Non- Corrigé
Uncorrectecl
International Court Cour international*
de Justice
of Justice
THE HAGUE LA HAYE
Public Sitting
held on Monday 28 February 1994, at 10 a-m., at the Perce Palace,
President Bedjaoui preafdfng
in the case concerning Maritime Delimi ta tion and Terri torirl Questi on8
Between Qatar and Bahrain
(Qatar v. Bahrain)
VERBATIM RECORD
Audience publique
tenue le lundi 28 février 1994, à 10 heures, au Palais de la Paix,
BOUB la présidence de M. Bedjaoui, président
en l'affaire de la Délimitation maritime et den qrie#tion# territoriale#
entre le Qatar et Bahrein
(Qatar c. Bahreïn)
COMPTE RENDU President Bedjaoui
Vice-President Schwebel
Judges Oda
Ag0
Sir Robert Jennings
Judges Tarassov
Gui1laume
Shahabuddeen
Aguiïar Mawdsley
Weeramantry
Ranjeva
Herczegh
Jiuyong
Fleischhauer
Koroma
Judges ad hoc Valticos
Ruda
Registrar ~alencia-OspinaPréçentç M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Ag0
sir Robert Jennings
MM. Tarassov
Gui1laume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Herczegh
Jiuyong
Fleischhauer
Koroma, juges
MM. Valticos,
Ruda, juges ad hoc
M. Valencia-Ospina, Greffier~lre Cover~mcnt of Qatar is be represented by:
H.E. Dr. Najeeb Al-Nauimi, Minister LegalAdviser,
as Agent and Counsel;
Mr. Adel Sherbini, Legal Expert,
as Legal Adviser;
Mr. Sami Abushaikha, LegalExpert,
as Legal Adviser;
Mr. Jean-Pierre Quéneudec, Professor of InternationalLaw at the
University of Paris 1,
Mr. Jean Salmon, Professorat the Universitélibre de Brwcelles,
Mr. R. K. P. Shankardass, Senior Advocate, Supreme Court of India,
Former Presidentof the International Bar Association,
Sir Ian Sinclair, K.C.M.G., Q.C., Barrister at Law, Member of the
Institute of InternationalLaw,
Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritusof
InternationalLaw at the University of London,
as Counsel andAdvocates;
Mr. Richard Meese, Advocate, partner in Frere Cholmeley, Paris,
Miss Nanette E. Pilkington,Advocate, Frere Cholmeley, Paris,
Mr. David S. Sellers, Solicitor,Frere Cholmeley, Paris
The Government of Bahrain is represented by:
H.E. Dr. Husain Mohammed Al Baharna, Minister of State for Legal
Affairs, Barrister at Law,
as Agent and Counsel;
H.E. Mr. Karim EbrahimAl Shakar, Ambassador of the State of Bahrain
to the Netherlands; <i
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professoremeritus
in the University of Cambridge,
Mr. Keith Highet, Mernberof the Bars of the District of Columbia and
New York,Le Gouvernement du Qatar est représenté par :
S. Exc. M. Najeeb Al-Nauimi, ministre conseiller juridique,
comme agent et conseil;
M. Adel Sherbini, expert juridique,
comme conseillerjuridique;
M. Sami Abushaikha, expert juridique,
comme conseiller juridique;
M. Jean-PierreQuéneudec, professeur de droit international à
l'universitéde Paris 1,
M. Jean Salmon, professeur à l'Universitélibre de Bruxelles,
M. R. K. P. Shankardass, SeniorAdvocate à la Cour suprême
de l'Inde, ancien président de l'InternationalBar Association,
Sir Ian Sinclair, K.C.M.G.,Q.C., Barrister at Law, membre de
l'institut de droit international,
Sir Francis Vallat, G.B.E., K.C.M.G.,Q.C., professeur émérite de
droit international à ltUniversitéde Londres,
comme conseils et avocats;
M. Richard Meese, avocat, associé du cabinet Frere Cholmeley à Paris,
Mlle Nanette E. Pilkington,avocat, du cabinet Frere Cholmeley à
Paris,
M. Davld S. Sellers, Sollcitor, du cabinet Frere Cholmeley à Paris.
Le Gouvernement de Bahreïn est représenté par :
S. Exc. M. Husain Mohammed Al Baharna, ministre d'Etat chargé des
affaires juridiques,Barrister at Law,
comme agent et conseil;
S. Exc. M. Karim EbrahimAl Shakar, ambassadeur de 1'Etat de Bahrein
aux Pays-Bas;
M. Derek W. Bowett, C.B.E.,Q.C., F.B.A., professeur émérite, ancien
titulaire de la chaire Whewell à l'Universitéde Cambridge,
M. Keith Highet, membre des barreauxdu district de Columbia et de
New York,Mr. Eduardo Jiménez de Aréchaga, Professor of InternationalLaw at
the Law School, Catholic University, Montevideo, Uruguay,
Mr. Elihu Lauterpacht,C.B.E., Q.C., Honorary Professorof
International Lawand Director of the Research Centre for
InternationalLaw, University of Cambridge; Memberof the Institut
de droit international,
*
Mr. Prosper Weil, Professor emeritus at the Université de droit,
diéconomie et de sciences socialesde Paris,
..
