations or intreaties and conventions in force." ,S..>
This provision does nut mention the question of the admissibility of wn, --.
application. Objection to the admissibility of an application is, however,
rnciltioned in Article 79, paragraph 1, of the Rules of Court under the title
"Prelitninary Objections". Therefore, the seference to the "adrnissibiiityof the
Application" in the Order of the Court sho~ild be interpreted in relation tu
Article 79,paragraph 1,of the Rules and in accordance with the jurisprudence of
the Court on prelirninsiryobjections.
1.10 It would not be appropriate in this Introduction to dweH atlength on this
matter. lt may suffice at this point tu adopt the characterization made by Sis
Gerald Fitrmaurice as accurately reflecting the essential content of objections to
the "jurisdiction"and to the "adinissibilityof the appIicütionl'in the jurisprudence
of the Court. He states that, although both are, aa general rule, in the nature of
"preliiriinaryobjections"and their cornmun aim is "toprevent ..a decision on the
merits", there i-
"..a clear jurisprudential distinction between an objection to the
jurisdictinn of the tribunal, tind sin objection to the substantive
adrnissibilityof the claim. The latter is a pleü that the tribunal
sl~cluldrule the claimto be inadmissibleon soine ground other than
its uftirncltemerits: the furiner is aplea that the tribunal itself is
incotnpetent to give any ruling ~t al1whether as to the merits or as
to the admissibilityof the clüiin."
1.13 Putting on one side the irregularity of the letters froln Bahrain of 14July
1991and 18 August 1991, including the fact that when they were despatched
Bahrain had not appointed an Agent as required by the Statute and Rules of
Court, for the purposes of the present stage of the proceedings, Qatar will treat
those letters as if'thehad raised apreliminary objection.These letters "çontested
the basis ofjurisdictinn invokedbyQatar" as declared in the fourth paragraph of
5 SirGerald Fit~maurice",TheLaw and Procedureof the Internaiionl ourtol'Justice,
1951-4:Quesiionsuf Jurisdiciion,Coinpetencand Procedure"B, ritishYeai BookUT
lnlernational awVol. 34 1958pp.1-161,atpy. 12-13(Coolnotomillcd). .
the Order of the Court. In fact, both the letter of 18 August and the Annex -
thereto submit "that the Court does not have jurisdiction" in the present case.
There are essentiallytwo grnunds given for this bbjection. Bsihraincontends,first,
that the December 1990Agreement does not siinount to a treaty in force for the
purpcises of Article 36, pziragrapli 1,of the Statute uf the Court and, second, that
this Agreement on which Qatar relies does not authorize the Parties to siibinit a
unilateral application to the Court. Neither of these contentions, which are "
rejected by Qatar, raises any objection of inadmissibility. Bahrain has also -.
coinplained that Qatar's Application has "narrowed the substantive scnpe of the
Question" referred tu the Court and thtlt continuation of the Mediation excludes
the possibility of unilotersilapplication. The exact purpose of these co~nplaintsis
not clear but they seem to be directed to an atternpt to Iend colour to the two
objections just mentioned. Al1 these matters will be addressed lüter in this
~ernoriül'.
1.12 The façt that Bahrain has n«t expressly made üny ubjeçtion on grounds of
inadmissibility does not prevent the Court from considering aspects of the case
which, while not affecting the jurisdiction of the Court in the sense indicated in
paragraph 1.10 above, nevertheless inay render the Application inadinissible.
This possibility hsis been recognized in the Order of the Court which inçludes
questions of both jurisdiction and admissibility as issues to be addressed firin
the written proceedings. The concept of admissibility is fslirly flexible, but
important relevant factors are to be found in Article 36, parsigrsiph 2, of the
Statute which limits to legal disputes the jurisdiction of the Courtiy virtueof
declarations made under that paragraph, and in Article 35 which defines the
function of the Court as deciding "in accordance with international Iüw such
disputesas are submitted to it". The jurisprudence of the Court has confirmed
beyond doubt that, even if a matter hlls prima facie within the terrns of an
agreement conferring jurisdiction on it, the Court will not entertain the case
unless there is an existing fegal dispute between the parties, orin other words,
unless the "difference"is a justiciable dispute. This ineans that the Court should
be fullyinformed as tothe origin and nature of the dispute as well asthe attempts
made to settle it and the resuofany atternptat settlement.
6
-ee,ingeneralChapterV helow. Sid:r-il4. Structure of Qatar'sMeinoriril
1.13 In accordance with the Order of the Court, this Mernorial is directed not
to the inerits of the disputes subinitted byQatar to the Court but tu "the questions
of the jiirisdiction uf the Court tu entertain the dispiite and of the adinissibilityof
the Aliplicatjun", The structiire of the Mei-ilorialappears frotn the Table of
Contents, but a few words of explanation msiybe of assistance tothe Court.
--j i
1.14 The Metnorial isdividedinto three Parts:
Part 1 The Disputes Sub~nittedhy Qatar to the Court
Part 11 The Basis of the Jurisdiction of the Court in the Present
Case
1.15 Part 1is divided into two Chzipters.Chapter II deals with the origin and
historyof the disputes and Chqiter IIIwith effortsto settle the disputes, iincluding
the Saudi Mediation. The history of Qatar and Bührain has a direct bearing on
the origin and nature of the disputes, especiallywith respect to the Hawar islands.
The generul history is deült with very brieflyin Chapter II,Section 1.The rest of
Chapter IIis devoted to the history ofthe disputes themselves, dealingin turn
with the disputes concerning the Hmar islands, maritime delimitation and the
Dibal and Qit'atJaradüh shoals,
1.16 Chüpter IIIconceïning the efforts to settle the disputes and the Mediation
(ifSaudi Arabia is at the heürt uf the facts of çonçern in the present stage of
proceedings in this case. It hüsdirect relevaliceto the nature of the disputes, their
continuünçe and the failure to find either an acceptable settlement or effective
means of scttle~nentuntilthe Agreement of Deceinber 1987 was iinpleinented by
the Doha Agreement of 1990.
1.17 Part Il on the basis ofjurisdiction of the Court in the present case deals in
Chüpter IV both with the interpretation ofthe 1987and 1990Agreements and
with the princjple of consent as the basis for the jurisdiction of the Court. - 2
Chapter V contains Qatar's observations on Bahrain'scontentions. The Memoriül
concludeswith a Summaryin Part Il1 and the Submissions of Qatar. 1.18 Attaclied to the Memorial are two Voluines of Annexes. Volume II
contains dociiinents relevant to the disputes subinitted by Qatar to the Court.
This Vuliime contains the English and Arabic versions of the documents when
buth versions were t'c~undin the British Archives, as weil as Qatar's English
trcinslationsof certain Arabic original docuinents. Voluine IIIcontains documents ,
relevant tu the Saudi Mediation. This Voluine contains original dvcurnents in
Eiiglish [,ut only the English translation of ciriginalArabic dociiinents. Qatar has -. .
deposited a copy of the originalArabic documents with the Registry of the Court.
Alscicontailied in Volu~ne111are an Opinion by Professor Ahined S. El-Kosheri
and an Opinion by Professur ShukryAyyad. Finally, Qatar has deposited with the
Registry a copy in Ambic of docuinents relating to the Tripartite Coinmittee in
;iccordance with Article 50. parsigraph 2, of the Rules of Court, together with
Qatais Eïiglishtranslation.
1.19 Qatar presents its Meinurial in the confidence that the considerations
submjtteriwillssitisfythe Court thsitit has jurisdiction to entertüin the dispute and
that the Application is admissible. PART 1
THEDISPUTESSUBMITTEDBY QATAR TOTHE COURT
CHAPTER 11
THE ORIGINANDHISTORYOFTHEDISPUTES
Introduction
2.01 With reference to the question of adrnissibility,Qatar considers thhasit
a duty to provide inforination tu the Court concerning the existence of legal
disputesbetween Qütar and Btihrüin, so that the Court, according to its Statute.
can take çognizanceof such disputes and dischargeitsjudicial functinns.
2.02 Article 38 of the Stütiite of the Court states that the function of the Court
"isto decide in accordance with international law suçh disputes as are subinitteci
to it...".everal conditions tnust be fulfilled in order for the Court to be in a
position to exercise itsjudicial Eiinctions:
there must be a dispute;
the dispute must be of a legalcharacter; and,
it must be a dispute which is to be decided in accordance with
international.w.
2.03 The jurisprudence of the Court has on seversiloccasions insisted on the
conditions which have to be fulfilled in order to showthatthere is a dispute.
Thus, in the Mavrommatis Palestine Concessions case, the Permanent Court of
International Justice saidin itsJudgment of 30August 1924:
"A dispute isadisagreement on a point of law or facta conflict of
legalviewsor ofinterests between two persons7!t
These requireinents were further specified by the sume Court in its Judgrnent of
25 August 1.925in the case of Certain Germsin Interests in Polish U~perSilesiu
where the Court observed that -
7 Judeineiil No. 2, 1924,P.. eriesNo.2,p.Il. "...a difierence of opinion does exist as soon as one of the
Governments concerned pointsr itthat the attitude üdupled by the
other conflictswith itsown views 8."
2.04 Subseqiiently,the Iiiternational Court of Justice pointed out in itsAdvisoiy
Opinion of 30 March 1950in the lnterpretation of Peace Treaties with Bulgaria,
Hunr~arvand Romaniü case that:
"Whether there exists an international dispute is a rnatter for
objective determination. The inertt dYIial of the existence of a
dispute does not piove its non-existence .
After a referençe to the fiictsof thacase,the Court concluded:
"There hasthus arisen a sitiiation inwhich the two sideshold clearly
opposite viewsconcerning the question ... Confronted with such a
situüti? ,the Court must conclude that international disputes have
arisen187.
Similarly,in its Judgrnent of 21 Decernber 1962on the prelimirlaryobjections in
the South West Africa case,the Court stated as follows:
"A mere assertion is not sufficient to prove the existence of a
dispute any more than ü inere denial of the existenceof the dispute
proves its non-existence. Nor is it adequate to show that the
interestsof the two parties tu such a case are in conilict. It inust be
show that the ç1siiinof one party is positively opposed by the
otherIl .Il
2.05 Tlie Court has also on several occasionsinsisted on the fact that it ionly
concerned with legaldisputes where international ltlwisapplicable. For example,
in its Judginent of 20 Decernber 1983in the Border and Transborder Armed
Actions (Nicararruü v. Honduras) case, dealing with the question of the
;idmissibilityof the application, the Court expressed itselfas follows:
"The Coiirt, as a judicial organ, is however only concerned tu
establish, fïrst, that the dispute before it is a legstldispute, in the
8 JurisdiçtioJudemclilNu.6,1925.P.C.I.J.,SerA,sNu.6,p. 14
FirsiPhaseAdvisorvOi~inionLC.J.Reaorts 1950p.74.
l0 Ibid.
PreliminarObieçliom,Jurl~rnenl1.C.Rc~orls 1962,p.328. sense of a dispute capable of being set121.by the application of
principles and rules ofinternational law... .
2.06 In coinpliance with the need expressed in the Order dated 21Octuber
1991for the Court to he informed of al1 the relevant contentions and evidence of
fact and law.Qatar intends in the briefest possiblewayhereafter tu showthat the
disputes referred to inits Application filed on SJuly 1991are disputes of a legal
cind international character.
5.*
The disputes submitted by Qatar to the Court relate tu sovereignty over - ,
2.07
the Hawar islands, the delimitation ofthe maritime arens of the twu States, and
soverejgn rights over the shoals of Dihal and Qit'atJaradah. In order to explnin
these disputes, it is necessary brieflyto retrace the deveiopment of the separate
identities of Qatar and Bahrain iip to the 1930s,before turning to the history of
the disputes themselves.
SISCTI1 O.N Qatarand Bahrain up to the 1930s
2.03 As shown on Map No. 1, facing thispage, Qatar and Bahrain lie on the
southern side of the Arahian/Persian Gulf about half way between the Strait of
Horiiiw and the Shatt al rab'^. Qatar is a peninsula with a nurnber of islands
lying cluse to its coastline.Bahrain is comprised of a compact group of islands
lyingsome 18nauticülmiles to the west of the Qatar peninsula, and about midwüy
between it and the coastline of Saudi Arabia. As çan be seen from Map No. 2
facing page 19,which showsthis area on a larger scale, Qatar and Bahrain form
two distinctgeographicsilentities separated by an expanse of open sea 14.
l2 Jurisdiçtioand Admissibilit,udenientLC.J.Reriorts1988,p.91,para.52.
l3
ThisMap,reproducedhere for illustratipurposesonly,isanexiracl[roma "Map ri1he
Pcrsian Gulf. Oman and CentralArabia" compiledbctween 1905 and 1908 fur
Gazetteer ofthe PersianGull, Omanand Central Arabia.The Gazetieer, preparedby
J.G. Lorimer,asenior BritishcivilservaiiiheGovernmeniuf Indiawaspublishedin
1915andwasreprinled by ArchiveEdilionsin1986.TheMap istakenfromVolume6of'
thaircprint.
l4 Map No. 2,also reproduced here for illustralive purposesonly,is a copyof an extract
fromLimilsin the Seas.No.94,CoiilinenlalShelfBuundaries:The PersianGulf, issued
on 11 September 1981by theOfficcof the Geographer. UnitedSuies Department of r
Statc.Qatar kasaddcdthclocationufthc DibalandQit'atJaradahshoalson MapNo.2.
Qatar has abo modifiecithe Mdp loshow themeeting point of the Qatar-Iran and
Bahrain-Iranhoundariesas a broken liliin order to reflect the teofthe relevant
delirnititiagreements.A. TlieSeparate Identities of Qatar aiid Bahrainin the Agreements of 1868 i
2.09 Qatar and Bahrain had einerged as distinct political and Iegal entitiesin
the 19th century at a time when British maritime power had established its
siipreiilacythnliighout the Gulf. The British hücientered into treaty relationwith
a nurnber ofthe independent Arab sheikhs of the soutl-iernGulf in 1320with a ,
view to eradicatjng pirsicyin the area. As explained in paragraph 4 of Qatar's
A]?plication to the Court, the Sheikhs of Bahrain entered into a Preliminary , ,
-.
Trçuty to this effect on 5Februiiry 18201'. and on 23Frbruary 1820gavr their
üdherence tu tlie General Treûty of Peace entered into by the British witli nther
Arab sheikhs16.
2.10 British efforts to presesve the maritime peace continueci after the 1820
agreeinents with the enft~rcementof a maritime truce between various warring
sheikhdoms in 1535.This truce was renewed from year to year until liTreaty of
Peaçe in Perpetuity was eiitereil iiito with effect from May 185317. Although
the Sheikh of Bahrain was not a party to this treaty he became subject to tnany uf
the same treaty obligations by a separate agreement he entered into with the
BritishGovernment on 31 May 186118.
2.11 It was against this background that the events between Bahrain and Qatar
relerred tn in paragraph 5 ofQatar's Application occurred. In 1567, Bahraini
maritime forces, acting inalliance with the Sheikh of Abu Dhabi, attacked the
tnwns uf Doha and Wakrah on the east coast of the Qatar peninsula. Qatari
forces launched a retalicrtoryattack resultingin a severe naval engagement. The
British regarded these events as ü serious test of their policy of maintaining the
iriüritime peace and iminediateIy clespatched a naval force tu the ürea tu re-
est:iblishthe peace.
l5
AnnexL2,Vol. JI,p.5.
l6
Aiinex1.3Vol. IIp.9.
l7
Annex 1.4Vot.IT ,.17.
l8
Annex1.5,Vol. IIp.21.2.12 Thereafter, in 1865, the Britishconcluded twn agreements. one with the =
Chjet of Bahrain and one with the Chief of Qatar. which bear witness tn their
recognition of the srparate status uf Qataand 13ahrain1? Thus. on 6 Sçptember
1868,the BritlishPolitical Resident in the Persian Gulf, Colonel Pelly,conçluded
an Agreement with Sheikh Ali bin Khaiifah of Bahrain providing, inter alia, for
the Sheikh to pay certain reparativn in settlement of the affair and underlining
the need to preserve the maritime peace.
r- ,
2.13 Aiter securing thisAgreement, Colonel Pellyproceeded tu Qatar and, on
12 September 1868,concluded a sepanite Agreement withSheikh Moharned bin
Thani, who was described by Pelly in his report on the conclusion of the
Agreement as "theprincipal Chief of ~ÿtur~~''.nthis Agreement, Moharned hin
Thani prornised, interaliiinat to put to sea with hostile intention atopreserve
peaceful relationshipswith the Chiefof Bahrain.
2.14 The importance of these events is that at least frorn 1868 Qatar and
Bzihrainwere explicitlyrecognized bythe British as distinct and separate entities,
wjth the sesito actas a buffer between thern. The position of Sheikh Mohamed
bin Thcinias Chief of Qatar and of Sheikh Ali bin JShalifahas Chief of Bahrain
was also recognized. The AI-Thani and Al-Khalifah families with whom these
Agreements were made Iiüveruled Qatar andBahrüin respectivelyto this day.
B. Qatarand Bahrain dur in^theTurkishPresencein Qatar
2.15 Turkish expansioninthe Arabinnpeninsuln and the region of Bahrüin and
Qatar began even before 1868. In 1867, the Turks completed cisurvey and
prepared a rnup showingthe "boundarirs" of I3ahrainZ1.Subsequently, in1872,
having already persuadedMohürned binThani's son, Sheikh Jasim bin Thani, to
agree to their presence in Qatar and to flythe Turkish flag, they înstalleda
garrison at Doha. The Turkish presence inQatar was to Iastuntil1915.
2.16 Wavingobtained Sheikh Jasim bin Thani's further agreement to act as
Kaim-Makam (the equivalent of Deputy Governor) of the peninsula, the Turkish
üiithorities repeatedly infvrmed the Britishduring theirpresencein Qatür thut
19 Annexes1.7and1.8,Vol11.pp.33and47.
21) Annex 1.9Vol.11p.43.
21 Annex 1.6,Vol. 11.p.27.they held the peninsula within their jurisdiction, and that itcalne under the?
admiilistratjvecontrol of one districtof their Empire. They took steps to appoint
ofiiicersat various towns on the peninsiilaand to estabIishguard posts around the
coastline. They also presented Sheikh Jasim with a stearn Iaunchto enable him tci
control the çoasts and waters within14sjurisdiçtionZ2,and thernselvescarried out
23
;isurveyof Qatar's terrirory .
2.17 The British recognized the de facto Turkish cnntrol over Qatsir. In, --a
practice, British cancerns seem to have been twofold. The fir c otcern was to
prevent any Turkish daim over Bnhrain, and to prevent Bnhrain from becoming
entaneleci in any way in the affairs of Qatar. The British sought to obtain
assurances froln the Porte thntithad no intention of makingclaimsover Bahrain.
They alsoconcluded a forrnuf exclusiveagreement with Bahrain on 22Deceinber
1880,in part to prevent any arrangement being reached between Turkey and the
Al-Khalifnh Shçikhs of ~ahrnin*~, A further agreement, sirniliirin content, was
entered into on 13March 1892under whichthe Sheikh of Bahrain bound himself
tcithe followingconditions:
"1st.- That 1 will t-inno accnunt enter intv any agreement or
correspondence with any Power other than the British
Government.
2nd. - Thsttwithout the assentof the BritishGovernment, 1willnot
consent to the residence within my territory ofthe agent of üny
other Governinent.
3rd. - That I willon nt] account cede, sell, mortgage or othenvise
ive for occ~ytic~n any part of my territory Save to the British
Eovernment ."
No such agreements were entered into with the Sheikh of Qatar at the tiine due
tu the Turkishpresence.
2.18 The second concern was to continue to maintain the maritime peace and
to control piracy.In this regard, the British feared thüt pirates acting frum ports
or villages in Qatar might use the Turkish jurisdiction over the territoriasea
22 Annex1.13,Vol.IIp.59.
23 Atinex1.1,Vol.II,p49.
24 Annex 1.10,VolIIp.45.
25 Anncx 1.12,VolIIp.55.ilround the peninsula as siline ofretreat from theirraids. For this reason,the =
British repesltecllyinformedthe Porte of theiduties under treatytnpreserve the
inaritime peace and to control piracy.
2.1Y These events thus confirmed the continuing separate political and legal
statusof Qatar and Bahrain. Thiswas alsoiinplicitin the fact that the Agreements.
,,
of 1850 and 1892 dealt only with the territory of Bahrain, and was further
confirined inthe 1913Convention discitssedbelow.
C. Further Confirmationof the Seuarate Identitiesof Vatnr and Bahrriin by
the UnitedKingdomandTurkeyin 1913
2.20 In 1911the United Kingdomand Turkey entered into negotiations with a
view to confirming their respective areas of authority inthe Giilf region. This
resulted in the signing on 29 July 1913 of the "Convention relative au Golfe
Persique et ciwr territoires adjacents" referrcd to in paragraph 8 of Qatar's
26
Application .
2.21 Aithough the Treaty ddinnotenter into force due to the outbreak of W~orld
War 1, it contained important provisions relating to Qatar and Bahrain. The
relevant part ofArticle 11of the provisionsrelatingto Qatar readas follows:
"...e Gouvernement Impérialottoman ayant renoncé 5 toutes ses
réclainations concernant la presqu'île d'El-Katr, il est entendu
entre les deux Gouvernements ue ladite presqu'îlesera, comme
par lepassé, gouvernée par le 7 eikh Djassim-bin-Saniet par ses
successeurs. Le Gouvernement de SaMajesté britannique déclare
qu'ilne permettra pas au cheikh de Bahreine de s'immiscerdons
les affaires intérieuresd'wtr, de pcirter atteinte à l'autonomie
de cepays ou de l'annexer ."
2.22 Article 13of the provisions relatingto Bahrain reads as follows:
"Le Gouvernement Impérial ottoman renonce à toutes ses
rSclamationsconcernant les îles Bahreine, ycompris les deux ilots
Lubainat-el-Aliya et Lubainat-e~-~tliya, et reconnaît
26 Annex 1.14,Vol.1p.63,
27 ThisArticlwasconfirmecilnArticleIIItheAnglo-TurkisConventionrespectingthe
BoundariesofAden signedon 9March 1914 and ratifon 3June 1914.a. Annex
1.15.VoIIIp.81. Majestébritannigue declare clu'ilon'aBaucune intention d'annexer ia
ses territoires les les Bahreine."
Article 12 also defines certain rights nf the inhabitants of Bahraiil on
Zakhnuniysihislandasfollows:
"II sera permis aux habitants de Bahreine de visiter l'île de
Zahnouniépour Ispêcheet d'ydemeurer en pleine libertépendant
l'hiver comme par le passé,sans qu'rtucunnoiivel irnpôt leur soit
inipc)s6."
2.23 Tlîe Convention thus reconfirined the separate identity of the Qatar
peninsula under Al-Thani rule,and irssepüration from Bahrain. Itisworth noting
that whileArticles 12and 13define the Bahrain islands aswellas certain rights of
the inhabitants of Bahruin on Zakhnuniyah island, they inake no reference trithe
Hawarislands.
2.24 After the departure of the Turks in 1915,Qatar entered into an agreement
with the British Governmeiit on 3 Navernber 1916~8 Thlit Agreement
recognized the territorial integrity of Qatar and the continuity ofAI-Thani rule in
Qatar fIo~n1868to 1916and included an undertaking bythe Sheikh nnt to "have
relations nor correspond with, nor receive the agent:of,any other Power",nor to
"cedeto any other Power or itssubjects,land either on lease, sale, transfer?gift,or
in any other waywhatsoever" nortu grant oil concessions,without the consent of
the British Government. In return, the British Government undertook to accord
to the Sheikh,his siibjectsand vessels,the same treatment as it conferreri on "the
friendly Shaikhs, their subjects and their vessels"(ArticleTT) ,a give protection
against aggressionby sea and to try to exact reparation for injuries suffered at seil
(Article X), and to grant gciod offices should the Sheikh or his subjects "be
assailed byland withinthe territories of Qatar" (ArticlXI).
2.25 As a result of the 1916Agreement, which came iritoforce in 1918,Qatar
acquired treaty relations with the British to some extent similar to those held by
Bahrain andthe other independent Arab sheikhdoms.
25 Annex 1.16,VolII,p85. -
2.26 This Agreement did not contain a precise description of the limits of t.e
territoriesofeither Qatar or Bahrain. However, in his Gazetteer ofthe Persian
Gulf. Oman and Central Arabia, published'in 1915, Lorimer described the
peninsula of Qatar in some detail, including the Hawar islands among the
features of the western side of the peninsula29. Bahrain, on the other handwas
described by the same source as "a compact group" of islands "alrnost in the
rniddle of the gulf which divides the promontory of Qatar from the coast of
~atif~Ol'.Similarly,ina report by the British India Officein 1928entitled 'Jtatus i
of Certain Groups of Islands in the Persian Gulf', the Bahrain archipelago is ->
defined as consisting of "the islands of Bahrein, Muharraq, Umm Na'assan,
Sitrah, and Nabi Salih,and a number of lesser isletsand rocks forming part of the
same compact geographical group31". It wiII be noted from the above
descriptions that the Hawar jslandswere considered as a part of Qatar and not as
a part of the Bahrain islands.
E. Conclusions
2.27 As show above, the separate identities of Qatar and Bahrain were
established during the second half of the 19th century. This was confirmed by
subsequent events and, in particular, by the various treaty relations entered into
by Britain, Turkey, Qatar and Bahrain.
SECTIO 2.N The Disputes
A. Introduction
2.28 Although from 1918 Qatar and Bahrain had somewhat similar treaty
relationshipswith the British, the situation of ttwo States was very different.
Already early in the 19thcenturyBahrain had been recognized by the British as a
trading centre for theGulf.In 1904,it was considered important enough for the
British to appoint a Political Agent in Bahrain, This officer was the direct
subordinate of the PoliticaI Resident in the Persian Gulf, who was based in
Bushire (in what was then Persia) and was responsible for British interests in the
29 Annex1.17,Vol.IIp.95.
C ;
30 m., p.97(emphasi sdded)Qatifiatownon thecoastofSaudArabiatothewestof
Bahrain.
31 AnnexLIS,Vol.II,p.99(emphasisadded).Gulf as a whoIe. The importance of Bahrain to Britain was accentuated by the
creation of the post ofAssistant PoliticalAgentin 1934.
2.29 Increasingly,Bahrain wasto become a strategicand politicalcentre for the
British. With the construction of an airfieldfor the RoyalAir Force, and with the
creation of a naval base in Bahrain after the abandonment of Basrah as British
base in 1935,Bahrain became Britain'smilitarycentre in the Gulf. Soon after the
end of the Second World War in 1939 ithad alsobecome the political centre. Th->
seat of the British PoliticalResident in the Gulf wastransferred froin Bushire to
Bahrain in 1946.
2.30 This process went hand in hand withthe development of oil in Bahrain.In
1925 an oilconcessionwas granted by the Ruler, with the approval of the British
Government, to the Eastern and General Syndicate Limited, a British
corporation. InAugust 1930this concessionwas assigned,again with the approval
of the Ruler and the British Government, to the Bahrain Petroleum Company
("BAPCO"), a company with a large element of American control. BAPCO
struck oil in Bahrain in 1932 and the first shipment was made in 1934,before
production began in anyof the other sheikhdoms.
2.31 The situation in Qatar was very different. Unlike Bahrain which had a
British adviser fror1928, Qatar had no British adviser. It was not until 1949that
the British Government recognized Qatar'simportance and appointed a political
agent to reside in Doha. It was in the samyear that the first shipment of oil was
made from Qatar.
2.32 Exclusive exploration rights foroilwere granted by Qatar onlyin1932,to
the Anglo-Persian Oil Company ("APOC"), with the approval of the British
Government. In 1933,APOC carried out a survey of the areaover which it had
exploration rights and included the Hawar islandswithin the area of the survey.
A concession was later granted in1935because of the discoveryof the potential
for oil in the area covered by the survey. A company called Petrolcum
Development (Qatar) Ltd.wasformed tooperate the concession,whichwas Iater
assignïd to itîZ, and which it operated in cooperation with Petroleum
32 The British Governmentand the Ruler of Qatarapprovedthe assignmentof the
concessioni1936,buttheassignment asnotformallyefîectedunApri1946.Concessions Ltd. ("PCV), a Companyof the same group. Operations began in --
1938 at Dukhan, on the western side of the peninsula just south of the Hawar
islands,and oilwas discoveredthere shortlybefore WorldWar II.
2-33 The disputes between Qatar and Bahrain arose against this background
and in the specificcontextof the negotiationsin the 1930sbetween BAPCO, PCL
and the Ruler of Bahrain over Bahrain's"unallottedarea". This area was the area A
not already allotted to BAPCO pursuant to the 1925 concession, and Bahrain's B i
claimsto certain rights overterritory lyingbetween itselfand the Qatar peninsula ->
were made in an effort to extend the territory to be included in that area. It was
these circumstances that led to the disputes which Qatar has submitted to the
Court.
B. TheDispute relatingto Soverei~ntvovertheHawarIslands
2.34 A brief description of the Nawar islands was given in paragraph II of
Qatar's AppIication to the Court. As can be seen from Mau No. 2, facing this
page, the islands are situated close to the western coast of the Qatar peninsula.
They lie just to the north of Qatar's main onshore oilfield,which extends to the
south of Ras Dukhan. The closest island inthe group is less than one nautical
mile from the Qatar coast and a substantial number of islands (including the
greater part ofthe main Hawar Island)liewithinthree nautical miles of the Qatar
coast. In general, thewaters between the islandsand Qatar are extremelyshallow
even at high tide. In fact, the Hawar islands are physicallyan integrapartof the
landrnass of Qatar. Bahrain has no such links with the Hawar islands and is
separated from them by a relatively deep channel and a distance of some
12nautical miles.
2.35 None of the Hawar group of islands is, in its natural state, capable of
sustaining human habitation and economiclife.The islands are barren and there
is no natural supply of water. In the past, the islands were visited by seasonal
fishermen from the area.From 1937 onwards they have been occupied only by
Bahraini militaryforces. 1. Bahrain'sfirstclaim to the Hawnrislands
2.36 Until subseyuent ïesearçh, Qatsirwas not'infurined of the events describecl
in paragrapl-is 2.36-2.33.In March 1936, PCL obtüined permission fi-cirnthe
British Government to coinpete with BAPCO in the negcitiatirinswith the Riiler
of B~ihrainover the unallotted ares. Immediately thereafter, on 28April 1936, , 1
Bahrain's firstclairn to the Hawar islandswas submitted to the Political Agent in
Btihrain by the Adviser tuthe Bahrain Governrnent, Charles DsilrympleBelgrave. ,
2.37 In his letteof 28ApriI 1936,the Adviser infurmed the PoliticalAgent that
tlie Sheikh ofBahrain had instructed him "to state to you that the Hawlir grnup of
islands lying between the southern extreinity of Bahrain island and the Coast:of
Qatar is indisputahly part of the State of ali ira in^ H^e''ent (in to puint out
that the Sheikh regarded his sovereignty over the Hawar islands "whichincludes
une of the largest islands belonging to Bahrainu sis sirnatter of "very great
importance" and that he considered that this fiiçtshould be stated officially in
writing. According to the Adviser, bnth companies "appeared to attach great
3411
value to the oil prospects of the Hawar islands- .
2.35 This claim was never shown to Qatar, nor was Qatar asked about its views
on the tnutter. However, the British were predisposed to acknowledge Bahrain's
clairn i~iiinediately. In fonvarding the Adviser's Ietter to the Political Resident,
the PoliticaI Agent observed that "itmight iricertain circumstances suit us
politically to have as large an area as possible included under ~ahnin~~". The
matter was in turn psissed on to the Government of India. At a meeting on ICI
July 1936, Bahrain's Adviser wsis informeci of the Government of India's
provisional decision thlit Hawar belonged to the Sheikh of Bahrain, althorigh it
was acknawledged that the Sheikh of Qatar inight have a clailn to the islands and
that this might have to be heard before a finaldecision could be made3'.
33 Annex1.19,Vol.II,p.105.
3J Anna 1.23,VolII,y. 121.
35 Aniiex1.20,VolII,p.110.
36 Anncx 1.21Vol.Il,p.111. Siinilarly,PCL,wko were interested iithe negotiütionsover the ui-iallotted area,-
were also inforined oi :he de~ision~~.However, Qatar was not informeclof the
provisionaldecision.
2. Bahrnin's nttempt to annex the Hawar islnnds and the protests of
Qatar
2.39 In 1937,after being informed of the provisional decision,Bahrain began a --a i
programme of building on the Hdwarislands,whichincluded the buildingof a fort
and u çjstern on the main island and the erection of beslconsfor navigationiil
purposeson a number of the smallislets.
2.40 It was the Ruler of Qatar's protests against these infringements of his
sovereigntythat rnarked the beginning uf the dispute relating to sovereigntyover
the Wawarislands. In February 1935,the Ruler of Qatar complained orallyto the
Political Agent in Bahrain against the various actions of Bahrain on the main
Hawar island,includingthe fact that "the Bahrain Government were building and
were drillingfor water in ~awa?". On 10May 1938,he followed this up with a
written protest against these "interferences"which he regarded as a "deliberate
ençroachrncnt" on his territoly3'. Referrilig implicitlyto the British obligations
under the 1916Agreement to preser-vethe maritime geace and to protect Qatar
ügninst aggression,the Ruler ended his letter of 1May 1938as fullows:
"1prefered [sicto inturm you, as it is necessary for me to do, and
hope thatyou willletme knowofyour decisionas it is necessary ta
take prompt action and to prevent the aggressorswho ventured to
take these actionswithout my knowledge. 1 am quite confident that
you will,inorder to ke3~ !he peace und tranquility[u du what is
necessaryinthe mattex .
.37
AnnexL22,Vol. II,p115.
38
This conversatioisreporled ia letlerfrnm the PoliticalAgeninBahrainlo the
PolilicalResidentdaled1May 19.18.Anne%1.25,VolIIp.131.
j9
Annex 1.24Vol. Ip.126.The citatiohereifrom theBritishtranslalionof ibeoriginal
Arabicof the Rulerof Qatar'sletterappearinin theBritishForeignOîûcefilesIt - ;.
should benoledlhai lhe BritishArchivesverynHencontain botArabicand English
versionorthesame tex1preparedinlernailytheBritisAulhorilies.
4U lbid. 3. The procedul+eadopted by tlie British in making their clecisiûnof:
11July 1939
2.41 At the tiine the British received the Ruler ot Qatar's protests, they were
ilisobeins gresseclbythe uil companitrs as tu their final positionon the ownership
of the Hawiir islands. This led them to contact both Bahrnin and Qatar in this .
regard.
-= i
2.42 In ü letter dated 20May 1938 from Weightmnn, the Political Agent in
Bahrain, the Ruler of Qatar was told that Bahrain hüd a prima facie clairn tn the
islands and wasin açtual occupation of thein4'. The Ruler wiisasked tu stiite his
claiin if he hsidone, but he was not inforined of the substance of Bahraiil's case
nor was he given a copy ofBahruin's 1936claim. He was told to produce Iiisclaiin
and evidençe "at the earliest pvssil>lemoment". A copy of this letter was sent to
the Adviser tu the Bahrain Government by the Political Agent, with the promise
that he would be informed ifit becatne necessary to request the Government of
Buhrain to submit a çuunter-daim 42 .
