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:ROMMOFA-LEB GA L213ô38 (WED I, 30'94 1J:Oô No •3.old.}.t.cr~ 3
STATEOFBAHRAIN
MINISTRYFSTATEFORLEGAAFFAlAS
MIN1STER'SffiCE
Ret: __ ~------ -------- r--'..J'
Daltl:0th Novernber. 1994 -------- ~_,~!
Report of the State ·OfBahr ain to the Internatonal Court of Justice
on the attempt bv the Parties to implement the
Court's Jndgment of lst July 1994
l_ The Govenllllent of Bahrain has welcomed the judgment. of the
International Court of Justice of 1st July,1994 ("the Judgment'') in
which it afforded the Partiesthe opportunity to resume negotiations
directed towards the joint submission to the Court of thentiredispute
between them. It is a source of great regret to the Govem.ment of
Bahrain that the negotiarions have not been successfuL The
Government of Bahrain therefore now respectfully tenders to the Court
the presentReportupon îts attemptto implement theJudgrnent.
2. On the very day of the Judgment, H_E. Shaikh Mohammed bin
Mubarak AI-Khalifa, the Foreign Minister of Bahrain, tendered a11
invitationto Qatar "to ameeting at the earliest possibopporturuty în
order to work towards the signing of a joint submissîon in
~mptement af[iho nourt's] decision, in a spirit governed by mutua!
trust and the sincere Wlsh to find a comprehensive solution to the
differences which ~11 setve the înterests of the tvfo countries. their two
11
brotherly peoples and the whole region ,_aO_ r~·.l·LJ.l~BA~.·...., (WED1Il': 30'94 i]i NO ,380073-'20 P6. 4
3. Subsequently.followingfurthercon·espondencem , eetingswere heldin
London between the Agents of the Parties on 6th and 22nd October
and l4th November, 1994. For the convenience of the Court. Bahrain
annexes to this Report,in a separate volume. a fullcollection ofailthe
documents which have passed between the two sides from 1st July,
1994 to the present date. Babrain takes titis step in view of thefact
that Qatar communicated to the Court on 2nd November, 1994 on1y
those proposals emanating from the meetingson 6th and 22nd October.
4. As theCourt will observe from these documents, Bahrain has from d1e
commencement ofthe discussionsbetween the two sides made plainits
willingness to take up the opportunity afforded by the Judgment to
submit to the Court the whole of thedisput B ahr~m. bas understood
the reference by theCowt in paragraph 38 of theJudgment to effecting
such subrnission ···bya JointAct by both Parties with, if need be,
appropriate annexes, or by separate acts 11 as reflectingthe Courfs
confumation that such submission must qe consensual in character, that
is, a matter of agreement between the Parties. Babrain has not
perceived in the Judgment any indication by the Court thatQatar is
entitled unilaterallyto dictate tfonn or contentof such submission.
5_ Yet Qatar's approach to the discussion has been dominated by two
features from which it hasresolutely declined to move in any way
acceptable to Babrain.
6. First,the proposais emanating from Qatar have taken the fonn of
documents that can only be read as designed to faU within the
framework of the mamtenance of the case commenced by Qatar's
application of 8th Ju1y, 1991. The Agent for Qatar affinned this
expressly in his letter to the Agent for Bahraîn of 13th November,
1994, sayîng: "...Qatar considers that any steps taken by the Parties
have totake place within the framework of the present proceedings'1•
The latest expression of thiisto be found in the Qatari proposed Joint
Act of 14th November, 1994 read together with Qatar's proposai of
19th Novernber, 1994. These documents are clearly intended to fonn
2~RO M OFA-LE BGAAHL213638 (WED l. 30'02 14:07 NO3.380078-206 P, 5
part of the casewhich Qatar endeavouredto initiate by itsApplication
of 8th July, 1991.
7. Bahr~ though it has been prepared to show sorne flexibility as
regards form, ascan be seen from itsdraftJoint Act of 12thNovember,
1994, cannat as a matter ofprinciple pennit îtself tbe manoeuvred
into a position in wlùch it appears to be accepting the Qatari
Applîcation of 8th July, 1991 as havîng any continuing effect in
relation to the treatment of the substantive matters in contention
between the Parties.