as Counsel and Advocates;
Mr. Donald W. Jones, Solicitor,Trowers & Hamlins, London,
Mr. John H. A. McHugo, Solicitor, Trowers & Hamlins, London,
Mr. David Biggerstaff, Solicitor,Trowers & Hamlins, London,
as Counsel.M. Eduardo Jiménez de Aréchaga, professeur de droit internationa l
la faculté de droit de l'université catholique de Montevideo,
Uruguay,
M. Elihu Lauterpacht,C.B.E., Q.C., professeur honorairede droit
internationalet directeur du Research Centre for InternationalLaw
de l'Universitéde Cambridge; membrede l'Institut de droit
international,
M. Prosper Weil, professeur émérite à l'universitéde droit,
d'économie et de sciences socialesde Paris,
corne conseils et avocats;
M. Donald W. Jones, Solicitor, du cabinet Trowerset Hamlins à
Londres,
M. John H. A. McHugo, Solicitor, du cabinet Trowers et Hamlins à
Londres,
M. David Biggerstaff, Solicitor, ducabinet Trowers et Hamlins à
Londres.
comme consei1 S. -8-
Le PRESIDENT : L'audience est ouverte.
La Cour se réunit aujourd'hui, en application des dispositions des
articles 43 à 46 de son Statut, pour entendre les Parties en leurs
plaidoiries dans l'affaire de la Délimitationmaritime et des questions
territoriales entrele Qatar et Bahrein, sur les questionsde compétence
et de recevabilité soulevées enl'espèce.
Avant d'ouvrir l'audience en cette affaire, il échet d'abord de
parachever la composition de la Cour. A compter du 6 février 1994, trois
nouveaux juges sont devenus membres dela Cour, après avoir été élus par
l'Assemblée générale et le Conseil de sécurité des Nations Unies. A la
même époque, deux de nos collègues, M. Oda et M. Herczegh, ont été réélus
pour un nouveau mandat; nous enles félicitonset sommes tres heureux de
pouvoir continuer à bénéficier de leur participation aux tâches dela
Cour. De surcroît, chacune des Parties en la présente affaire, le Qatar
et Bahrein, ont usé de la faculté que leur confère l'article 31 du Statut
de la Cour, de désigner un juge ad hoc pour siéger en l'affaire.
L'article 20 du Statut de la Cour disposeque "Tout membre de la Cour
doit, avant d'entrer en fonction, en séance publique, prendre
l'engagementsolennel d'exercer ses attributionsen pleine impartialité
et en pleine conscience." Au cas présent cettedisposition comprend les
juges ad hoc. Je vais donc direquelques mots de la carrière et des
qualificationsde chacun de ces juges, puis je les inviterai,.suivant
l'ordre de préséance et d'ancienneté, à faire leur déclaration
sole~melle.
M. le juge Shi Jiuyong, de nationalité chinoise, a été le conseiller
juridique du ministère des affaires étrangères dela République populaire -9-
de Chine, et membre de la Commissiondu droit international, dontil a
été le président lors desa quarante-deuxièmesession en 1990. Il a fait
ses études à l'Université St. John de Shanghai, et à l'université de
Columbia de New York. Il a accompli une carrière éminente dansle
domaine de la recherche juridiqueet de l'enseignement, comme professeur,
comme représentant de son pays et-comme conseilLer juridique.
M. le juge Carl-August Fleischhauer,de nationalitéallemande, est
certes bien connude la Cour, et plus encore de l'organisation des
Nations Unies, puisque depuis dix ans, il est le conseiller juridiquede
l'organisation. C'est en cette qualité qu'il a eu à participer à
trois affaires consultatives portées devant la Cour; plus tôt dans sa
carrière, il a participé, au nom de la République fédérale allemande, à
deux affaires auxquellescet Etat &tait partie. 11 a fait ses études à
Heidelberg, à Grenoble, à Paris et à Chicago, et il est entré dans la
carrière diplomatique,puis a accédé au poste de conseiller juridique du
ministère fédéral desaffaires étrangères.