2.43 The Ruler of Qatar replied within one week on 27 May 193%~~.He
asserted his long-held sovereignty over the Hüwar islands, pointed out that
Bahrain had only recently occupied the islands, and requested that the Bührüin
Government be ordered tocease its interference jnthe islands.
2.44 On 14 August 1938, the Government of Bahrain was formsillyasked to
state its counter-claim to the islands. Itwas ah sent a copy of Qatar's letter of
27May 1938and no tiine-limit was irnposed on its reply44. The formal counter-
daim was presented over four rnrinthslater on 3 January 1939~~. Huwever, un or
sihout 29 May 1938,and before Bahrain had been requested to make itscounter-
claiin, the Political Agent hsid already received a detailed but undated
- - -- - -
AnnexL26, Vol. Ip.135.
42 Annex 1.27,Vol. p.,142.
43 Annex1.28,Vol. II13,145.
44 Annex 1.30,Vol. p.161.
45 AniiexL31,Vol. IIp.165. ~neitioründurn frointheAdvisertu the Bahrain Government, Belgrave,settiiig out :
Bahrain's position as well as tlie evidence on which itrelied for its ciüim to
sovereignty 46.
2.45 On 5Januiiry1939:Bahrain'scounter-claimwas sent to the Ruler of Qatar
whowes iigainasked to reply as soon as possible47. He was not sent acopy of the ,
1936claiin or of Belgrave'smemuranduin delivered in May 1938. 1 / 1
2.46 In March 1939,the concession negotiations for Bahrain's unnllotted area
were comingto a head and the British began to insistthat the Ruler of Qatar give
his answçr. On 17Mürch 1939,he was intormed that he had 14 days in which tci
re~~ond~~.Despite his further protestations at the procedure being followed by
the ~ritish~~,and despite the fact that Bahrain had had significiintiylonger in
whiçh to submit its counter-claim, the Ruler submitted his reply on 30 Murch
1939~'. Belgravesubsequentlywrote to Weightmanainending in certain respects
Bahruin'sclaims51,althoughthe Ruler ofQatar was not informed of this.
2.47 The outcorne of these eventswüsthe Britishdecisioncomlnunicated to the
Rulers in the letters dated 11July 1939.The letter to the Ruler of Qatar stated in
relevant part asfolIows:
"..on the subject of the ownership of the Hawar Islands 1 am
directed by His W~jesty'sGoverninent to inform you that, after
careful consideration of the evidence adduced by you and His
Highness the Shaikh of Bahrain, they have decided that these
Island beiong ta the State of Bahrain and not to the State of
Qatar 32 ."
46 Annex 1.29Vol.II,p.153.
47 Annex 1.32,VolII,p.173.
48 Annex L33,Vol.II,p.177.
4C) See,Annexes L34and 1.35,VolIL pp.181and 185.
Annex L36,Vol.II,p.191.
51
Annex 1.37,Vol. 1p.219.
52
ThcIetiersof 1July1939 totheRulersofQatarandBahrain appear inAnnex 1.38Vol.
11p.223. 4. Theaftermath of the decision ofIl July 1939
2.48 Whereas Btihrain readily accepted the British Government's decisions3,
Qatar iinrnedizitelyrejected it and has continueci ta protest against it and tri
inaintain that it is invaUd. In hisfirstletter of protest of 4August 1939,tlie Ruler
of Qatar, whilst reserving his rights to the islands, noted that no reason or
,%,,
rxplÿn;ition hiid heen givenfor the de~isioii~~.He reiiewed his protests in lrtters
dated 18Noveinber 1939and 7 June 1940,inwhicbhe again expressed his refusal, 2 +
to sribrnitto the decisionand reserved hisrights 55 .
2.49 As indicated in paragraph 16of Qatar's Application, Qatar's view is that
the 1939 British decision cannot have modified Qatar's sovereignty over the
Hawar islands: it ignored the fdcts, the appIicsiblelaw, and local custrims,as wüs
acknowledged even by sorne British officiais; in any event, it went beyond the
powrrs of the British in relation in the two States, it cannot be construed as an
arbitral decision,and cannnt ever havehounclthe State of Qatar.
2.50 The senior British officia! in the Gulf recognized imrnediately after the
decision was made nol only that it was iinhir but also that itwas substüntively
wrong. Lieutenant-Colonel Pi-ior,who took office as British PofiticalResident in
tlie Persian Gulf in Septeinber 1939,after the decision had been made, had to
deal with the RuIer of Qatar's protests against the decision. In a minute dated 25
September 1939, Prior had nlready stated, referring to the question of Hawar,
that he had "little doubt that a grave miscarriage ufjustice kas ciccurred"but that
itwas "toolate tu do anythingn~w~~".And indeed, despite his serious misgivings,
Prior wrote tn the Ruler of Qatar on the same date informinghim that the inatter
could not be reopened5'.
Annex1.39,Vol. II,p.229.
54 Annex 1.40Vol.II,p.233.
55 Annexes7.43andL45,Vol. II, pp.247and257.
56 Annex1.42,Vol. II,p.243.
57
Anncx 1.41Vol. 11p.239. 2.51 In a letter o26October 1441 to the India Office, Prior outlined hisviews--
more explicitlYS8:
"The inoment 1saw the decision on the Hawar Islands case 1told
Fowle that Ithought itrnost unfair to Qatar and the explanaticins
he gave me for his recoinmendations were not ones which would
cary any weight withanyArab.
The Hawar Islands case hzts been decided according to western 2 i
ideüs, and no allowançe has been made for 10çal custorn i~nd
sentiinent. During 3 1/2years in Bahrain [Prior hüd been Political
Agent in Bahrain frorn 1929 to 193211 never heard anything to
suggest that these islands belonged to Blihrain, and believed thein
to belongto Qatar, a viewsupported by Lorimer."
Prior then went on to look at Bnhrain'sclaiins,noting that such clairns"maycarry
weight in western minds but mean nothing to an Arab". He summed up his
position as follows:
"The view of independent Arabs is that Hawar belongs to Qatar
and 1ainconvincedthe decisionis ine uitable, but 1 do not feel that
itispractical politicsto reverse it now.
2.52 Despite later questioning of the decisionamony British officiaiitwas to
be giveneffect in the maritime delimitation carried out bythe British in 1947. As
willbe seen in subsection C below,both Qcitürand Bahrüin protested the part of
that delimitation concerningthe f-lawarisliinds. However, Qatar has been furced
to submit to the de facto occupation of the islnnds by Bahraini military forces
since 1937, while continuing to reserve its rights. As will nlso be shown in
Section 1 of the next Chapter, on 21April 1965Qatar addressed a Note Verbale
tu the British Government rejecting claims by Bahrain concerning maritime
delimitation and, in an effort to settle the disputes, recommending arbitration
between the two tat tes ^^ aralso insisted un the fact that the Hawtir islaids,
not expresslyrnentioned in these Bahraini claims,should form part ofthe existing
disputes tobe submitted to arbitration.The process of arhitrntion over the claims
of the twoStates gained the suppon of the British~overnment~~.
58 Annex 1-46Vol.II,p.263.
Annex 1.57.Vol. p.351.
6U Annex 1-58Val.Il,p363.2.53 These events show that a legal dispute between Qatar and Bahrain 06
sovereignty over the Hawar islands began in 1938.Such a matter isindisputably
an issue governed by international law. The views of the Parties on this subject
confIict in matters of fact as well as in matters of law,.and the dispute has
continued untilnow.
>..,
C. TheDispute relatinp;to MaritimeDeIlmitaiion
32:
2.54 The area involvedin this dispute isshownonMap No. 2, facingpage 19. It
runs from the mouth of the Dawhat Salwah in the south (shown as "Bahr as
Salwa" on Mari No. 21,up to the Gulf median line between the Islamic Republic
of Iran on the oneside and Qatar and Bahrain on the other.
1. TheBritishdecisionof 23December1947
2.55 After their 1939 decision, the British authorities came under further
pressure from the oil companies operating in the area to effect a seabed
delimitation between the two States as soon as possible, so that the limits of their
respective concession areas could be determined. The question was suspended
for the duration of World War IIand onlyrevivedin mid-1946.
2.56 As subsequent research has revealedo1, the British considered that three
main issues had to be dealt with in respect of the seabed delimitation: fu,the
general principles upon which the delimitation would be based had to be
determined; second, a solution had to be found for the Hawar isIands which,
although they had been declared by the British in 1939 to be under Bahraini
sovereignty, lie very close to Qatar's western Coast.Tthi ssue, which willbe
discussed in subsection D below, related to thetwo shoals of Dibal and Qit'at
Jaradah, over which Bahrain had asserted a claim of sovereignty but which lie
closer to Qatar than to Bahrain.
2.57 The British Government, by letters of 23December 3947 issued by the
British Political Agent in Bahrain, informed the Rulersf Qatar and Bahrain of
its decision to delimit the seabed boundary in accordance with a line ona map
enclosed with the said letters62. The letters further stated that the delimitation
-:
&, ingeneral,AnnexesL48,1.50,1a.d51.5inVolumeII.
6* Annex1.53,Vol.IIp.309. - --
.O Y a*
L/P h S/12/3806b
,-' .....-(--:.
1 l " ,+,p. + - B-
Map No. 3 1 ! ,/
. -- - -I.. '. I
i 1 1rn
! iJ
, !
i , ', 1 IIwas made in accordance withequitable principles and corresponded to amedian :
line bnsed rsenerallvon the configuration of the coastlioes of the inain island of
Bührain and of the ueninsula of Qatar. The sedbed to the Westof the Iinewould
in future be regarded as being under the sovereignty of Bahrain. and the seabed
to the east as under the sovereigntyof Qatar. The letters stated two exceptionto
this general rule concerning areas where the Sheikh of Bahrainwas recugnized by
the British as havingsovereign rightson the Qatari side of the line. The first area
related to the shoals of Dibal and Qit'at Jaradah. and will be discussed in a
2
subsection D beluw. The second is described as folluws:
"Hawar Island, the islands of the Hawar group and the territorial
waters pertaining thereto and delirnited a ain in accordance with
the usual principlesof international law. "rhese islands and their
territorisilwaters are shown on the msipenclosed by the lineA, B,
C1 D1E, F?G, H. 1:J, K. and L. As this delimitation will,however,
leave a narrow tonsue of water (formed by the points M, J, and 1)
pertaining to Qatar it lias been decided tu alter the liH, 1,J, to
H, P, Q, thus exchanging an erlualaren P 1 O for O J Q. It should
be nuted that Jannn Island isnot regarded as being included in the
islands of theawsirgroup."
The line referred to inthe letters, includingthe line clroundthe Hawar group, is
shown on Mau No. 3,facingthispage.
2. Thenftermnth ofthe 1947 decision
2.55 The reaction of the Ruler of Qatar to the British decision may be found in
:iletter dated 21 February 1948to the PoliticalAgent in~ahrain~~. As menticmeci
inparagraphs 20-22 ofQatar's Application,Qatar hasnot opposed the part of the
linewhiçh the British Government stated was based on the configuration of the
coastlines uf the two States and was deterrnined in accordance with equitable
principles. On the other hand, Qatar has rejected and continues to reject that
part of the linewhich enclaves "Hawür Island, and the islands of the Hawar
group". Qatar has alsorejected and continuesto reject the treatment of thDibül
and Qit'at Jaradah shoals.
2.59 Bahrain has protested agüinstthe line itselfawell as the treatment of the
Hawar islands and of Dibal and Qit'at Jaradah, The reaction of the Ruler of
Bahrain was communicated to the Political Agent ina letter dated 31 December c. .
63 Annex 1.55.Vol. p.321. 1947'~. While tlie Ruler macle general claims t» ;il1the seas lyinghrtween the
coast of Bahrain and the Qatar peninsula, he also asserted that the Dibal and
Qit'at Jaradüh shoals shnuld have fdlen on the Bahraini side of the line, sincl
vbjected tci the enclave around the Hawar islands, arguing that it should bave
been extended tbincliide Jsinünisland. In ccinclusion,the Ruler conteildecith-t
"...the delilnination [sic]described in your letter should be
reacijusted and the dividing line should run from and including
Jinan up to the north east corner of Dibal, including the whale
length of the shaal which stiirts at Sitra and wliich appears above
the surface at Dibal aiid Jarudali."
2.60 As will be expIajned in inore detail in Section 1 of Chapter IIIbelriw, in
September 1964 Bahrain again requested the British to make a inodification of
the line indicated in the 1947 decision, moving it eust and extending it into the
maritime area to the north of the Qatar peninsula. 1talso alleged that Dibal and
Qit'at Jaradah were islands with territorial waters and belonged to ~ahraiii'~.As
noted above, the British Government concurred in Qatar's proposal that such
lnatters ke referredto arbitration6 .
2.61 These events show that ü legal dispute began in 1947between Qatar and
Bahrain over the extent and delimitation uf their respective areas of seabed as
originallydefined by the British Government. In additiun, the two States have not
reached an agreement for the delimitation of the disputed northern area hetween
the Bahrain Light Vessel, which is the northernmost point of the line indicatedin
the 1947decision, and the Gulf median line. Such a matter, bearing on sovereign
rigl~tsover maritime areas and the deIimitntion thereof, is indisputilbly an issue
governed by international Iaw. The respective protests of Qatar and Bahrain to
the delimitation of the seabed made by the British Government and the opposed
claims of both States with regard to the northern area which had not been
delimited by the British Government show that the views of the Parties on this
issue contl'lictin matters uf fact as well as in matters of Iaw. This dispute has
çontinued untiltoday.
64 Annex L54,Vol.II,p.315.
65 AnnexL56,Vol. Il,p.327.
66 See,Annexes 1.5and 1.58,Vol. pp.351and363. -
D. The Dis~ute relating to the Dibaland Oit'at Jaradai?Shoals -
2.62 Although dealt with by the British iii the context of the delimitation
described above, the dispute over the Dibal and Qit'at Jaradah shoals involves
different considerations of law and fact and thus has to be dealt with separately.
The two shoals, which lie close to each other, are shown on Mau No. 2, facing
page 19. Dibal Iiessome 11nautical milesfrom Qatar, and 15nautical miles from
Bahrain. Qit'at Jaradah lies approxiniately Ilnautical miles from Qatar, and a i
12nautical miles from Bahrain. Dibal is a coral reef, and Qit'at Jaradah is part '
coral reef, part sand bank. Dibal remains completelysubmerged at high tide, and
the only features permanently abovewater are or were artificialstructures. This
is confirmed by the 1982 edition of the Persian GulfPilotwhich Statesthat "Fasht
ad Dibal ..dries in places and itN edge is fairlysteep-toa7". The southern edge
of Qit'at Jaradah, which is a sand bank, varies in shape and elevation with the
wind68. However, the whole of the shoal is usuallycovered bywater at high tide,
and the onlyfeatures whichremain permanently above water are artificial. Thus,
as for Dibal, the Persian Gulf Pilot reports that Qit'at Jaradah "dries in patches".
The shoals were and are still today in their natural state totally incapable of
sustaininganyhuman habitation oreconomic life.
1. The British decision of 23December1947 on the Dibal and Qit'at
jaradah shoals
2.63 During the negotiations over the unallotted area, Bahrain had alleged that
Dibal lay withinthat area. However,the question of Dibal was left pending after
the 1939decisiononHawar.
2.64 In a letter of26 March 1940to the PoliticalResident, the Political Agent
set forth what amounted to Bahrain's casefor its daim to sovereigntyover Dibal
and Qit'at Jaradah. He stated that he had found no evidence that the Ruler of
Qatar had ever claimedDibal, and that Bahrain had erected a "nationalmarkt'on
both Dibal and Qit'at Jaradah in the winter of 1937-38, with no protest from the
Ruler of Qatar. This in hisview was sufficientto establish Bahrain's rights over
the shoals,although he added that ifhe were instmcted to enquire from the Ruler
of Qatar whether he claimed them, the Ruler would undoubtedly accept the
c z
67 Annex1-66, Vol.IIp.423.
68 Ibid p. 424.iniplied suggestion and make a claim. The PuliticalAgent aIso repcirted tliat he 1
h;id been informed that at al1states of the tide a sinal1 part of both shoals
rcinciinedexposedo
2.65 After the Wnr Belgrave, the British Adviser to the Government of
Bahrain, sent a series of letters to the Political Agent, which contained an
increasingnuinber of allegatiunsin support of Bahrain'sclaiin to soveleignty mer
the Dibal and Qit'at Jararlah shouls. Meanwhile, in a letter of 13 Juiy 1946,the a .
3
Ruler of Qatar had put to the Political Agent the bslsisfur his own claiin to the
70
shoals .
2.66 On 2 Deceinber 1946,the Pvlitical Resident stated that the question of
ownership of Dibal and Qit'at Jaradah was not a separüte issue but should be
deiilt with in the context of the maritime delimitationil'. However, ilsnoteci
ahuve, the idea that Dibal and Qit'at Jaradah should cause any deviation of the
line of delimitation was ultirnatelyrejected by the British authorities. It was iilso
decideù that the shoals shouldnot generare territorial waters, but that Bahrain
should be recognizedas havingsovereignrightsover them.
2.67 The relevant part of the British decision of 23 December 1947 reads as
foIlows inthis regard:
"His Highness the Shaikh of Bahrain is recognised as having
sovereignrights in
(i) The areas of the Dibal and Jüradah shoals which are above
the spring tide low-water level. After a full exainination of
the position under international law, His Majesty's
Government are of opinion that these shoiils shfYld not be
considered tu be islandshavingterritorial waters ."
Gy Annex 1.44,Vol. II. 251. At tliitime.therc wasdoubt as to the physicanatureof
thcseIwofcatures. It bad earlicrbeenassumedthal Dibalwanisland.Howcver, inthe
PoliticalAçenl'leuerieSerred10hercil waslaled thatborliîealureswerereeîs.
70 Annex 1.47,Vol.IIp.269.
71 Annex 1.49Vol. Ip.277.
72
Annex 1.53,Vol.IIp.311. 2. The aftermnth of the 1947decision on the Dibal and Qit'atJaradah i
shoals
2.68 As stated above, bot11Bahrain and Qatar have objected to the British
decision on Dibal and Qit'at Jaradah contained inthe letters of 23 December
1947~~. In a Mernorandum of Septe~nher 1964, Bahrain alleged that these two
shoals were islündsand should cürryterritorial waters for thebenefit ofBahrain.
This was denied by Qatar both infact and inlaw and the British Government a2 c
concurred with the proposal of Qatar that this rnatter be referred to
74
arbjtration .
2.69 These events show that a legal dispute between Qatar and Bahrain
çoncerning their sovereignty cir their sovereign rights over the features called
Dibal and Qit'at Jaradah began in 1947. Such a matter isindisputably an issue
Coverned by international law. Theviews of the Parties on this subjectconflict in
inatters of fact as well as in inatters of law, and the dispute has continued until
today.
Conclusion s
2.70 In view of the zibo~ve, atar maintains that the three subjecton which its
Application requested the Court to pronounce are disputes of a legal character
which are governed by international lawand which remain outstanding. Theyare,
therefure, in Qatar's submission, admissible disputes in accordance with the
Statute, theRules and the jurisprudence of the Court.
73 See,paras..582.59above.
74 W. Section 1ofChaprerII1below. persons chosen as i~eutrr-lrbitrators and abiiiit their terrns of
rekrence, 91 should he kept informed of the course of the
negotiations ."
The British Govrrnlnent thus acknowledged the fact that neitl-ierits July 19.39
decisiun on the Hawar islands ilor the Deceinber 1947 decision delirniting the
seabed between Qatar and Bahrain and granting Bahraiil sovereign rights over
the Dibal aiid Qit-at Jaradah shoals had been üccepted !>ythe Parties, and thüt
there wüs a continuing dispute. It therefore gave its blessingto proposuls to have
2
the dispute settIed by arbitration. Itwas now 21question of consulting with the
BritishGovernment with a viewto choosing arbitrators. 011 SNovember 1965,the
Government of Qatar inforined the PoliticalAgent in Dohü that it had üppointed
Prafessrir ChiirlesRousseau as itsarhitrat~r~~. On 12Decemher 1965,the British
79
approved this nomination .
3.04 On 30January 1966,the Government of Qatar sent aletter to the Political
Agent in Doha enclosing a draft arbitratiun agreement. Article 3 of this
ktgreementcontained two questions to be addressed to the arbitral tribunal. The
first cnneerned the delimitation of the maritime areas, the second the attribution
of snvereignty over the Hawar islandsso. However, progress on this procedure
was suddenly halted when on 29Marçh 1966 the Political Agent informed the
Government of Qatar that the Government of Bahrain had now taken the
position that, if there was to be recourse to arbitration, it should be liinited to the
issue of theline of delimitation and shouIJ not include anyquestion relutingto the
Hawar islands 81.
3.05 Asa result of thisinfor~nation, siprotest was addressed by the Government
of Qatar to the British PoliticalAgent inDuha, in a letter düted 13April 1966~~.
Itwas inaintained by Qatar that the two States hcldalready ugreed on arbitration
to cover both the issuesof the Iineof delimitation and the Hawar islands and thsit
jt was unacceptable for Bahrain now to try to limit the issues in question just tu
77 Annex 1.58,VolII,p365.
7X
Anilex1.59,Vol.II,p,167.
Annex 1.60,Vol. Ip.371.
Annex1.61,Vol. IIy.375.
YI
Annex1.62,Vol. IIp.387.
82 Annex1.63,Vol. IIp.391.the liilt) delimitation.Qatar went on to insistthat direcamicable means coiild :
not settle the dispute and that arbitratiun was necessas., and that Bahrainand
Qatar had previously been in agreement on this issue.There was no response to
this frolBalirainwho thus frustrated thisattempt at arbitration.
3.06 In April 1967, however, negotiation did hriefIy recommence with a
Bahraini proposal concernjng the maritime areas under dispute, but thisproprisal
was rejected by Qatar in July 1967 inter alia becnuse again it gave no a
consideration to the status of the Hawar islands. Instead, Qatar made an :
>ilternativesuggestionwhichincluded proposals relüting tthe Hawar islands.
3.07 Frnm July 1967 to May 1969no response was given by the Government of
Bahrain to Qatar's proposals. On 6 May 1969,the Government of Bahrain finally
replied, rnakingcertain further proposals concerning the maritime areas between
the two States but again excludingthe Hawar islands. These were therefore also
found unacceptable byQatar.
3.08 No significantfurther progress was made until the commencement of the
Saudi Mediation which is discussed in the next Section, although protests at the
de facto situation cuntinuedS3. In the interim, the British, having annuunced
their intention to withdrawtheir forces from the Gulin 1965,finallyleft the areü
east of Suez in 1971. Thus, when the British presence in Bahrain and Qatar
ended on 15August and 3September 1971,respectively, thedisputes between the
twtiStates remainedoutstanding.
SECTIO 2.N
The Mediationof SaudiArabia
A. The1978 Principlesfor theFramework to rencha Settlernent
3.09 In view of the pre-eminent position of theKingdom of SaudiArabia and
the high regard and esteem in which itisheld by al1the Arab Gulf States,Qatar
decided to seek the &ngdomTsguidance and help in achieving resolutionof its
existingdisputes withBahrain.
83 Annex LM,Vol.II,p.409.3.10 la 1975, during a visit to Qatar of His Highness Prince Fahd bin Ahdiil:
Aziz, the Heir Apparent of Saudi Arabiel, issues relatingto the disputes were
niised with him. Soon üfter this visit the Ainir uf ~atar,' Sheikh Khülifa bin
Hamaci Al-Thani, addressed a letter dated 21September 1975 to His Majesty
KingJShalid ofSaiicIiArabia in whichI-istated:
"1have zilreadyspoken to His Royal Highness, Prince Fahd bin
Abdul Aziz on this subject of the dispute raised without any
legitimate or acceptable authority by sisterly Bahrain. 1 presented
to H.R. Highiless a briefmemo on the sirhject,explainingthat we,
on our part,have donr all that is brotherly possible, and offered al1
possible proposajs for a cordial setthment of the subject, which
wciuld restore to the rightful his due.But al1those attempts and
proposais were to no avail.
Sinccthe question of the suvereigntyof anystate over its territory is
a mntter that cannot be coinpromised, but rather it is the most
iinportant duty of the statto safcgiiard this suvereignty,1deçided
that my brother Siihaiin hin Hamad Al-Thani should ha 83,ihe
honour of meetingwithyou and listeningtu your sound views .
3.1I The issues-inthe pending disputes were again taken ~ipwith King Khülicl
during his visito Qatar early in 1976. Al1 aspects of the disputes with regard to
the Hawür islands, the Dibal and Qit'at Jaradah shoaIs and the enclave around
the Hawar islandswere disciissedwitlihim.
3.12 Thereafter, as a result of meetings diiring 1975 and 1476 between King
Khalid, the Amir of Qatar and the Amis of Bahrain, it was agreed tbat the
Kingdoin of Saudi Arabia would undertake ~nediation between Qatar and
Bahrain to resolvethe outstanding disputes.
3.13 During the fvurteen years that folluwed, in the process of the agreed
Mediatiun, the hng of SaudiArabia took varivus initiativesand actions, outlined
belaw, to seek a rescllutionof the disputes and toprevent a deteriorationin the
traditional friendly relationship between Qatar and Bahrain. These efforts by
Saudi Arabia as Mediator were directed, at cljf'rent tiines. at securing a
settlement cifthe substance of the pending disputes, at submitting the mütter to
adjudication, and at preventing or resolving incidents creating tensivn between
the Parties.
g4 Annex 1.65Vol. Ip.417.3.14 In the course of the Mediaticin, King Kh~rlidof Sa~idjArabia propr)sed, - -
early iii 1~78~~a set of"Principlrsfor the Fren~eworkfor Readiing a Settleinent"
[hrrrafter referred to as "the ~rarnework")~. The First Prinçiple of the
Frarnework provided thnt:
"Al1 issues of dispute between the two countries, relating to
sovereignty over the islands, inaritiine boundaries and territorial
waters, are tnbe considered as complementary, indivisible issues,to
be solvedcomgrehensivelytogether."
This First Principle demonstrated the understanding of the Parties that the
siibject matter of the dispute between Qatar and Bahrain included questiuns of
sovereigntyover certain islands,maritime boundaries, and territorial waters.
3.15 The Second Principle pruvided for the maintenance of the status quu and
declareci that any act to change the status uuo would have no legal effect. The
Third Principle incorporated undertakings by the Parties to refrain from engaging
in propaganda activitiesagainst each other or to do anything to sullythe cordial
atmosphere necessary to facilitate fruitful negotiations and not to present the
dispute to any international organisation. The Fourth Principle envisaged the
formation of a Committee with representsitives from Qatar, Bahrain und Saudi
Arabia "with the aim of reaching solutions acceptable to the two Parties on the
basis of justice, good neighbourhood, balance of interests and security
requirements of both Parties".
3.6 The Fifth Principle,as originallyproposed, provided that:
"TheParties shall undertake tosettle aildisputed matters bycordial
and peaceful means by agreement throu ~hnegotiations. Should the
Partles faito reach a reeinent on any o kthe disputed matters, they
will uuthorize the !hngdom of Saudi Arabia to ropose ri
comprrirnise on the point or points disputed, whic k'shall be ,
considered to be the solution agreed upon between the Parties."
s5 Theorigin dalaftofthe Erameworkwüs daled 13March 1978, andnot 17April1978 - i
(whichwas thedate of ils rweipbyQatar) as meniionedinparagraph28 of Qavar's
Appliatiun.
86 ~iinex11.1.ol.111,.3. -
The draft of the Frarnework was disçussed on various occrisionsand by a u-
Verbale of 10June 1981, SalidiArabia fcirinallysought the views of Qatar on the
puposed ttextX7. In a Note Verbale in respuiiséof 2July 1981 to Saildi Arabia,
.
the Ministryof Foreign Affairsof Qatar submitted that -
"Sincethe circumstancesof the dispute under consideration :ind the
efforts tcresolve itare extreinely sensitiveclue tothe fact that the
two dispiitingStates are linlred byvery intiinate ties of brotherhuod
and strung relations of coininon interest. and are also linked tu
their biggersister Saudi Arabia bythe siimeties and relations;and
Since the dispute is a prirely legal one, as has already been made
çlear;
For al1these reasons, and in order to avoid any embürrassment
wliich could arise froin the above-mentioned sensitivityin case uf
t'ailure to resolve the dispute through the fraternal Saudi good
offices:
..the sesolution of the dispute be Ieft to the rule of law, t&t isto
the principlesand rulesof international lawwhichgovern itc '."
Qatar consequentlyproposed the fullowingatnended text of the Fifth Principle:
"ln case of failure of the negotiatinns provideclfor in the Fourtli
Principle to reach agreement on the solution of one or more of the
tif('orementioneddisputecl matters, the Governments cif the twu
Parties undertake to consult the Government of the Kingdoin to
determine the best possible ineans to resolve that matter or matters
in accordance with the provisionsof ii~ternationallaw. The decisicin
rXthe authority, which will he agreg,#upon for this purpuse, shall
be final and binding on both Parties ."
3.17 The consideration of the proposed Framework extendeà over aperiod of
ycars untilMay 1983". During this period Bahrain engaged invarious acts and
made provocativemedia statements whichheightened tension between Qatar and
Bahrain. Soine ofthese are described in the Amir of Qatar's letter of1April 1950
to King ~halid". The worst incident during this period occurred on 3 and
4 March 1982,when Buhrain inslugurated a bsittleshipcalled "Hawar"and carried
o7 Annex11.3V. ol. 1,.15.
S3 Annex 11.4Vol. IIp.23.
s9 m., pp.23-24.
-1e paras3.19-3.2below.
Y Annex 11.2, olIIIp.5. outrnilitary exerciseswithljveammunition in the area of the Dibal shoal. Qatar -
regisiered a strong prntest ügainst these actions which were also the subject of
letters exchanged betweenthe Ainir of Qatar and KingKhalid on 6 and 16March
198292.
B. The Guîf Couwration CouncilResolutionsof 1982
,..>
3.18 These events and the disputes between Qatar and Bahrain were brought a $
to the attention of the Gulf Cuoperütion Counçil ("GCC")whiçh, at a Ministerial 1,
meeting on 8 March 1952,resolved as follows:
"Firstlv:The Kingdom of Saudi Arabia is requested to resume its
pood offices im~nediatelyfor the purpose of ending the dispute
between the two countries.
SecondIv: The agreement reached hy the States of Bahrain and
Qatar to undertake to freeze the situation and avoid anyaction that
might escalate the dispute, is to be reçorded at the General
Secretariatof the CoopercitionCounçil.
Thirdlv: Cessation of thereciprocal media campaigns between the
two countries, and abstention from recourse to 'propaganda'.
Fourthlv: Confirmation of the continuation of fraternal relations
between the wo countries, and restorütion of the situation tnits
former state95.11
C. TheMeetinpi.nMav 1983
3.19 Pursuant to an agreement, reached at the time of the GCC summit in
Bahrain in November1982, between His M~ijestyKing Fahd bin Abdul Aziz of
Saudi Arabia (who succeeded King Khalid inJune 19821,the Arnir ofQatar and
the Amir of Bahrain, Saudi Arabiaconvened a meeting of the Parties in Riyadh
on 22May 1983 "to discuss the dispute on Hawar Islands and the maritime
b«undariesg4". The meeting wus attcnded by representatives of Saudi Anibia,
Qatar and Bahrsiin.This meeting finallyapproved the Frümework proposed by
SaudiArabia in 1978,but incorporating the amended Fifth Principle proposed by
92
Annexes11.5and11.7,Vol111,p.25and27.
93 Annex11.6V, olIII,pp.35-36.
g4 The Saudi Arabiacornmunicalionof10 May 1983andQalar'sleuer of accepiancol
11May 1983 areAnnexes11.8and11.9, olIIpp.41 and45.aatarg5. The meeting aIso recoinmended, inter alia, thnt Prince Naif bin Abdul:
Aziz otS'audi Arabia would visit Qatar and Bührain to continue the Saudi good
of icespursuant to the Fourth Pi-incipleofthe Ffainewnrk.
3.20
Driringthe period followingthe meeting of 22 May 1983,despite efforts
inade by Saudi Arabia and in particular by Prince Naif, no signifiçant progress
was made in achievinga settlement of the disputes. Ilithe rncantiine there weüe
number of occs\sionswhen Qatar found it necessay to protest against actions un a +
1,
the part of Bahxsiinwhichwere considered by Qatar to be contrary to the Second
and Third Prinçiples of the Fi-ainework requiring the Parties to maintain the
status quo and to refrain from acts that woirldimpede or sullythe atmosplierefor
negotiations96 .
D. The 1986Incident cuncernina the DibalShoal
3.21 ByApril 1956,Qatar had discovereclincreasjng evidence that, contraiy tu
the Second PrincipIe of the Frarnework, Bahrain had undertaken sume
construction work on the Dibal shoal in an attempt to transforin it into an
artificial island, and had built on it a hcility tu makeapost fur its çoastguard.
On 26April 1056,Qatar sent a securityforce toput an end to this violation.Saudi
Arabia immedisitelyintervened by diplornatic action and increased its efforts tu
resolve thedispute between the twoStates.
3.22 In order to find a solution to the irnmediate problem, KingFahd of Saudi
Arabia made a number of proposüls for steps to be taken and terms to be
observed by the Parties on the bais of which troop withdrawsilscould take place.
The proposüls were considercc1and finalized in an exchange af letters between
tlir Anir of Qatar anclKing Fahd in April and May 1986~~.These pri>pusiils(the
acceptslnceof whichby the Parties was confirrnedin KingFahd'sletter of 22May
198~~~)envisriged inter dia, the establishment of a joint cornmittee to study al1
matters relating ru boundary questions and the continuation of Saudi Arabia's
Mediation.
95 The lexofthe 1983Framewurk iAnnex II.10,Vol. 1,.49.
96
A summary of Lhesactionsis conuiiina leiteOCIGFebruary 19% hm theAmir of -:
Qatarlu KingFahdwhichisAnnexII.11,Vol. IIp.53.
97
Annex 11.12, olIIIp.63.
W., p.86. -
3.23 ln respunding to the proposa1 for such sijoint comrnittee. the Ainir of
Qatar stateclas folIowsinhisletter of 6May 1986:
"...1 need not say ttoYoiir Majesty that 1 do welcome such a
committee tu try to find for these rnatrers the desired, and cordilbl,
just solution for which we have done our best, as Your Majesty is
aware, to reach with the brothers in Bslhrain who have met our
effortsand approach with disregard and nepleçt. Myonly requcst is
that a specific reasonable term be laid down for this cornmittee to
çoinplete its task. If it succeedin attaining that dear wish during
the setperiod, then itwould be inost blessed.But should it fail- and
we do sincerely hope it wil1suçceed - then 1would like to reinind
Yoiir Majesty that the State of Qatar has already pruposed, while
expressing its viewpoint on the Saudi proposal containing the five
Principles constituting the Framework fur the soliition of this
dispute, that in the event of the impossibility of finding through
negutiütion a solution acceptable to the two Parties, the rnatter
should be settle$Jn accordance with the principles and rules of
international law ."