8. The Court has identifiedin paragraph 36 of theJudgrnent, the factthat
Qatar has ack:nowledged that its !!Application corresponds to only part
of the dispute contemplated by the Bahraini fonnula" and has found, in
paragraph37 of the Judgment, that nthauthors of the Bahrainifonnula
conceîved of it with a view to enabling the Court to be seised of the
whole of those questions, as definedby each of the Parties within the
general framework thus adopted'1• True, the Court has not yet taken
what, in thesubmission ofBahrain, îs thenextlogical step.This would
be to find that because Bahrain has only ever consented to a joint
submissîon and because the Application has not covered alimatters in
dispute, the latteris ineffective for the purpose of initiating any
proceedings agaînst Bahrain. But no less isîttrue that theJudgrnent
has not given any indication thatit regardsthe Application as a valid
and effective one.
9. There is, therefore, every reason why Bahrain should decline, at this
stage, to commit itself to a foof undertaking which could be used by
Qatar to support an argument that Bahrain accepts the validity or
effectivity of thApplicationof 8th July,1991. Bahrain recalls in this
cormection that in 1987 it had decided as a matter of policy that ît
would come to the Court by way of a Special Agreement. That po licy
was not idiosyncratic,butin factaccords with the view of the majority
of States. Itremains Bahrain's policy as a matter of sovere righn.
Whether such an agreem·ent isreflected in a joint act or in separate acts
is entirely subsidiary to that fundarnental requirement.
3FROM MOFA-LEB G A L213638 (WED Ill. 30'94 14:08 NO3.380078-206 P. 6
10. The second, and more d.isturbing, feature of the Qatari position has
been itsinsistenceupon denying to Bahraîn the right todescribe, define
or identify, in wordsof itsown choosing, the matters which it wishes
speci:ficallyo place Ùl issue. Qatar has not been prepared to accept
Bahrain's right to :i.ncluin the listof matters in dispute the item of
1Sovereignty over Zubarah". Instead, Qatar asserts that Bahrain's right
·to itemise this matter may be expressed only by the word ''Zubarah"
without theadditionofthe words ''sovereîgnty over".
11. Qatar's position in this regard is based upon a distinction which it
draws betvveen a "definition of issues" and a ''description of claims".
According to Qatar, the Court, when calling upon the Parties to submit
1
'the entiredispute" to the Court only has in mind the itemisation of
"matters of difference"or1'disputedmatters",whichQatar equateswith
a "definition oissues" nota "description of claims". At the same time,
Qatar contends that the expression "sovereignty over Zubarah" can be
viewed only as a ''descriptionof claims" and therefore does not fall
within the contemplation of the Judgment as the identification of a
matter ofdispute,
12. To Bahraîn itseems both absurd and contrary to thespiritand, indeed~
the languageofthe Judgment to imposeuponthe words that each Party
may use to descrîbe the elements of the dispute, theverbal constraint
now insisted on by Qatar. In Bahrain's understanding the words
''Sovereignty over Zubarah" are no less a description of a disputed
matter or of a matter of difference than they are a description of a
claim. Neither the Judgment nor any rule of law prescribes the manner
in which a Party may descrîbe a matter that it considers to be in issue.
The Court -wilrecall thatinparagraph 41 of itsunilateral Application,
Qatar described its own claim to the Hawar Islands as one of
sovereignty. Bahrain cannot therefore see why it should not have the
rightto claîmsovereignty over Zubarah.
13. BahraiU1S understanding has been that beth itand Qatar have been
involved in the discussions on a footing of equality. Bahrain can see
4 no reason for Qatar rigidlyto assert the -righto control the manner in
which Bahrain expresses not a matter putin issue by Qatar but a matter
put in issue by Bahrain.
14. Qatar has suggested, in its proposai of 19th November, that Bahrain's
positionbe met by the addition to Qatar's proposed Joint Act of 14th
November, of a sub-paragraph stating that "We understand that
Bahrain defines its claim concerning Zubarah as . a claim of
sovereignty".