M. le juge Abdul G. Xoroma, de nationalité sierra-léonienne,vient
aussi à La Haye en provenance de New York, où il était le représentant
permanent de son pays auprès de l'Organisationdes Nations Unies, avec
rang et qualité d'ambassadeurextraordinaireet plénipotentiaire. 11 a
fait ses études en Sierra Leoneet à l'universitéd1Etat de Kiev, ainsi
qu'à l'universitéde Londres. Il a accompli une longue carrièreau
service de son gouvernement,comme conseillerjuridique, comme
haut-commissaire,et comme ambassadeur; il a représenté son pays en de
nombreuses conférenceset, pendant seizeans, il a été membre de la
Sixième Commissionde l'Assemblée générale des NationsUnies. - 10 -
Quant aux juges ad hoc désignés pour la présente affaire, il est
heureux pour la Cour que le choix des Parties se soit porté sur
deux juges particulièrement expérimentés. Bahrein a désigné en qualité
de juge ad hoc M. Nicolas Valticos, juge a la Cour europeenne des droits
de l'homme, et récemment membre d'une Chambre de cette Cour
internationale de Justice, en qualité dejuge -adhoc;-dans -l'affairedu
Différend frontalier terrestre, insulaire et maritime entre El Salvador
et le Honduras. M. Valticos est membre de la Cour permanente
d'arbitrage, et ancien professeur de l'université de Genève.
,-
M. le juge José-Maria Ruda a été désigné par le Qatar. Il suffit de
v
rappeler à son égard qu'il a été un membre particulièrement éminent de la
Cour de 1973 à 1991 et en a 6té le Président de 1988 à 1991.
J'invite maintenant chacun de ces juges à prendre l'engagement
solennel prescrit par le Statut et je demande à toutes les personnes
présentes à l'audience de se lever.
M. SHI :
"1 solemnly declare that 1 will perform my duties and
exercise my powers as Judge honourably, faithfully, impartially
and conscientiously."
Le PRESIDENT : M. Fleischhauer.
M. FLEISCHHAUER :
"Je déclare solennellement que je remplirai mes devoirs et
exercerai mes attributions de juge en tout honneur et
dévouement en pleine et parfaite impartialité et en toute
conscience."
Le PRESIDENT : M. Koroma. Judge KOROMA :
"1 solemnly declare that 1 will perform my duties and
exercise my powers as Judge honourably,faithfully, impartially
and conscientiously."
Le PRESIDENT : M. Valticos
M. VALTICOS : .,
"Je déclare solennellementque je rempliraimes devoirs et
exercerai mes attributions de juge en tout honneur et
dévouement, en pleine et parfaite impartialitéet en toute
conscience."
Le PRESIDENT : M. Ruda.
Judge RUDA :
"1 solemnly declare that 1 will perform my duties and
exercise my powers as Judge honourably,faithfully,impartially
and conscientiously."
Le PRESIDENT : Veuillez vous asseoir. Je prends acte des
déclarationssolennelles faites par MM. les juges Shi, Fleischhaueret
Kororna,et les déclare dûment installés comme membres de la Cour.
Je prends acte également des déclarations solennelles faites par
M. le juge Valticos et M. le juge Ruda, et les déclare dûment installés
en qualité de juges ad hoc en l'affaire de la Délimitationmaritime et
des questions territoriales entrele Qatar et Bahrein.
The proceedings in the case were begun on 8 July 1991 by an
Application filed by the State of Qatar, institutingproceedings against
the State of Bahrain in respectof certain disputes definedby Qatar as
disputes between the two States relatingto sovereignty over the Hawar
islands, sovereignrights over the shoals of Dibal and Qit'at Jaradah,
and the delimitationof the maritime areas of the two States. - 12 -
In that Application Qatarfounded the jurisdiction of the Court upon
certain agreements between the Parties stated to have been concluded in
December 1987 and December 1990, the subject and scope of the commitment
to jurisdictionbeing determined, according to Qatar, by a formula
proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in
December 1990. By letters addressed to the:-Registrar of the Court on
14 July 1991 and 18 August 1991 Bahrain contested the basisof
jurisdiction invokedby Qatar. At a meeting between the Presidentof the
Court and therepresentativesof the Parties held on 2 October 1991 it
was agreed that questions of jurisdictionand admissibility in this case
should be separately determinedbefore any proceedings on the merits.
Time-limits were accordingly fixed for a Memorial of Qatar and a
Counter-Memorialof Bahrain on questions of jurisdictionand
adrnissibility, and those pleadings were duly filed. By an Order of
26 June 1992, the Court found that the filing of further pleadingsby the
Parties was necessary, and filed tirne-limits for a Reply of Qatar and
Rejoinder of Bahrain, which were duly filed. The case has therefore been
ready for hearing, for purposes of Article 54 of the Rules of Court,
since the filing of the Rejoinder on 29 December 1992; but as a result
of the number of cases on the Court's list, it has not been possibleto
open the oral proceedings until today.