3.24 KingFahd alsomade it clear inhisletter of 14May 1986that -
"In case Saudi Arabia isunable to find a solution acceptable to both
Parties,the matter will besubmitted to an urbitrsitioncommission
to be sanctioned by both Partie ciwhuse rulings shall be final
and binding upcin the two fartiesS@l.
3.25 No joint committee as envisaged in the proposals mentioned above was
however formed. Only a Joint Military Cornmittee was formed to monitor
irnpiementation of the agreement on troop withdrüwals.The events of April 1986
were also considered by the GCC. It is relevant to mention that in a
Memorandurn to the GCC on 27 August 1936Bahrain reaffirmed its adherence
to the necessityof soivingthe disputes between the States of Bahrain and Qatar in
accurdance with the principles of international law and the United Nations
Charter, which cal1for the resulution of disputes between countries by peaceful
means and prohibit recourse tu force fortheir solution.
Annex 11.12, olIIIpp.73-74.
m., p.79.Sisc-.i.~i. The Agreenieiit of 1987;icceptiiir tlie Jiirisdiction oftheCotirt -
A+ TlleAgreementofDecember1987
3.26 During the year thiit followed, various cornplaints by both Parties about
infi-ingeirients ni' tlie Secoiid frinciple of tlie Frainework, reqiiiririg the
inziintenance of the status quo, ctintinued ta be made. SsiudiArabia increased its
efforts to mediate and on 15Jiily 1955c 7onveyed some of its ideas on resolving the a c
:
prohleins of "the disputed Hüwar Islands, Dibal and Jaradah Shoals and the sea
territuries" and sought the virws of Qatar iind E3shrain1°1. 111his response of
24August 1987,the Amir of Qatar reiterated Qatar's position that -
"..for the reüson that the siibject of the dispute is the right of
wvereignty, which is a purely legal subject, settling it in a friendly
way can oniy be achieved by referring itto internatiolial arbitratinn
s11as t« apqb2the establislied international legal i-uleswliichgovern
tlie subject ."
3.27 Thus, efforts in the course of Saucli Arabia'sMediation over the past
eieven years to secure an agreement on the substance of the disputes had not yet
been sucçessfu1.In view of this, King Fahd of Saudi Arabia wrote identical letters
103.
to the Ainirs of Qatar and Bahrain on 19Decernber 1987 in whiçh he stüted .
"The contacts made by the Kirigclum of Saudi Arabia with the two
brotherly countries resulted in a proposal, presented by the
Kingdom of SüudiArabia and approved by the two countries, thüt
the matter be referred to arbitration in accordance with the fifth of
the principles of the framework for a settlement. which you saw
that it should read as follows:
'ln case that the negotiatinns provided for in the fourth
principle ftiilto reach agreement on one or more of the
aforesaid disputed inatters, the guvernments of the two
countries shall undertsike, in consultation with the
Government of Saudi Arabia, to determine the best means
of resolving that matter or matters, on the basis of the
provisions of international law. The ruling of the authority
iigreed upon for this purpose shall be final and binding.'
lol AliticxII.13,Vol. Ip.91.
lU2
AnnexII. 14,Vol.III.p96.
Iu3
See, Annex 11.15,Vol. IIIp. 101.Bahrsin acknowledgedthat it receivedan idcntiail
Ker to that rcceivedhy Qaiarat pdge1 ofthe Anncx attachedtoitsleiter 011August
1991, In the light of the foregoing. 1 am happy to present to Your
Highness and dear brother. the following proposais as a basisfor -- .
settlingthe dispute:
Firstlv: Ail the disputed rnatters shall be referred to the
International Court of Justice, at The Hague. for: a final ruling
binding upon both parties, who shall have to execute its terins.
Secondly: Until a fins1 settleinent for the disputed matters is
reüchecl in accordance with the preceding Article, the two sisterly
States of Qatar and Bahrain shall abide by the principles of the
frümework for a settlement on which they agreed on 10/5/1403 H -
corresponding to 22/5/1983 -and bythe followingin partiçular:
Each party shall undertake from to-date to refrain from any
(a) action that would strengthen its legal position, weaken the
legal position of the other party, or change the status quo
with regard to thedisputed rnatters.Anysuch action shallbe
regarded nul1sincivoid and shail have no legal efkct in this
respect.
(b) The parties undertake to refrain frcim to-date frorn any
media uctivities against each other whether in conneetion
with this dispute orany other lnatters and until suchtime as
the desired settlement isreached.
(c) The parties undertake to refrain from any action thot would
impede the course of the negotiations or disturb the
brotherly atmosphere necessasr for the achievement of their
objectives.
Thirdl~: Formation of a cornmittee comprising representatives nf
the States of Qatar und Bahrain and of the Kingdom of Saudi
Arübia for the purposeof approaching the International Court of
Justice, and satisfjling the necessary requirements to have the
dispute submitted to the Court in accordance with its regulations
und instructions so that a final ruling, binding uyon both parties, be
issued.
Fourthlv: The Kingdoinof Ssiiidi Arabia will continue its good
officesto guürantee the implementution of these terms."
Together with his letter King Fahd also enclosed a draft of a proposed public
announcement to be made by the Saudi Arabian ~overnrnent''~.
Annex 11.15, olIIIp.105.3.28 Both Qatar and Bahrain accrptrd tliis pruposa1105.The Governinent of:
Saudi Arabia thereafter proceeded to make a public announcement of the
Agreement on 2 1Deçernber 1957in terxnsof tlie draft previouslycoininunicated
to Qatar and al ira in' Th e.e hes Iiçeii no denial of this Agreemen17)rifhei-
Party.
B. The PurposeandContentofthe December1987Agreement
I <
3.29 Itwi1l be seen frain the terms of the Agreement set out in King Fahd's
lettei of 10Decernber 1987above that the first item of the Agreement, k.. that
"Al1the disputed matters shallbe referred to the International Court ofJustice, at
The Hague, for a finalruling bindingupon both parties, who shall haveto execute
its terinstfis clear and unclualifitrd.Both Qatar and Bahrain gave their uncliialified
consent to this proposal.
3.30 The second item is essentiallydirected towards maintenance of the status
gg.
3.31 The third item ~îrovidedfor the formation of a coininittee coinprised of
representatives of Qatar, Bührain and Saudi Arabia "for the purpose of
approaching the InternationaI Court of Justice". This Colnrnittee (hereinafter
referred to as the "Tripartite Corninittee") wasto ensure coinpliance with the
regulations andinstructions of the Court sothat a final and binding ruling could
be obtained.
3.32 Itwillbe noted that the terins of this itein are "enabling"and procedural in
nature and do not in anysense detract from the consent and commitinent of the
Parties under the first item to refer their disputes to the Court. There isno
implication here that üny particular method or procedure is to be followed tn
invoke the jurisdiction of the Court as agreed under the first item. The
participationof SaudiArabis inthe Tripartite Cornmittee wasclearlyintended to
help the Partiesto work out the rnodalitiesso as to approach the Court hy any of
TheAmir of Qatar'slelter accepiancdaied21 Decemher 1987is Annex11.16Vol.
IIIp.107.
Annex II.15,Vol. p.105.the rnethods available in accordance with the Statute and Rules of Court. This is - -
fui-thersiipported hythe fourth item whjchprovided for the continuation of Salidi
Arzibia'sgood offices"toguarantee the iinplernehtation of these terms".
3.33 This ~ireement of December 1987, by expressly invoking the Fifth
Principle of the Framework, was thus ciearIy intended as a final and effective ,
>..
basis for achieving resolution of the long existing and established disputes
between Qatar and Bahrain. This Agreement secured by Siiudi Arabia did not
"> $
envisagefailure or frustration.
Sec~ios4. TheWork ofthe Tripartite Committeeon Methods toapproochthe
International Court ofdustice
3.34 Pursuant to the Agreement of December 1987,the Tripartite Comrnittee
consisting of high level delegations including the Foreign Ministers of Qatar,
Bahrain and SaudiArcibia,held a prelitninary meeting in Riyüdh during the GCC
summit meeting in December 1987.At this meeting each Party presented a draft
agreement, with the aim of effecting the seisin of the Court in cornpliance with
the rcquirernents of the ~ourt~". A forinal First Meeting of the Tripartite
Curnmiftee wes held in Riyedh on 17January 1988''8 In opening the Meeting
Prince Saud Al-Faisal of Saudi Arabia stated that the deliberations of the
Committee were governed bywhat had been agreed either in the Five Principles
of the Framework or in the Deceinber 1987Agreement and defined the main
purpose of the Meeting as being the consideration d ways and means fur
referring the disputes to the Court in accordance with the conditions and
procedures of the Court. The Meeting considered the drafts of the proposed
agreements thnt had been presented at the preliminary meeting by Qatar and
Bahrain as well as an amended draft from Bahrain in regard to the method to he
adopted to implement the Agreement of December 1987 to approach the
~ourt'". No agreement could hauever be reached at this Meeting. In view of
these differences Prince Saud reminded the Committee of the commitinents
incorporated in the Decernber 1987 Agreement and the legaland inortif duty uf
lU7 &, Annexes11.17and11.18.Vol. III,pp.113and 119.
lU8 A copy of theeniireMinuies oflliiMeeting inArabichasbeen deposiiedwith ilie
Regisiryin accordanwilhArlicie 50paragraph2,uî theRules01Court,loglher wiih y ;
anEnglishtranslation.
Iü9
A copyOC BtlhrainamendeddraltisconlainecinAnnex Il19.Vol.IIIp.123. -
the Coininittee to transfurin these into a coinrnunication to be subinitted tu the:
Coiirt. He observed that there could be rlo pussibilityufhijure il1dischsiigingtliis
duty as otherwise the Coinmittee woulclnot be hbncluringits commitments.
3.35 In the final Minutes (-ifthe Meeting signed bythe Foreign Ministers of the
three States, itwasstated:
"The Cornmittee met to consider rneüsures through whiçh the
coinmitinent of the State of Bahrain and the State of Qatar Ici
subniit the dispute existing betw 1 thein to the Internatinna1
Coilrt of Justice willbe carried outfi?.)
The Minutes further recoi-ded a decisirin to hold the next meeting on 2 April
1988,andin the ineantilne the Parties were to exchange by 19Mürch 1988drafts
of u proposed agreement for rei'erringthe disputes to the Court.
3.36 The Parties duly submitted such drafts of a possible text of a special
agreement. Qatar's draft dnted 15 Mtirch 1988saught in Article IItu have the
f(illowingreferred to the Court:
"The questions for the decision of the Court in accordance with
Article 1are:-
1. To which of the two States does sovereignty over Hawar
Islandsbelong '1
2, What isthe legal status of theDibal and Jaradeh shoals ? In
particular, dries either State have suvereignty, if any, over
the Dibal or Jaradeh shoülor any part of either shoal'!
3. By a letter dated 23Deceinber 1947, the British Political
Agent in Bahrain informed the Ruler uf Qatar and the
Ruler of Bahrain of the decision of the British Guvernment
estahlishing the existing mediün line which at present
determines the respective continental shelves of the two
States. Does that median line represent the right boundary
between the saidcontinental shelves '?
4. Having regard to the answers to questions one, two and
three, what should be the course of the boundnry or
boundaries between the maritilne areas uppertuining
respectiyry to the State of Qatar and the State of
Bahrain ?"
l0 Annex 11.20, ol. II11.31.
111 Aiiiie11.21, ol. 1p,.136. -
3.37 However. Bahrajn's draft ofMarch 1988 praposed in ArticleIlCl) and (2) -
of a possibletext of a specialagreement the followingfor reference tothe Court:
"1. The Partics request the Court
to draw a single inarititne boiindary between the
(a) respective 1n;iritime cireas of Bahrain and Qatar;
such boundary to püss between the easternmost
featiires of tie Bahrain archipelago including inost
pertinently the Hawar Islands, Fasht ad Dibal and
other adjacent or neighbouring features and the
coast ofQntar. and tu preserve Bahrain'srightsin the
pearling banks which lieto the north eüst of Fasht ad
Dibal, and in the fisheries between the Bahrain
archipelago and Qatar.
(b) tu determine the rights of the State ofBahrain in and
around Zubara.
2. The Court is recluested to describe the course of the
maritime boundary in terms of geodetic lines ccinnecting
ieographic cciordinates of points on Revised Nahrwan
baturn. The Court is alsoreqiiested.for illustrativ1Yi'Iies
only,to depict the course ofthe boundary on a çhart .
Furtherinore, by Article V Bahrain sought to include the following in the
agreement:
"Neither Party shall introduce into evidence or argument, or
direçted to a settlement of the issues referred to in ArticIIof this
Agreement, or responses thereto, in the course of negotiations or
discussionsbetween the parties undertaken prilir to th te of this
Agreement,whether directlyor through any mediation r .
Thus Bahrain's draft of the subject matter of the disputes to be referred to the
Court in effect required an implied recognition by Qatar that the Hawar islands
and the Dibal and Qit'at Jaradali shoaIs belongedto Bahrain, and the questions
proposed by Bahrain only asked fur a decision of the Court on a maritime
boundury based upon such recognition, despite the fact that the December 1987
Agreement clearly envisaged that disputes relating to these islands and shoals
were pending. Furthermore, for the first time Bahrain raised a clai-which atno
time had beenthe subject inatter of Saudi Arabia's Mediation since 1975 -fur the
determination by the Court of Bahrain's alleged rights"inand around Zubara" on
Annex 11.22,Vol111,p.141-142.the western cnast of Qatar, wjtllaut any indication of the nature or basis of such:
rights. In addition, in its draft, Bahrain also soiight an agreement that neither
Party would make any reference during the prokeedjngs before the Court tci any
proposais directed to asettleinent of the issuesin dispute.
3.38 Tnhis letter to King Fahd of 25 Marc111988 written immediately after
receipt of Bahrain's draft, the Ami1 of Qatar expressed grear surprise at the >8
flagrant violativn byBahrain of the Agreement reached between the three States a
in 1957.ln cornmenting on Article II(1) of Bahrain's draft the Amir of Qatar ?
stated inter alia:
"1) T11e Bahrnini draft - instead of presenting the dispute
actually existing between the twci States with re ard to
sovereipnty over Hawar Islands and Dibal and faradah
Slioals, and over the legal status of these two Shoals as
regards their being islslnds or shoals, and consecluently
whether they have or nut territorial waters, as should have
been done, and :isthe Qatari draft did and as isthe practice
in a11siinilar agreements -itasserts with regard to the said
dispute deterlnining that Hawar Islands? Dibal Shoal and
other adjacent or neighbouring areas existing between the
cciasts of the two countries belong tu the Bahrnin
archipelago. Not only this, but the Bahrain draft goes tu the
extent of expressly stating that the State of Qatar joins the
State of Bahsain in requesting the Court to draw a single
maritime buiindary line between the respective maritime
areas of the two ç~~gtriesun the grounds that the said areas
belong to Bahrain ."
With regard tothe proposeclArticle V ofBahrain's draft, he observed:
"lt is obviousthat this provision of the Bahraini draft,in addition to
its imglied contradiction to al1the public appreciation voiced by
Balirain of the Saudi inediation and its results, leads to dissi~nulate
from the Court positions to which the two Parties could have
ccimmitted theinselves during the Saudi rnediatiun and which could .
reveal established facts of great iinportance in enlightening the
Court while considering the dispute. One of these positions, for
instance, is the agreement by the two çutintries on the subjects of
dispute, whicqlgs already statcd, is inçluded in the doçuinents of
the mediation ."
l4 Annex11.23V , ol. 1,.150.
l5 M., p.152.Suinining up his views on Bahrain's draftthe Ainir of Qatar concluded:
"ltis clear tram these coinments, thlit tlie:B;ihrüinidrciftcan obey
inet by our total rejection coupled with our strongcst protest. It is
qi~ite:obvious that the purpose of subrnitting that draft, in the
extremely abnormal form in which itwas written, is to block
intentionally the measures for sublnitting the dispute to the ICJ,
and to rüise obstacles before this objective which has been
definitively agreed upon by a11of us. This woiild keep the disputed
aresis in a position which, on the grounds of the strungest historical
and iegal evidence, cunstitutrs a flagrant aggrtjypn on the
inaljenable rights of Oursovereigntyover those areas ."
3.39 Furtherinore, ü Memorandum dated 27Mürch 1988incorporating Qatar's
detailed viewson Bahrain's proposed special agreement wns also circulated to the
Tripartite ~ornrnitteell~. In surnrnnriziy the views enpiessed, Qatar submitted
that -
"ltis clea...that the main articles of siibstance (Two and Five) in
the Bahrain drslftare based on extremely strange rovisicinswhich.
in brief, mean the imposition on the Stüte of 6 atar of express
adinission of the non-existence of the dispute which actually exists
between it and the State of Bahrain over the areas effectively
disputed between the two countries sinçea long time ago, and of
conceding al1Bahrain's claimsas well as abstaining frorn inciuding
in the evidence and arguments presented by it any documents
whose dates precede the date of the SpecialAgreement.
In the face of al1this, the Governrnent of the State of Qatar cannot
but totally reject the Bahraini drcift,and couple this rejection with
the strongest possible protest."
3.40 Qatur obviously could not accept the wording of the Bahruini draft
proposal as to the nature of the dispute to be referred to the Court. Qatar also
rejected any suggestion that no reference could be made before the Court tu any
negotiations during Saudi Arabia's Mediation or earlier efforts to settle the
disputes.Furthermore, Qatar strongly objected to the introduction of an entirely
new issue relcitingto Bahrain's so-called rightsin and around Zubarah.
Annex 11.X Zol.IIIp.154.
Il7 Annex Ii.24,Vol. Ip.165. - -
3.41 The drafts stibmitted by Q:it:irsincBahrein were extensively cliscussed wt;
tliçSecond Meeting uf tlie Tripartite Coininittee held on 3 April 1988' 18.but in
view of the wide divergence ofviewsregarding the definition of the subject inatter
of the disputes to be subinitted to the Coiirt. no agreement could be reached. In
a stateinent at the Meeting. the leader of Bül~rain'sdelegation stated that -
"lt is cleür tl-iatthe essence «t-'theditferences between the two draft
Spw"i11 Agreements lies in the formiilation of the Question to be
put to the Court. 1 see little difficulty in r 1BIfiig the other
differences between the twociraftAgreements .
3.42 In view of the differences between the Parties, Prince Saud of'Saudj
Arubia sought their opinian on whether itwould be possible "merely to informthe
Coiirt that disagreernents exist between the twocountries as Qatar claims so and
su,while Bal-irainclaims sciand s~~*(~" . iileQlitiirstated that it did not consider
lhat Z~~barahcould be included within the subject matter of the dispute to be
referred to the Court, Bahrain sought tiine to consider its response. Prince Saud
coi~cludedthe Meeting by stating -
"To summarize the discussion: the subject inatter of this meeting
was the definitian of cases at issue to be p~it before the
li~ternationülCourt of Justice. Both cciuntrieshave expresscd their
points ofviewregardingthis matter (article 2).
Regarding other questions, bot$ff;~ntries have agreed that al1
other disagreeinentsare marginal .
3.43 The Third Meeting of the Tripartite Corninittee was held on 17 April
l988I2* where discussionscontinued on each of the drafts submitted byBahrain
and Qatar. However, the Meeting was inconclusive, with Qatar and Bahrain
A copy UTLheenlire Miiiulesof ihis Meeiing in Arabic Iias heeii deposiwilhLhe
Registryinaccordalicewith Arlicle 5liüragtoy2, ol'the Rule01Court,togetliewiih
anEnglislitranslation.
I9 Anticx11.25V, olIII,p171.
122 A copy of ihe entire Minuteof ihis Meeting in Arabihas been depositeciwiththe
Rcgistryinaccordancewith Article50,parûgraph2,of theRules ofCourt,togeiherwilh
ailEnglishtra~islation.reaffirming their cornmitment tu the Five Principles of the Frümework and to the - -
1987A~reement to refer their displites tu the Cuurt and also to the continiiation
of Saudi Arabia's Mediation.
3.44 In a letter addressed to King Frihd on 7 May 1988, the Ainir of Qatar
repeated Qatar's objections to the wording of the question for reference to the ,
Conrt as proposed byBÿhrain in Article IIof its~Iraftl~~andalso stated:
=a $
"Asfor the second objection relating to Qatar's position concerning :
Article V of the Bahraini draft, the Qatari delegation has stated
that what Qatar cloes not accept isthe exclusion froin hearing hy
the Court of the aereements actually reaçhed tiy the two sides,
which are included in the documents of the Saudi mediation, and
not the proposais, contacts, negotiations, correspondence or the
like. lt is the agreements that were actually reached which are
meant here, such asthe agreement to refer the dispute to the I.C.J.;
the agreement on subjects of dispute; the agreement on prohibiting
unyof the two sidesfrom undert;iking any act tu strengtfit, its lepiil
position or weaken the legal position of the other side...
Referring to the past discussionsof the Tripartite Committee, the Amir of Qatar
further stated -
"lt is clear fromthese facts and djscussionsthat the Coinmittee has
failed to reach agreement on u form for the speciul agreement
whereby to put into effect the commitment of the two sides to refer
their dispute to theI.C.J.
The last meeting of the Committee, which was its third, wüs
adjotirned without fixing a new date. Hence, it seerns us if the
missionof the Committee has been frozen, and the prptedings to
referthe matter to the Court have run into a bIind alley ."
3.45 The Fourth Meeting of the TripartiteCommittee was thereafter convened
and held on 28June 1988'~~.At this Meeting, each of the States also presentrd a
second drüft of Article 11of its proposed special agreement, but these were agziin
fnundunacceptable.
123 See,para.3.38above.
1ZJ Annex 11.26. ol.IIIp.178.
126 A copyof the entireMinutesof this Meetingin Arahichas been dcpositedwith the
RegistryinaccordancewiihArticle50,piiragrap2.of iheRulesof Couri,togetherwilh
anEnglish translniion. -
3.46 The revised version of Article II of Bahrain's draft on the matters ta be
referrecltu the Co~irtread as follows:
"The Court isrequzsted:
1) td deterinine the exrent to whiçli the two States have
exercised sovereigntyoves the Hawar Islands ürid have thus
estal?lishtriuchsovereignty.
2) to deter~njne the leçal statils of and sovereign and other
rights of both States in any features, other than Fasht ad
Dibal and the Baliraii~i island of Qitat Jaradah in the
Bahrain archipelago, or inany mitural resources both living
and non-Iivingwhichinay affect the deliinitation referred to
in paragraph 3) below.
3) to determine tiny other matter of territorial right or other
title or interest claiined by either State in the land or
maritilne territory of the other.
4) having regard to the deteriniiltitiomade pursuant to the
preceding pnragraphs tu draw a single maritime boiindary,
which shall pass tu the east of the features in the Bahrüin
archipelago known as Fasht ad Dibal and the Bahraini
isIanclof Qitnt Jai-adah, between the respective maritime
areas of the Bahrain archipelago and the Qatar peni ~5~')'n
wcording tu the relevant principlesofinternational law .
3.47 In a letter addressed to King Falid of Saudi Arribia on 9 July 1988, the
Amir tiQatar, coinmenting otiBahrain'ssecond draft of Article II,stated that-
"Bnhrain has presented a draft - a copy of which is herewitli
enclosed - inwhich it followed the very course it took inpreparing
its first draft. It as cuurse that involves total disregard of the
established facts relating to the history of the dispute between the
two countries and the circumstances thrciugh whjch its stages
pnssed, and a total disregard forthe position of Qatar ttowürdsthe
subjects of that dispute and the claims it made, as well as for the
agreement reached under the Saudi rnediatiun to refer the agreed
upon subjects of dispute to the International Court of Justicfur its
decision slccardingto Internatinna1Law.These subjectsare defined
by the first principle of the Saudi rnediation and have been
reaffirmed in the score of messages which Your Majesty, my
brother, has exchanged with the State of Qütar and Bahrain. The
new draft, like theprevious one, states that Qatar and Bahrain are
dispute,which actuallyexistbetween the twocountries, and to issue
ü prior decisionby both of them on the validityof al1the claims of
Bahrain. The new draft goes further than the first one in that it
127 Annex 11.27,Vol. Ipp.181. makes Qatar participate in dictating the will of Bahrain on the
court tu Jecide the siibjectsof dispute it anner that serves the
interests ofBahrain and realizes itsclaiinsE .
The Ainir of ,Qataï also expressed hisfrustration nt Bahrüinistactics and stated in
the letter:
"In presenting their seconcf draft, which comprises the same
provisionscontriinedin their firstdraft, ifnut worse, the brethre~iin
Bahrain seem to be pursuing, in spite of everything,a plan that will
blockthe way to reaching a joint. genuine formula for the Special
nt, and hence preclude referring the dispute to the
i'?F???If
3.48 Eventually,as üresult of a SaudiArabiün initiative,Sheikh Hamad bin Isa
AI-Khalifah,the WeirApparent of Bahrain, during a visitto Qatar, transmittedto
Sheikh Harnud binKhalifdAl-Thnni,the Heir Apparent of Qatar, on 26October
1988, u general formula for reference of tlie ciisputosthe Court, usfollows:
The Parties request the Court to decide any matter of territorial
right or othertitle or interest which may be a rnatter of difference
between them: and to draw a sinrilemaritime boundarv between
fheir rpybectivemaritime areas ofieabed, subsoil and sbperjacent
waters ."
The proposed general formula was discussed at the Fifth Meeting of the
Tripartite Cornmittee held on 5November 1985~~~. Qatar welcomed the
proposed general formula as a gond step forward. However, it was of the view
thüt the proposed text entitled either of the Parties daim sovereigntyover any
area of land or maritime territory of the other Party, and this unlimited right was
unacceptable: Qatar continued to hold the view that any clairnsuch as the one
re1;itingto Zubarah could not be rnised and that the only disputes that could be
referred to the Court were already well-defined in the course of Saudi Arabia's
Mediation.
lZ8
Annex11.28V. olIII,p189.
129 -bid p.189.
IN) AnnexIL29 ,ol.IIIp.191.
131 A copy oftheentire Minutesof thisMeelingin Arabichas been depositedwilh the
Regisuyin accordance itArliçle511paragraph2,oî theRulesof Court,iogelhwilh
anEnglishiramltition.3.49 In comrnendingthe idea of a coininon forinula tn the Parties, Prince Saud
of SaiidiArabin stated:
"..I would Say that there is a hasis tor discussion to reach a
colninon fortnula to refer the dispute instead of considering the
proposals that had been sirbmitted by the two countries and
rejecteci.In the comin~inication the Ciistodian of the Two Holy
Mosques has had with the leaders of the two countries, he felt thüt
there was a ïnoveinent. Undoubtedly, without these contacts we
would iiot have reached tu the püper subrnitted by Brihrain
recently. The Custodian of the Two Holy Mosques is keen t
M we
should acçept what we have reaçhed atid pruceed from there ,
There was nu further discussion of anyof the previnus proposals includingthose
relating to withholding frotn the Court information about the Mediativn or any
133
other efforts to settlthe disputes .
3.50 Towards the cluse of the Fifth Meeting of the Tripartite Comii~ittee,
Prince Saud stated:
"1 ain direçted to submit a report on the progress of our
Coinmittee. The Custodiün of the Two Holy Mosques considers
that the date of the beginning of the CCASG[GCC] summit is the
date for terininating the Comrnittee's mission ether or not it
succeeded to tichievewhat was requested from it fit."
Accordingly,the SixthMeeting of the Tripartite Cornmittee held in Riyadh on 6
and 7 December 1988,shortlybefore the sumrnitwas the last effort to achieve an
rigrcement on a rnethod for approaching the Court. At this ~eetin~l~~?in the
course of a further discussion ofBahrain's general formula, Qatar siiggestedthat
it could accept the idea of a general forinulsiif any claîm in relation to Zubarah
132 Anncx 11.30,ol. III,pp.197.
133 Itmay hestatedthatcnntrarytowhat isuggestedbyBahroin,Qatar neve.rreceivcdnor
was a discussionever held othe documentwhich isAttachment7 to the Annex to
Bahrain'slelletothc Courtof 18August 1991.i.c,acopy ofa su-called drafispecial
açreement incvrporaiing ilie Bahraiiii general formula.Qntar only received lie
"Quasticii&, thegeneralrormulalraiisniittedbyBahraon)aseprale pieceof]~d]wr
on 26Octohcr 1988.5&.para.3.48above.
134 AnnexIi.30,Vol. IIp.198. -. <-
135
A copy of theenlireMinules ofthls Meetingin Arabichas heen depi~siledwilthe
Registryin accordancwith Article50, paragaph2,otheRulesof Courl,togetherwiih
anEnglishtranslation. -
was restricted to claims of private rights and not sovereignty.The suggestion was-
net accepted by Bahrain. Qatar proposed an amended version of Bahrain's
peneral fcvinulaand also sugçested that the refei-enceof the disputes to the Court
could be made on the basis of suchgenerül formubuüçcompanied by two annexes,
one froin each Party, with each Party setting out in iannex the subjects of the
disputes it wisliedto refetuthe Court136 .
3.51 The Bahraini delegation sought further time tn study the Qatari proposal
a $
and the amended text of the general formula. A record of the position of eüch
Party at that time can be foundin the signed Minutes ofthe SixthMeeting dated
7December 1958which set out the Bahraini genersl fc)rmulaand the amended
version ofthe for~nulasiiggestedbyQatar 137.
3.52 Thus, bythe time of the opening of the GCCsuminit meeting in Bahrain in
December 1988, the Tripartite Cornmittee had failed to achieve an agreement
between Bahrain and Qatar on the method to be üdopted for the purpose uf
approaching the Court, the task entrusted to itunder the third item af the
December 1987Agreement. In the GCC summit inBahrain, King Fahd proposed
and it was ügreed bythe Parties that Saudi Arabiabe givena further period ofsix
rnonths to try toachieve an agreement on the substance of the disputes through
its Medicition. As no agreement wüs achieved during 1989, the unresolved
situationwüs agüindiscussed during the GCC surnmit meeting held in Muscat iri
December 1989.Once again it was agreed that the Saudi Arabian Mediation be
given a further period of two months to achieve an agreement on the substance,
'
and the irnplementation of the1.987Agreement to refer the disputes tothe Court
was deferred for that period.
SECTIO 5. The DohaAgreernen t
A. The BackrciundandNenotiationofthe Agreement
3.53 The next GCC summit meeting was held in Doha in December 1990.It
took pIace against the background of the recent invasion and occupation of
Kuwait (one of the GCC Member States) by Iraq, and the United Nations
Security Council resolutionsauthorizing the use of al1necessary rneans to secure
-.
136 AnnexlL31,Vol.IIIp.202.
13' AnnexII.31Vol.III,p.199.the withdrewal of Iracliforces fruiil Kuwait. The Meinber States had condelnnecl '
Iraq's violations of inter~~titiolw in connection with a boiindary dispute with
Kuwait, and were meeting durinç a tirne of hectiç preparations irithe area for an
iinpending war to secure the liberatiun of Kuwait in iinplementation of the
Security Council resnlutions. They were deeply conscious of the need to resolve
al1 boundaiy and other disputes between the Member States by mutual >8
agreeinent or other peaceful means.
a2 <
3.54 Following the understanding reached at the Deceinber 1988GCC siirninit
in Bahrain and again at the December 1989 summit in Muscat allowing Saudi
Arabia further tiine to secure settlement of the substance of the disputes, Saudi
Arabia's Mediation efforts during 1989 and 1990 had not resilltrd ia settlelnent
uf tl-ieexistingand established disputes lxtween Qatar and Bahrain.
3.55 Qatar therefore raised this subject at the opening session of the GCC
surrimit meeting in Duha on 23December 1990. Bahrain stated that Saudi
Arabia's Mediation should be further extended without Linytime-lirnit. This wsls
strongly opposed by Qatar. King Fahd of Saudi Arahia expressed the view that
the basic agreement reached inthe past was that, ifa solutiwas not achieved I7y
other efforts, the Parties wouid refer their disputtn the International Court of
Justice for a final and binding ruling.As the proceedings of the Court would take
soine tilne, during this period Saudi Arabia's efforts at reaçhing a settlement on
the substance çould be continued. He also indicated that he wished that he had
not sisked for a further extension of time at the December 1989 summit in
Muscat, as otherwise the disputes would now be before the Court. During the
discussion, the Sultan of Oman observed that it was clear that the principle of
goingto the Court prevailed but that the Parties seemed wiIlingto allowthe Saudi
Mediation a further short period, until after the month of Ramadan, before the
matter be referred to the Court. ln order to reach a solutionon the subject and
scope of the disputes to be referred to the Court, the Arnir of Qatar stated that
Qatar now accepted the Bahraini general for~nula.King Fahd obsented that now
thüt Qatar had accepted the Bahraini formula, there was no excuse for Bahrain
not to refer the dispute to the Court.
3.56 Atter the end of the opening session of the summit meeting, the Omuni
delegation took the initiative to finalizeand incorporate intu a written document -. '
the agreement on reference of the disputes ta the Court after the mvnth of
Shawwal (i. after,15 May 1991) resulting froin the previous discussionIn the .
cr)urstot twc~days, Li24 and 25Decernber. the Foreign Minister of Oman held
discussionswith the two Parties separately. He finallysecured their agreement on
the draft which became the basis of the document that was eventually signonl
25 Deceinber 1YYO. ThisAgreement in the form of Minutes (hereinsifter reterred
tu as the "Doha Agreement") followed the general conclusion reached at the
opening session of the surnmit tneeting to the effect that Saudi Arabia's
Mediütion would be extended up tu 15May 1991(Shawwal1411 H.),and that,:it
the end of that period, the matter could be submitted to the International Court +
ofJustice. It was further agreed that the scope of the refewoirld hein terms ?
of the Bahraini general forinuIathat had been accepted byQatar.
B. The Contents d theDuha Azreement
3.27 The Doha Agreement was signed by the Foreign Ministers of Bnhrain,
Qatar and Saudi Arabia.The Bahraini delegation present in Doha çonsisted of
the Prime Minister, representing the Head of State, and the Foreign Minister,
who were joined by the Minister of Legal Affairs. The Agreement stated as
foIlows:
"Withinthe framework of the good officesof the Custodian of the
Two Holy Mosques, King Fahd Ben Abdul Aziz, consultations
concerning the existing dispute betweenBahrain and Qatar took
lace between H.E. Shnikh Mohamined Bin Mubarak Al-Khalifa,
Aahrain's Foreign Minister, anH.E. Mr. Muharak Ali Al-Khnter,
Qatar's Foreign Minister,and were attended by H.R.H. Prince
Saud Al-Faisai,SaudiArabia's Foreign Minister, on theideIinesof
the Il th Summitof the Co-operation Cvuncilfor the ArabStates of
the Gulf in Qatar fro5-7Jumada Ai-Akher, 1411 H.