15. The inclusion of a specifie provision attributing a special character,
expressedinunilateralterms,i.e. that Balu·ain,notboth Parties, de.fines
its claimina particularway, violatesthe requirementsbeth of equality
and of fairness of expression. Given the equal right of each Party to
describe the matters which itwishes to place in issue in words of its
own choice, why shouldQatar enjoythe rightto dictate to Bahrainthat
the lattermay refer to"sovereigntyovern Zubarah, only upon terms laid
clownby Qatar? Bahrainhas not sought to tell Qatar how to describe
the subject connected with the Hawar Islands which Qatar wishes to
place in issue. An issue îs no less well identified if it is called
usovereigntyover Zubarah"than ifit iscalled simply uzubarah". This
is a matter on which each side isentitled to exercise its o\VD. iscretion
in the wording of the description. Furthennore, Qatar's suggestion that
one item in thelistof issues be singledoutfor elaborationor comment
places that item in a position of inequality as regards the rest. Such
singling out cannot becorrect.
16. As a matter of principle, Bahrainwill not accept Qatar's attempt thus to
control theterrns on which the dispute is subrnitted to the Court. Such
has been Qatar'soppositionto the exercise by Babrain of its rights in
this connectionthat itraises in the mind of the Goven1ment of Bahrain
an apprehensionthat Qatarhas,in tillsregard)sorneulteriormotivethe
nature ofwhich Qatar has not declared.
17. As tc the Comt S indication in paragraph 38 of the Judgment that the
subrnission of the entite dispute might take place on the basis of
5?ROM MOFA-LE B AA L1363.3 (VŒD!).!31]' 4 !4:09 NO3 .380078-20F 6, 8
11
Separateacts", Bahrain had assmned that the Court had intended by
thisto allow for thepossibilitythat the Parties might wish to express
their acceptance of the definitionof the dispute, and consequently of
jurisdiction, separately.But the Court had not intended that there
should be jurisdiction without agreement on the definition of the
dispute. And, giventhat Qatar'soriginalApplicationwas defectivein
not reflecting such an agreement, Bahraîn had not understood the
Court'sreference to"separate acts" asimplying that Bahrain should,by
its "separate act", somehow rectify or complete Qatar s defective and
wrilateralApplication. It was rather Bahrain'sunderstanding that the
Parties shouldbringtheirdisputebefore the Court on·the basis of new.
andagreed, termsofreference.
18. On 25th November, 1994 the Agent of Bahrain sent a letter to the
Agent of Qatar inviting Qatar to agree ta and sign with Bahrain the
proposed Bahraîni Joint Act of 12th November in implementationof
the Judgment. The Agent ofQatar responded tothis offerby way of a
letter dated 27th November in which he rejected. as shawn in
paragraph 5 ofthat letter, the offer containedin the Agent of Bahrainls
letterof 25th November. The proposed Bahraini Joint Act of 12th
November was put fmward by Bahrain during the course of the
meetings between the two Agents as part of the negotiating process
contemplated by the Judgment. Those negotiations bave been
unsuccessfuL With Qatar having now rejected the offer of the Bahraini
JointAct, Bahrain confums tb.athe said proposed Joint Act has been
wîthdrawn and is thereforeno longer availableforacceptance.
_19. In view of the impasse that has now been reached in the negotiations
between the two sides.Bahraîn wishes to make the following points: .,
}
1
20. First,Bahrain confinns its submissionthat the Court does not have i
jurisdiction in the case commenced by the Qatari Application of 8th
July, 1991. Oneofthe principalreasonsfor thisposition,in addition to
those that have been set out at length in Bahrain'swritten and oral
pleadings, lies in three findings of the Court in thJ udgment of 1st
July, 1994:
6=RO MM GFA-LE EAAHL2l3638 (WfDI)l. :3' 14:!!]
(i) The 1990 Minutes "placed on record the fact that Qatar had
finally accepted the Bahraini fonnula" (Judgment, para. 32);
(ii) The Bahraini fonnula "presupposed thathe whole of the dispute
1
would be submitted to the Court' (Judgment, para.33);
(iii) "The subject matter of Qatar's Application corresponds to only
partof the dispute contemplatedby the Bahraîni formula''(Judgrnent,
para.36).