Having ascertained the views of the Parties on the matter, the Court
has decided, pursuant to Article 53, paragraph 2, of the Rules of Court,
that the pleadings which have been filed, and the annexed documents,
shall be made accessible to the public with effect from the opening of
the oral proceedings. - 13 -
1 note the presence in the Court of the Agents, counsel and
advocates of the two Parties. It was Qatar, which, in accordance with
the Court's Order of 11 October 1991, filed the first pleading on
jurisdictionand admissibility,and Qatar will thus address the Court
first, and 1 give the floor to the Agent of Qatar.
. . ...... . .
Mr. AL-NAUIMI:
1. Mr. President,Members of the Court, it is not without emotion
*
that a laver appears before the International Court of Justice, and 1
would like to add that it is an honour and a privilege for me to
represent the Government of the State of Qatar before the Court in this
case between the State of Qatar and the State ofBahrain. My Governrnent
has asked me to communicate to you its sincererespects upon this
occasion when, for the first time, two Arab GulfStates are appearing
here. Mr. President, 1 would also like to take this opportunity, on
behalf of al1 the members of the deiegation of Qatar to congratulateyou,
Sir, on your recent electionas Presldent of this diçtinguished
institution. Our congratulationsequally go out to
Vice-PresidentSchwebel and to thenewiy-electedjudges whom we are
delighted to welcome on the bench today.
2. 1 am also pieased this morning to convey throughDr. Al-Baharna,
to the Government and the people of the State of Bahrain, the most
sincere regardsof my Government and of the brotherly peopleof Qatar,
upon the occasion of Bahrain's presence todayin this courtroom. This
Court is, par excellence, a place wheredisputes are solved by the
peaceful means of judicial settlement, as mentioned by Article 33 of the
Charter of the United Nations. The case brought by Qatar's Application - 14 -
is important for both States. It involves questions of maritime
delimitation and territorial sovereignty which areof vital importance
for Qatar, for its relations with its neighbours and for other States in
the Gulf region.
3. Mr. President, Members of the Court, on 8 July 1991 Qatar filed
its Application institutingproceedings against Bahrain linrespect of
certain disputes betweenthe two States relating to sovereignty over the
w
Hawar islands, sovereign rights overthe shoals of Dibal and
Qit'at Jaradah, and the delimitationof the maritimeareas of the two
States. As explained in Qatar's Application, in 1987 and 1990, as a
result of many years of mediation, the two States entered into
internationalagreements conferring jurisdiction upon the Court in
accordance with Article 36, paragraph 1, of the Statute. Qatar has
seised the Courtby means of an ~ppiication in accordance with
Article 40, paragraph 1, of the Statute of the Court, read with
Article 38 of the Rules of Court. Counsel forQatar will develop these
points later.
4. Nearly three years have now passed since the filing of the
Application. In these introductoryremarks, Mr. President, 1 wish
briefly to recall Bahrain's attitude since that filing.
First, by letter of 14 July 1991, Bahrain requested that the
Application filed by Qatar shouldnot be entered in the General List, and
that no action shouldbe taken in the proceedings. Of course, Bahrain
was told thatArticle 38, paragraph 5, of the Rules of Court was mot
applicable in the present circumstances. The casewas then duly entered
in the General List and given a title, as recorded in the Order made by
the Presidentof the Court on 11 October 1991. - 15 -
Second, by another irregular communicationof 18 August 1991,
Bahrain purported to contest the basis of jurisdictionof the Court
invoked by Qatar. However, Bahrain,despite being a party to the Statute
of the Court, failed to comply with the Rules of Court, refusing to
appoint an Agent or to file a preliminary objection. This problem was
only solved as a result of..anagreement subsequcntly~eached~between the
two States that "questionsof jurisdiction andadmissibility in this case
should be separatelydetermined before any proceedings on the merits".
This agreement is noted in the Order of the Court dated 11 October 1991
It was only on 26 October 1991 that Bahrain appointed its Agent.
Third, Bahrain has alleged in itspleadings that it is an insult and
a dishonour for a State to be brought to the Court by another State and
placed in the situation of a defendant. Engagingin peaceful means of
settling a dispute can, of course, never be considered as a dishonour,
and, in any event, the Court will note that, if Bahrain had filed a
preliminary objection, it would todaybe in the position of a claimant
and Qatar would be in the position of defendant
5. Other aspects of the conduct of the Parties should also be
recalled.
In December 1987 both Qatar and Bahrain agreedthat until the final
ruling by the Court on the disputed matters:
"(a) Each party shall undertake from to date to refrain from
any action that wouldstrengthen its legal position, weaken
the legalposition of the other party, or change the
status quo with regard to the disputed matters. Any such
action shall be regarded nul1 and void and shall have no
legal effect in this respect."