The foliowingwas agreed:
1) To reaffirm what was agreed previously between the two
parties;
To continue the gond officesof the Custûdian of the Two
Holy Mosques, KingFahd Ben Abdul Aziz, between the two
çountriestilthe month of Shawval, 1411 H., corresprinding
to May of the nextyear 1991.After the end of thisperiod,
the parties maysubrnitthe matter to the internationalCourt
of Justice in accordance with the Bahraini formula, which
has been accepted by Qatar, and the proceedings arising
therefrom. Saudi Arabia'sgood officeswillcontinue during
the submissionofthe matter ta arbitration; 3) Should a brotherly solution :icceplnbleto the twciparties be
reacl~ed,thecase wilibewitfidrawnfroin arbitration.
Written in Duha on 8/6/3411 H.
Corresponding to 25/12/ 1990.
Forejgn Minister, Foreign Minister,
State ofBahruin State of Qatar
(signed) (signed)
Al-Khalifah ibn Mubarak Al-Khaterbn Ali
Foreign Minister
Kingdomof SaudiArabia
(signed)
Saud Al-Faisrt13511
Ii will be noted that this Agreement was reached within the Frainework
previously accepted and was in the nature of a final agreement and was clearly
ii~tendedto take effect upon signature and by its own force. It did not envisage
any Mure in its implementation. lt wasreaçhed on the basis that each Party had
separate claims tu moke and that the Bahraini general formula accepted by the
Parties would enüble each oftlietn to frame anilpursue iown separate claims by
filingan application before the International Couof Justice.
3.58 Qatar subinits that the Doha Agreement amounted to a finalcornpliance
with the requireinents tu be fuifilleso as tu enuble the Court to exercise
jurisdictiuninrelation to the disputes between the Parties. Under paragraph 1of
the Agreement, the coininitment and consent of the Parties ta refer the c-iisputes
to the Court, incorpurated in the Agreement of December 1987,was reüffirmed.
Under paragraph 2, the subject and scope of the disputes tu be referred tu the
Court as wellas the rnethod of seisinof the Court were also agreed.
3.59 The sole condition to be fulfilled before any reference coiild be made to
the Court was that Saudi Arabia's Mediation would be given another chance, up
to 15 May 1991, to try to reach a settlement of the disputes. Although Saudi
Arabia'sgood offices were to continue upto 15 May 1991,us weIl as thereatter,
tliese were now çlearlytu be directed at resolving the disputes on the merits.
Tliere was to be no further effort with SsiudiArübian participation through a
Tripartite Cornmittee or othenvise "for the purpose of approaching the -
International Court of Justice. andsatistyinç the necessary requireinentstuhave :
the dispute submitted to the Court in accordance with its regulütions and
139
instructions...as provided inthe Decernber 1987Agreement .
3.60 As shown above, Qatar has alwayssought the amicable settlement of the
disputes but has also maintained sitall tiines that the subject matter of the ,
disputes between the Parties involvesquestions of sovereignty,which are purely
leyI subjects,and that, Fdilingan amiçable settlernent. a solution should be ,
?
achieved by referring the disputes tu international arbitration and by the
application of international law.Qatar and Bahrain agreed in Decernber 1987to
seek adjudication by the Court of the disputes. However, they were unüble to
resolve differences over the description of the disputes to be referred to the
Court. On 26October 1988,Bahrain proposed its generül formula enabling each
Party to raise anyrelevant clailri.before the Court. EventuaIly,Qatar accepted the
Bahraini formula and the Doha Agreement was concluded on 25 December 1990.
SECTIO 6. Fmrn December1990 tu8Julv 1991
3.61 Aiter the signature of the Doha Agreement neither Party sought any
further meeting to discussor sigreeon any special agreement or uther procedure
for approaching the Court. Thiswas clearly because no such discussionor further
agreement was necessaryto enable submissionof the disputes to the Court.
3.62 lmmediately after the signing of the Agreement, on 30December 1990,
the Amir of Qatar wrote to KingFahd ofSaudi Arabia sifollows:
"1 am deeply confident that implementation of what has been
agreed upon in our abrive-mentianed meeting for putting an end,
once and for all, to our dispute with our brothers inBrihrain,
whether through your good offices or through the International
Court of Justice,wil1surelyguarnntee what we al1carefur ..in the
best interest of mutual good and the general goud of Our
region as awhoIe ."
139 Annex IL15,VolIII.y1W.
Annex 11.33, o111, 212. - -
After the elid of the arrned action in the Iraq/Kuwait area, the Amir of Qatnr,
again wrote tu ICingFahd, on 6 May 1991,stating:
"Asthe agreed perioclis approaçhi~lgits end, 1felt 1shorildwrite to
you h'cipingthat you will kindly renew your gond offices in the
nearest possible tinie in accurdünce witl-iotir latest agreement i1-i
Duha and in piirsiiance of the sincere efforts you have persistently
undertaken to resolve this dispute that have over-shddowed
relations tietween Qatnr and Bahrain and their brotherly peuples.
In pursuance of the above agreement, we intend tu take the
riecessaiy~neasures to subm t ieillatter to the I.C.J. at the eixdof
the ahove-mentiontidperiod i4Y ."
3.63 Saudj Arabia therefore increased jts efforts as Mediütor to reach a
settleinent on the substance of the disputes. The Heir Apparent of the State of
Bahrain expressed his optiinisin about the progress being made in an interview
publislied in "AsharqAl-Awsat"un 20Junr 1991142.
3.64 After a ineeting with King Fahd in Dahran on 5June 1991,the Ainir of
Qatar. ina letter nf 18June 1991üddressed to King Fahd, stated:
"1would liketo take tliis opportunity to affirtnto yonce again iny
statement tu you during our fruitful ineeting at Dahrünon June 5th
1991, regilrding our positive attitude and Warinwelçome towzirds
your lastpr«posals with a viewto settlingthisdispute, brought tous
by H.R.H. Prince Saur! AI-Faisal (inhis visito Doha on June 4th
1991, hoping that your good efforts in this sense shall be crowned
with the coiispicuuus suçcessthat they deserve, thus adding to your
tremendous achievements in the service of clur Giilf peoples and
our Arab and Islainicnations a newhistoriçaçhieveinent.
While hoping that we açhieve in the nenrest tilne the friendly
desired settlement, 1wnuld like to pojnt out thatin the lightof the
history ni' ourformer negotiations with our brethren in the sister
State of Bahrain, we cannot awaittheir iinswerto our last proposals
for more than the peririd of three weeks whichwe agreed upon at
our last meeting in Dahran on June 5th 1991, as we resolve, after
the lcipseof this peririd, to take the necessary measures to submit
the dispute tn the International Court of Justice in accordance with
the agreement of Deceinber 25th 1990 referred tn above. This
measiire willnut prevent the continuation of yoirr honourable
effortsaiming at arriving to the fr'riendlsettlement contained in
ycmr last proposals, as the said agreement stipulated to continue
the gnvd endeavours of the 1Gngdoinof Saudi Arabia during the
lJ1 Anncx 11.34,ol. 11,.215.
ld2 Annex 11.36Vol.IIIy.221. submission of the dispute tothe International Court of Justice and
to withdraw the rnatter in case of t ~chievement of a brtitherly
settleinent acceptable to both parties% ."
3.05 Despite the continuing efforts of the Kingdoin of Süudi Arabia. no
settlernent of the outstanding disputes between Qatar and Bcihrain could be
re;iched in the course of the Mediatirin by Shawwal 1411 H. (corresponding to ,
15May 1991) ar during the further period of three weeks fsoin 5June 1991
agreed upon in Dahran and mentioned in the Amir of Qatar's letter of 18June a f
1991cited above, 2
3.66 On 28June 1991, Qatar requested the registration of the Agreement of
December 1987 and the Doha Agreement of 25December 1990 in accordance
with Article 302of the United Nations Charter 144.
3.67 Qatar filed its Application on SJuly 1991 in accordance with Article 40,
pnragraph 1,of the Statute of the Court.
143 Annex11.35V, ol. 1,p.219-220.
l4 See,Annex11-37 ,oI.111,.225. -
PARTII - *
THEBASISOF THE JURISDICTION OF THECOURTIN THEPRESENT
CASE '
CHAPTER IV
THE CONSENTOFTHE PARTlES IN THE 1987ANDDOM AGREEMENTS
,
ANDTHECOURTSJURJSDICTION
SON 1 Introduction
A. The Question ofthe Court's Jurisdiction
4.01 The question of the Court's jurisdiction is "an objective question of
~aw'~~''. In the Judgment of the Court of 2ODecernber 1988 in the case
concerninç Border and Transborder Arrned Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility,this characterizütiun of issue ofjurisdiction was
also confirmed when the Court dealt with the arguments of the Parties on the
onus uf prooving ofthe court's juri~diction'~~.
4.02 ln Qatar's submission, three inaia propositions arise froin these
pronouncements of the Court. m, "The existence of the jurisdiction of the
Court in a given case i ..not a question of fact, but a question of law to he
resolved in the lighof the relevant fa~tsl~~".Second,facts which are relevant to
the Court'sjurisdictionare the acts or conduct ofe~h Party related to the "basis
ofjurisdiction" that Party has reIied upon before the Court. For Nicaragua and
Honduras, according to the 1988 Judgment, these were "the existence of the
Parties' declarationsnderArticle36 of the Statute, the signature and ratification
of the Pact of Bogota, etc.148".Third,"The determination of the facts may raise
lJ5
AnpealRelatine10tlieJurisdictionof the ICA0 Council.Jud~I.C.JReooris1972,
p.54.
136
I.C.JReaorts1988p.76.
145 Ibid.Sir Gerald Fitzmauricehas considercdthat proof of consent be a simple
malter.U consenl exislsal ailmusi beevidenced hysomething lairly conçr-ae
treala deciaratioofacceptance,a comoromis,a diplomaricnute, or hyconduct, -- :
aswhereanarbitraior isappointed,or anagenltu sonducl prweedings.or a mernorialis
flled.Abouttheexistenceor non-exisienofsome such factuapieceof unequivocal
evidenceasoneof these,thereshouldnormalbenodoubt.""Hench Lauterpacht-The
ScholarasJudgePart II",BritishYearBoof InternationLaw,Vol. 381962,p.34.qilesiiuns of prouf149".Bot il tlie relevant facts çoncerningthe jiirisdiction of t7e
Court are dulyascertained and are not iidispute between the Parties,"the issue
is.what are the legal effectsto be attached to thérn150?If
4.03 In the present case, the relevant facts tobe ascertained with respect tothe
yiiestion of jurisciictiunrelrttu the basisof jurisrtictionrefied upon by Qatar in
its Application. That is, in addition tu the other antecedents in Saudi Arabia's
Mediation, the following: 2 I
(i) The existence of'the proposals made in the letters frorn King Fahd of
Saudi Arabia to the Arnirs of Bahrain and Qatar, respectively, dated
19 December 3987, and the Annuuncement made pulilic by Saudi Arabia on
21December 1957that Qatar and Bahrain hadagreed to the proposals made by
tlie Kingdoinof Saudi Arabia in the saidletters; and
(ii) The existence of the Minutes dated 25December 1990incorporsltingthe
Bahraini formula and signed inDoha bythe Minister of Foreign Mfairs of Qatar,
the Minister of Foreign Atfiiirsof Bahrain and the Minister of Foreign Affiiirsof
Saudi Arabia.
As was the position in the case cuncerning Border and Transborder Armed
Acticins(Nicaragua v. Honduras), Jurisdiction and Admissibility,Bahrain, in its
letter of 18August 1991addressed tothe Registrar of the Court, has not disputed
the existence of the text of these instruments although it contests their Iegal
character and effects (a matter whiçh will be deaIt with in Chapter V).
Consequently, given that the existence of the text af these instruments is not in
dispute between the Parties, Qatar is entitled to consider that the issuebefore the
Court isa question of Iaw,&., to determine the legaleffects to be attached to the
1937 and 1990 Agreements in accordance with the principles and norms
gvverningthe Court'sjurisdiction.
B. Consent astheBasis of theJurisdiction ofthe Court
4.04 The principleof consent of the Parties sisthe basisof the jurisdictioofthe
Court to decide incontentious cases is embodied in Article 36 of the Statute and
-- :
14' LCJ. Revorls,1958,p.76.
150 Ibid.h:is been confirmed by the Co~irt on nuinerous occasions. lndeed, in 1927 the
- .
Pern-ianent Cuurt declared that "the Court's jurisdiction is always a limitecione.
existirig onlyin so far as States have accepted it15': and it was early adrnitted by
the jiirispruclence ofthe Perinanent Court that -
"The Court's jurisdiction depends on the will of the Parties. The
Court is always coinpetent once the latter have acceptcd its
jiirisdiçtiun. sincr thrrr is no dispute y&h States entitled tci
appear before the Court cannot refer to it ."
SC
Z
Sirnilarly,in its Judginent in the case concerning the Factorv at Chorzow, Merits,
the Permanent Court referred to the above Judg~nent and stated thsit"Article 36
of the Statute establishes the principle thot the Court's jurisdiction depends on
the willof the Parties 153..
4.05 The principle of consent has been contïrmed by the present Court on
several occasions154. Inrecent yenrs, the Court has alsohad occasion to recoll the
principle of the consent of the parties as the basis of its jurisdiction, in its
Judgments concerning requests by third States for permission to intervene under
Article 62 of the Statute in cases between two other States brought before the
~ourt~~~,There is thus n çontinuity and consistency in the jurisprudence of the
lS1 FactorvatChorzowJ ,urisdiclion.JudemenNt o.8. 1927P.C.I.J..SerieA,No. 9,p. 32.
lS2 Richts or Minoritiesin U~oer Silesia [MinoritvSçhools).Judamcnl Nu. 12. 1928,
P.C.I.J..SeriA, No. 15,p.22.
153 JudpmentNo. 13. 1928P.C.i.3..SeriesA,No.17,p.37.
lS4 See, foexamplc,Corfu Channel,PrelirniniiiOhicction.Judarncnt,1948.I.C.JReports
1947-1948 ,.27; RevarationfurInjuriesStifferedin the Serviceof ihe UniledNalions,
AdvisorvOvinion, 1.C.J.Revorts 1949, p.178; Interwetation of Peace Treatieswith
Bukaria, i-lun~arvand Romania,Firsi Pliase,Advison O~inion,1.C.J.Re~oris 1950,
p.71;Anglo-lraniün Oil Co..Judement, I.C.JRenoris 1952. pp. 102-103:Nottebohrn,
PreliminaryObieclion.Judemenl. LC.J.Revorts 1953.p.122;Monetan GoldRernovcd
Crom Rome in 1943.Judgmenl, l.C.J.Re~orls 1954, p.33; Border and Transborder
ArmedActions(Niaraeu v. Honduras),JurisdiclioandAdmissibilitv Judamenl. I.C.J.
Revorls 1988,p.76.
=; J
155 -See,ContinentalShelf (Liban ArabJamahiriva/MaltalA , ~ulicationfurPermissionto
Inlervene,Judamenl,LC.J.Revorrs 1YM, p.22, and,in particular,the CaseConcerninq
the Land,lslandand MaritimeFrontierDisvute(ElSalvadorBIonduraslA . pdicalionbv
Nicaraguafor Permission tolntervene,Judamentof 13Seutember 19W, paras.94-95.Court, including that of its predecessor? whjch is clearly evidenced in the - *
Judgment of 2(1Deceinber 1985,whete the Judprneiit inthe Factorv nt Chorzow,
156
Jurisdiction case isyuoted .
4.06 Qatar sribmits that the consent of the Parties to confer jurisdiction upon
the Cuurt in the present case in respect of defined and established disputes
existing with Bahrain is clearly evidenced by the Agreement entered into by
Bahrain iindQatar in Deceinber 1957.This Agreement, which provides that "Al1 a 5
2
the disputed inatters shallbe referred to the Internütioilal Court of Justice, at The
Hague, for a final rulinç binding upon bot11parties, who shall have to execute its
terms", hüs not been disputed by Bahrain. The Decemher 1937Agreement has
subsequently been col-ifirmed by the Minutes signed in Doha on 25Dece~nber
1990,where the Parties not onlyreaffirmed whathsldbeen previouslyagreed, but
;ilsu provided that üfter 15 May 1991 "the parties may sublnit the matter to the
International Court of Justice inaccordance with the Bshraiili formula, whictlhas
been accepted by Qatar, and the proceedings arisingtherefrom".
C. Headsoflurisdiction underArticle36 ofthe Statute
4.07 As noteciabove, "Article36 of the Statute establishes the principle thatthe
Court's jurisdiction depends on the will of the ~nrties"~". An expression of
consent by the Parties further to the one represented by their participation in the
Statute of the Court is required in order for the Court to be in a position to hear
and decide a contentious case between States. However,Article 36 of the Statute
provides that this further expression of consent inay manifest itself in varivus
ways. The mariner in which consent isgiven, as well as the stage at which it is
given, innydifferfrom case to case. These possiblevariatioiis in the inanifestution
of the further expression of consent reyuired by Article 36 of the Statute allow
distinct "heads or titles of jurisdiction" to be distinguished in the jurisdiction
exercisedbythe Court.
154 Border and Transborder Aimed Actions (Njcaraauü v.Hondurasl.Jurisdictionaiid
Admissibilitv.Judmanl, I.C.JRc~orls 19S8,p.76, referrin10Jud~ment No. S. 1927, .-L .
P.C.I.JSerim A, No.9,p.32.
lS7
See. para.3.04 aboveandFactuw alChurzuw,Mcriis, JudemenlNo. 13,1928,P.C.l.J,
%ries A. No. 17p.37.4.08 In ascertainirig the existence of consent, the moment when it was given is 3 ,
relevant. Ifçiven ante hoc by a treaty provision or bya declaration made under
Article 36.paragraph 2,of'the Statute -
"lt rnaywell happen. and has happrned. that when eventually a
dispute arises which is alleged to be covered by a consent or an
acceptance thus gjven. it arises inany years later, in relation to
circumstiinces which the consenting or accepting Statf3Qid not
foresee, and possiblycould niithave foreseen, üt the time '."
* f
0
On the other hand, if consent is given post hoc or ad hoc, and it is clearly
evidenced by act or conduct or by an agreement referring the case to the Court, it
is difficult to admit that the submission of the dispute to the Court was not
foreseen bythe parties.
4.09 Furthermore, the existence and recognition of different heads of the
Court's jurisdiction introduce an eletnent of flexibilityinto the operation of the
principle of consent einbodied in Article 36 of the Statute. This flexibility,
developed in the jurisprudence ofthe Court, is a respanse to the needs of States
in respect of the judicini settlement of disputes. As has been said by Sir Hersçh
Lauterpacht, in matters of jurisdiction and of adjective lawgenerally "the Court
has endeavoured to steer ümiddle course between rule and discretion".Although
he states that "The willof the parties is its charter", he adds that "It is that will
which the Court respects rather than the üttempts, büsed on formal and
procedural objections, to render nugatory an undertüking once given I5Ylf
4.10 In the present case, Qatar relies upon Article 36, paragraph 1, of the
Statute. It submits that bythe Agreements concluded between Qatar and Bührain
in 1987and 1990under the Mediation of King Fahd of Saudi Arabia the Parties
have agreed to refer to the Court their disputes on territorial questions and
maritime delimitation.
4.11 As shown in Chapter 111 nbove, when those Agreements were entered into
in 1987and 1990,disputes between Bahrain and Qatar were already in existence
with respect to the territorial questions and maritime delimitation at issue whiçh
158 SirGeraldFitanaurice,ou. cit.British Yearbookof Internationalaw.Vol.38, 1962, 4- .
p.35.
159 SirHerschLauterpacht,The Deveiopmeni of InlernationalLawhv the lnlernational
-ourt,London,Stevens SrSons,1958,p.209.had ken subxnittedto the Mediation of Saudi Arabia prior to 1987.The consent y .
to refer suçli disputes to the Coiirt was given by the two States in the December
1987 Agreement and reaffirmed in the Doha Agreement. It is an ad hoc cuilsent.
The jurisdictionof the Court stems, thesefore, from the wiofboth States torefer
tciit, in accordance with ArticIe 36,psiragraph 1, of the Statute, their existingand
established dispiites.
D. The EssentialAspectsof Consent 9 f
3-12 Three essential aspects of the consent given under the 1987 and Doha
Agreements need to be considered: fir sht ,onsent of both States to refer the
disputestto the Court; second, their consent tu the subject and scope of the
disputes; and.m, their consent to the seisin of the Court. These three aspects,
tcigether with the relevant circumstance of the Saudi Mediation, which cnnstitutes
the general frarnewurk within which consent was given by Bsihrain and Qatar in
1987and 1990,willbe exainined in detail in Section 3 below.
SECTIO 2.N The Realitv and Extent of Consent in Treaties and Conventions
underArticle36, aarngraah1, ofthe Statute
A. ThelnterpretationufConsent
4.13 Consent to the jurisdiction of the Court has been given under the
Agreement made in 3987and reciffjrmedin the Doha Agreement. With regard tn
'
the first Agreement, Bührain has denied neither the existence nor the content nf
the consent. On the other hand, with regard to the Doha Agreement, Bahrain hm
not only denied itsvalidityand effect, but has argued that reference of the case to
the Court must be made bya joint subinission.
4.14 However, as observed by Sir Gerald Fitzmaurice, when two States give
their consent to the Court's jurisdiction and conclude a treaty or make
declarationsaccepting an obligation to have recourse tojudicial settlement, "these
are deliberate operations, and the consent given is unlikeIy to be unreal or
vitiate16Uf1 on grounds invalidating the obligation assumed. Therefore, tlie
question isnot usuallywhether consent exists,but "whatand how rnuch is çovered
<.
lGO
SirGerald Fitxmaurice."TLaw and Procedureoflhe InternationalCouof Justice,
1951-4:QuestionsofJurisdictio,ornpetenceandProceciure",ritisYcar Book of
InternationLlawVol. 341958 p.$7.by the consent given'61'1; and this issue resolves itxlf intu iiquestioii of -- .
interpretation uf the treaty or convention relied upon as the basis of the Court's
jurisdictjon.
1. Appronches to interpretation
4.15 If the question of the Court'sjurisdiction resolves itself into questionsof
interpretation of treaties in orderto determine the reality of the consent and its
r 5
extent, the interests involved in the process of interpretation rnay be appraised '
either from the point of view of the parties' interests or uf the interestsof the
legalorder withinwhichthe judicial settlement of disputes entrusted to the Court
operates.
4.16 Ifthe interests of the partiesin international litigation are consideredthe
reality and extent of consent may bbeinterpreted in either a liberal or a restrictive
manner, but the results of interpretation müydiffer to a great extent, depending
on whether they concern the applicünt or the respondent Stüte. Thus, a liberal
interpretation of consent by the Court has been considered unfair to the
respondent State "byirnputing to it a consent which it inay not really have
intended to give, or realized it was givingi'.On the other hand, a restrictive
interpretation is unfair to the applicant State "by depriving it of a rneans of
recourse the benefit of which it was entitled to expect under the clause in
question". Consequently, it has been suggested that what is required, "ifinjustice
is not to be done to the one party or the other, is neither restrictivenor liberal
interpretations ofjurjsdictional clausesbut strict proof of consent"62.
4.17 With respect to the interests of the legal order within which the Court
operates, soine major points arise for consideration. m, there is the relevance
of peaceful settlement of disputes in present day international law,as evidenced
by Article 2, paragraph 3, of the United Nations Charter, whereby the Members
of the United Nations have agreed to resolvedisputes bypeaceful means. Second,
there is the position of the Court as the "principa ludicial organ of the United
Nations" according to Article 92 of the Charter. Third, there is the fact that al1
161 Ibid.
162 m.. pp.87-88.Metnbers of the United Nations are ipso fitcto parties tu the Stutute tif tlie 1
Internaticinal Court of Justice, according tn Article 93, yaragraph 1: of the
Charter.
4. IX In view of these commitinents, the hiilance of interests shitts in fiivuur uf
ttie appliccmtState. Conseyuently, it l-iasbeen said thüt "Thepoliciesexpressed by
these provisions can be constriied to support the viewthat the scope of consent to
jurisdiction should be iriterpreted liberallyor, perhaps, nei~trnlfy"a.nd that in any 2 i
case "They do not support the view thslt they should be interpreted narrowly or
restri~tivel~"~~~ l. regard to declarations made undcr Article 36,puragraph 2. uf
the Statute, the generul consent whicha State party to the Statute has givento the
existence and tunctioning of the Court, "a consent which lies behincl the
declsiration it~elf~'~'', as alsn to be taken into account as an efernent for tlie
interpretation of such deçlarations. Thris, it has been submitted that "in those
circiinistances a theory which holds that a priori the declarations are given to
restrictiveinterpretation issirigularlyunçonvincing 16511,
It isworth nvting the words of Sir Hersch Lauterpacht in commenting
4.19
upon the theory of restrictive interpretation ofjurisdictionalclu~ises in tlie lightof
ilie jurisprudence of the Court up to 1958:
"Infact, it issignificnntthat notwithstanding the frequency of pleris
tn the jurisdiction- yrobably the majority of the Jiidgments given by
the Court has been concerned with them in one way or another -
there are, as has been sl~own,only two obiter observations of the
Court which appear to give countenance to the argument of
restrictive interpretation of jurisdictioncrlclauses. As a rule, the
Court Jiinitsitselfto the stateinent thai consent of the parties is the
essential requisite of its jurisdicti 786 IId proceeds tu inquire
whether suchconsent has been given .
l(j3 Jonatlian1Charney,"Compromiçsor Cylausesand theJurisdictioof the1nternatioli:il
Courtoî Justice".AmericanJournüI of lnlernatiunalLaw,1957,Vol. 81,No. 4,p.864,
foolnvte22,
lh4 S.Rosenne, The Law andPrücticcOC the InternationaCl ouriVul. 1,Lcycten,A. W.
Sijthuf1Y65,p. 408.
-lbid.
lu6 SirHcrsch Laularpchl. #P.cil..p341 (Toutnotceimiitcd). hisconclusioissupporied
tiy SiGerald Fitzmaurice,OP. cit., BriliYearBook of Internaiiona law, Vol.34,
1958,pp.90-91.Froin thkitdate until now, although recourse to restrictive intespretsition has
appeared in soine dissenting opinions167. no seferences whatsoever have heen
made to it,either directly as indirectly, in Judginents of the Court dealing with
jurisdictional issues. This negative conclusion js reflected in the kict that the
restrictivetheo~yof interpretation did not find a place inArticles 31and 32of the
Viennsi Convention on the Law of Tresities even with regard to the presumed
fc~undationofthe theory. namely,a State'ssovereignty.
# I
2. The aim d the Court's interpretatian in relation to questions of
jurisdiction
4.20 ln its Judgment of 1927in the Façtorv at Chorzow. Jurisdiction case, the
Permanent Court referred to the contention of the respondent State that "incase
of doubt the Court should declinejurisdiction1@'".However, after admitting thut
"the Court's jurisdiction is alwaysa lirnited one, existing only inso far as States
have accepted it" and that "consequently, the Court will, in the event of an
objection ..nnly affirm its jurisdiction provided that the force of the arguments
rnilitating in favour of it is preponderant", the Court went on to answer the
respondent State'scontention in the followingterrns:
"The fact that weiphtyarguments çün be advanced to support. the
contention thüt it kas nojurisdicticincanntit of itselfçreate a douht
calculated to upset itsjurisdiction. When consideringwhether it has
jurisdiction or not,the Court'sairnisalwaysto ascertain whether an
infggtion on the part ofthe Parties existsto conferjurisdiction upon
it ."
This passage of the 1927Judg~nentwas quoted inthe 1988 Judgment in the case
cnncerning Border and Transborder Armed Actions (Nicaragua v. Hondurasl,
Jurisdiction and Admissibility,where it wasadded that -
lG7
See, theDissenting OpinionolJudge Armand-Ugonin the Barcelona TractionLipht
and Power ComplinvL, imitedPreliminarOvbiectioncase,ZCJ. Reports1964,pp.147-
148;andtheDissenting Opinionoi'JuttgNayendra Singhin theAu~eal Relalinr!to lhe
JurisdicliooltheICA0 Councilcase,LCJ.Reports 1972,p.164. -6 5
Judpmen t o.8.1927,P.CLJ.,%riesA, No.9.p.32.
16$ Ibid.will of the parties inight seem to irnply a choice by the Court in favour of the
"subjective"tlpproiiçhor mrthod uf interprettltiun, cxcludingany other~"~. This
would not, however, be an accurate conclusionSs to the position of the Court in
the inatter.The "aim" of the interpretation and the "method" followedto achieve
such an "aiin" shhouldnot be confused.Su für sisthe inethod of interpretation is
concerned, ever since its early decisions the Court has evidenced an objective
,
albeit flexibleapproach. Two points clearlybear outthis conclusion. ..,
9
4.24 m9 the Court's reliance on the "intention" or the "will"of the parties is -'
directly related to the "text"of the treaty or of the declaration. In deterrnining its
meaning, the text ispresuined to be the expression of the intention of the parties.
Inthe AdvisoryOpinion concerningthe PolishPostal Service in Danzig, the Court
referred to the text to be interpreted, statingtha-
"It is a cardinal principle of interpretation that words must be
interpreted in the sense whicli they would norrnally have in their
çontext, unless siich infgrpretation woiild lead to something
unreasonable orabsurd ."
Therefore, as declared bythe Permanent Court, "solnevalid ground" is reyuired
in order to depart from a text whichis "freefrom arnbiguityor ob~curity"~~~a ;nd
a statement has also been made by the present Court in the followingterms: "To
warrant an interpretation other than that which ensues from the natural meaning
of the words, a decisive reason would be required whiçh has not been
e~tablished~~~"T . he Court agninevidenced itsrelianee on the objective approach
when it stated that-
"..the first duty of a tribunal which is called upon to interpr and
zipplythe provisions of a treaty, is to endeavour to give effeçt to
them in their naturai and ordinary rneaning in the context in which
they occur. if the relevant words in their natural and ordinary
173
Sce. SirHerschLauterpacht,"Del'interprétationes traitéA,nnuairede l'Institutde
droitinternationaVol.43, 1,1450,pp.366-434;EG. Jaccihs,"Varieliesoi'approachto
treatyinterpreraliunwith special relereniothe drift Convention ijnthe Law ol'
Trcatiesbeforethe Viennadiplornaticconference",InternationalandCornmiratLaw
Quarter1y .ol.18,1969,pp.318-344.
174 1925,P.C.I.J.,SeriB,No. 11,p.39.
175 IntervretatiooftheConvenlion of1919 concernin p.n~lovmentof Women durin2the - ,
Ni~ht.AdvisorvOuinion.1932 P.C.I.J. erieAB, No.50, p.373.
176 Condirionsof Admissionofa Srateio Mernhershipin the UnitedNations(Article4or
Charter)AdvisorvOvinion, 1948,I.C.JRçuoru 1947-1948,p.63. ;ilsand mure especiiilly (ifthe function which. in the intfgtion of
the contractingParties, isto be attributed to this provision ."
4.27 Second, in the Corfu Channel, Merits case, the provisions of :i speciül
agreement were jnterpreted by the Court inthe followingterins, with reference to
other decisionsrendered on the inatter bythe Permanent Court:
"ltwoiild indeed be incoinpatihle with tlie generally accepted rules
of interpretatjan tu admit thütü provision nfthis sort ricçurringin2)
special agreement should be devuid of purport or effect. In this $
connexion, the Court refers to the views expressed by the
Permanent Court of International Justice with regard to siinilar
cluestions of interpretation. Tn Advisory Opinion No. 13 of July
23rd, 1926,that Court said (Series B.,No. 13,p. 19):'But,so far as
concerns the specifjc ofcornpetence now pending, it may
suffice to observe that the Court, in determining the nature and
scope of the measure, must look to itspraçtiçal effect rather thaii to
the predominant motive that may be conjectured to have inspired
it.'In its Order ofAugust 19th, 1929, inthe Free Zones case, the
Court sriid(Series A., No. 22.p. 13):'incase of douht. the clausesof
a special agreement by whiçh a dispute is referred to the Court
must, if it does not involve doing violence tci their terms, he
construed in a ma r enabling the clauses themselves to have
appropriate effects.Y85 .
4.28 In fact, treaties and conventionsin force within the meaning of Article 36,
paragraph 1, of the Statute are agreements between States governed by
international law, and they must be interpreted in accordance with the general
rules on interpretation now embodied in Articles 31 and 32 of the Viennü
Convention on the Law of Treaties,In its Judgment of 12November 1991in the
case of the ArbitralAwardof 31Julv 1989 IGuinea-Bissau v.SeneaaI),the Court .
has expressly declared thüt an urbitration agreement is "an agreement between
States which rnust be interpreted in accordance with the general rules of
international law governing the interpretation of treatie~'~~". And nfter quoting
passages on interpretation from itsAdvisary Opinion on the Cornoetence of the
lS2 Judgmcnt No.û, 1927P.C.I.J. erieA,No. 9,p.24.
lS3 Judernent1.CJ.Reports 1949p.24.
lSJ Jud~mentof 12November 1991,p.20,para.48.Ceilrira1 Assen~blv fur the Admissiciii of State to the United ~ationsl~~ and
from jts Judgmtrnt in the South West Arica, Prelilninarv Obiections case 1863the
Court statecithat -
"These principles are reflected inArticles 31 and 32 of the Vienna
Convention on the Law of Treaties, whicl-iinayin inany respects be
considered codificiitionof existii~gcustoinaiy international law
on the pointTi? ., .+,
*
Article 31, paragraph 1, of the ViennsiConvention cinthe Law of Treaties stutes
188.
the genertilrule ofinterpretation as foilows .
"A treaty shall be interpreted in gui~cfaith in accordance with the
ordinary meaning to he given to the terms uf the treaty in their
context and in the lightof itsobject aiidpurpose."
4.29 It followsfrom the above that the former discussionsabout the subjective
versus objective approüches as iiietl~odsof interpreting treaties or treaty clsiuses,
as well as the foriner discussicins ccincerning restrictive versus extensive
interpretation, referred to above, now appear tu be a inatter of history. It was
agreed at the Vienna Conference on the Law of Treaties that no differentiation
shorild be made in that respect on the hasis of any of the various pcissible
classificationsof treaties, with the single exception of the additional rules for
"~nultilingualtreaties".
4.30 Moreover, application of the rules of interpretation of treaties under the
Vienna Convention, with the various elements of interpretation contsiined
tl-ierein,wüsconceivecias a singlecombined operation. As the International Law
Commission stated in its commentary on cfraftArticles 27 and 28:
"AI1 the various elements, as they were present in ünygiven case,
would be throwii into the cru~ible~~~iitfhdeir interaction wuuld givç
the legüllyrelevant interpretation '-."
lH6
I.C.J.Rc~orts1962,p.336.