21. A no less importantreason for Bahrain's position is that the Qatari
Application was defective because there was no common consent of
the Parties to unilateral action by one of them alone; and the Judgment
has not saidotherwise.
22. As a matter of simpllog: iifclows, theref toateh~ subject matter
of the Application filby Qatar on 8th July, 1991 did not correspond
with the subject matter which the Parties contemplated would be
brought before the Court. The Application was. therefore, defective·
and should be held to be ineffective to confer anyjurisdiction upon the
Court.
i
23. Bahrain further submitsthaitis not open to Qatar to cure the defect by 1·
any amendment of its Application. Bahrain will, therefore, abject to !
'
any application by Qatar to amend its Application of 8th Jwy, 1991
because such an act wou!d again be unilateral and could be validated
only ifBahrain were to accept it. There is no proviinthe Statute or
the Rules of the Court referring to the amendment of applications. In
this respect Bahrain observes that in the recent Order of the Court in
the Case conceming the Land and Maritime. Boundary between
Cameroon and Nigeria (JCJ Reports 1994, p.l05) the permission
accorded ta Cameroon to amend its Application was given as a
substin1te for the continuation by Cameroon of an Additional
Application. The Court noted that ''theAgent of Nigeria had indicated
that his Government bad no objection to the Additional Application.
7 ·-·..· -.
FRO MMOFA-LE BGAAH213638 (WED lJ 309J 14:!0 NO3.380078-20P6. 10
beingtreatedas an amendment tothe inîtîaApplica so than he
Court could deal "Withthe whole as one case~ F~r.hermore, Qatar
cannot have created for itself a right unilaterally to amend its
Applicationsimplyby reseivingin paragraph41 ofitsApplication"the
1
rightto supplementor amendits requests•
24. Bahrain will noconsent toQatar amendingitsApplicationof 8thJuly,
1991 so as tenable itunilaterallyto completethe presentation to the
Court of the wholedisputeby itselfnow takingan initiativeta bring to
the Court theques:tion of "sovereignover Zubarah''..The time for
Qatar to act in thatwaypassed on8th July,1991.
25. If Qatar wishes tbringthe wbole disputebeforethe Court îmust do
so in the manner foreseen in the 1987 Agreement and the 1990
Minutes, that is, by an agreementwîth BahraiAs Bahrain has made
quite clear,it wmùd have been prepared to enter into such an
agreement if Qatar bad not continuedto arrogate to itself the right to
imposeuponBahrainthe tenns and conditionsofsuchan agreement.
26. Nor is it now opento Qatarto discontinuethe proceed.îngsbebynits
Applicationof8th July,1991 and,therea o.filra~resh Application
11
so expressed as to cover the issue of Sovereigntover Zubarah''.
Furthermore, Qatar is not perrnitted to file a further unilateral '
applica iei~o ep~arate act. Bahrain would object toany sucb t
i-.
furtherapplicationon thbasisofparagraph 38 ofthe Judgment,which 3.
speaks ofseparateact ~nthepluraL
27. Even if Qatar now file_anamended or new application includinga
referenceto sovereigntoverZubarah,this would neverthelesnot give
the Court jruisdiction because (a) such an applicainoorder to be
effective, musbe consented toby Bahra.ln,and(b) such consent has
not been givenby Bahraineitherin1987 or 1990,nor is ibeing given
now.
28. Needless to say, Bahrairegretsthe presentsituation, bventures to .
em.phasizethattheproblemis not of its making. Thcaseis one which
8r riüMiFA~LEGAL BAH213638 (WED lL 30'9J 14:li NO3 ,380078-20P6, Il
must be submitted to the Court jointly by the Partîes. Bahrain has,
particularly in the recent dîscussions, sho""D. itswillingness to be
tleXlblewithin reasonable limits. But there are necessary limîts to this
flexibility.These are to be found in the preservation of Bahrain's right
to listthe particularissue of sovereignty over Zubarah in terms of its
own choosing, and to insist that the solution to the problemshould not
suggest any Babraini acceptance of the validity of the Qatari
Application of 8thJuly~ 1991. Babrain also feelsthat the submission
shouldconveyto the Courtthe Parties'agreed views on such important
procedural matters as the amount of time to be allowed for the written
pleadingsandthe correct name forthe Case.