This Agreement echoedthe Parties' earlier undertakingunder the Second
Principle of the 1978 Principles for the Framework for Reaching a - 16 -
Settlement, which were achieved withinthe context of the Saudi Mediation
and have been referred to in the pleadings as the "Framework" (MO,
Vol. III, Ann. 11.1, p. 3).
Qatar has done nothing to attempt to modify thelegal situation
existing between the Parties or to modify the statusquo with regard to
the disputed matters. Bahrain,. -however,has,not exercisedthe same
restraint. As the Court is aware, various incidents have taken place
since 1991 relating to the underlying disputes. Qatar can only regard
these incidents as a breach by Bahrain of its undertakingto respect the
status quo principle embodiedin the Framework and the December 1987
Agreement.
In addition, afterthe filing of the Application, Judge Jennings,
who at the time was Presidentof the Court, received an assurance from
Qatar that it would refrain from any act which mightendanger the peace
in the region. Since then, Qatar has abided by this assurance. However,
Qatar has reason to believe thatBahrain is reinforcing itsmilitary
presence on the main Hawar Island, including theentry into the islandof
heavy artillery and various military vehicles.
In any event, what do these actions show? They show clearly that
the long outstanding dispute betweenthe two sister States, with respect
to which Qatar has been constantly seeking justice for more than
50 years, is still alive and needs to be resolved peacefully on the basis
of international law. - 17 -
6.Mr. President,Members ofthe Court, inmy presentatica1inow
propose,as briefly aspossible, to recallto theCourtfirst (1)sane
aspectsof the gecyraphicaalndhistorical backgrountdo theexisting and
lmg-outstandind gisputes (seeMQ,pp. 9-31; CMB,pp. 12-17; RQ, pp.7-11
andRB,p. 8) and second (II)saneof the rmstimportant aspect of the
various attemptsto solvethesedisputes finally thm~gh negotiationor
by recourseto a thirdparty.I hopethat this willseme as auseful
introductiotno thepresentationo sf learnedcaniselon behalfof Qatar
whichwillfollow. 1 bearin mind that&en referring to the questions
of the jurisdictimof the Court to entertainthedisputeandof the
admissibilitoyf theApplicatim, theOrdermade by the Presidentof the
Court on 11Octaber 1991statedthat"itis necessary for the Courtto be
informedof al1thecontentiona sndevidence of factand law onwfiichthe
Parties relyin thatconnection".
1 also bearin mind thatboth Statesare herenowbefore the Courtat the
stageof theoralpleadings. Accordingto Article60 of the Rulesof
Court,Qatar'soralstatement:
"shallbe directedto the issuesthatstilldividethe
Parties,and shallnot go overthe wholegroundcavered
by thepleadings, or merely repeat t hectsand
arguments thesecontain".
Withyour permission,duringtheseoralpleadings we will notgive
thereferences fot rhequotationswe will use,but these -18 -
referenceswillbe cdcated to theRegistry, andwe dd be
gratefulif it couldinsertthem in thetextof the transcript.
7. (1) To begin,1 Mte yauto my regian,where the territories
of QatarandBahrain are locatedand, asa guide, 1 willprovideyauwith
a shortpresentatioo nf saneaspectsof thegecgraphicaa lndhistorical -
i
backgraundof the existingand long-outstandin disputes. 1 do not
intendto enter into the substan ofethe caserelatingto themaritime
delimitatioannd territorialquestionsbetweenQatar and Bahrain but
simplyto givethenecessary backgroundto thepresentproceedings
dealingwiththequestions oj furisdictioanndadrnissibility.
8.Mr. President,thismrning 1 havedistributedt ,hraughthe
Registry,forthe Court,and directly to Bahrain'sdelegation,an
enlaryedcopyof the mp (L/P& S/12/38066)appearingat page 36 of
Qatar'sApplication, so as toenablethe Court to followthispartof my
presentatiomnoreeasily. w
The disputes braughtbeforethe Court by Qatar'sApplicationof
July 1991are:
-
thedisputerelating to swereigntyovertheHawarislandç (see
Applicationof Qatar,paras. 11-17);and
-
the disputerelatingto thedelimitatioo nf themaritime baundary
(ibid.,paras. 18-25). - 19 -
9. The disputerelatingtothe Hawaxislands, whichliealangthe
westerncoastof Qatar,amse duringthe 1930s,againstthebackground of
explorationforoil in theregion. Followingpmtests by Qatarto the
Britishauthoritiea sgainstBahxainfsincusionson Ha-, theBritish
Governmentdecidedin 1939thattheHawaxislands belongedto Bahrainand
net to Qatar (MQ,Vol.II, Arin.1.38.-.Qatar.strungly-pmteste.against
thisdecision at thetirne(see,MQ,Vol.11, Anns. 1-40,1.43,1.45and
1-47),andhas continued to oppose itandto maintain thatit is irnmlid.