188
NeithçrQalar norBahain isaparty to theViema Conventionon theLaw ofTrealiesof
1969.
lSy Ycarbookof theInteriiaticinlaw Cuinniissiot,966,Vol. Ipp.219-220,para.8.This applies, asindicated, totreiities referrina given dispute ordisputes to the
Cuurt as in the case of any other kind ciftreaty. The various elelnents of
interpretatjon adopted in the Viennri Convention are supposed to operate not
cmly inthe describeclcornhiiiedmanner but alsnwith al1itsaccepted implications.
For exainple. as indicated in paragraph 6 of the InternationalLaw Coinmission's
commentary, insofar sithe mciximut res maaisvillerituuam aereat reflects "atruc
general rulr ofinterpretatir>n19", iisreflected in Article 31,paragraph 1,of the .-
Vienna Convention which requires, inter iiliu,that a treaty should be interpreted
g c
"ingood faith"as wellas "inthe lightof its object and purpose".
B. Form of Consent
4.31 The titles of jurisdiction invciked by Qatar are the December 1987
Agreement and the Doha Agreement witli Bührain. With respect to their forin,
the 1987Agreement was entered into hythe sicceptanceby Bahrain and Qatar of
the proposais made by Saudi Arabia in its identical Ietters to them of
1S)December 1957, as evidenced by Saud3 Arabia's Announcement of
21Drçembrr 19871g1.The Doha Agreement was entered into in the form of the
Minutes of agreement signed in Dohü on 25Deceinber 1990 by the Ministers of
Foreign AffairsofBahrain, Qatar and SaudiArabia.
4.32 The acceptance by the two States of the Court'sjurisdiction to decide aver
the disputes covered by the Bahraini formula was not made subject to the
observance of any pslrticulsrr or specifiç furms. Thus, the Parties ücted in
conformity with the Statute of the Court and other rules of international Iaw. '
Bnth the jurisprudence of the Couri interpreting Article 36 of the Statute and
Articles 2, 3 and 11of the Vienna Convention on the Law of Treaties fuliyjustif)i
this conclusion.
4.33 in the Mavrornmatis Palestine Concessions case, it was stated in general
terms thut "The Court, whose jurisdiction is international, is not bound to attach
to matters of fQrmthe same degree of importance whiçh they might possess in
municipal law192f: Moreover, it ispreciseiyin the domain of jurisdiction that the
Court, without departing from the fundamental principle of consent as the basis
lY0 M., p.219,para6.
lY1 Se. AnnexIL15,Vol.111p,.101.
lY2 Judgmenl No.2,1924,P.C.I.J..SerieNo. 2,p.34.of itsjiiiisdiction, has been most ready tpiitaside objections relating to the forln
in which the consent is given or has heen given. It could not have been othenvist.
in the light ol'the psinciplof freedom sisto the 'forrngoverning the expression cif
consent nt the internationsi1level generally and the very wording of Article 36,
paragraph 1, (if the Statute of the Court. Suine instaiices taken frrirn tlie
jurisprudence of the Court clearly evidence this conclusion.
4.34 m, at an early date the Permanent Court declared in its Judgrnent in the?
case riEthe RirrhtsofMinorities in Up~er SiIesia[Minority Schuols) that -
"The acceptance by a State of the Court'sjurjsdiçtioi~ ina particulas
case is not, under the Statiite, suburdinated to the observance of
certain forins, sucb,y, for instance, the previous conclusion of a
special agreement ."
Thus, the Court held that the submission of arguments on the merits in the
counter-mernorial, without making any sesemation in regard to the question of
tlie Court's jurisdictionmust be coiisidered "asan uneqriivocülindication of the
desire of a State to obtain a deïisiuiion the merits of the suit194".This irnplics,
according to Sir Hersch Lauterpacht, "that the consent of a State to the
submissioriof adispute maynot onlyfollowupun an express declaration, but rnay
ülso be inferred frorn acts çonclusivelyestablishing it195t'.And the learned author
added that "There is no ruIe of international law -and none can be found in the
Statute of the Court - whiçh reyuires compliançe with defiiniteforms inaçcepting
the jurisdiction ofthe Court or which rules out the conduçt of a State or of its
representatjves as a source of itsobligationsIYOl.
4.35 Second, in the Corfu Channel, Preliminarv Obiection case, the Albünian
Government, atter the adoption by the Security Council of a recommendation to
the effect that the dispute with the United Kingdom shuuld be referred to the
Court, by a letter of 2July 1947 fully ciccepted this recominendation und "'the
JudameniNo. 12,1928P.C.LJ..SerieA,No. 15.p.23.
lY4 Ibid.p.24.
195
SirHersch Lauterpaçht,The Dçvelonmentof lnternalionalLaw bvthe Inlernational
-7urtLondon, Stevens& Sons,19.58pp.202-203.
lY6 -bid.jurisdictionof the Court for this casem197' : ith respect to this unilateral act of
the Albanian Governrnent, the Court stated in its Judgment of 25 March 1948
tllüt-
"The letter of July 2nd. therefore. in the opinion of the Court,
constitutes a voluntary and indisputable acceptance of the Court's
jurisdiction.
While the consent of the parties confers jurisdiction on the Court, -*,
neither the Statute nor the Rules irire that this consent should
be expressed in anyparticulür forin5% ., d
4.36 Third, the possibilitythat consent may be expressed in the must various
forms isa factor whichin concrete situations.where cornpliancewith the principle
of the consensual buis ofjurisdiction isto be verified, excludes allegcitionsbased
iipon rigid representations as to the form in which the consent concerned has
been given'9'. This is evidenced quite clearly in the position adopted by the
Court in the Ae~ean Sea Continental Shelf case. The Communiquéof 31 May
1975was issued directlytothe press by the Prime Ministers of Greece and Turkey
after the conclusion of their meeting of that date, and it did not bear any
signature. For the Turkish Government, it was evident that "ajoint çurnmuniqué
does not arnount to an agreement under international lawZoo". However. the
Court did not accept thiscontention, stating that-
"On the question of form, the Court need only observe that iit
knows of no rule of international Iawwhich rnight preclude a joint
coxnrnuniquéfrom cunstituting an international agreement to
submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3
and 11 of the Vienna Convention on the Law of Treüties).
Accordingly, whether the Brussels Communique of 31May 1975
does or dues not constitute such an agreement essentinllydepends
un the nature of the act ortransaction to which the Communiqué
gives expression; and it does not settle the question simplyto rekr
to the form - a communiqué -in which that act or transaction is
embodied. On the contrary, in determirihg what was indeed the
19' Judement 1,94S.1.C.. eports1947-1948p.27.
lys Ihid.
199 B. S.Rosenne, ov. cil., Vol. p.319,consideringat p.320 that"Theincreasing - ;
informalilrequiredfortheexpressioOPconsent totheadjudicatiois,onthewhole, a
welcomedeveloprnent".
2üû Judpment1 ..CJ.Reports1975p.39. such as 'agreement', 'exchange of notes', 'exchangeof letters'.
'inçinorandiim uf amnent'. or 'sprrrd minute' tnay be Inore
cointnon than nthers .
4.39 In addition, in the above-mentioned decision in the Aegean Sea
Continental ~helf case, reference was also made to Article 11 of the Vienna
Convention un the Law ofTreaties. Accordingto thlit provision:
"The consent of a State to be bound by a treatyrnay be expressed
by signature. exchange of instruments ccinstituting a treaty, $ I
ratification, acceptance, approval or accession, or by any other
means if so agreed."
Tlie Minutes agreed in Doha on 25December 1990were signed bythe Ministers
of Fnreign AfPüirsof Bahrain and of Qatar -as well as of Saudi Arabia - and no
other means of expressing the consent was required in this Agreement. The
f arties to the Doha Agreement chose the means of expressing consent that they
deeined preferable in the çirçumstances,in accordance with the generülfreedom
admitted in this respect by Article 11 of the Vienna a on vent ion Su^ch^.
freedoln is not restricted in any wayby Article 36, paragraph 1,of the Statute of
the Court.
C. Reciprocity of Consent
4.40 When two States conclude an ad hoc treaty or convention within the
meaning of Article 36, paragraph 1, of the Statute, the essence of such an
agreement is tu refer u case tu the Court for de ci si o rhat is,.t is a consent
given in respect of an existing "legal dispute", nccordingto the technical terms
used in paragraph 2 of the saine provision and in the jurisprudence of the
203 Ihid. On the terminoloE, D.P. Myers,"The name andscopeof ireatics", Americün
Journal of International 1957.Vol. 51pp.574W. and, on the practofStaics,
B. interaliathe "Agreed Minutes Regarding the Resloration of Friendly Relations,
Recognition and Relaled Matters",sigalBaghdad on 4October 1963,rel'errtoin
Securityhuiicil Resolution 687, 3 April 1991,regiasan internaiional agreement
pursuanttoArticle102of the United Nations Charter and publiin UnilcNations
Tieatv SerieNo.7063,1964,pp.325-329.
2M See.A. Bolintineanu. "ExpressofConsentIObe Bound hya TreatyintheLighiofihe +
1969 Vienna Conventionn.Ameriwn Journal of Internalional Law,1974,68,No.4,
pp.672-.
205 Sw. para.4.0above.~ourt'"~. Such an agreeinent. indced. ispurportecl ta create legal rights and
obligations between the ~xirtiesin respect of its specific objeck., the Court's
jiirisdiction to decide the dispute. However, ashas heen indicated in doctrine, "it
js nnt sufficient to establis11the vesting in the Court of general jurisdictiun to
decide, hetween the parties, a dispute of the generic class that has been brought
before it": it is necessaq to go furtlier and establish "that there is completeand
iridividuiilizedreciprocity of obligationin respect of the ccincretedispute which ,i
the Court is siskedto ciecide07 . $
4.41 It l~üsbeen said that the independence or autonomy of this elelnent of'
reciprocity asserts itselin the case of the Court'sjurisdiction under decl~~rsitions
made in accordance with Article 36, paragraph 2, ofthe Statute. while in cases
where the jurisdiction restson a treaty inforce accordingto Article 36,parcigrsiph
1,itis largeiy absurbeù by the tresitYZo8H. owever, although absorbed in the
-oc agreement referring the existing dispute ta the Coiirt, the general
recluire~nentof reciprocitysliould be inet, and questions of reciprucity inay ürise
particuîarly in connection witli the interpi-etation of the ad hoc agreement
concerned, as evidenced in the Court'sjurisprudence.Thus, in the Corfu Channel,
Merits case, the Court was to interpret the çomprornis concluded byAlbaniaand
the United Kingdom after the Judgiiient of the Court in the preliminary stage of
the proceedings. Under the second part of the ad hoc agreement, cornpetence
was given to tlie Cuurtto decide what kind of "satisPwtion"was due to Albanjü,
but that State denied the coinpetence of the Court with respect to the amount of
ccimpensationdue to the United Kingdom under the firstpart of the agreement,
which referred to the international responsibility of Albania.In this context, the
Court declared that -
"The clauses used in the Special Agreement are paraIlel. It cannot
be supposed that the Parties, while draftinngthese clauses in the
saine forrn, intended to give them oppusite meanings -the one as
giving the20~urt jurisdiction, the otber lis denying suçh
jurisdiction ."
Z06
S.Rosenne, u.. Vul. 1p.332,slatingtha"theCourt'sjurisclictis thproduct of
lhe consenoi'LhePartie10thedisoule".
207 W.,p.303.
'O9
Judprnent,I.C.J.Report1949,p.264.42 ln the present case, however, the reciprocity element of consent given
-oc by the Parties in the December 1937and ûoha Agreements may be dearly
siscertaineci buth in respect rif the disputes subiiiitted to the Court and the
rnailner ofselsinof the Court:
(i) In the Doha Agreement, it was agreed to sub~nit "the inatter to the
International Court of Justice in accordance with the Bühraini formula", this .,
expression incorporating by reference into the Agreement the content of the text d
trunsinitted to Qatarby Bahrüin on 26October 1988,whiçh reads us follows:
"The Parties request the Criurt to decide any matter of territcirizil
right or other title or interest whicrnay be a rnatter of ciifference
between them; and to draw a single maritime boundary between
their respective maritime areas of seabed, subsoil and superjacent
waters."
Hsivingregard to the reciprocity eleinent in the consent given by hoth States, two
points should be observed with respect to this definition of the legal disputes tu be
referred to the Court for decision under the Dohn Agreement. m, when
defining the disputes to be submitted to the Court, the Bahraini formiiln is
worded in neutral Ianguage, both with respect to disputes concerning "territorial
right or other title or interest" and with regard to disputes on rnsiritiine
delimitation. Therefore, under the Bahraini formula, each of the Parties has the
perfectly reciprocal right to file before the Court any clairns, insofar as they are
covered by thisdefinitionuf the dispute. Secund, the legal disputes submitted by
Qatar to the Court for decision are covered by the terms of the Bahrain iorrnula.
This is the case, first, of the clailn on sovereignty over tHawar islands and of
scivereignrights over the Dibal and Qit'at Jaradah shoals, since these questions
are undoubtedly n "matter of territorial right". Second, the claim concerning
maritime delimitation, as well as that concerning the status of Dibal and Qit'at
Jaradah, are to be decided by the Court in respect of the "single maritime
boundary between their respective maritime areas" to be drawn by the Court.
Therefore, the concrete disputes referred to the Court by Qatar's Application
filed on 8 July 1991do not extend the jurisdiction which has been recognized by
the Parties in the Doha Agreement and in this respect the reciprocity of the
consent given isfullymaintained210.
210 See,paras5.75-5.8below.(ji) In the present case. the Parties have also given each other pei-l'ectly
reciprocal rights concerning seisin of the Criurt in the Minutes signed on
25 Deceniber 1990. ln paragraph 2 of the Minutes they agreed, fir s1teriod
dui-inçwliich the elfurts tci settthe disputes on the nierits through the S:iiidj
Mediaticin would be continued up to 15May 1991.Second, itwas alsoagieed that
"After the end of this pericid, the parties inay sub~nit the matter to the J
International Courtof Justice inaccordance with the Bahraini forinula,whjch l-ias
been acçepted byQatar. and the proceedings arisingtherefrom". a g
4.43 The seisin uf the Court, therefore, is a right granted by the Doba
Agreement to each of the Parties. Bahraiii was also entitïed to institute
proceedings before the Court after 15 May 1991, as Qatar did on 8July 1991,
after twice announcing its intention to do so to the MediatoKing Fahd of Saudi
Arabiii.In the Fisheries Juriscliction(United IGnadum v.Icelnnd) case a situation
of this kiiwas considered by the Court, stating that -
"..the comprnrnissnryclause has a bilateral chüracter, each of the
parties being entitled to invoke the Court'sjurisdiction; it is clesir
that incertain çir~t~stances it could he to Icelnnd'sadvantage tu
apply to the Court ."
The Minutes signed on 25December 1990 are also bilateral in character insofar
as the seisin uf the Court by each of the Parties is concerned, but they do nut
prescribe any particulcirprocedure for such a seisin.Both Parties are, therefore,
free to seisethe Court, for exainple by means of an application, as Qatar has
done.
D. IrrevocabilitvofConsent
4.44 Consent given by the parties in an üd hoc agreemen.t to refer a legül
dispute tu the Court impliesfinüily,nfurther çonsequence: the irrevocabilitby a
pars of the consent given. As put by Judge Sir Garfield Banvick in his dissenring
opinion tcithe Judgment of the Court in the Nuclear Tests (Australia v. France)
case -
211 Jurisdicliofthe Court.Judament,I.ChJ.Repuris 1p.16. "Whether it isgiven hy a mmiiltilatertreaty or by a çornpromissory
clause in a bilateral treaty the consent to jurisdiction is irrevocable
zindinvariable except as prnvided bythe treaty, stiIo8 @ 'he treaty
.
reinains inforce in accordance witlithe lawof treaties
In connection with the question of the irrevocability of consent: the date of
instituting proceedings before the Court is particularly important. As Rosenne
has put itl "when consent hus been given, itmay not be withdrawn, at least if ..**
tinother State hss acted on the basistherenf and has instituted proceedings before
3
the COUII~~~': The author:was dealing with the inatter with regard mainly to - '
jurisdiction on the basis of Article 36.parügraph 2, of the Statute and the doctrine
of forum proro~atum. In füct, however, the effect which the institution of
proceedings has on the irrevocsibilityof consent isgeneral in character, the airn of
the rule of irrevocabilitybeing, as Rosenne indicsites,"tu introduçe un eleinent uf
stability in recourse to the judicial process and to create a distance between the
conduct of a case before the Court, and ephemeral considerations based upon
21411
irnmediate fluctuations ina politicalsituation .
4.45 In the present case, the Parties agreed in the December 1937 Agreement
to refer "Al1the disputed inatters ..to the International Court of Justice, at The
Hague, for a final ruling binding upon both parties, who shall have to execute its
terms", and this Agreement wasreaffirmed in the Doha Agreement.
4.46 Qatar therefore submitsthat Bahrain gave its consent to referto the Court
the existing legcil disputes between itseif and Qatar in the 1987 and 1990
Agreements. Qatar on 8July 1991thus instituted proceedings before the Court tu
decide upon the disputes on the basis of the said Agreements. Accordingly,the
consent given is irrevocable and, as was accurcitely affirmed by Sir Hersch
Lauterpacht in his dissenting opinion to the Judgrnent of the Court in the
lnterhündel case, "Admittedly,once that consent hns been given the Court will
not allowthe obligationthus undertaken, or the effeçtivenessof that obligcitiun,'to
be defeated bytechnicalitiesor evasion 21511.
212
1.C.JReports 1974.p.402.
213
S.Rosenne, op.cit..Vol.1p.322
214 I9id p.323.
*15 LCJ. R~DOT ~S59,p.114.SC(..~IO3. TheEssential Aspects of Consent aiven under tlie December 1987
Agreementand tltDolia Aareenient
A. The Circumstanceof the SaudiMediation
4.47 In the present case, the Minutes signed on 25Decelnber 1990 cleai-ly
evidençe that the relevant circumstance2l6 is tlie Mediation conducted hy Sniidi
Arabia at least since 1976. It is worth noting,fir hatt,under paragrsipli 2 the-
Parries ügreed that the gond offices of Saudi Arabia should continue until May
1991: and, second, that under paragrüph 1 they agreed to reaffirin "what was
agreed previous1ybetween the two parties". Therefore, the consent given by the
Parties to refer the dispotes tthe Court isto be ctinsidered not onlywith regard
to the "ordinary meaning to be givento the terins" of the Doha Agreement "inthe
Iight of its object and purl3oseubut also with regard to the various agreements
entered jnto by the two States inthe courseof the SaudiMediation,
4.48 The Mediatjon conducteci by Saudi Arabia with regard to tlie existingand
estoblished disputes between Bahrain and Qatar has heen exnmined in detailin
Chapter 111 of this Mernorial. lt therefore suffices to indiciltehvery hrieflythe
relevant dates and results of this Mediation:
(i) On 13March 1978,a set of "Principles for the Frarnework for reaching a
Settlement" was proposed by Saudi Arabia, and which, as ürnended, was
siibsequently accepted by Bahrain and Qatar inMay 1983'~'.
(ii) On 19December 1957,King Fahd of Saudi Arabia addressed identical
letters to theArnirsof Bahrain and Qatar in whichit was proposed that "Firstly:
AI1 the disputed rnatters shall be referreto the International Court of Justic..."
and that tu this end, there wouldbe "Thirdlv:Formation of a cornmittee ..for the
piirpose of approaching the International Court of Justice, and ssitisfyingthe
2L6 InitsJudgmentin theFisheriesJurisdiction(UnîtcdKin~domIcclünd)Jurisdiciiof
the Courtmse, the Coufi, in ordeioascertainwhelher the intention oi'[lie parties
exisredto cvnlerjurisdiçtionupon fouiid appropriatetu refeto "theobjectand
purpose of the 1961 Exchangeof Notes, and therehre the ciicumstances which
cunstituledanesscnlialbasisthcconsentof bolhpartiesiohebuund"(1.C.JRcvorts
1973,p.17). Similarly,in the AeeSeaCvnlinentalShelfcase reference was main
- -.
theCourl'sJudgmentof'1978liotonlLo the "actuterms"oftheBrusselsCommuniqué
of31 May 1975buialsotu "theparlicularcircumslaninwhich iiwüsdrawn up"(m
Reports1978,p.39. paraYB).
217
See,paras3.09-3.20abuve.necessary reyuirernentsto have the dispute subrnitteclto the Court". These twri
proposals for the judicial settle~nentof the disputes, like those included in the
seccind and foiirthitems of the letter, were "stin'ctionby the two countries",as
stated bySaudi Arabia in the Announcement of the Agreement between Bahrain
and Qatar, dated 21Deçernber 1987~~8 An Agreement. reached through Saudi
Arabiri's Mediation, hiistherefnre existed between the Parties since 1957, the .
principal objeçt and purpose ofwhichistn subinit the disputes to the Court. i
3'
(iii) In the course of the worlcofthe Tripartite Coinmittee, Bahrain submitted
proposals for a draft special agreement in March and June 1988~~9Hmuever,
given Qatar's objections to the provisions of those drafts defining the subject
rnütter of the disputes tu be decidedby the Court, on 26October 1988the Heir
Apparent of Bahrain transrnitted to the Heir Apparent of Qatar a new text for
tiiç definition of the disputesZZo,this textfur the definition of the disputes being
known asthe Bahraini forinula. Diiring the 11th GCC suminit meeting held in
Doha from 23 t« 25December 1990, Qatar declared that in order to refer the
disputes to the Court, it accepted the Bahraini formula definingthe disputes to be
submitted to the Court. As a consequence. Minutes of agreement were signed on
25December 1990 by the Ministers of Foreign Affairs of Bahrain, Qatar and
Süudi~rübia~".
4.49 It maybe concluded, fir that according to the very terms of the Dohn
Agreement, reference must be made, on the one hand, to the previous December
1987Agreement where the Parties comrnitted thernseives torefer al1matters in
dispute to the Court; and on the other hand, to the definition ofthe subjeçt
inatter of the disputes in accordance with the Bahraini formula, accepted by
Qatar inDecember 1990. Second, the textof the Doha Agreement and the other
texts accepted by the Parties and incorporated therein by reference (the
December 1987Agreement and the Bahraini formula), should be considered,in
the Iightofthe circumstance of the SaudiMediation.
21X Annex11.15 .ol. IIp.101.
219 Annexes 11.2and 11.2V,oI..IIpp.139and 181.a. alsoQalar'sdraHinAnnex 11.21,
VOLIII,p.133. - r
220 Annex11.29 ,ol.111,.191a, also,paras.3.48and3.ahove.
221 See,paras..55-3.5above.B. Consentto referthe Disputes totheCourt
4.50 Treaties and conventions in force within the rneaning of Article 36,
paragraph 1, of the Statute of the Court havea precise abject and purpose: ta
refer the case or the existing dispute to the Court for decisiun. With regard to
similar agreements, i.e t.o,e submitting disputes to arbitration, this conclusion
l i
has been clearly stated by the Court in its Judgment in the case concerning the
Arbitral Award of 31 Julv 1989(Guinea-Bissauv. Senegal) inthe followingtermg
i
"..when States sign an arbitration agreement, they are concluding
an agreement with a very specificobject andpurpose: to entrust an
arbitration tribunal with the task of settlinga dispute in accordance
with the terms agreed by the parties, who define in the agreement
the jurisdiction of the Tribunal and determine itslimits.In the
performance ofthe task entrusted to it, the tribunal 'must conform
to the terms by which the Parties have defined this
task'(De1imitationofthe Maritime Boundaw in the Gulf of Maine
Area, Judgment. I.C.J.Reports 1984,p. 266,para.23)LLL.'I
4.51 In the present case, the Parties agreein 1987 to entrust the Court wjth
the task of settling the existing dispute, as they also did in the Minutes of
Agreement signed on 25 December 1990to irnplementthe former. Thus, the first
item of theproposal made bySaudiArabia in 1987 and accepted by both Bahrain
and Qatar Statesthat -
"AH the disputed matters shall be referred to the International
Court of Justice, at The Hague, for finalrding binding upon both
parties, who shallhaveto execute itsterms."
Qatar submits that these terms are clear and unequivocal, and are in fact very
close to the language used in Articles36,paragraph 159 and 60 of the Statute of
the Court. And the third item of the proposa1agreed by the Parties in December
1987 once more made reference to the International Court of Justice, its
constitutive instruments (k. ,he Statute and Rules of Court) and the final
character of its judgments. In implementing the Agreement of December 1987,
the Doha Agreement, incorporating by reference the Bahraini formula, also
clearly expressed the specific objectand purpose of the Parties' agreement. Thus,
it was agreed, in paragraph 2), that "After the end of this perîod, the pmayies
submit the matter to the International Court of Justiceinaccordance with the
Bahraini formula, whichhas been accepted by Qatar, and the proceedings arising-
222 Judprnenof12 November1991,p.21para.49.therefroin". Qatar submits that the terms of this provision are clear and
unambiguous: and that their precise object and purpose are directly linked with
ArticIe 36?paragraph 1,of the Statute of the Court.
C. Consent'tutlie Suhiectand Scoi>eof theDisputes
4.52 ln the passage of itsJudginent in the case of the Arbitral Award of 3 1July -(
1989 (Guineü-Bissau v. Seneaal) quoted abtve, the Court stiited that when the 3
arbitration agreement of the parties entrusts an arbitral tribunal with the task of
settling a dispute, the parties "define in .the agreement the jurisdiction of the
tribunal and deterinine its lirnit~~~~''.ith respect to the Court'sjiirisdiction, the
same statement would be fullyapplicable when a dispute is referred to the Court
by the parties in an ad hoc agreement under ArticIe36.1 of the Statute. Thus, in
the case concerning Delimitation of the Maritime Boundaw in the Gulf of Maine
Area, the Chamber of the Court affirmedthat -
"The Court, and consequently the Chamber, havingbeen seised by
means of a specisilagreement, no prelimi yg ,question arises in
regard to itsjurisdiction to deal withthe case .
If the agreement of the parties gives jurisdictionto the Court and "determines its
limits",the reason is that "the Court'sjurisdiction is alwaysa Iirniteone, existing
only in so far as States have accepted it225".One of those limitais the definition
of the concrete legal disputes to be decided by the Court, such definition
determining the scope of the Court'sjurisdiction ratione materiae.
4.53 In the present case, a first referenceto the subject of the existingdispiites
between Bahrain and Qatar was made in the "Principlesfor the Framework for
reaching a Settlement" proposed in 1978 by Saudi Arabia and accepted by the
Parties. The First Principle stated that
"Al1 issues of dispute between the two countries, relating to
sovereignty over the islands, maritime boundaries and territorial
waters, are ta be considered as comqign,entary, indivisibleissues,to
be soIvedcomprehensivelytogether .
223 Jud~menl of12 Nuvember 191. p.21.para.49.
224 Judemcnt1 ,.C.. cuorts1984,p.265,para.19.
225 Façlorval Chorzow.Jurisdictio,udemenl No.8.1927P ,.C.I.. erieA,No. 9,p.32.
226 Annex 11.1, olIII,p3.The second reference is contaiiiedin the identical letters addressed byKing Fahd
of SalidiArabia tu the A~nirsof Bahrain and Qatar on 19 Deceinber 1957,which
~nentioned "the long standing clispute between tlie sisterly states of Qatar ;ind
Bahrain over the sovereignty over Hawar Islaiids, the maritilne boundaries of the
two hrotheriy coiintries, end sny other rniitter~~~''. liis reference was çcrtainly , ,
connected with the first item of the proposals accepted bythe Parties according to
which "Allthe disputed inatters" were tu be referred to the Court. Finüllv,thei
proposals tabled by Bahrain and Qatar in the Tripartite Corninittee durjiig 1985
certainly al1incliided definitions of the siil>jectanri scope of the disputes tbe
submitted tu the Court.
4.54 Nevertheless, alnong those proposais, the one transmitted to the Heir
Apparent of Qatar by the Heir Apparent of Bührain on 26October 3458 is of
particular significance.That propusal, entitled "Question",is as follows:
"The Parties requtist the Court to decide aliyInatter of territorial
right or other titIeorinterest which inay be a rnsitterof difference
between thein; and to draw a single maritime boundary between
tlieir r2pctive inaritiine areas of seebcd, siibsoil and superjaçent
waters ."
It is worth noting,f&, that this text refers oniy to the issuof the subject and
scope of the disputes to be submitted to the Court, and that it was never included
in any of Bahrain's proposals for a drsiftspecial agreement tabled in the Tripartite
~ornrnittee~~~. Second, although it was disçussed in the last meeting of the
Tripartite Committee, held on 6December 1988, itwuransot agreedupon byQatar
zitthattirne.Finallv, the reaI significance of the Bahraini formula duesnot relate
to the work of the Tripartite Cominittee but to subsequent events. As lias been
shuwnaho~e~~',the work of the Tripartite Committee was hrought to un end in
Deçetnber 1988. During al1of 1989 and 1990, Saudi Arahia was attempting to
reach a solution on the substance of the dispute, but in spiteuf its renewed
brotherly efforts it faileri in its atternpt. Therefsitthe time of the opening of
the 1Ith Sum~nitof the GCC, held in Doha from 23to 25Deceinber 1990,Qatar
228 Annex 11.29,VolIIIp.191.
229 a, paras3.48-3.4ahove.
230 Sce,paras.3.50-3.ab ove.took steps to find a way out of the stalemate existing with respect to the
implementation of the December 1987Agreement. In thc opening session of the
GCC summit and after an exchange of vieivs amongst its Members on the
reference of the existingdisputes between Bahrain and Qatar to the Court, the
Arnir of Qatar declared that he accepted the Bahraini formula, so that there was
no longer anyobstacle ta the reference of the disputes to the Court.
4.55 The Minutes of 25December 1990 were subsequently signed. It was * i
agreed in the second sentence of paragraph 2 that after 15May 1991"the Parties'.
may submit the rnatter to the International Court of Justicin accordance with
the Bahraini formula, whichhas been accepted by Qatar". The Doha Agreement,
therefore, incorporated by reference in paragraph 2 the terms of the Bahraini
formula.
4.56 In the Annex to its letter addressed to the Registrar of the Court on
18August 1991,Bahrain did not dispute either the existence or the contents of
the Bahraini formula. Qatar maintains,therefore, that consent wasgivenbyQatar
and Bahrain in the Doha Agreement in respect of the subject and scope of the
disputes to be decidedbythe Court.
D. Tbe Seisin ofthe Courtinthe Doha Agreement
4.57 It will be recalled that in December 1987the Parties agreed to refer al1
disputed matters to the lnternatjonalCourt of Justice and to form a cornrnittee
for the purpose of approaching the Court and satistjing the necessary
requirements to have the disputes submitted to the ~ourt~~~In the course of the
negotiations in the Tripartite Cornmittee in 1988, the draft special agreements
tabled by Bahrain and Qatar, respectively, differed on the way of instituting
proceedings before the Court I.fact,the Bahraini drafof March 1988was silent
as to the notification to the Couofthe specialagreement, whileArticle V of the
Qatari draft, on the contrary, provided at first for the special agreement's
notification by a ''jointletter" (paragraph 2) andfailinsuch joint notification
that, one month fromitsentry into force, "itmay be notified to the Registrby
eitherParty"(paragraph 3)232.
231 Sec also,paras.3.29-3above.
232 Annex II.21,Vol.Ip.137.4.58 In the Minutes agreed by the Parties on 25Decernber 1990, paragraph 2,
after referrjng to the conti~iuation of the Saurii Mediation until 15May 1991,
contains the fullowingprovision:
"Aftei-the end of this period. the parties inay submit the marter to
the International Court of Justice inaccordance with the Bahraini
formula, which has been accepted by Qatar, and the proceedings
arisinçtherefrom."
9 c
111respect of this provision, the imiin elernent is the agreement that "the parties '
niay submit the matter to the International Court of Justice". However, by iising
the expression "inaccordance with",two other eleinents are made conditions of
the subrnissionof the case to the Court. Those twoelernents are differentiüted by
the word "and":the fiirstis the reference to "the Bahraini formula"; the second is
the expression "the proceedings arising therefrum". Given the cuntext uf this
provision, the orciinaiy ineaning oi these expressions is that the Parties inay
subrnit the case to the Court in accordaiice with the Bahraini formula which
defines the subject and scope of the disputes, and in accordance with the
"proceedingsarisingthereiï-om". ~.. in accordance with the "proceedings", siterin
includingal1questions of procedure, arising out of the Statute and Rules of Court,
includjng seisin iinder Article 40, paragraph 1, of the Statute as applied in the
jurisprudence ofthe ~ourt~~~.
4.59 As indicüted above, includingthe expression "and the proceedings arising
therefrom" in the Doha Agreement allowedseisinof the Court in accordance with
Article 40, paragraph 1, of the Statute, as applied by the Court. Furtherrnore,
Qatar submits that, even if the Parties had .f;liilto include that provision in the
Doha Agreement, the seisin of the Court by either Party by means of an
application or a separsite notification of the Agreement would be in full
çonformity with Article 40, paragraph 1, of the Statute, as may be seen in the
jurisprudence of the Court.
4.60 With respect to pruceedings instituted byan application, Rosenne has said
with reference to the Curfu Channel, Preliminarv Obiection case, that the Court
"explained that the procedural step is governed by Article 40 of the Statute, and
233
See,paras.5.60-5.6helow,and the Opinionof ProfA.S. El-Kosheri, nnexIII.1Vol.
III,py.273-278. 23411
thüt the question of jurisdiction is regulated 'exclusively'by Article 36 .
Indeed, accordingto the statement of the Court jnthat case -
"The Albanian contention that the Application cannot be
entertained becuuse it hcisbeen filed contrary to the provisions of
Article 40, paragraph 1, and of Article 36, paragraph 2,of the
Court's Statute, is essentially founded on the assuinption tiiat the
institution of proceedings by application is only possible where
compulsory jurisdiction exists and that, where it does not, ,.,
pr(>ceedingscanonlybe instituted byspecial agreement.
3
This is a mere assertion which isnot justified by either of the texts
cited. Article 32, p~ir:igr;iph2, of the Rules does n«t reqi~irethe
Applicant. as an absolute necessity,but only 'as Fdras possible',to
speciij in the application the provision on which he founds the
jurisdiction of the Court. Itclearly implies,both by its actual terms
and by the reasons underlyingit, that the institution of proceedings
by application is not 253 c11sively reserved for the dornain of
comp ulsoryjurisdiction .
4.61 With respect to separate notificationsof an agreement referring a dispute
to the Court, the Court's Orderof 26 October 1990in the case of the Territorial
Disnute (Libvan Arab JarnahiriyajChad) is worthy of consideration as to the
distinction between "seisin"and "jurisdiction".The Court's Order states that the
LibyanArab Jamahiriya filed withthe Registry of the Court on 31Augiist 1990a
separste "notification"of an agreement, entitled "Accord-Cadre sur le règlement
pacifique du différend territorial entre la Grande Jamahiriya arabe libyenne
populaire et socialiste et In République du Tchad", concluded at Algiers on
31 August 1989, in which the territorid dispute between the two States was
referred to the Court for decision. But on 1September 1990, an "application"was
alsofiledwith the Registryof the Court on behalf of Chnd, institutingproceedings
against Libya on the basis of the same "Accord-Cadre"of 1989and, subsidiciriiy,
on the bnsis of a prior treaty. At a later date, hawever, Chad considered that its
application constituted siseparate notification of the agreements invoked as titles
234 S. Rosenne, op. cit., Vol.1p.311. In ils reply to the objectioof the Albanian
Government, the United KingdomGovertirnen t enton to statethat "Article40 of the
Slatule merely delines the formalbasisfor action by the Court in a use where
jurisdictions estatilishedbyArti36(1)Thereis nothinginthe Statutor theRulesof
Courtwhich preventsthe proceedings being formallyinsiiiuied by application,even
though the jurisdicliofllie Couriis establishbya 'referencehythe prlies tirhya
'specialagreement'.AccordinglyLheGovernmentof ihe Uniled Kingdom,in bringing
this matterbelorethe Court tiapplication,has,il is submilted,proceded currecily."