29. In closing this Report, the Government of Bahrain also ventures to
emphasize that nothing it has said herein should be construed as
conduct by the Parties creating either a joint submission of thewhole
disputeto the Court or aconsent by Bahrainto a unilateral submission
thereof by Qatar. The crucial point that divides theParties remains a
matter of high principle affectingnot only the firndam.entalconcept of }
1
consent underlying the jurisdîction of the Court. but also the t\vin i
concepts of the equality anddignityof States. Bahraîn, as a Sovereign t
Statej would like to reaffirm its political anlegal objections to the j
dispute being ~ubmit o etde Court either by the initialunilateral t
application of Qatar or by any amended or new application. Bahrain
reiterates itposition thatthe Court is without jurisd.ictiointhis case.
Bahrain means no disrespect to the Court in thus explaining why it j.·
cannat contemplate being brought to the Courtby any unilateral act of
Qatar.
çtY. -----:?
DR. HUSAINMOHAlvfMEDAL-BAHARNA
Agentand Counselofthe State ofBaltraîn
Before the InternationalCourtof Justice
9
i1'.
1 30th November, 1994
REPORT OF THE STATE OF BAHRAIN TO THE INTERNATIONAL
COURT OF JUSTICE ON THE ATTEMPT BY THE PARTIES TO
IMPLEMENT THE COURT'S JUDGMENT OF lST JULY, 1994
LIST OF ALL DOCUMENTS WIDCH HAVE PASSED BE1WEEN THE
TWO SIDES SINCE lST JULY. 1994 TO THE PRESENT DATE
-
1. ~tateo mfH.E.tShaikh Mohammed bin Mubaiak Al-Khalifa,Ivf.inisterof
Foreign Affairs of the State Babra.i.nlst July, 1994; Arabie and English
verswns.
2. Letterfrom H.E. Shaikh Mohammed bin Mubarak .A.l-KhalifaMinister of
Foreign Affairs of the State ofBahrain H.E. Shaikh Hamad·bin Jasim bin
Jaber Al-Thani, Minister of Foreign Affairs of the State of Qatar, 5th July,
:1994; Arabie original anEnglish translation.
3. Letter from H.E. Dr. Najeeb A.l-Nauimi, Agent of the State of Qatar, to
H.E. Dr Hus ain Al-Baharna, Agent of the State of Bahrain, 6th July, 1994.
4. Letter from H.E. Dr Husain Al-Bahama Agent of the State of Bahrain, to
H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar, 15th July, 1994.
5. Letter from H.E. Shaikh Hamad bin Jasim bin Jaber i\1-Thani, Minister of
Foreign Affairs of the State of Qatar, ta H.E. Shaikh- Mohammed bin
Mubarak i\1-Khali.fa, Minister of Foreign Affairs of the State of Bahrain,
!6th July, 1994; Arabie original plus English translation.
6. Letter from H.E. Shaikh Mohammed bin Mùbarak Al-Khalifa, Minister of
Foreign A.ffairs of the State of Bainta H.E. ShaikhHam ad bin Jasim bin
'
Jaber :\1-Thani, Minister of Foreign Affairsthe State of Qatar, 30th July,
1994; Arabie originalplus English translation.
7. Letter from H.E. Shaikh Hamad bin Jasim bin Jaber Al-Thani, Minister of
Foreign Affairs of the State of Qatar, to H.E. Shaikh Mohanuned bin
Mubarak Al-Khalifa,Minister of Forei~n ..6Jfaiis of the State of Bahr,in -·
8. Letter from H.E. Dr. Najeeb AI-Nauimi, Agent of the State of Qatar, to
H.E. Dr Husain Al-Baha Agrent~of~e State ofB~ 5th September,
1994.
9. Letter from H.E. Dr Husain Al-Bahama, Agent of the State of Bahrain, to
H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar, 12th September,
1994.
10. Letter from H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar, to
H.E. Dr Husain Al-Bahama, Agent of the State ofBahrain.13th September,
1994.