10. Thedispute relatin tgo thedelimitatiaonf themaritime
boundaryarisesoutof a Britishdecision of 1947to delimitthe sea-bed
boundarybetween thetwoStatesin accordance wit hquitableprinciples
by meam of adan linebasedgenerally on theccnzfiguratioc~lthe
coastlineof the Bahrain mainislandandthepeninçula of Qatar (MQ,
Vol.II, Ann. 1.53). Thatdecision specifiedtwoexceptions to the
dividingline. The firstpurported to recognizethatBahrain had
sovereignrightsin theareasof theDibalandQittatJaradahshoals
lyingon theQatarisideof the line,andthe second was th drawingof
the lineso as to giveeffectto theBritishdecision of 1939 thatthe
Hawar islandsbelongeàto Bahrain.
il. In the irmdiateaftennathof theBritishdecision of 1947,
Qatar didnotappose the part of the linewhichtheBritishGovernment
statedwasbasedon theconfiguratio nf the coastlineof thetwoStates
andwasdetermined inaccordancewithequitable principles. .But.Qatar
did protestvigorouslyagainstthe two exception (MQ,Vol.II, Ann.
1.551,andhas continued to appot seoseexceptians eversince. By way
of contrast,Bahrainargued thatJananIslandshouldhave been included
as partof the Hawarqroupof islands (MQ,Vol.II, Ann.1.55), and - 20 -
statedthatit cansidered DibalandQit 'at Jaradahas -1s over which
it had sovereignrights,assertingthatthedividing lineshdd be
adjustedaccordingly (ml Vol. II,Prrin1.54).
12.Now,letus leavethe idate aftermath of theBritish
decisiançand lookat the situationof thedisputes in the 1960s(MQ,
Vol. II,Anns.1.56-1.63). Thevie- of QatarandBahraincanbe
obtainedfranthe British Archivesand fm otherdocuments thatQatar
As theCourtwillbe aware,
andBahrainhavein theirownarchives.
documentsin theBritish Archive are subjectto a 30-yearnon-disclosure
rule. Therefore, so far,BritishArchive documentsdy up to theendof w
1963are in thepublicdanain.
13.In a memrandum of 1964 Bahrainut forwardcertainciaims
concerningthe "underseabaundarybetweenthe twoStates" (Ann.1-56).
In thatmermrandum,BahrainallegedthatDibalandQit'atJaradahwere
islandswiith territorial watearnd thattheyshdd be regarded as
"outercoaçtforthepurposeof determining thebase line frm which
territorial water andmedianlineis to be rneasured".In its 1965
memorandumin reply,Qatarrejected thoseclaimsandalsoreferred to the
disputemer theHawarislands (AM. 1-57).
14. In thesarnmrandum, Qatarpraposed thatal1 thesedisputes
be settledby arbitration.At firstBahrainagreedto this,and the
BritishGuvernment alsoagreedto theprocessof arbitration.
Qatarhad listedthe questioonf the maritime delimitatt ionether
withthequestion of title to the Hawaislandçin itsdraft arbitration
Agreement whichit submittedto theBritishPoliticalAgent in Qatarin
1966 (Ann.1.61). - 21 -
However, Bahrainfrustratedthatarbitral process by refuçingto
agreeto sdmit to ditration the issue of titleto theHawarislands.
On 29 March1966,Qatar was infod that Bahrainwas "netp??=pa.reto
çubnitto arbitrationt"he questioonf "thesovereignto yf theHawar
groupof islandswhich was awardedto Bahrain in 1939"(Ann.1.62).
Bahrainalso stated thatit-wasna- prepared.tosubmit -to.rbitrationthe
questionof the <'sovereignotyBahrainoveranyotherislandor shoal".
The Court willnot:havefailedto noticethatthequestion of
Zubarahwas notmentioned by eitherBahrain orQatar duringthese
praposalsforarbitration.
15. (II)Mr. Fresident,Membersof theCourt, 1 now wishto briefly
outline thestepsleadingto thefilingof Qatar'sApplication i nuly
1991, inparticular thosetakenduringtheperiodof thekindMediation
of the Kingdomof SaudiArabia. Thispresentatiow nillbe made in the
lightof theobjections to jurisdictiornaisedby Bahrainbeforethe
court.
16.AftertheBritish presenc in QatarandBahrainendedin 1971,
thedisputerelating to the Hawarislands remainedoutstandinga,s did
thedispute relatin to themaritime boundary. In additionn,o agreement
had beenreachedwithrespectto thedelimitatioo nf thedisputed
northernareabetweenthe Bahrain LightVessel,thenorthemst pointon
the lineindicated bythe BritishGwernmentdecision of 1947,andthecmtinentalshelfbaundaries of thetwoStates with Iran. in 1975and in
1976,Qatarraisedwith SaudiArabia issues relati togtheexisting
disputes withBahrain, andas a resultit was agreeàthat the Kingdcm of
SaudiArabiawouldunàertake dation betweenQatar andBahrain to
resolvethosedisputes.