LC.J.Pleadines.CorfuChannel.Vol. 11p.18.ofjui-isdictionand the Curirt accoi-dingjyclecided that the procedure in the case
shnuld be deterrnined by the Court on the basis of Article 46, paragraph 2, of the
Rules.
4.62 Froin the procedural facts indicated inthe Court's Order inthe Territorial
Dispute case, three points clearly eitlerge wliich are relevant for the present case.
->'
It should be abserved. fir hatt.two different ways (separate notification and
application) were initially usedby the parties for the institution of proceedings,,
both of thenl through unilateralacts,despite the fact that both parties invokedus
the basis of the Court'sjurisdicticin the sarne agreement, the "Accord-Cadre" of
1989, althciugh Chad also invnked, subsidiarily, anorher title to jiirisdictinn.
Second, the common title of jurisdiction invoked by the parties, the "Accord-
Cuclre"of 1989,did not contüin apsirticularprovision as to the seisof the Court.
In accordance with the French Eextof this Agreement registered with the United
Natioiis Secretnriat, the dispute is definiiiArticle 1,while under Article 2itwas
agreed that -
"...à défaut d'unrèglement politique iileur différendterritorial, les
deux parties s'engagent:
a) iisouinettre le diffkrend au jugement de la Cour Internationale
de Justice."
Finallv,the "Accord-Cddre" of 1989 provides that "the two parties" ("les deux
parties") refer the dispute to the Court, while the seisin of the Court was
perfonned, asindicated above, byactswhichwere unilateralin character.
4.63 The question of the seisinof the Court was alsa dealt with inthe Judginent
of 25March 1948in the Ca~fuChannel, Preliminarv Objection case. With regard
to the Security Council resolutiun of 9April 1947 in which it was recommended
thüt "the United Kingdom and Albanian Governinents should immediately refer
this dispute to the International Cotiuf Justice in accordance with the provisjons
of the Statute of the COUI-~~~~ h', Court affirmeci, in the first place, that
although the bringing of the case before the Court "requires action on the part of
the parties", the SecurityCouncii resolution"does not specifj that this action must
be taken j~intl~"~~~A. nd the Court stated thnt- "...in thesecond place. the metl~od cifsubinitting the case to the
Court is regulated by the texts governing the working of the Court
as was pointed out by the SecurityCouncil in its recomrnendation.
The Court cannot therefore lloldto be irregulyfbcroceeding whiçli
is not,precluded byany provision in these texts . .
4.64 It moy be concluded, therefore, in the lightof the foregoing considerations,
thüt when the parties agree to refer a dispute to the Court's decision, the
jurisdiction of the Court is to be determined in accordance with the intention
f'
expressed in the terins of that agreement, in the Iightof its cibjectand purpose.
That is, inthe present case, in açcord:ince with the terms, object and purpose of
the December 1987Agreement and the Doha Agreement. On the other hand, the
seisin of the Court isgoverned by Article 40, paragraph 1,of the Statuteand the
jurisprudence of the Court if no specialprovision on this matter hüs been ügreed
by the parties. In the present case. as indicated above. the manner of instituting
proçeedings was agreed in the Minutes signed on 25December 1990by the terms
"the parties Jnay submit the matter to the International Court of Justice in
accordance with the Bahraini formula, which bas been accepted by Qatar, and the
proceedings arising therefrom". Thus, as the Parties have not included such a
special provision irithe Doha Agreement, but have provided that the Parties may
submit the matter to the Court, seisinof the Court isgoverned by Article 40,
paragraph 1,of the Statute. Therefore, the Court has been duly seised byQatar's
Application filed with the Registry of the Court on 8July 1991. CHAPTER V
OBSERVATIONS ON BAHRAIN'S CONTENTIONS
Introduction..
5.01 In the preceding Chapter, Qatar has demonstrated that its Application is
adinissibleand that the legalrequirements have been satisfiedto secure a basis of
jurisdiction for the Court to entertain the disputes submitted bythe Application.
3
5.02 In two communications to the Registrar of the Court, referred to in the
Court's Order of Il October 1991, Bsihrain has stnted that jt contests the
jurisdiction of the Court. Those coln~nunicationsare:
a letter dated 14 July 1991 from Mohammed bin Mubarak Al-Khülifa,
Minister of Foreign Aftidirsof Bahrain,tothe Registrar;
a letter dated 18Augilst 1991 t'rom Mohammed bin Mubarak Al-Khalit-a,
Minister of Foreign Nfairs of Bahrain, to the Registrar, to which were
appended an Annex and several Attachments 239.
These documents raise the followingarguments tu showBahrain's alleged 1açkof
consent to the jurisdictioof the Court:
- that the Doha Agreement is not an international agreement;
- thüt the Doha Agreement is not a binding agreement becnuse it does not
complywith the requirernents of Buhrain'sConstitution; and
that the Doha Agreement does not contain any consent byBahrain thnt
the Court could be seisedunilaterallyby Qatar.
These arguments will be denlt with inthe order set out above in the follawing
Sections. Incidentally,it maybe noted that Bahrain has not contested either the
existenceof or the commitments made inthe December 1987Agreement.
239 A îurlher irregularcommunication(ina leiter dated 16 Septernber lY[rom the'
MinislerofForeignAffairsof Bahrainto the Registrar)hasalso been madebut is nui
relcrredloin theOrdeoftheCourt.5.03 As stated in the Co~irt'sOrder of 11Oclober 1991,tlie Parties have agreecl
that the questions of jurisdiction and of adtnissibility shuuld he separateiy
deterinined before any prvceedings oii the 1iierit.s.Qatar rlbttesthat soine of the
nbuve-inentioned arguments iiiight have the character of.an issue concerning
adinissibility, although they were not expressly presented as siich by Bahrajn.
Tlierefore, witliout entering into any issue of classification, will beexaminçd ,.9
in this Chapter in connection withthe question ofjurisdiction to which they might
relate.
Sec~icix1. Bahrain's Denial thnittlie Doha Agreement is an lnternatiunal
Agreement
5.04 In order to contest the legalcharacter of the Dolia Agreement Büt~rainhas
presented two arguineilts:fir that tliis Agreement has a political character; and
second,that it isnot in force.
A. TheAIIeeed"PoliticalCharacter" of theDohaAgreement
5.05 This first argiiment has been couched in the followingterms:
"The Minutes were not intended to reflect legaliindertsikingsbythe
two sides but rüther their pciliticalwillingnessto continue their
efforts ta açhieve a brotherly mediated solution over the ensuing
five months and, thereafter, if necessaq, $46 evive their efforts to
agree upon ajoint submission to the Court ."
The argument isrepeated further on:
"Ln the circurnstances, the Min~~teof25 December 1990cannot be
regarded as anything more than a politicaldeclaration. They
certainly do not possess the quality aflegallybinding international
agreement sufficient tu ~OYI-J,the jurisdiction of the Court undrr
Article36(1) of the Stütute ."
As can be seen, the aIlegation that the Doha Agreement is a "political"
agreeineiit, insteaof a "legal"one, isinerelasserted; it isnot siihstantiated.
240 Sec.AnnextoBahrain'sletleof18Augusi 1991,p.3.para4.
241 &. Anncx toBahraiu'hier of18Aususi 1991.p.5,para7.5-06 The mere facr that theDoha Agreement took the form of "Minutes"does
not deprive it of its quality as :in international agreement under custotnary
international law as reflected in the Vienrizi Convention on the Law of
~reaties~~~.Açcordingto Article 2of the Vienna Convention -
"..'trcaty' means an iiiternational agreement concluded between
States in writtenforln and governed by international law.whether
elnbodied in a single instrument or in two or more related a-
instruments and whatever itsparticulür designation."
3
111support of thisview. the internationalLaw Commission,in its cotninentary on
that Article dealingwith "lessforma1types of agreements", notes that -
"..some names such as 'agreement', 'exchangeof notes', 'exchange
of letters', 'mernnranduinPLfq9greernento'.r 'ngreedminute'may be
inore commonthan others ."
5.07 The concept of political agreement or political declaration put fonvardby
Bahrain is rather puzzling. Most international agreements have both a political
and a legal character. To be relevant therefore, Bahrain's argument would have
tu be. supported by proof that the Doha Agreement embodied un& purely
political undertakings. Thisconcept of "political agreements" was studied in a
thorough report bythe late Professor Virallypresented in 1983at the Cambridge
session of the Institut de droit international. In the final conclusions of the
Rapporteur appended to the Institut's resolution this same point was made and
wascontested byno one:
"7. -Comrnitments set forthin the text of an international treaty
within the meaning of the Vienna Convention of 23 May 1969are
legal commitments unless it followsfl8;estionably from that text
that the intentionwasto the contrary .
5.08 The Doha Agreement unquestionably contains legal commitments. The
language used could not beclearer in this regard:
B. paras4.23-4.3above.
243 Yarhookof theInternaiiona LlawCommissio 19, 6,Vol11,p.188,para. (footnote
omitted).
23J Annuairede1'Instituldedroitinternational.60,11,1984p.291. "ThefoIlowingwüsarrreed:
1)To reaffirin whot wasapreed previciuslybetween the twoparties;
2) To continue the good offices ...between the two countries....
After the end of this periud the parties inay subrnit the inatter Q
the International Coi~rtof Justice in accordsincewith the Bahraini
fortnula, whjch has been accepted by Qatar ...Saudi Arabiü's guod
officeswillcontinue...
4
3) Should a brotherly solution acceptable to the two parties be
reached, tlie case willbe withdrüwn frnm arbitration." (Emphases
added.) 1'
This texicontains a reaffirination of previnus legal ctimmitinents, in particular
those contained in the Decernber 1987 Agreement, whicli is implicitly
incorporated by reference, inter alia that -
"Al1the disputed inütters shall be referi-ed to the International Coiirt of
Justice, at The Hague, for a final rtiling binding upon both parties, who
shaHhave to execute itsterins";and that
- the status quo be respected.
Tlie Doha Agreement nlso determined the scope of the disputes through the
incorporation by reference of the Bahrsiiniformula. Italso provided that the
Interntitional Court of Justice lnabe seised bythe Parties. Finally,igives preçise
indications as to the interrelationship of the two modes of settlement of the
existing dispute (mediation and judiçial settlement) and the wüy they are tu
coexist. Tliere is no indication that these undertakings have a purely political
chilracter excludingtheir obviouslegal nature.
5.09 As explained inProfessor El-Kosheri'sOpinion, the above approach to the
interpretation of this textisfullyconsistent with that of the Arabo-Islamic legsil
tradition.In particular, the use of the past tense in an Arabic text of this kind
245
showsthat it contains obligütoryundertakings .
5.10 In view of the abrive, Qatar maintains thüt the Dohü Agreement
constitiitesan international agreement governed by international law.
245 See ProfessorEl-Kosheri'Opinion,Anilex111.1, olIII,pl266-267.B. TheAllegntion that the DiihaA~reementis net "lnForce"
5.11 Bahrziinhas also alleged that the Doha"Agreement has never coine into
force:
"Notwithstandinç the claiin byQatar that the Minutes entered into
Icirceon the date of their signature, 25 December 1990, any so-
calleLi'agreement' cuuld not have. and therefore has not. su
entered into effect46 ."
3
Bahruin alieges that the Doha Agreement is not in force becriuseArticle 37 of its
Constitution, providing for the enactinent of a law for treaties concerning the
territoiyof the State, has not been cornplied ~4th~~~Q . atar maintains that the
question of entry into force must be addressed according to public international
law.
5.12 The position in customary international lawis reflectedin Article 24of the
Vienna Convention on the LawofTreaties whichreads inpart as follows:
"1.A treaty enters into force in such manner and upon such date as
it mayprovide oras the negotiating States mayagree.
2. FaiIing any such provision or agreement, a treaty enters into
force as soon as consent tu be bound by the treaty has been
established foral1the negotiating States."
5.33 In the present case, it is clefrom the text of the Doha Agreement itself
and fiom the surrounding circumstancesthat there is no provisionconcerning the
entry into force of the Agreement. Parügraph 2 of Article 24 of the Vienna
Convention isthus applicable and it must bttexaminedwhether the consent to be
bound is established forthe negotiating States.
5.14 The position of Qatar is that the Minutes signed on 25 December 1990
constitute an agreement in sirnplified form which entered into force upon
signature. This position is supported by provisions of the Vienna Convention on
the Law of Treaties whiçh may be considered as declaratory of custornary
international law.
246 Thiscontentionis madeinthelettefrom thePermanentRepresentativeoftheSiaieof - :
Baiuainto theUnitedNations,düicd9August1991.(&, Atmchment8 oftheAnncx io
Bahrain'sIçtterdaied18Augusl1991.)
247 See,Section2belowlora moredetaileddiscussionof lhis issue.5.15 The Minutes were signed by theMinisters of Foreign Affairs of the thi-ee
States ccsncerneci. ccordingto Article7 of the Vienna Convention:
"1.A person isconsiderecl RS repraentjng a State for thepurpose
of adopting or authenticating thetextofa treaty orfur the purpose
of expressi~nthe consent (ithe State to behound by a treatyif:
(b) itappears from the practice of the States concernecl or froin
uther circutnstances that theii-intentiwas to consider that persvn
as representing the Stsite for such piirposesand ta dispense with
fuIlpowers.
2. In virtue of their functions and without having to produce full
powers, the followirigare considered as representing their Stüte:
a) Heads of State, Hetids of Governrnent and Ministers for
theect->nclusiof a treaty..'.ose of perf-ormingal1acts relatingtu
It follows from the above that Bahrain's Minister of Foreign Affairs wüs fully
etnpowered to express the State of Bahrüin'sconsent to be bviind by the Doha
Agreement.
5.16 Article 12, paragraph 1, of the Vienna Convention, which deals with
consent to be bound by a treaty expressed bysignature,reads as follows:
"1.The consent of a State tu be bound by a treaty is expressed by
the signature of its reyresentcttivewhen:
(a) the treaty provides that signature shall have that effect;
jb) it is othenvise established that the negotiating States were
agreed that signature shouldhave thüt effect; or
(c) the intention of the State to give that effect to the signature
uppears from the full powersofits representative or was expressed
duringthe negotiation."
The commentüry of the International Law Commission on the draft of this
paragrilph (which was adopterl by the Vienna Conference with no change of
substance) givesthe followingexplünütiuns:
"w (ofthe article sidinitsthe signiiture of a treaty by a
representative asan expression of his State's consent to be bound
by the treaty in three cases. The first is when the treaty itself
proviclesthat such isto be the eflect of signature as is common in the case of lnany types of bilateral tresities.The second iswhen it is
othenvise established that the negotiating States were agreecl that
signature should have that effect. ln this case itsimply a question
of demonstratine the intention from the..evidence. The third case,
which the Commission included in the light of the cornments of
Guve~ninents,iswl-ienthe intention of ?inindividual Stateto give its
signature that effect appears from the full powers '7s ed to its
representative or was expressed during the negotjatiun .1
5.17 Consent to be bound hy ratification istreated as followsin Article 14ofthe
ViennsiConvention: J!.
"1.The consent of a State tribe bound by a treaty is expressed by
ratification when:
(a) the treaty provides for such consent to be expressed by means
of ratification;
(b) it is othenvise established that the negotiating States were
agreed that ratification should be required;
(c) the representative of the State has signed the treaty suhject to
ratification; or
(d)the intention of the State tcisignthe treaty subject to ratification
nppears from the full powers of its representative or was expressed
during the negotiation."
5.18 In the present case, the Doha Agreement contains no provision with
regard to the consent to be bound. However, the Minutes were not signed with
any condition express or implied that they were subject to ratification; and there
wüs no limitation of the full powers of the signatories involved. In such
circumstünces, as aptly explained bySir Ian Sinclair -
"...the Convention, as adopted, makes no attempt to resolve the
doctrinal dispute as tu whether there is a presumption in favour of
signature or ratification as a means of expressing a State's consent
to be bound when the treaty issilent on the inatter ...In this respect,
it may be said to have respected rinciple of the procedural
autonomy of the negotiating States $8 .P
248 Yearbookof thelntcrnatianaL~aw Commission .966.Vol. 11p.196,para.3 (ernphaiis -
acided).
246, Sir IanSinclair,TheViennaConventionon the Law ol Treaties2nd.ed.M, anchester
UniversityPress1954,p.JI.5.19 Tlierefore. either subparagrapli(b)or (c) ofArticle 12,psiragrapli 1,of the
Vienna Convention applies in the present case. It the latter applies, it tnube
taken into consideration that the Minutes weri signed by Bahrriin'sMinister of
Foreign Affairs who, iinder Article 7, paragraph 2. subparügraph (a), of the
Convention, enjoys fulpuwers ex oftïcioIfArticle 12,parcigraph1,suhparagraph
(b) applies, the text of'the Doha Agreeineiit itself provides clear evidence that 'i
ratification was not envisaged by the Parties. There can be no duubt that the
Doha Agreement was to enter into force imrnediately. Before the Parties were?
allowed to seise the Court. a limited period of time was Iett to Saudi Ara b'a to
exercise its good offices iian attempt to reach a settlement of the substance of
the disputes. The façt that the Agreement was to be irnplemented immediately,
and was infact so i~n~lernented~~?confirinsthat the Agreement came intoforce
upon signature.
5.20 In view of the above, and leaving aside for the moment any observations
on thüt part of Bahrain's argurnent concerning Article 37 of Bahrain's
Constitution (yrcividingfor the enaçtnlerit.oa Iaw for tesriturial treaties), wliich
will be dealt with in the next Section. Qatar siibmitsthat the Doha Agreement is
an international agreement in simplified f'ormwhich entered into force upon
signature on 25 December 1990.
5.21 This is by no ineans an unususïl coiiclusion. Every State enters into
nutnerous agreetnents whichcoine into effect from the date of their signature.
251
This practice hasalsobecnme cornmonin the Arabo-Islainic lep1 tradition .
SI~CTI2 O.N Bahrain's Denial tliatthe DuliaAgreement is aBinding Agreement
because of Lack ofComulinnce with theReauirements ofBahrnin's
Constitution
5.22 Bsthrainhas made reference to Article 37 of its Constitution of 1973which
reads in part as follows:
"The Ainir shall conclude treaties b decree and shalltransmit
<hem imrnediately to the National &uncil with the appropriate
statemerit.A treaty shall have the force of a Iüwafter it hrisbeen
signed,ratifiedand published inthe OfficialGazette.
250 Sm, paras3.59-3.6above.
-ee,ProfessurEl-KosheriOpinion.Annex111.1. olIIIpp.255-260. However. treatitts..concerning the territory of the State. its naturül
restiurces or ~3yreign rights ...shnll corne into effect only when
made by a law '."
Bührain recognizes that iii 1975 the National Council was dissolved by hniri
Decree. but states that the legislative power of the National Council was
transferred tu the Amir and the Counçil of Ministers by Amiri Order No. 4 of .
1975. .,
3 '
5.23 Bahrain alleges that: these constitutiunal requirements have not been
sütisfiedin the present case and that this would have been well-known to Qatar.
Bahrain also alleges that Bahrüin'sMinister of Foreign Affairswas well aware of
siich constitutional reqtiirements, which were provided fur in the drsift special
agreement sub~nittedbyBahrain on 19Msirch 1988,arguingthat -
"...it isçarcely tri beirnapined that he would have entered into a
binciingagreement with Qatar cin such inatters without ensuring
that2J&ihrain'sconstitutional requirements had been or would be
met ."
Accordingto Bahrain, thetefore -
"The non-satisfaction of these requirements brings the situtition
within the yyps ofArticle 46of the Vienna Convention on the Law
of Treatiês .
5.24 The whole reasoning of Bahrain is based on a confusion between the
procedure relating to the conclusion of a treaty, whiçh is governed by
international law, and the effect ofü treaty in interna1iaw,which is reguleted by
constitutional law. The Vienna Conference on the Law of Treaties treated the
probleins of the interrelationship between internatirinal 1awand interna1 law in
treaty-making in depth and adopted a general framework for solution of such
problems.
252 S*eeAnnexIoBahrain'sleiteror18Augusl 199, pp.13-14,para.16.
2-553 m., p.15,para.18.
253 Ibid.A. Tlie GeneraiFrameworkof tliVieixnaConvention
5.25 Accordingto the custnmaiy prinçipies on'thelawof treaties, as reflected in
the Viennü Convention, a clear distinction is made between the conclusjan of
trt-:des and tlieir efkct in internal law. The requirements fur the concl~isionof
treaties are set out in PaII -"Conclusionand entry into force oftrenties"In Part
III- "Observance, appliçüticinancliiiterpretation of treaties" - Article 27. dealing
with "Interna1law and observanceof treaties", readsas fnllows: <.
"A party may tnot iitvoke the provisions of its interna1 law as
prejudice to article 46."luto perforin atreüty. This rule is without
Finrilly,in Part V - "Invalidity,termination and suspension of the operation of
treaties"- Article46 provides as followswith regard to the "Provisionsof internal
Iawregarding competence to conclude treaties":
"1.A Statemaynot jnvoke the fact that itsconsenttnbe bound by a
treaty has heen expressed in violation of:iprovision ofitsinternai
Isiwregsirdingcornpetence tu coilclude treaties as invalidating its
consent unless thnt violation was manifest and concerned a ruIe of
itsinternal lawof fuundci~nentail portance.
2. A violation is manifest if it would be nbjectively evidenttriany
State conducting itself in the inatter in accordance with nornial
practice and ingond friith."
5.26
1t is clearErom this general frürnework that internal law is taken into
account only in exceptional circumstances ("A State mm not involce..-nless"
(emphases added)) andin extremelypreçise conditions:
üsa meüns to invalidatethe treaty;
- where a prwisiun of interna1 law regnrding co~npetencetu conclude the
treaty was violated;
-
where that violation is manifest;
and where it concerned a rule of its internal Iaw of fundamental
jingortünce.B. Tlie Conclusion ofa Treatyis governedbuInternationaI Law
5.27 The principle that conclusion of a treaty'is governed'by international Iaw
and proce"dui:eswas adopted by the International Law Cornmission,whichgave its
preference to rliegroup ofjuristswhich -
"...considers that international law leaves to each State the .,
deterinination of the cirgans and prtlcedures by whiçh its will to
conclude treaties is formed, and is itself concerned exclusivelywith
the external manifestations of this will on the international plane, ?
Accordingto thisview. international lawdeterinines the procedures
and conditions under which States express their consent to treaties
on the international plane; and italso reguliites the conditions
under which the variolis categories of Stirteorgans and agents will
be reçognized as competent tu çarry out such procedures on behülf
of their State. In consequence, if an agent, competent under
international lawto commit the State, expresses the consent afthe
Sti~teto a treaty through one of the established procedures, the
State is held bound by the treaty in international Iaw. Under this
view, failure to comply with interna1 requirements may entai1the
invaIidityof the treaty as domestic law, and may also render the
agent liable to legal consequences under domestic law; but itdoes
ntit affect the validity of the treaty in international law so loas
the agent acte within the scope of his authority under
international law$5 ."
5.28 As shown in the preceding Section,the Doha Agreement wüsconciuded in
simplifiedform. The Minutes were signed by the Ministers of Foreign AfIüirs of
the three States involved.According to the rulesset out in Article7, paragraph 2,
subparagraph (a), together with either Article 12,paragraph 1,subpsiragraph (b)
or subparagraph (c), of the Vienna Convention, the Ministers represented their
respective States ex officioand needed no special powers to give the consent of
their respective States to be bound iminediütely by signature of the said
Agreement.
5.29 The International Lsiw Commission was particularly attentive to
internationalagreements which are bindingupon signature:
"Admittedly, in the case of treaties binding upon signature and
more especially those in simplified forin, there may be a siightly
greater risk of a constitutional provision being overlooked. But
even in those cases the Government had the necesssiryineans uf
controlling the acts of its representative andof givingeffect to any
constitutional requirements. In other words, in every case any
255 Yearbouk of thInternational awCommission 1966,Vol. 1p. 241para.5. failure to cornply with cur-istitutionalprovisions in entering into a
treaty willbe tky.r'":is sesponsiiliilityof the Governmrnt of the
State concerned - ,
C. The Requi~~enients ofBalzroin's Coirstitutioii
5.30 The text ofArticle 37of Bahrain's Constitutionstates that "The Alnir shall ,
-,
conclude treaties by decree ...57".Bahrain's Constitution isnot unusual in thet, as
is the case with inust constitutions, it does not include any special provisionjl
relating tu agreements in si~nplifiedforin, in spite of their growingfrequency of
usage.
5.31 The text of Article 37 deals only with the procedures for introduction of
treaties into internai Iüw and, in conseyuence, their internal effect. Two
procedures are envisaged. The first procedure is a decree transmitted to the
National Council. The treaty shall have the force of law after it has been signed,
ratifiedand published in the Official Gazette. The second procedure requires a
iaw in order to giveinternal effect to the treaty.
5.32 The difference between these procedures for introduction of treaties into
internal law seems to have been rendered rnther minimal, in view r,f the fact that
in 7975the National Council was dissolved by Alniri Decree No. 14of 1975and
its legislative power was transferred to theAmir and the Council of Ministers hy
AiniriOrder No. 4 of the sarneyear258.
5.33 Whatever constitutional procedure should have been followed by Bahrajn
in relation to the Doha Agreement, it must be emphasized that Bahrain's
Coristitiitiun ciealsvnlywith problerns relating to the procedures fur jntroduction
of the treaty into internalIaw and the internal effeçt af such treaties. As far as
Qatar is aware, the Constitution does not deal with the procedure for the
conclusion of treatieson the international plane.Moreover, the Constitution does
not divide the treaty-making power between two orgsins.Nowhere is it provided,
as in some other cunstitutions, that sinother organ (usuallythe Parliament) has tu
authorize the Head of State to conclude certain categories of treaties, with the
effectthnt these treaties cantlot be conçluded without the enabling consent given
256
Ymrbook of theInternatiunl aw Commission .%G, Vol. IIp.242.paraS.
257
See.para.5.22above.
-ee,Annex ioBahrain'sleucruf lYAugust1991,p.14, parü16.by that organ. Bahrain's Constitutionis onlyconcerned withthe internal effect of
treaties, where treaty-making power is concentrated in the executive, the sole
organ qualified tobind internationallythe State. Thus, it is natquestion here of
a procedure opposing two distinct poIitical organs of the State, where one is a
counter-balance to the other. With the 1975 modificationof the Constitution the
executive organ in Bahrain also exerciseslegislativepower. It would thus appear
that the constitutional difficulty alleged by Bahrain is self-generated. Such a
situation wasenvisagedinthe 1966report of the International Law Commission: ? i
"The second consideration is that the majority of the diplomatic
incidents in which States have invoked their constitutional
requirements as a ground of invalidityhave been cases in which for
quite other reasons they have desired to escape from their
obligations under the treaty. Where a Government has genuinely
found itself in constitutionaldifficultiesafter concluding a treaty
and has raised the matter promptly,it appears normally to be able
to pet the constitutionalobstacleremoved by internal action and to
obtain any necessary indulgence inthe meanwhile from the other
parties. Confronted with a chalien e under national law of the
constitutional validityofa treaty, 6 overnment willnormally seek
to regularize its position under the treaty $daking appropriate
action in thedomesticor international sphere ."
D. Article46 of theViennaConventionis notRelevantin the Present Case
5.34 Article 46 of the Vienna Convention ispresented by Bahrain as a bar to
the effectivenessof the Doha Agreement. Article 46,paragraph 1,reads inpart as
follows:
"A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation ofa provision of its internal
law ...(Emphasis added.)
As shown above, Bahrain's contention is without substance. The present case
does not raise any problem about the consent to be bound, which wascorrectly
expressed by the internationally competent organ, or any problem of conclusion
on the international plane of a treaty, a subjectoverwhichBahrain's Constitution
is silent. Rather, Bahrain has raised aproblem of the introduction into interna1
law of an international agreement already properly concluded which is not
relevant in the present case.Thus,Article 46 ofthe \7iennaConvention isjust not
applicable. I
259 Yearbookof theInternational awCommission1,966V,ol.II,p.242,par9.5.35 Therefoi-e, Qatar subinits that tliereis nu reason to exainine the otl~er-
conditions provided in Article 46 of the Coi-iventionwliich,in any case, are not
tnet.Wowever, itmust be puinted out that the illegation by Bahrain that Qatar
should have.known about these constjtuticinal procedures because they werti
published in the Official Gazette cifthe State of Bahrain, fails to appreciate the
very reasnn why Article 46 was adoyted inits present worcling.It is extreinely
a
difficult for any State tn know exactly how another State interprets its owii
Constitution. In his second report to the International Law Commission an the,
law of treaties. Sir Hulnphrey Waldoçk,the Special Rapporteur, stated as follows
intliisregard:
"...neither the texts of constitutions nor the infc)rination made
available by the United Nations are by any mains sufficient to
enable foreign States to appreciate with any degree of certainty
whether or not a partic~ilar treaty hlls within a constitutional
provision. Some provisions sireçap:ihIe of subjectiveinterpretation,
such as a reyiiirernent that 'political'treaties or treaties cif'speciül
importance' shuuld be submitted tu the legislatiire; stime
constitiitions do not make it clear on their face whether the
limitation reters to the power to coricl~ide the treaty or to its
eft'ectivenesswithindoinestic law.But even when the constitutional
provisions are apparently uncoin licated and precise, the
superficial clarityand notoriery of tee limitations may be quite
deceptive, as in the case of the United States Constitution. In the
majority of cases where the constitution itself contains apparently
strict and precise limitations, it has nevertheIess been found
necessary to adtnit a wide freedom for the executive to conclude
treaties in simplified forin without followingthe strict procedures
prescribed in the constitution; and this use of the treaty-inaking
power is onlyreconciled wjththe Ietter of'the ccinstitutioneitherby
5i process of interpretation or by the develop~nent of politiccil
to treaties inimplifiedform tends to be somewhat flexible;andtheard
question whether or not to deal with a psrticuIar treaty under the
procedures laid down in the constitution then becomes ta suine
extent ilmatter of the political judgement of the executive, whnse
decisiomdnayafterwards be challçngrd in the legislÿture or in the
courts ."
5.36 The hct that the issue raised byBahrain concerns only the internal ef'ect
of treaties has further conseyuences. m, Article 27 of the Vienna Convention
applies without restriction:
"A party rnay not invoke the provisions of its internal lavg sis
justificationfor itsfailure to perform a tre...".
2u0 Ycarbook dlhe Inlcrnalionalaw Commission.1963,Vol.II,p43.para .. -
Secrind, inthe event that iisülleged that thereisa conflictbetween internati(inn1
coinrnitments and interna1procedures, the former must prevail. As was snid by
the Permanent Court of International Justice in the case concerning the
Trcatineiit of Polish Nütiunüls and Other Pcrsons of ~ulish Ori~in or Speech in
the Danzig~errito~:
"...ci Stüte cannot adduce as against another State its own =,
Constituticinwith a view to evading oblig*t ns incuinbent upon it
under international lawor treaties in force ." 3 i
Finallv, it is also most improbable that the Doha Agreement was signed without
the consent of the highest authorities in Bahrnin üs the Prime Minister,
representing the Head of State, the Minister of Foreign Mairs and the Minister
forLcgal Affüirswere al1in attendance at the GCC summit.
5.37 ln conclusion, Qatar sub~nitsthat the denial by Bahrain that the Doha
Agreement is a binding agreement because of an alleged lack of complisincewith
the req~iirements ofBahrain'sConstitiition iswithoiitanyfoundation.
Sec.riow3. Bahrain's Denial that the Text of the Doha Agreement cuntains
Consent by Bahrain to the Unilateral Seisin of the Court bOatar
5.38 Bahrain haspresented its position in two arguments. m, itüllegesthat it
would never have accepted that the Court çould be seised except by a special
agreement. Second, it disputes, on various grounds, that the Bahraini formula
e~nbudiedan agreement as to the subject and scope ofthe disputes. These two
arguments willbe examinedin turn below.
A. Bahrnin's Allegation that it never accepted that theCourt could be seised
except bva Swcinl Agreement
1. Bahrain's contention that the Mediatiun could unly lead to a
special agreement
5.39 In several instances Bahrain insistson the alleged factthat ithas never
agreed to anything except to tryto reach a special agreement between the Parties
2u1 AdvisorvOpinion.1932P.C.I.J., eriAB, No.44,p.24.to submit their differel-icetrithe Court. Tliiis, in the Annex tn Bahrain'sletter tci
tlie Coiirt of18 August 1901,l3al.irailisserts tlia-
"The Minutes were ilot intended to retlect legal undei-tnkingsby the
two si'desbut rather their political willii~gnessto continue their
effortstu achieve a brotherly inediated solution over the ensuing
five inonths and. thereafter. if necessaiy, evive their efforts tci
agree upon ajoint submissionto the Court i8z'.I
Bahrain also asserts that -
"The discussionsthnt have been taltingplace within this früinework
[the Saudi Mediation] have envisaged th 584'1,ission of these
differeiicesto the Cuiirt jointlyby the Parties .
In its irregular crimmunication to the Registrar dated 16 Septeniber 1991,
Bahrain reiterüted this argument -
"Itrnust again be einphasised that in al1 the long negotiations
between the Parties, and in the positions theyhad assurned vis-&vis
the Mediator, the need toreach agreement on a joint submission to
the Court, under a Special Agreement, had been accepted. The
unilateral application by Qatar thus reiects this comtnon
understündir& and as a inatter of principle itis unacceptable to
Bahrain."
5.40 Bahain fails to mention a basic ele~nentof the Mediation, that is - to use
the wording of the Doha Agreement - the reaffirmation of "what was agreed
previously between the two parties". lt is necessary, therefore, to repeat the
proposüls set out in the identical letters dated 19 December 1987 frum King
Fahd, which were açcepted byBahrain and Qatar, a fact which Bahrain does not
deny:
"Firstll: Al1 the disputed rnatters shaIl be referred tn the
Internationiil Court of Justice, at The Hague, for a final ruling
bindingupon both parties, who shallhave to execute its terlns.