11. Letter from H.E. Dr Husain Al-Bahama, Agent of the State of Bahrain, to
H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar, 14th September,
1994.
12. Letter from H.E. Dr Husain Al-Baharna, Agent of the State of Bahrain, to
H.E. Dr. Najeeb Al-Nauirni, Agent of the State of Qatar, 27th September,
1994 [This request was refused orally by the Agent of the State of Qatar at
the meetingon 6th October].
13. Papers exchanged at the meeting between the Agents of the State ofBahrain
and the State of Qatar on 6th October, 1994 at the Dorchester Hotel,
London:-
(a) Statement by H.E. Dr. Najeeb Al-Nauimi, Agent of the Stareof
Qatar, 6th October, 1994;
(b) State ofQatar's draft Proposai, 6th October, 1994;
(c) State ofBahrain's draft Special Agreement, 4th October, 1994.
14 Papers exchanged at the meeting between the Agents on 22nd October,
1994 at the Intercontinental Hotel, London:
2 .(a) Letter from H.E. Dr. Najeeb AI-Nauimi, Agent of the State of Qatar,
to H.E. Dr Husain AI-Bahama, Agent of the State of Bahrain, 12th
October, 1994;
(b) State of Qatar's Memorandum, 12th Oeta ber, 1994;
(c) Memorandum from H.E. Dr Husain Al-Baharna, Agent of the State
of Bahrain, ta H.E. Dr. Najeeb Al-Nauimi, Agent of the State of
Qatar;
(d) State ofBahrain's draft Joint Act;
(e) Statement of H.E. Dr. Najeeb AI-Nauimi, Agent of the State of
Qatar, 22nd October, 1994;
(t) Annex to the Statement ofH.E. Dr. Najeeb AI-Nauimi, Agent of the
State of Qatar, 22nd October; 1994;
_(g) State ofQatar's draft proposal, 22nd October, 1994.
1
15.
ILetter from the Ministry of Foreign Affairs of the State of Qatar to the
Ministty of Foreign Affairs of the State of Bahrain, 30th October, 1994;
Arabie original. Qatar's translation, and Bahrain's translation .
.,;.-.-
16. Letter from Ministry of Foreign Affairs of the State of Bahrain to Ministry
of Foreign Affairs of the Stare of Qatar, 12th November, 1994; Arabie
original plus Bahrain's translation.
17 Papers exchanged at the meeting berween the Agents on 14th November,
1994 at the Dorchester Hotel, London:
(a) Observations by the State of Bahrain on the docwnents presented by
the State of Qatar, together with Appendices; 12th November, 1994.
A) Draft Special Agreement of 4th October, 1994,
B) State ofQatar's draft Joint Letter of 6th October, 1994,
C) State ofBahrain's draft Joint Act of l2th November, 1994;
(b) Statement by H.E. Dr. Najeeb Al-Nauimi, Agent of the State of
Qatar, !4th November, 1994;
3 (c) Letter from H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar,
to H.E. Dr Husain AJ-Baharna, Agent of the State of Bahrain, 13th
November, 1994;
(d) State ofQatar's draft letter ofNovemb 199r4;
(e) State of Qatar's draft Joint Act of 14th November, 1994.
18. Letter from H.E. Dr. Najeeb A.l-Nauimi, Agent of the State of Qatar, ta
H.E. Dr Husain Al-Bahama, Agent of.the State ofBahr~ 19th November,
1994 togetherwith the State of Qatar's fourth proposai • Joint Act, 19th
November, 1994;
19. Letter from H.E. Dr Husain Al-Baharna, Agent of the State of Bahrain, to
H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar, 25th November,
1994.
20. Letter from H.E. Dr. Najeeb Al-Nauimi, Agent of the State of Qatar, ta
H.E. Dr Husain AJ-Baharna, Agent of the State of Bahrain, 27th November,
1994.
21.' Letter from H.E. Dr Husain Al-Baharna, Agent of the State of Bahrain, to
H.E. Dr. Najeeb Al-Nauim.i,Agent of the Stateof Qatar, 29th Novernber,
1994.
4
Report of the State of Bahrain to the International Court of Justice on the Attempt by the Parties to Implement the Court's Judgment of 1 July 1994