17.On 13 March1978,KingKhalidof Saudi Arabiaproposed a setof
"Principlef sor themwork for Reachinga Settlement .
TheFirstPrinciple embodied in theF'rameworrkeferreàto the
ccxnplementa naytureof the disputebsetween thetwocomtriesrelating
to "savereignta yvertheislandç " "maritimeboudaries",and
"territoria waters".
TheSecandPrinciple praridedforthemaintenanco ef thestatusquo.
TheThirdh-inciple inter aliaprohibited QatarandBahrainfran
presenting the disput toany internationa organization.
TheFourth Wincipleenvisaged the formato ifoa cdttee canposed
of representative of thethree countries"withthe aimof reaching
solutions acceptab lethetwoParties on the basisof justice ...".
The Framework wasaccepted in 1983by BahrainandQatarwith a
FifthPrinciple which, initsfinalversion, reads asfol~ows:
"Incasethat the negotiationpsrovidedforin the
fourthprinciplefailto reachagreement on thesolution of one
or moreof theaforesaid bsputedmatters, thG eovernmentosf
thetwocountries shal undertake,in consultatiowniththe
Government of SauàiArabia,to detexmine thebest means of
resolvingthat mtter or mtterç, an thebasis of the
pmisians of internatianallaw.The rulingof the authority
agreedupn for ths purpose shallbe finaland binàing.
(Emphaçi sdded.)
1stress the words"resolvint ghat matters, the basis
of the provision sf internationallawnand "therulingof theauthority
agreedupon forthispurposeshall be fina andbinàing". As willbe - 23 -
shown,theseworùsmarkeda significan tve by QatarandBahrain towardç
the settlemen tf theirdispute. ThetwoStateshave thusbeen in
agreementsince 1983to havetheirdisputefinallysolvedby a third
partyon thebasisof international law.
18. It willbe seenthattheroadto theInternatiod Courtof
Justicehas beena longanddif ficult.one-No-materiapl-ogressin
negotiation sasmade between1983and 1986; anàin 1986a crisisamse
dueto thebreachby Bahrainof theSecd Principle of theFkarmwork,
providingforthemaintenance of the statusquo. Thisledto an armed
clash,hown as "theDibalincident",whichin turnledto theconclusion
of theDecember 1987AgreementunderwhichQatarandBahrainagreedto
refertheirexisting disputesto theCourt.
19. Thetem of the1987Agreementare setout in two letters
dated 19December1987 which were senby KingFahdof SaudiArabia, in
identicalte-, to theAmirof Qatar and theAmirof Bahrain. These
letters containepraposalswhichwereaccepted by kathAmirs and were
made thesubjectof a publicannouncemen tySaudiArabiaon 21December
1987.
Thereis no dispute between the Part thatthe 1987 Agreement
constitute sn internationaagreement.
20. In hispreamble,King FahdremindedtheAmirsof thegood
officeshe hadundertakento helpto find a "justandfinalsettlement"
of the long-standingisputesbetweenthetwo States, relatingto
savereigntwyer theHawarislands, the maritimeboundariesofthe two
countries,andany othermatters.
21. As a basisforsettling thdeisputes,the firstparagraphof the
1987 Agreemenprwided asfollows: "Ailthedisputed matter shallbe referred to the
InternationaClourtof Justice,at TheHague,fora final
rulingbinding upn bothparties, who shailhaveto executeits
tenns"
22.The thirdparagraph of the1987 Agreementreads as follows:
"lhidy: Formationof a cdttee canprising
representativeof theStatesof QatarandBahrain andof the
Kingdomof SaudiArabiafor thepurposeof apprcaching the
InternationalCourtof Justice,andsatisfyinal.the-necessary
requirementtso havethedisputesuhittedto theCourtin
accordancewithitsregdationsand instructionsso thata
finalruling,binding upon kathparties,be issued."
Mr. President,Memhersof the Court,as will beshown by Qatar'sCounsel,
thisparagraph doesnotmakethebasiccdtment to refer thedisputed
mattersto theCourt, mentioned in the firstparagraph,canditianalon
the Partiesreaching a specialagreement, nodroesitprecludeQatarfran
seisingthe Courtunilaterallya ,s Bahrainnow alleges.
23.The fourthparagraph of the1987 Agreementprwides that
"Fourthly: The Kingdanof Saudi Arabiwaillcontinue its
goodofficesto guarantee the implementatioof thesetem."