Thirdlv: Formation of a corninittee cotnprising rel-iresentativesof
the States of Qatar and Bahrain and of the Kingdom of Saudi
Arahia for the purpose of approaching the International Court of
Justice, and satisfying the necessasi requireinents to have the
--
262 See,Annex tuBahrain'lettea1 18August1991. p.3,pars.4.
2u3 &. Annex to Bahrain'setteof 18August 1991,p.1,para.1. dispute submitted tc-the Court in :icccirdancewith its regulations
and iiistructionsso that a final ruling,bindingupon both parties. be
issued.
Fonrthly: The Kinpdom of Saudi Arabia will conti%s its good
officesto guarantee the iinplementation of these terrns ."
Thistext sets out two obligationswith regard to submittins the case to the Court.
The first one (contained in the first item) describes the ultirnate stage to be
reached as a final and unqualified obligation.which might be calledan obli~aticin
<'
de résultat.Such an obligation iscouched in mandatory langriagewhich leüvesnu
doubt asto the uitimate stage whichthe Parties agreed to reach: a final ruling of
the Court.
5.41 The second obligationcontained in the third item of the Saudi proposal is
of another nature. It leaves to the Parties the choice of the rneans to achieve the
coinmit~nentset out in the first item of the proposal. To this end a Tripartite
Cornmittee was to be established to approach the Court and to satisQ the
necessary requirements to have the dispute submitted to the Court. The choice of
procedural means or method by whichthe case would be submitted to the Court -
unilateral application, separate applications, specialagreement or otherwise - was
left open. The Parties were thus only submitting themselves to an obligation to
negotiate in good faith in order to achieve the seisin of the Court in conformity
with Article 40 of the Statute of the Court as applied in the Court's
265
jurisprudence .
5.42 Bührain'scontention that the Parties only committed themselves to
negotiate a special agreement is therefore amisrepresentation of whnt hcldbeen
agreed. The choice of method to seise the Court was entirely open. It istruethat
Qatar took the initiative and tried, although ultimately in vain, throughout the
whole of 1958ta reach a special agreement with Bahrain. However, inview of the
deadlock which was reached, Qatar was entitled to expect thnt Bahrüin would
coinply with its undertaking to go to the Court, by means other thun a special
agreement. That was to be achieved by the Doha Agreement, in which no
reference is made to the conclusion of a special agreement, thus leaving the
Parties free to seisethe Court bythe means allowed inArticle 40,paragraph 1,of
the Statute of the Court.
AnnexIL15 ,ol.IIIpp.104. 2. Balirain'scontentioixtlint the Doha Agreement only conternplntes
a joint submission to the Coiirt on the basis of tlie Arabic
.expression "al-tarafan"
5.43 Another contention ofBahrain is that the translation givenbyQatar of the
Doha Agreement misrepresents the Arabic original.The Qatari translatiori reads .a
asfollows:
"After the eiid of thisperiocf,the parties Inay ssubinitthe niatter to
the International Court of Justice in accordance with the Bahraini
formula...".
Bahrairi contends that the words in Arabic "ul-tarafnn" should be translated
propçriy by "the two Bahriiin slleges that, consequently, any
seference of the disputes to the Coiirt should be inade by hnth States acting
jointly. Such ücontention iswithoutfoundation for the reasuns çiven helow.
a) Linguisticrensons
5.44 As will be seen from the expert opinions prodiiçeri hy Qatar with this
Meinorial, this vjew is, to say the least, highly controversia1. In his linguistic
opinion dated 4January 1992,Professor Ayyad has shown, with reference to tlie
Koran itself, thüt the use of the dual noun in the Arabic Ianguage does not
necessarily mecln joint action but can equally rnean action by one party or
separate action byeach of the two parties concerned 267 .
5.45 Additionally,Professor El-Krisherishows that the combined effect of the
use in the Dohü Agreernent of the word "in;ty"and of the verb "submit"used in
the singular rather thanin the plural indicates clearly,from a linguisticpoint of
view, that each party was nt liberty individuülly to submit to the Court its clairns
fi~llinwithinthe scope ofthe Bahraini formula if,bythe end of the specifiedtilne
liniit, there had been no amicable solutiun reached as a result of the Suudi
~ediation~~~.
- -
266
See.Annex 10Bahrainb letteul18Augus1 1991,pp 69,paras,23-10.
267
Ses, ProlessurAyyad'Opinion. Annex 111.2. ol. Ip.326-330.
268
See.PrulessorEl-Kvsheri'Opiniun. Anner 111.1. olIII.p286and PI> .7-298. 5.46 The artificialchüracter of Bahrain'scontention is dernonstratecbythe fact -
thnt Btihrain itself has translated the words "al-tarafaby "Parties"and not "the
two Parties"for examyle in 17places in wbat isYeferred toas the Englishversion
of the "original draft Bahraini Special Agreement of 19th Msirch, 1988, as
ainended in Octnher 1988"attached to the Annex of Bahrain'sletter of 18August
1991and in the Bahraini Tliisproves that a dual noun in Arahic can
correctlybe translated by a lnere plural.
?
5.47 In Arabic legallanguage the use of the dual to indicate the presence of two
pçrsons does not menn that they have tn take action together. since the context
inay equally well indicate that each one of the two persons inay or has to act
separately. This isparticularlytrue when one of the two persons adopts a position
clifftirentfrom the otheras inthe present case, where Qatar's claimsto the Court
are necessarily different from Bahrain's daims. In such circumstances, a single
conjunctive action isimpossible.The onlypossibilityis for each Party to seise the
Court with a separate set of claiins.
5.45 Accordingly, there is no real difference if the second paragraph of the
Doha Agreement is trünslated to read "Atter the end of this period, the uarties
may submit the matter to the International Court of Justice ..."or "..,he two
parties mny submit ...(emphases added). From a substantive point of view the
difference in the translation isimmaterial.
Reasonstakenfromthe general context ofthe Agreement
b)
5.49 More significant is the fact that, in the context of the Agreement as a
whole, Bahrain's interpretation of paragrnph 2 of the Doha Agreement does not
makesense at al]:
What would be the point of proclaimingthat ifafter a further five months
the Mediationfailedto reach a settlement ofthe disputes on the merits the
Parties may seise the Court jointly after negotiating a special agreement'?
Such an interpretation makes no sense in view of the fact that the
Mediator's Iasting efforts to bring thetwa Parties toan agreed text of a
special agreement had faiied and that to put an end to the deadlock
reached over this method of referring the disputes to the Court,Qatar,
269 Asnoted inparas.3.45-3.49above,thisdocumewas neverreeeivebyQamr. albeit reluctantly, eventually accepted the Bahraini formula, and signed-
the Doha Agreement to refer the disputes to the Court.
Moieover, if the sole coininitment of the Parties under the Doha
Agieer-xientwas ta agi-eeto ineet again to resriine negotiations to tiy to
reach a special agreement, the use of the words subinit" does not
inake sense. This provision clearly allows each of the Parties to seise the
Court after the expirationof the relevant period. <
-
Again, why provide tbat if the Saudi gond officessucceed, the case shall
he "withdrawnfruin arbitration", if tlie sole coinmitment of the Parties in
the Doha Agreement is to resume negotiations to inake a speçial
agreement Y
After the acceptance by Qatar of the Bahraini f(irrnula,the only point of
substance rernaining in coiifIict between the Parties was - according to
Bahrain - the problem of a debatable article whichwould have reduced the
Parties'freedorn tosuhinit certain evidence to the ~uurt~~~.If Bahrain's
(re)construction of the facts were right, and if the purpose of the Minutes
were to induce the Parties to resume negotiations to finalize a specjcil
agreement, it is certain thüt the Minutes would have been phrased totally
differently.
5.50 It cannot but be concluded from the above that the general interpretaticin
proposed by Bahrain effectivelyreiiders ~neaninglessthree-quarters of the Doha
Agreeinent. As stated by Charles De Vissçher in his book Problèmes
d'inter~rktationiiidiciaireen droit international ~ublic:
"Une interprétation qui conduit enlever à un traité toute
signification juridique quelconque ne sera jamais accueil'4714n
l'absenced'une raison absolument décisivemilitant en ce sens .
The Great Britain-United States Mixed CIaims Commission,in its decision of22
January 1926inthe Cavuea Indianscase,madethe same point:
270 See,paras5.83elseu .elow.
271 ParisPedone, 1963p.W. "Nothinp isbetter settledas a canon of interpretation in alsystems
of law, than that a clause inust be so interpreted as to give it a
meaning rather than stias tcidepiive it of ineaning. We are not
askecltcichor~sebetween possible mezinings.We are asked to reject
the apparent mritning an$# hold thiit the prrivision has iio
~neaning.Thiswe cannot do ."
C) General ruleof interpretation of a trenty
-,
5.51 Açcording to Article 31. paragraph 1, of the Vienna Convention on the
?
Law of Treaties-
"A treaty shall be interpreted ignod faith inaccordance with the
ordinary meaning to be given to the terrns of the trenty in their
context and in the light of itsobject and purpose."
5.52 The firsparagraph of the Doha Agreement contains a clear reaffirmation
of"whatwas agreed previously between the twu parties". As explained above, that
provision refers to the forinal cornmitment to seise the Court embodied in the
December 1987Agreement.
5.53 fn the second paragraph it is stated that the good offices of Saudi Arahia
willcontinue until 15May 1991 and that "After the end of this period, the parties
rnay submit the matter to the International Court of Justice inaccordance with
the Bahraini formula, whiçh has been accepted by Qatar...". This can only melin
that ifthe last effort bythe Medilitor to solvthesubstance ofthe disputes should
prove unsuccessful, the Parties, each on their side and with their own clnims
under the Baliraini formula, are allowed, after15 May 1991,to seise the Court.
5.54 At the end of the second paragraph and in the third pürngraph it is
provided that "Saudi Arabia's good officeswill continue during the submission of
the matter to arbitration" and that"Should a brotherly solutiun acceptable to the
two parties be reached, the case wiil be withdrawn from arbitration". Such
wording clearly envisages that, after 15 May 1991,the Court can be seised by
either Party, each with its own claiins under the Bahraini formulq but that a
settlement out of Court, under the auspices of Saudi Arabia, is always possible,
and that, should a solution acceptable to the two Parties be reached, the case
would be withdrawn froin the Court at their reyuest. Such procedure of
settlement outof Court isnot witbout precedent. - i
272 UnitedNations,Re~ortsof Inlernationl rbitrAwarcls,Vol. 6p.184. The Internatjonal Court itself has, on varicius occasions, indicated that
5.55
sevei-alinethods of peaceful settleinent can he'pursued at the same time. In its
Juclginent of. 19December 1978 in the AerresinSea Continental Shelf case, the
Court said:
"Negotiation and judicial settlement are enumeruted trigether in
Article 33 of the Charter of the United Nations as rnenns for the
peaceful settlement of disputes. The jurisprudence of the Co~irt
provides various exaoiples of cases in which negotiations and
recourse to judicial settleinent have been pursiied pari \?assu.
Several cases, the inost recent being that concerning the Trial of
Pakistani Prisoners of War (1.C.JRe~orts 1973, p. 347), show that
judicial proceedings mciy he discontinued when such negotiations
result in the settlement of the dispute. Consequently, the f'actthat
negotiations use being actively piirsued during the paesent
proceedings is not. ledl~;, any obstacle to the exercisebythe Court
of itsjudicialnction .
ln the United States Diploinatic und Consular Staff in Tehsan case, the Court
repeated itsJudgment of 19Deceinber 1978:
"...the jurisprudence of the Court provides various examples ut'
cases in which negotiations and recour27do judicial settleinent by
the Court have been pursued pari passu ."
5.56 The wording of the second and third paragrsiphsof the Doha Agreement
inake fslncifulthe contention of Bahrain that the "differences between Bahrain
and Qatar ..stillremain the subject ofa mediation process which does not permit
ziny unilateral appIication to the Court by the Stote of ~atar~~~''.The Dolia .
Agreement, far from imposingan obligation to exhaust the mediation process -
othenvise than up to May 1991- establishes, on the contrary, a systernwith two
parallel lanes of settlement of the dispute and provides for the conditions in
which the one can affect the other. Instead of providingthat the continuation of
the inediatiun process after15May 1191prohibits the seisinof the Court, the text
psovides that the successof the Mediation after reference to the Court willlead tu
termination ofthe Court's proceedings.
273 Judement,LCJ.Reporls 197% p.12,para29.
274 Judamenl. I.C.J.Rei~or198g p.23para.43.
275 S. Bahrain'sleltetotheRegistrarof14July1991,y.1. d) Preparatory works
5.57 Article 32 of the Vienna Convention on the Law of Treaties provides as
followswithrespect to supplementary means of interpretation:
"Recourse may be had to supplementary means of interpretation,
includingthe preparatory work of the treaty and the circumstances
of its conclusion,in order to confirmthe meaning resultingfrom the
application of article 31, or to determine the meaning when the
interpretation accordingto article 31: 3
(a) leavesthe meaning ambiguousor obscure; or
(b) leads to a result whichismanifestlyabsurd or unreasonable."
Asthe Court consideredit necessaryto Say:
"...the first duty of a tribunal which is called upon to interpret and
apply the provisions of a treaty, is to endeavour to give effect to
them in their natural and ordinasr meaning in the context in which
they occur. Ifthe relevant words in their natural and ordinary
meaning make sense in their context, that is an end of the matter.
If, on the other hand, the words in their natural and ordinary
meaning are ambiguous or lead to an unreasonable result, then,
and then only, must the Court, by resort to other methods of
interpretation, seek to ascyw what the parties really did mean
when they used these words ."
Qatar submits therefore that it is not necessary to have recourse to such
supplementary means of interpretation, as the conditions laid down by Article 32
of the Vienna Convention and by the Court are not fulfilledin the present case.
The Arabo-lslamic legaltradition isin conformitywiththis approachu7.
5.58 An account of the circurnstances of the conclusionof the Doha Agreement
has been givenab~e~'~ and it isunnecessaryto repeat it again here. It should be
noted, however, that the so-called Saudi Arabian draft, referred to by Bahrain,
276
Cornuetenceof the GeneralAssemblvfor the Admissionof a State tothe United
Nations,AdvisorOpinion, I.C.Reuorts1954 p.8. -. .
&, ProfessorEl-Koshen'sOpinion,Annex111.1,ol. IIpp.264-269.
278 Yee paras3.53-3. above.was never shown to As to the Omani draft280, which was eventually .
amended to become the Doha Agreement, its text makes abundantly clear that it
never envisaged anyfurther negotiations to bring the Parties to finatize a special
agreement or any ''jointsubmission"by the Parties. Rather it clearly envisaged
seisinof the Court, and the amendments ultimatelyadopted neither rnodifiedthat
aim nor introduced any hint of the necessity of a special agreement. Qatar
submits therefore that, contrary to Bahrain's contention, the preparatory works ."
do not alter "the meaning resulting from the application of article 31" of thg
Vienna Convention, that isthe interpretation givenby Qatar.
3. Bahrain's contention as to the meaning of the words "the
proceedings (or theprocedures)arisingtherefrom"
5.59 Bahrain contends that:
"The phrase 'and the proceedings arisingtherefrom', which should
more accurately have been translated as 'the procedures arising
therefrom', was inserted in the Minutes at the initiative of Bahrain
in the final stages of the drafting of the Minutes, and was intended
to refer precisely to the further steps thatwould nee
487 be taken
by the two partiesjointlyto bringthe case tothe Caurt ."
According to this argument, the "procedures"referred to in the Minutes refer to
a new round of negotiationsbetween the Parties with aviewto reaching a special
agreement to bring the case to the Courtjointly,
5.60 This argumentation, whether the right transIation of the Arabicword be
'lproceedings"or "procedures",does not fit the context. In context, it is clear that
this phrase refers to the steps whichare required for a case to be braught be.fore
the Court. Paragraph 2 of the Doha Agreement reads in part as follows:
"After the end of this period, the parties may submit the matter ta
the International Court of Justice in accordance with the Bahraini
formula, which has been accepted by Qatar, and the proceedings
arisingtherefrom" [Qatar'stranslation] or "...he procedures arising
279
&, Annex to Bahrain'sletleof 18August 1991,pp.7-8,para.10, andAttachent 2
thereto. - I
280
See,Attachment3 totheAnnex toBahrain'lsettero18August 1991.
281 7ee Annex toBahrain'letterof18August 1991p.13,para.15. therefrorn" [Bahrain'stranslation282] or&jnd with the procedures
consequent on it" [Dr.Holes' translation
1.
The procedures arisingtherefrom were thus those relating to and arisingfrom the
seisin of the'Court inaccordance withits Statut aend Rules. This interpretation is
also that which is adopted by a reading made from an Arabo-Zslamic legal
approach284. Should the Parties have agreed to have recourse to a further round
of negotiations in order to arrive at a special agreement, the Doha Agreement .8
would not have failedto spell out such a major requirernent. i.
i
B. Bahrain's Denial that the Bahraini Formula is an Agreement on the
Sub-iectofthe Disputes to be submittedto the Court
5.61 Bahrain contests the statement made by Qatar in paragraph 40 of its
Application that "Byvirtue of Qatar's acceptance of the Bahraini formula ...the
Parties are now also agreed upon the subject and scope of the disputes to be
referred to the Court".According ta Bahrain -
"Qatar thereby recognises that its attempt to establish the
jurisdiction of the Court must include a demonstration that the two
sides have agreed upon the subject and scope of the dispute to be
referred to the Court. However, Qatar completely fails to provide
this demonstration. For Qatar to establish that it 'accepted' the
'Bahraini Formula' it must first show that there was a Bahraini
'offer'whichwasstillopen for Qatar to accept and, second, that the
'offer'which Qatar 'accepted' was the 'r$&r: which Bahrain had
made. Qatar cannot meet either condition .
Bahrain then asserts that when the Bahraini formula was proposed at the
November 1988 meeting of the Tripartite ~omrnittee~~~, it wasnot agreed to by
Qatar, noting that at the December Meeting of the Tripartite Committee Qatar
had proposcd an amended version of the formula to be accornpanied by two
annexes, in which each State would set out its own claims. Since then, Bahrain
z82 -Ibid.
283
See,Attachment l(b)totheAnnextoBahrain'lsetterof 18August1991.
-ee,ProfessorEl-KosheriisOpinionA,nnexIII,Vol.IIpp.233-278.
2SS
$,,,Amex toBahrain'setteof18 August1991,p.10,para.11.
QatarhasshownthatthisassertionisnotcorrectThe truthisthatheBahrainiformula
("Question"was transmittebytheHeirAppareno tf BahraintotheHeirApparent of
Qataron 26October1988.See p,aras.3,&-3.49above. '
notes, the Tripartite Cornmittee did not meet again, and the Mediütor resumed
negotiati~ns on the substance of the disputes287,
5.62 Inviewof the above, accordingto Bahrain -
"..t is certainly impossible to see in these developments the
survivalof the Bahraini Formula for nearly three years as an 'offer' >_I
capable of 'acceptance', without intervening negotiation, as an
essential @gent in the presentation of a unilateral
application + -!
Finally,Bahrain argues that -
"..the wording of the Bahraini Formula ..does not lend itself to a
unilateral ap lication. The text begins with the words 'The parties
request the 8 ourt'..the Bahraini question waspresented as part of
a draft agreement for the joint submissionof the case to the Court.
It did not foresee, and theref0r2~50uldnot apply to, a unilateral
submission byway ofapplication ."
5.63 Bahrain'sargument maybe dividedinto three propositions:
- that the Bahraini formula had lapsed as an offer;
- that its acceptance by Qatar isnot sufficientto establish acceptance of the
subject and scope ofthe dispute to be submittedto the Court; and
- that its text was devised for a special agreement and does not fit a
unilateral application.
These three contentions willbe examined in turn below (subsections 1, 2 and 3).
Thereafter, Qatar will examine Bahrain's contentions that Qatar's unilateral
application prevents Bahrain from seisingthe Court and that it wouldallowQatar
ta submit certain evidence in an inadmissiblemanner (subsections 4 and 5).
287 See,para.3.52above.
Annex toBahrain'Isetteof 18August 1991,p.12,para.13.
289 Ibid,p.12,para.14. 1. Bahrain's contention that the Bahraini formula had lapsed as an :
offer
5.64 This argument is quite surprising for two reasons. m, there is no
evidence that Bahrain's "offer" of the text of the Bahraini Formula was ever
withdrawn. It willbe recalled that the Bahrainiformula wasfirst transmitted, on a
separate sheet, during a meeting in Doha on 26 October 1988between the two
Heirs Apparent of Qatar and Bahrain. It is true that Qatar made a counter- *
proposa1 at the meeting of the Tripartite Cornmittee on 6 Decernber 1988
proposing amendments to the formula and suggesting that each State should
specify in a separate annex to the formula the matters of difference which it
wished to submit to the Court. The text of the signed minutes of this Meeting
states:
"The Bahraini delegation stated that the Qatari proposal that there
be two separate annexes would be studied along with the Qatari
amendment of the general formula of the proposed Bahraini
question.Therefore, the Bahraini jgkgation asked for enough tirne
to studythe proposed amendment ."
Hence, it is Bahrain who xequested time tostudyQatar's proposal. It can indeed
be considered that twoyearswasquite sufficientfor Bahrain to make up itsmind.
However, Bahrain made no reply to Qatar's proposal. Nor on the other hand did
it ever notify Qatar thatthe formula no longer represented itsown position. In
view of this, and in spite of its reservations on the wording of the Bahraini
formula, but in order to allow reference of the disputes to the Court, Qatar
decided to accept the formula and informed Bahrain ofthis at theGCC summit
meeting in Doha in December 1990.There is nothing in this sequence of events
which would lead to the slightestsuspicionthat the Bahraini formula had lapsed
as an offer.
5.65 The second reason whyBahrain's position about the alleged lapse of the
offer is untenable, isthat the Doha Agreement that was signedby Bahrain makes
a formal reference to the Bahraini formula and its acceptancby Qatar. Bahrain
was obviously fully aware of the content of the Bahraini formula and if the
formula had lapsed or if Bahrain had had reservations about the possibilityof
Qatar accepting the formula,Bahrain shouldhave raised such major objections at
the time. On the contrary, Bahrain saysthat the addition of the reference to t'e
290 See ,nnex11.31, ol.IIp.202.Bahraini formula in the Ornani draft was made at the request of Bahrain 291 . .
There is thus no Iogicwhatsoever in Bahrain'scontention an this matter.
2. Bahrain'scontention that theacceptanceby Qatar of the Bahraini
formulais not sufficlentto establishacceptanceof the subject and
scopeofthedisputesto be submitted to theCourt
5.66 To understand Qatar's initialreservations about the Bahraini formula, il
suffices to recall what has been narrated in paragraphs 3.48-3.50ahove. In spite ofi
these reservations, Qatar decided to accept the Bahraini formula so that the
existing disputes between the two States could finally be solved by the Court.
Qatarmadeno reservations whatsoever in accepting the formula. It is certain that
the formula iswide; it is a broad framework, certainly broad enough to allow each
State to present to the Court its own claims.It willthen be for the Court to decide
on their admissibilityand rnerit.
5.67 In view of the above, Bahrain can hardly claim that Qatar has not proved
that the "offer" which Qatar "accepted" was the offer which Bahrain had
Itis clear, therefore, that the offer containin the Bahraini formula,
which represented Bahrain's views,has been accepted by Qatar and is thus now
binding on both States.
3. Bahrain's contention that the text of the Bahraini formula was
devised for a special agreementand does not fit a unilateral
application
5.68 This further contention again fails to take account of the true natuof the
Doha Agreement. It isnot disputed that the Bahraini formula was first devised to
be inserted in a special agreement. But what has been achieved by the Doha
Agreement is an independent agreement to allow the seisin of the Court on the
basis of that tex("The Partiesrequest the Court to decide ...(Emphasis added.)).
The difference between the Doha Agreement and a special agreement or a
compromissory clause isaccordingly slight.
291 a, p. 12oftheOpinion ofDr.Holesdated 7 August1991,Attachment5 to theAnnex
to Bahrain'letteof18August 1991.
292 &, Annex toBahrain'sletteof18August 1991,p.10para.11.5.69 The Doha Agreement incorporates the Bahrainiformula in the same way
as ifit had been includedin a specialagreement. Byvirtue of their agreement on
the Bahraini formula, the Parties have agreed bpon the subject and scope of the
disputes to be referred to the Court. What isleftto be determined in such a broad
framework - and would have been left in any event had the Parties agreed on a
special agreement containingthat formula -isthe formulationby each Party of its
own claims.Suchclaimscannot be formulated except by a unilateral presentation
by each Party.
5.70 This is by no means the first time that the Court has been faced with
situationssirnilarto the present one. Thus,in the case concerningthe Le~alStatus
of the South-Eastern Territorv of Greenland, both Nomay and Denmark
transmitted to the Court separate applications instituting proceedings. For each
Statethe basis for jurisdictionwas the optional clause ta which ithad subscribed.
The Court was thus simultaneouslysejsed by two applications. The Court noted
the followinginits Order of2 August 1932:
"Whereas it follows that both the Nonvegian and Danish
applications are directed to the same object;
Whereas the situation with which the Court has to deaI closely
approximates, so far as concerns the procedure, to that which
would arise if a special agreement had been submitted to it by the
two Governments, parties to the dispute, indicating the subject of
the dispute and the differingclaimsofthe Parties;
Whereas, in anycase,the two a plicationsshouldbe joined and the
two applicant Governments ield tqg$ simultaneously in the
position ofApplicant and Respondent ."
5.71 In the Asvlumcase the parties were faced with the followingsituation.By
an agreement entitled the Act ofLima,the Colombianand Peruvian governments
had agreed as follows:
They have exarnined in a spirit of understanding the existing
dispute which theyagree to refer for decision to the International
Court of Justice, in accordance with the agreement concluded by
the two Governments.
293 P.C.I.J.,SeriesANo.48,p.270. Second:
The Plenipotentiaries of Peru and Colombia havingbeen unable to
reach an agreement on the terms in which they might refer the
dispute jointly to the International Court of Justice, agree that
proceedings before the recognized jurisdiction of the Court may be
being regardedthasan unfriendlyact toward the otheri...ttthout this
.-l
In its application, the Colombian Government requested the Court to answer two
questions. In its rejoinder, Peru presented a counter-claim which Colombi8~ '
asserted was not admissible because of its lack of direct connexion with the
application of the Colombian Government. Eventually the Court fouiid the
counter-claim admissible, the direct connexion being clearly e~tablished~'~. In
that case, the Act of Lima was thus considered less as a "specialagreement" than
as a framework within which to allow either par9 to seise the Court unilaterally,
the precise subject of the dispute being thus defined by the application of
Colombia and bythe counter-daim of Peru.
5.72 Another case in point is the case concerning the Arbitral Award Made b~
the King of Spain on 23 December 1906, In this case Honduras and Nicaragua
reached an agreement at Washington by virtue of which they undertook to
submit -
"...'to the Tnternational Court of Justice, in accordance with its
Statute and Rules of Court, the disagreement existing between
them with respect to the Arbitral Awardhanded down by His
Majesty the King of Spain on 23 December 1906, with the
understanding that each, in the exercise of its sovereignty and in
accordance with the procedures outlined inthis instrument, shall
present ~3% facets of the matter in disagreement as it deems
pertinent' ."
Both States attached to the agreement as appendices A and B statements about
their respective positions in resorting to the Court. No problem arose
subsequently.
294 -p. 268.
295 I-idYpp.BO-281.
296 Judgment.I.C.J.Report1960,p.203.5.73 Aithough none of the three casesjustquoted isaprecise precedent for the
present situation, they illustrate thexibilityof practice where determination of
the precise scope of the dispute has been made in various documents: either in
two separate applications which are subsequently joined by the Court, or by an
agreement, insufficient by itself, which is completcd by the subsequent
applications of the parties or by one application and a counter-claim.
5.74 In conclusion,it is submitted that the Bahraini formula, in spite of its wide
champ d'application, is perfectly adequate as far as the definition of the scop-<
andthe subject of the disputes isconcerned. It isindeed rather extraordinary that
Bahrain, having drafted and proposed that formula, now finds it inadequate.
Whether the formula isinserted in a special agreement orinan agreement which
isthe basis of unilateral applicationsmakes no differenIn.both cases the Court
can exercise its jurisdiction on the basis of the agreement of the parties on the
scope and subject of the disputes.
4. Bahrain's contentionthat Qatar's unilateralapplication prevents
Bahrain fromseising the Court with its ownclaims
5.75 On several occasionsBahrain has accusedQatar of attempting -
"..through a unilateral applicationtoshape the case as it wished,
notwithstanding the evident differences on the rnatter between the
two parties",
instead of tryingto fin-
"... formula that would have givento each party the opportunity to
present own case within the framework of a joint
submission997 ."
The same point ismade againasfollows:
"The terms of the question- described by Qatar as the 'Bahraini
Formula' ...-ere fomulated by Bahrain in 1988 so as to permit
each side to bnng to the Court, within the framework of a joint
submission,the issues on which jt considered itseto bein dispute
with the other.Q in its Applicationhas identified only those
issueswhichsuit it.:,.
297 Sec .nnexto Bahrain'lsette18fAugust1991p.3,para4.
298 m., p.4para.5.Thus, Bahrain claimsthat "the Iirnitsof the proceedings are set bythe unilateral
application of Qatar and, in particular, the 'Conclusion theret~~~~''.Bahrain
alleges it has been precluded from presenting its ownclaimssuch as "the rights of
Bahrain in the area of ~ubarah~~~'" 'sincean item of this kind does nat naturally
fa11withinthe concept ofcounter-claimas coveredby Article 80of the Rules 301.11
5.76 In spite of the explanation given by Qatar in the letter of the Agent of
i
Qatar to the Registrar of 31 August 1991,Bahrain still maintains in the letter to
the Registrar of 16 September 1993 that "it isby no means clear that Bahrain
3020
wouldbe free to raisethe question ofZubarah byway ofcounter-claim .
5.77 These staternents have a1ready been dealt with in the preceding
subsection. In particular, there is no round reason whythe Bahraini formula, if it
had been inserted in a special agreement, "wouldhave given ta each party the
oppartunity to present its own case303t1b,ut wouldnot have the same effect when
inserted in the Doha Agreement. It isalso surprising that Bahrain should now
allege that the formula whichit itself proposed is now regarded as unsuitable to
cover its ownclaims.
5.78
In any event, being incorporated by reference in the Doha Agreement and
specifically"accepted by Qatar", the formula binds Qatar as well as Bahrain. It
has been shown in the preceding Chapter that there is an inherent aspect of
reciprocityin the Doha Agreement in that each Party may submit its claimsto the
~ourt~'~, Neither Partycan no* object to aclairnmade bythe other if it cornes
within the formula. Of course, ifa claimisput forwardwhich one Party alleges is
an admissible claim comingwithinthe formula,and if the other maintains that it is
not, it is then for the Court to decide, after having consideredthe arguments of
the Parties,whether it isan admissibleclairn.
29y Ibid.
300 Ibid
301 W., p.5,para.6.
302 Sec,Bahrain'sletter of 16September19911..
3M See,AnnextoBahrain's lettero18August1991,p.3,para.4.
304 e, paras.4.40-4.4above.5.79 Obviouslyit wasnot up to Qatar to present the claimsof Bahrain. Bahrain : .
is entitled by the Doha Agreement, on the same footing as Qatar, to seise the
Court withits own claims:
"Afterthe end of this period, the parties mav submit the matter to
the International Court of Justice in accordance with the Bahraini
formula, which has been accepted by Qatar, and the proceedings
arisingtherefrom." (Emphases added.)
In other words, if Bahrain's claimsare not presented to the Court, it is not "
because this has become impossible as a consequence of Qatar's action, but
because of Bahrain's inaction,whichis,for whatever reason, a pure matter of will
onthe part of Bahrain.
5.80 This is particularly obviousafter Bahrain'sreaction to the letter frorn the
Agent of Qatar to the Registrarof the Court dated 31 August 1991.Referring to
the Doha Agreement and to the Bahraini formula, the Agent of Qatar clearly
stated:
"It is Qatar'siewthat this formula giveseach Party an equal right
to present itsown claims to the Court and that therefore neither
State can obtain an advantage over the other in the formulation of
its claims. Consequently, Bahrain isnot precluded from raising
what it refers to as the 'guestionof Zubarah'- for example by an
application to the Court.
5.81 It is undisputed that the consent af the States parties to a dispute,
whatever the form this consentmay take, is the basis of the Court's jurisdictionin
cantentious cases. A statement made by the Agent of Qatar binds the State of
Qatar. It is thercfore not understandable for what reasons Bahrain persists in
stating that "it is by no means clear that Bahrain would be free to raise the
question of Zubarah bywayof counter-claim 3051.
5.82 Qatar submits that the Doha Agreement which incorporates the Bahraini
formula entitles Bahrain to raise its own claims, for example by way of an
application, which the Court could decide to join to the original proceedings
institutedby Qatar. It is therefore submitted that Qatar has neither tried to shape
the case as it wished nor attempted to preclude Bahrain from presenting its own
claims.For whatever reason, Bahrainhas chosen of itsown accord to refrain from -. :
seisingthe Court withitsclaims.
305 & Bahrain'lsettof 1September1941 ,.1. 5. Bnhrain's contention that Qatar's unilateral application would
allowQatarto submit evidencein an inadmissible manner
5.83 In the Annex to its letter of 18 August 1990,Bahrain refers to the fact
that -
d
"One of the points of disagreement bemeen Bahrain and Qatar in
the negotiations that have been taking place for a compromis
leading to a joint submissionhas been a proposal by Bahrain that
neither party shall introduce into evidence or argument the nature
or content of proposals directed to a settlement of the substantive
issues in the course of discussions prior to the date of the
compromis. Although this proposal is essentially dedaratory of
customary international law ...the Government of Qatar has not
accepted it. ...This attitude leads the Government of Bahrain to
believe that itis likelythat the Government of Qatar willallude, in
itsMernorial on the merits, to the course of the negotiations on the
substance of the dJjpnences between the two States in an
inadmissiblemanner .
5.84 In his letter of36September 1991to the Registrar, the Minister of Foreign
Affairs of Bahrain referred again to this subject, recalling that Article V of the
draft special agreement proposed by Bahrain was, for Bahrain, an important
element of anyagreement:
terms of any proposals or couriter-proposalsiasltosettlement of the
dispute,made during the negotiations either directlyor through the
Mediator."
5.85 Bahrain's contention calls for some brief comrnents. The exact terms of
the Article in question were as follows:
"Article V
Neither partyshan introduce into evidenceor argument, or publicly
disclosein any rnanner, the nature or content of proposals directed
to a settlement of the issues referred to in Article II of this
Agreement, or responses thereto, in the course ofnegotiations or
discussionsbetween the parties undertaken pnor to th te ofthis
Agreement, whether directlyor through anymediation 5&#.
306 Ss, Annex to Bahrain'lsctter18August1991, pp.18-19para.20Ic).
307 See,Annex 11.22Vol.III,p143. .
5.86 As can be seen frorn this text,the language of Article V wasmuchwider in
scope than isreported by Bahrain in its letter to the Registrar of 16September
1991. The text of Article V submitted byBahrain in March 1988 during the work
of the Tripartite Cornmittee was not limited only to proposals made during the
Mediation with Saudi Arabia. Nor was it limited only to proposals to settle the
substance of the disputes made by the Mediator, but it could have covered any
proposal, even on procedural matters. In this context, this text couldhave applied a
to any proposal and response thereto (which therefore could even include
agreements) made between the Parties before the date of the finalization of the-
special agreement, under discussionat that time. The dies ad quem is indicated
but not the dies a auo. As the Court is now aware, this provision could have
covered:
- any proposals and responses thereto (whichtherefore could even include
agreements) made in any "negotiations or discussions"whether directly
between the Parties or in "aay mediation" -whichmeans that evidence on
mediations and their results undertaken during the past by the British
Government on the main issues of the case would also have been
excluded;
- any proposais and responses thereto (whichtherefore could even include
agreements) "directed to a settlement" could concern not only substance
but also procedural matters - this text could thus apply to the very
commitments of the Parties under the December 1987 Agreement ta refer
their existingand established disputes to the Court and to other principles
proposed by Saudi Arabia and accepted by both Parties, such as the
principle that the status quo be maintained.
5.87 That Qatar understood the proposed Article Vin the waydiscussedabove,
and not in the muchmore limited -but stillpartly ambiguous-waynow presented
by Bahrain, was made known to Bahrain during the sessions of the Tripartite
~ommittee~~~. Itis worth noting that afier Qatar's strong objections to the
proposed Article V,Bahrain didnothing to raise the matter again.
-. :
308 Itwillbe notedthat Bahraiitselfhasproduceexcerptof a paperpresenteby Qatar
and discusseattheSecon deetingofthe TripartCornmitteoen3April1988,setting
out Qatar'sreservationin thiregardSec,Attachment 9 tothe Anna to Bahrain's
letteof 18August1991.5.88 In any event, during the Doha meeting in December 1990,Bahrain insisted
- accarding to its own report of the facts- only on an insertion in the Omani draft
of a reference ta the Bahrüini formula. Qatar was therefore confident that
Bahrain had been convinced of the inappropriate character of the proposed
Article V relating to the use of certainevidence in an inadmissible manner.
5.89 Inview of the above, Qatar submits that, in the circumstances, its position
issound and reasonable. Qatar is confident that the basic custornary rules draw
;
from the Court's practice in the matter of evidence are sufficient and appropriate
in the present case. First, there isan obligation for both Parties to contribute to
the evidence ofthe facts of the case, and second, the Court enjoysfulIfreedom in
evaluating the probative value of any evidence adduced bythe Parties. PART 111
6.01 The present Mernorial on questions of jurisdiction and adtnissibility
submitted bythe State of Qatar in the caseconcerningMaritime Delimitationand
,#
Territorial Questions between Qatar and Bahrain (Qatar v. Bahrnin) may be
summürized as follows:
SK(-*I.I1. K There are Existing Disputes between Qatar ancl Bahrain, and
Qatar'sA~~licationis Admissible
6.U2 The historyuf the disputes outlineby Qatar hus clearlyshownthat Qatar
and Bührain had emerged as distinct politicüI and legal entities in the 19th
century. ln the 1930s,the development of oil Ied Bahrain to make claims to
sovereigntyover the territoryf Qatar itselfand also claimsto certain rights over
the maritime territory and areas lyingbetween itselfand the Qatar peninsula.
6.03 On 11 July 1939, Qatar and Bahrain were informed that the British
Government had decided that the Hawar islandsbelonged to Bahrain and not tu
Qatar. Qatar strongly opposed this decision at the time and has continued to
oppose it and to maintain that it is invalidOn 23 Decernber 1947 Qatar and
Bahrain were informed of thedecision of theBritish Government with regard to
the delimitation of the seabed between the two States, and with regard to Dibal
and Qit'at Jaradah shoals and a line enclaving the Hawar islands. Qatar has
maintuined and continues to maintain that such sovereign rights as exist over
Dibal and Qit'at Jaradah as shoüls belong to Qatar and not to Bührain and has
rejected and continues to reject thapart of the linewhich enclaves the Hawar
islands. Bahrain has claimedthat it does not accept the delimitation maby the
BritishGovernment.
6.04 The disputes which thus arose concerned sovereignty over the Hawar
islands, the extent and delimitation of threspectivemaritime areüs of the twu
States and sovereignrightsover the shoals of Dibal and Qit'atJaradahItis these
disputes which are the subject of Qatar's Application. In spite of efforts at
settlement by negotiation and other means in the 1960s,incIudingan attempt to
arbitrate under the auspices of the British Government, the disputes continued
after the end of the British presence in tarea in1971and remsiinoutstanding .
today. The events related by Qatar show thüt each ofthe disputes is silegalt
dispute und thüt the subject of each dispute is indisputaanyissue governed by
interiaiional law. The vjews of the Parties on each subject conflict iii matters of
iact as well as in iriattelaw.f
6.05 In view of the above, it is submitted that the three subjectson which
Qsitar's Application reqirested the international Court of Justice to pronounce
cireexistins disputes of a legal character and are governed by international l-w;
thrryfulfil,in Qatar's subinission,the requirernoftcidrnissibilinyteïms of the
Cuiirt'sStatute andRules.
Srirrrow2. The Jurisdiction of the Court has been established bv Agreement
betweenthe Parties
6.06 The Mediation of SaudiArabia in respect of these disputes wüsinitiütin
1976by agreement and is still continuing. The First Principle the Frttmework
proposed bySaudi Arabia in 1973deinonstrated the understanding of the Parties
that the subject matter of the dispute between Qatar and Bahrain was the
question nf sovereignty over certain islands and of maritime boundaries. The
proposed Frarnework wüs under discussionfor a number ofyears untilMay1983,
when it was accepted by Bahrairi and Qatar with the amended FifthPrinciple
proposed by Qatar. It will be noted that the Parties agreed in1983 that in the
event of failureto resolve the disputes through negotiation, they would consult
Saudi Arabia to determine the hest possible means to resalve the msitter in
accordance with the provisions of interniitional laA11çoncerned were sinxious
to achieve the final resolution othe disputes and itwas provided inthe Fifth
Principle that"The ruling of the authurity agreeupon for thipurpose shnllbe
final and binding".
6.07 No rnaterial pragress in negotiations was inade between 1983and 1986,
The crisiswhicharase in 1986 between the two States due tothe apparent breach
by Bührain of the status _q- principle embodied in the Framework led Saudi
Arabia to take further initiatives finilllyto solve the dispute. This eventually led
tothe December 1987Agreement.
6.08 On 19 December 1987 King Fahd of Saudi Arabia wrote a letter in - :
identical terms to the two Parties containing proposais whicwere accepted by
both of them and were made the subject of'a public announcement by Saudi -
Aralia on 21 December 1987 in terins of a previously agreed drafr. The Fifth
Principle of the Frarnework was expressly invoked in the December 1957
Agreement. The most important pr«vjsions of the December 1957Agreement
for the present case are contained in the first and third items. The first item
stated expresslythat-
"Al1the disp~ited matters shall be referred to the International
Court of Justice, at The Hague, for a final rulingbindiupon both
parties, who shall havetu execute itsterins." 1.
Qatar submits that by the acceptance of this first item, both Qatarand Bahrain
~inequivocallyand unconditionally accepted the reference of their existing
disputes to the International Courtf Justice.
SECTIO 3.N The Failure of the TripartiteCornmittee'sAppruachto seise the
Court by theMethud ofaSueciai Agreement
6.09 It will be recalled that the third item of the Decernber 1957Agreement
reads asfolIows:
"Thirdlv:Formation cifa corninittee çomprising representatives of
the States of Qutur and Bahrain and of the Kingdom uf Saudi
Arabia for the purpose of approaching the International Court of
Justice, and satis$ing the necessary requirements to have the
dispute submitted tn the Court in accordance with its reguiations
and instructions sothat nfinal ruling, bindingupon both parties, be
issued."
Qatar submits that this third item didnot impose orselectany particular method
or procedure to be followed by the Tripartite Committee for the purpose of
seisingthe Court in accordance with the commitment set out in the first item. It
willbe noted that the terms of the third item areprocedural in naturand do not
in any sense detract from the consent and commitment of the Parties to refer
their disputes to the InternationalCourt of Justice inaccordance with the first
item. The onlyobject of the work of the Tripartite Committee, as foreseen in the
1987Agreement, was to ascertain the procedures necessary to obtain from the
International Court ofJustice a final ruling bindiupon both Parties; and Saudi
Arabia undertook to continue itsgood officesto guarantee the implementation of
thisAgreement to seise the Court asembodied in the firstitem. -. :6. Il The Tripartite Gominittee held several meetings. At the meeting of 17- *
Januaiy 1988 tlxeparticipants discussedtheir respective proposals for the purpose
of communicating tu the Court their agreement in December 1987to refer their
pendii~gdisputes to the Corirt in accordance with theccinditionsand procedui-es
of the Court. No agreement on these dratt proposals was reached at this meeting
and itwas then decided tl-iiltthe Parties shoulciexchange and discuss drafts of a
special agreement for referring the disputes to the Court. However, the Tripartite
Co~nrnitteefailed to reach an agreement on the text of a special agreement as a,
method io seisethe Court.
6.11 Eventuülly,as a result of an initiativebySaudi Arabiü, the Heir Apparent
of Bahrain, during a visit to Qatar, transinitted to the Heir Apparent of Qatar a
generaIforinula for reference of the disputes to the Coiirt. This Bahraini forinula
was not accepted by Qatar during the work of the Tripartite Coinmittee. The
meetings of the Tripartite Cornmittee were not successfulin reducing the wide
divergence [ifviewsregslrdingthe definition, scope and extent of the disputes tci
be subinitted to the Court for a final and binding ruling. Thus, Saudi Arabia
indicated at the Fifth meetingof the Tripartite Cornmittee on 5 November 1988
that the GCC suminit to be held in Bahrain in Deceinber 1988would be the last
date of the Cornmittee's mission whether or not it had succeeded in achieving
what was requested of it,&., to have the Parties agree on a methoci of referring
their disputesta the Court in accordance with the Statute of the Court. Sincenri
agreement had been reached by that time, it was therefore agreed at the GCC
surnmitthat Saudi Arabia be given further time to achieve an agreement on the
substance of the disputes through its Mediation. Thus, the first item of the 1987
Agreement to refeerthe disputes to the Court wasdeferred for that perjod.
Sec~rio~4. The Doha Azreementnllowed the SeisinoftheCourt by Qatar
12 At the opening session of the GCC summit in Doha, the Ainir of Qatar
rerninded the heads of the delegations that Qatar and Bahrain had agreed in
Deceinber 1987to put an end tu their disputes and to refer their disputes to the
internationalCourt of Justice for a Bnaland bindingruling. The Amir announced
that Qatar had decided tn accept the Bahraini forlnultiwhich enabled each Stute
tu raise before the Court whatever clairnitwishedfallingwithin that formula. A
final round of consultations to give effect to this decision took place during 23- :
25December 1990. An agreement in the furm of "Minutes" was reached and
signed.The Minutes, after reaffifirmiwhat wüspreviouslyagreed, provided -.. that the good officesof Saudi Arabia would continue until 15May 1991;
Inpursuance of this, and prior to the filjngby Qatar of its Application to
the Court on XJuly 1991, Saudi Arabia, Qatar and Bahrain studied
proyosals fur the settleinent ofthe inerits of the dispute.
J4
- that after 15May 1991 the Parties may subrnit the matter to the
?i
International Court of Justice in accordance with the Bahraini formula
whichhad been accepted byQatar, and the proceedings arisingtherefrom.
In pursuance ofthis,Qatar filed itsApplication to the Court on 8July 1991
under Article 40, paragraph 1, of the Statute of the Court. Qatar
maintains that itwas entitled ta take this action.The Doha Agreement was
reached un the basis that each Party had different claimsto make and the
Bahraini formula would enable each of them to fraine and pursue its own
separate clairns.Qatar maintains that the Doha Agreement amounted to
a final cornpliancewith the reqiiirernents to be fulfilledso as to enable the
Court tu exercise jurisdiction in relation to the existing disputes between
the Parties.
6.13 Qatar maintains that the Application of the State of Qatar is admissible;
that the Court has jurisdictionto entertain the disputes which are referred to in
the Application; and that Bahrain'scontentions are unfounded.In view cifthe abvve the State of Qatar respectfully requests the Court to adjudge
and declare, rejkcting al1contrai çlaims and s~ibmissions~ that-
The Court has jurisdiction to entertain the dispute referred to in the Application '
filedby Qatar un 5July 1991and that Qatar's Application isadmissible. f:
(Sigrcd) Najeeb ibn Mohainined Al-Nauirni
Legal Adviser,
Agent nfthe State ofQatar -ARY ANNEXES
(VolumeII)
Documents relevant to the disputes submittebv Qatarto the Court
1.1 List of abbreviatio..............................................................
.................................
1.2 The Prelirninary Treaty o5 February 1820 between the British ).,,
Government and the Sheikhs of Bahrain (Treaties and il
Engagements relating ,to Arabia and the Persian Gulf compiled i
by C.U. Aitchison, Vol.XI (Archive Editions, 19871No. VIII,
pp.233-234)) .............................................................5..
............................................
1.3 The General Treaty between the British Government and the
Arab Sheikhs of the Persian Gulf issued by the British
Government on 8January 1820 and signed and accepted by the
Sheikhs of Bahrain on 23February 1820 (Treaties and
Engagements relatin~ to Arabia and the Persian Gulf compiled
by C.U. Aitchison, Vol.XI (Archive Editions, 1987), NoXIX,
pp.245-249) ..............................................................9...
...............................................
1.4 The Treaty of Peace in Perpetuity between the Chiefs of the
Arabian Coast made on 4May 1853 and approved by the British
Government on 24August 1853 (Treaties and Eneaeements
relating to Arabia and the Persian Gulf compiled by C.U.
Aitchison, Vol.XI (ArchiveEditions, 1987),No. XXIV, pp. 252-
253)..................................................................
.17........................................................
1.5 Terms of a Friendly Convention of 31 May 1861 between the
Ruler of Bahrain and the British Government (Treaties and
Engagements relatin~ to Arabia and the Persian Gulf compiled
by C.U. Aitchison, Vol.XI (Archive Editions, 1987),No. X,
pp. 234-236).............................................................21......
.............................................
1.6 Map showing the Bahrain boundaries as prepared by Turkish
authorities and approved by the British Ambassadorin Istanbul
dated October 1867 (Archivesofthe State oQatar) .;....................................
J ':The Agreement of 6September 1868 between the Chief of
Bahrain and the BritishGovernment (Treaties and Encagements
relatine to Arabia and the Persian Gulf compiled by C.U.
Aitchison,Vol. XI (ArchiveEditions, 1987),No.XI,
pp. 236-237) ..............................................................
.3........................................
The Agreement of 12September 1868 between the Chief of
Qatar and the British Government (Treaties and Eng -agements
3i
relatinp: to Arabia and the Persian Gulf compiled by C.U.
Aitchison,Vol.XI (ArchiveEditions, 2987),No. XXVII,
p. 255).................................................................
...7.................................................
Extract from Saldanha, J.A.:The Persian Gulf Precis, Vol.III,
Précis of Correspondence regarding Trucial Chiefs (Archive
Editions, 1986),pp. 20-21......................................... 41
Agreement of 22December 1880 between the Chief of Bahrain
and the British Govemment (Treaties and Engag -ements relating
to Arabia and the Persian Gulf compiledby C.U. Aitchison,Vol.
XI (ArchiveEditions,1987),No,XII, p.237)..........................................................
Map showingsurvey of the boundariesof Qatar made by Turkish
authorities and approved by the British Ambassador in Istanbul
dated November 1884 (Archivesof the StateofQatar) .........................9................
Exclusive Agreement of 13March 1892between the Sheikh of
Bahrain and the British Government (Treaties and Engagements
relating to Arabia and the Persian Gulf compiled by C.U.
Aitchison,Vol.XI (ArchiveEditions, 1987),No. XIII,p.238) ...................5...........
Extract from Saldanha, J.A.: The Persian Gulf Précis, Val.V,
Précisof Turkish Exuansion on the Arab Littoral of the Persian
Gulfand Hasa and KatifAffairs(ArchiveEditions, 1986), p. 70............................
OriginalFrench and Turkishversionsof the "Convention relative
au Golfe Persique et aux territoires adjacents" signeon 24 July -.:
1913(BritishArchives) .......................................................3............
...........................Anglo-Turkish Convention respecting the Boundaries of Aden
signed on 9 March 1914and ratifieon 3 June 1914(Treatiesand
Enga~ements relatinc!to Arahia and the Persian Gulf compiled
by C.U.,Aitchison,Vol. XI (Archive Editions, 198No. 1,pp.42-
43 -without annexes)............................................................
..............................
Treaty of 3November 1916between the British Government and >,
the Rulerof Qatar (Treaties and Engagements relatin~ to Arabia il
and the Persian Gulf compiled by C.U. Aitchison, Vol. XI -.
(Archive Editions, 1987No. XXXIII pp.258-2621...........................85......................
Extracts fromLorimer, J.G,:Gazetteer of the Persian Gulf,
Oman and Central Arabia (Archive Editions, 1986), Vol. 9,
pp. 1505-1506,and pp. 1513-1514and Vol.7,p+234 ...........................................
The Persian Gulf Historical Summaries 1907-1953 (Archive
Editions, 1987),Vol.1p.106 ..............................................99................
................
Letter from Belgrave to PAB dated 28Apri1 1936 (I.O.R.
L/P&S/12/3895,filepp. 160-161)................................................................
.......
Letter frorn PAB to PRPG dated 6May 1936 (I.O.R.
WP&S/12/3895,file pp. 158-159)............................................7....................
.....
Minute ofMeeting on 10July 1936(1.0.R. UP&S/12/3895,
filep.148)....................................................................
..............................................
Letter from the IndiOfficeto Petroieum ConcessionsLtd. dated
14 July 1936(1.0-R.WP&S/121389f i,lep147)..................................................
Letter fromthe IndiaOffice ta thf etroleum Department of the
BritishMinistryofTrade dated 30July 1936(I.O.R.R/15/1/688,
fiiepp.160-161)..........................................................19.......
..................................
Letter£romRQ to PAB dated10 May 1938 inEngiish and Arabic
(I.O. RR/5/2/547,filpp:3-6) ...........................................U............-...........
.........Letter from PAB tn PRPG dated 15May 1938 [I.O.R.
R/15/2/547,filepp. 7-9...........................................................
....................
Letter in English and Arabic frPA3 to RQ dated 20May 1938
(I.O.R.R/15/2/547,filpp. 11-13).............................................................
...
>.,,
Letter from PAB to Belgrave dated 20May 1938 (I.O.R.
R/15/2/5 fie,. 14)......................................................1.....................
-.
Letter fromRQ to PAB dated 27May 1938 inEnglishand Arabic
(I.O.R.R/15/2/547,filepp. 19-24.........................................145..................
.........
Memorandum entitled "The Hawar Islands" presented by
Belgrave to PAB on 29May 1938 - without enclosures [I.O.R.
R/15/2/547,filpp. 25-29) ............................................................
.................
Letter from Officiating PAB to the Acting Adviser to the
Government of Bahrain dated 14August1938 (I.O.R.R/15/2/547,
filp. 54).............................................................
1..........................................
Letter from Belgrave toPAB dated 22December 1938received
on 3 January 1939-without enclosures(I.O.RR/15/2/547,file
pp. 62-67) .....................................................................................................
Letterin English and Arabic from PAB to RQ dated 5January
1939 -without enclosures(I.O.RRI1 5/2/547,filpp.74-75)..........................
Letter in Englishand Arabjc from PAB to RQ dated 17March
1939 (I.O. R/15/2/547,filp. 90.........................................177...................
........
Letter from RQ toPAB dated 19March 1939 in English and
Arabic (L0.R. R/15/2/547,filp.91)......................................1.........................
...
Letter from RQ toPAB dated 24March 1939 in Englishand
Arabic(I.O.R. R/15/2/547,filepp95-96).............................................................LRtter from RQ to PAB dated 30March 1939 together with
comments on Bahrain's claims, in Englishand Arabic - without
enclosures (I.O.R.R/15/2/5 fi7e,p.97-222) .............,..................1......
Letter fr~m Belgrave to PAB dated 2OApril 1939 (1.0.R.
R/15/2/547,filepp.140-141) .......,....................................... 219
II.>
Letter from PRPG to Secretary of State for India dated11July 3-.
1939enclosing letters inEnglish and Arabic from PRPG to RB -.
and RQ of samedate (I.O.R.R/15/2/547,filepp,159- 161)..........,....................
Letter from RB to PRPG dated 4August 1939 (1--
R/15/2/547,filep.175) ...........................+...........................9.....
Letter from RQ to PRPG dated 4August 1939 (I.O.R.
R/15/2/547,filepp. 176-3781..................................................3................
...
Letter from PRPG to RQ dated 25 September 1939 (I.O.R.
R/15/2/547, filp. 183)....................................................2......
Minute dated 25September 1939by PRPG and transcription of
the same (I.O.R.R/l5/1/693, filep.212)....................................2.................
Letter £rom RQ to PRPG dated 18November 1939 (I.O.R.
R/15/2/5 f4l7,p. 189-190)...............................................2.47.........
Letter from PAB to PRPG dated 26March 1940
(L0.R. WP&S/12/3895f,ilepp. 10- 12).....................................2.......
Letter from RQ to PAB dated 7June 1940 inEnglishandArabic
(I.O.R.R/15/2/547, filpp. 226-229)........................................2..7..........................
.
Letter from PRPG toIndia Officedated 26 October 1941(1.0.R.
R/15/2/547,filepp. 245-247 ).............. ...............................2......
Letter fromRQ to PAB dated 13July1946inEngiishand Arabic -. z
(I.O. RR/.5/2/430,filepp.21-22) ..........................................269............Letter from the Secretary of State for India to PRPG dated
3 August 1946(I.O.R. L/PAS/12/3806 B, filep.246............................7..............
Letter .from PRPG to PA3 dated 2December 1946
(I.O.R.R/15/2/430,filepp.29-30) ...........................................7.................
...
Letter from PAB to PRPG dated 31December 1946 , $
(I.O.R.L/P&S/12/3806Bf ,ilepp. 185-196)....................................8....................
-. r
Letter from PRPG to the Secretary of State for India dated
18January 1947 (I.O.R.L/P&S/12/3806B ,ilepp.177-184) ...................295...........
Foreign Office Minute dated 22July 1947 (F.0.371/61441 -
128210,file pp.132-133) ...................................................305........................
File copy of letter No. C/1227 dated 23December 1947 from
PAB to RQ. The copy of this letter has been taken from the
British Foreign Office archives (reference:F.O. 371/68325,file
pp. 17-18).The map annexed for illustrative purposes has been
obtained from the India Office Library and Records (reference:
I.O.R. L/P&S/12/3806Bf,ile p.96) ..........................................309.................
.........
Letter from RB to PAE dated 31December 1947 in Englishand
Arabic(MIR. R/15/2/431,filepp. 2-5)............................................................
Letter from RQ toPAB dated 21February 1948 in English and
Arabic (oi- R/15/2/431,filepp. 11-13]....................................3.....................
Memorandum from the Govemment of Bahrain to the British
Government presented inSeptember 1964(Archives of the State
of Qatar)..................................................................
.7............................................L57 Note Verbale fromthe Director General and Legal Adviser of
the Government ofQatar to the Political Agent of the British
Government in Doha dated 21Aprii 1965 enclosing a
"Mernorandum of the Government of Qatar in replyto the 1964
Memorandum of the Government of Bahrain concerning the
undersea boundary between the two States" (Archives of the
State ofQatar) ..................................................................
..................................
1.58 Note from the PoliticaiAgent of the BritishGovernment in Doha -'.
to the Director General and Legal Adviserof the Government of
Qatar dated 27October 1965in English and Arabic (Archives of
the Stateof
Qatar) ....................................................................36................................................
1-59 Letter from the Director General and the Legal Adviser of the
Government of Qatar to the PoliticalAgent of the British
Government in Doha dated 8November 1965 in English and
Arabic (Archivesof the Stateof Qatar) ......................................67.............
1.60 Letter from the Political Agent of the British Government in
Daha to the Director Generaf and LegaI Adviser of the
Government of Qatar dated 12 December 1965 (Archives of the
State of Qatar).............................................................7.......
...............................
1.61 Letter from the Director General and Legal Adviser of the
Government of Qatar to the Political Agent of the British
Government inDoha dated 30 January 1966 enclosing a draft
arbitration agreement in Arabic and transcription of theEnglish
version (Archives ofthe State ofQatar).....................................375............................
1.62 Letter from the Political Agent of the British Government in
Doha to the Director General and Legal Adviser of the
Government of Qatar dated29 March 1966 (Archivesof the State
of Qatar)................................................................. 38.7....
................................................1.3 Letter from the Director General and Legal Adviser of the
Government of Qatar to the Political Agent of the British
Government in Doha dated 13April "1966 in Arabic and
transcription of the English version (Archives of the State of
Qatar) ..................................................................
..91.......................................
1.64 Letter from the Ruler of Qatar, SheikhAhmed bin Ali Al-Thani,
to the Political Agent of the British Government in Doha dated ..
5January 1971(Translation intn English together with a capy of
the originaldocument inArabic) (Archivesof the State of
Qatar) .................................................................
..409...............................................
L65 Letter from the Amir ofthe State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Khalid bin Abdul Aziz Al-Saud of
Saudi Arabia dated 21September 1975(Translatian into English
together witha copyofthe originaldocumentinArabic) ......................15...........
1.66 Extracts from the Persian Gulf Pilot, 12thedition, 198pp. 181-
182................................................................
........1...............................................
(Volume III)
Documents relatinpto the Periodof theMediation
11.1 The Saudi draft of the "Principles for the Framework for
Reaching a Settlement" of 13March 1978 .....................................1........................
IL2 Letter from the Amir ofthe State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Khalid bin Abdul Aziz Al-Saud of
Saudi Arabia dated 1April 1980 -withoutenclosures ...............................................
11.3 Note Verbale from the Embassyof Saudi Arabia in Qatarto the
MinistryofForeign Affairs ofQatar dated 10 dune 1981 .......................1.........
4 Note Verbale from the MinistryofForeign AffairsofQatar to the
Ministry ofForeign Affairs ofSaudiArabiadated 2 July1981 ...................9......... ktter from the Amir of the State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani,to KingKhalidof SaudiArabia dated 6 March
1982 together with a Statement of the Government of Qatar
dated 4.March 1982 ...........................................-................
.................................
Resolutions of the Ministerial Council of the Gulf Cooperation
Councildated 8 March 1982...............................................
,...,m.................+
X-.
Letter from King ~halid of SaudiArabiato the Amir of the State =
of Qatar, Sheikh Khalifa bin Hamad Ai-Thani, dated 16 March
1982 ..............................................................
......7..................................................
Note Verbale from the Embassyof Saudi Arabia in Qatar ta the
Ministryof Foreign Affairof Qatar dated10May1983 ........................1................
Note Verbale from the MinistryofForeign AffairsofQatar to the
Embassy of SaudiArabia in Qatar dated Il May1983 .......................................
The Saudi Plan of the "Principles for the Framework for
Reaching a Settlement" withthe revisedFifth Pnnciple as agreed
inMay 1983 ..............................................................4.
..............................................
II11 Letter from the Amir ofthe State ofQatar, Sheikh Khalifa bin
Hamad Al-Thani,to King Fahd bin Abdul Aziz Al-Saud ofSaudi
Axabia dated 16Febniary1986 -withoutenclosures .............................................
Letter fiom the Amir ofthe State ofQatar, Sheikh Khalifabin
Hamad Al-Thani, to King Fahd of Saudi Arabia dated 30 April
Letter from King Fahd of Saudi Arabia to theAmir of theState
of Qatar, SheikhKhalifabinHamad Al-Thani,dated 5May1986
Letter £rom the Amir ofthe State ofQatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Fahd of Saudi Arabia dated 6May
1986 +. - Letter from the Amir of the State of Qatar, Sheikh Khalifabin
Hamad Ai-Thani, to King Fahd of Saudi Arabia dated 7May
1986
Letter from King Fahd of Saudi Arabia to theArnir of the State
of Qatar, Sheikh Khalifa bin Hamad Al-Thani, dated 14May
1986 ,,
X i
Letter from the Amir ofthe State ofQatar, Sheikh Khalifa bin 5.
Hamad Al-Thani, to King Fahd of Saudi Arabia dated 17 May
1986
Letter from KingFahd of Saudi Arabia ta the Amir of the State
of Qatar, Sheikh Khalifa bin Hamad AI-Thani, dated 22 May
1986
11.13 Letter from King Fahd of Saudi Arabia ta the Amir of the State
of Qatar, Sheikh Khalifabin Hamad Ai-Thani,dated 15July
11.14 Letter from the Amir of the State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Fahd of SaudiArabia dated 24 August
11.15 Letter fi-om KingFahd of Saudi Arabia to the Arnir of the State
of Qatar, Sheikh Khalifa bin Hamad Al-Thani, dated
19December 1987together with the draft Annauncement made
publicon21 December 1987...............................................101...............
..............
11.16 Letter from the Amir of the State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Fahd of Saudi Arabia, dated
21December 1987 ..........................................................7.......
...............................
11.17 Bahrain's draftagreement presented during theGCC Summit in
Riyadhin December1987 ...................................................3.............
...............
- z
11.18 Qatar's draftletter to the Registrof the InternationaCourt of
Justicedated 27December 1987 ....................................................................
.......11.19 Bahrain's revised draft agreement submitted at the First Meeting
of the Tripartite Committeeon 17Januaty r1988............................1.................
II20 SignedMinutes of the First Meeting of the Tripartite Cornmittee
held in Riyadhon 17January 1988 ...............................................................
....
11.21 Original English version oQatar's first draft Special Agreement 3
dated 15March 1988 .....................................................i.3........
.........................
11.22 Original English version of Bahrain's first draft Special
Agreement submittedin March 1988 ......................................139...............................
11-23 Letter from the Amir ofthe State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Fahd ofSaudi Arabia dated 25 March
1988 ................................................................
..1..5.................................................
11.24 Note Verbale from the Ministryof Foreign AffairofQatar to the
Ministryof Foreign Affairsof SaudiArabia dated 27 March 1988
enclosinga Memorandum commentingon Bahrain'sdraft Special
Agreement ofMarch 1988 ................................................1.................
...............
71.25 Extracts from the Transcript of the Second Meeting of the
Tripartite Cornmittee held iRiyadhon 3 April1988(pp. 17and
20) together with an extract from the statement of Sheikti
Mohamed bin Mubaruk Al-Khalifa, the Minister of Foreign
Mfairs ofBahrain, givenat the Meeting(p.2) ..............................167......
11-26 Letter from the Amir of the State of QatarSheik Khhalifa bin
Hamad Al-Than$ to King Fahd of Saudi Arabia dated 7May
11.27 OriginalEnglishversion of Bahrain'sreviseddraft of ArticleIof
its draft Special Agreement of March 1988 submitted at the
Fourth Meeting ofthe TripartiteCornmittee on28 June 1988.................181..........
- zLetter from the Amir of the State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, ta KingFahd of Saudi Arabia dated 9 July 1988
.without enclosures ...........................................................85....
..............................
Original English version of the Bahraini Formula provided by
Bahrain on 26October 1988, ,................,................................191.....................
> L \
Extracts from the Transcript of the Fifth Meeting of the -. t
Tripartite Cornmittee held in Riyadh on 15 November 1988 (pp.7
and14) ..................................................................
...9..............................................
SignedMinutes of the SixthMeetingof the Tripartite Cornmittee
held in Riyadh on 6 December 1988 ...................................................................
.
The Agreement of 25 December 1990:The Minutes signed by the
Foreign Ministers of Qatar, Bahrain and Saudi Arabia on
25 December 1990 ..................................................................
..............................
Letter from the Amir of the State of Qatar, Sheikh Khalifa
Hamad Ai-Khalifa, to King Fahd of Saudi Arabia dated 30
December 1990 ................................................................9....................
Letter £rom the Amir af the State of Qatar, Sheikh Khalifa bin
Harnad Al-Thani, to King Fahd of Saudi Arabia dated 6May
1991 .........................................................................213............
......................
Letter from the Amir of the State of Qatar, Sheikh Khalifa bin
Hamad Al-Thani, to King Fahd of Saudi Arabia dated 18June
1991 ....................................................................
.....7...............................................
Extracts from an interviewwithSheikh Hamad bin Isa Ai-Khalifa,
Heir Apparent of the State of Bahrain, appearing in "Alsharqal-
Awsat"dated 20 June 2991 ....................................................21..............
.............
Exchangeof correspondence in English between Qatar and the
United Nations Organisation conceming the registration under -. .
Article 102 ofthe Charter:....................................................225.................
.................. - Letter from the Permanent Missionof the Stôteof Qatarto
the Secretary-General of the United Nations dated 28 June
1981 -without enclosures
- Letter from the United Nations to the Permanent Mission
ofthe State ofQatar dated 9July 1991
- Letter from the Permanent Missionof the State of Qatar to
the United Nationsdated 17July 1991
-
Letter from the Permanent Mission ofthe State of Qatar ta
the United Nations dated 8 August 1991 - without
enclosures
- Letter from the United Nations tothe Permanent Mission
of the State of Qatar dated 14August 1991
- Note verbale from the Permanent Mission of the Stateof
Qatar to the Secretary-General of the United Nations dated
27 August 1991
- Note verbale from the United Nations to the Permanent
Mission of the State of Qatar dated 11 October 1991,
enclosingthe text oan objectionby the Permanent Mission
of the State of Bahrain to the United Nations dated 9
August 1991
11-38 Report of statements of Dr. Hussein a! Baharna,Bahraini
Minister of State forLegaI Mairs in "AkhbarAl Khaleej", a
Bahraini newspaper,in November 1991 ....................................245..................... LISTOFOPINIONS
(Volume III)
III.1 Opinion ofProfessor Ahmed S.El-Kosheri dated26January
111.2 Linguistic opinion of Professor Shukry Ayyad dated 4January ,'
1992 ...................................................................
...a-................................................. LISTOF ILLUSTRATIVE MAPS
Mau No. 1: Extract from a "Mapofthe Persian Gulf,Oman and Central
Arabia" compiled between 1905 and 1908 for
Gazetteer of the Persian Gulf. Oman and Central Arabia, ,,
published in 1915 and reprinted by Archive Editions in
1986,Vol.6. i 11;
1 Map No. 2: Extract from Limits in the SeasNo. 94, Continental Shelf
Boundaries: The PersianGulf,issuedon 11September 1981
bythe Officeofthe Geographer, United States Department
of State, withthe locationofDibal and Qit'atJaradah shoals
added by Qatar. Qatar has also modified the Map to show
the meeting point of the Qatar-Iran and Bahrain-Iran
boundaries as a broken line in order to reflect the tofms
the relevant delimitation agreements.
Map No. 3: Map showingthe line resultingfrom the British decision of
23December 1947 and the line around theHawar group
(I.O.R.L/P&S/12/3806B filep.96).
Memorial of the Government of the State of Qatar