24.On 15 Nwember 1988, dwing theFifth Meetino gf theTripartite
Ca-rrnittewhich had beensetup in accordance wit thethirditemof the
1987 Agreement,Prince SaudAl-Faisalof SaudiArabia, whowas presiding
mer themeeting, announcedthat mg Fahdconsidered thatDecember 1988
was the date fotrerminatingtheTripartite Ca-rrnitteework. By that
date, the TripartiteCarmitteehadbeen unableto reachan agreement, and
it thereafter cease tofunction.
25.The failureof the Tripartit earmittee'aspproachto theCourt
ledeventually to the conclusio of theD3haAgmxment on
25 Eecmber 1990. ThisAgreementwas reachedpursuantto SaudiArabia's
cornnitmenmt,ntionedin the preamblaend incorporateidn the fourth
paragraphof the 1987Agreement,to continue itsgood officesto helpto - 25 -
find a justand finalsettlementof thedisputes by theCuurt, as agreed
underthe firstparagraph.
26. Thus,after the TripartiteChttee ceasedto function,in
December1988it wasagreed onthe occasioo nf theGCCMt meetings,
in Bahrainand hm in 1988 and 1989,to giveSaudi Arabiafurther
limitedperiods to mediatein an atteqt to-reacha settlementon the
substanceof the disputes. However,no suchsettlementwas reached
duringthoseperiodç. Accordinglya,t theopenhg sessionof theannual
GCC Çumnitwhich wastakingplacein December 1990in Doha, theAmirof
Qatarreminded theotherHeadsof Stateof the -t reachedin 1987
to put anendto the disputeb setweenQatar andBahrain,by referring
them to the Internationalourtof Justice. To facilitatethereference
to the CaurttheAmirof Qatarannounced Qatar'sacceptanceof the
Bahrainifornila. Thisopenedthedcorto an agreement,it being
understccdthatthe Saudi mediationwouldbe givenone furtherchance
before theCourt cdd be seised. A draftagreement wa then prepared
with theassistanceof ûMn, reflectingtheoutcaneof thediscussion of
theHeadsof State. Al1 &s tookplace againstthe backgrounodf the
Iraq-Kuwaictrisis,whichhad demonçtratet dhenecessityof solving
disputesby peacefulmea. in sucha mer thatinternational peaa ced
security,and justice,arenot endangered.
27. The iXhaAgreementis an instrumentwhich,as franMay1991,
allowsthe fullimplementatio of thecdtments made by thetwoStates
in the 1987Agreement.Paragraph (1)of theDohaAg-reemen teadsas
follows: "Thefollowingwas agreed
(1)To reaffirmwhat wasagreedpreviously between thetwo
parties."
Thus, it reiteratesinter alia,the consentof theCourt'sjurisdiction
incorporateidn the 1987 Agreementreaffixmintgheundertakingby both
Partiesto referthedisputeto theCourt. Caunsel forQatarwill
. .
furtherdevelop thispoint.
28. Mr. President,now1 willreadtherelevant passageof
paragraph (2)of theDohaAgreement with respe totçubnissionof the
disputesto the Court:
The followingwas agreed
(2)... Aftertheend ofthispericd (1remindtheCourt that
this is in May 1991),the parties masukit thematterto the
InternationaClourtof Justicein accordance withheBahraini
formula,whichhas ken acceptedby Qatar ..."
29. The "Bahrainiformula"whichis incorporate dy referencein the
Agreementunderparagraph (2)and which wapsroposedby Bahrainin 1988
and finallyacceptedby Qatarin Doha in 1990,definesthe subjectand
scopeof thedisputes which wouldbe suhittedto the Court. Underthe
"TheParties requesttheCourtto decideanymatterof
territorialrightor othertitleor interest which may bea
matterof bfferencebetweenthem; andto drawa single
maritime bounàarybetween their respective maria timesof
seabed,subsoiland çuperjacenw taters"
No problemof translationcanarisesinceBahrainprwided thisfoda
Qatar Englishand
1 wouldadd two remarks:
30. First,thewrittenpleadings sho whatal1 thedisputes which
arebeforetheCourtfor adjudicatio fa11undertheBahrainiformula. - 27 -
Bahrain itselfhas admittedthattheclaimsQatarhaspresented, leading
to therequests thatQatar haçmadein paragraph 41of itsApplication,
areadmissible.
31. Secand,theBahraini formulais beforethe Court. Frcm
uainls pleadingsit appearsBahrainis canplainint ghatitsclaims
withrespect to Zubaraharenotbeforethe Court.
However,these havenot even beendescribedby Bahrain. What does
Bahrainclaim about Zubarah? Qatardoesnotlmm, andneither doesthe
Court. In itspleadings, Bahrainhas introducedsanecarplaints about
Qatar'sattitude vis-à-visZubarah,andthe behaviourof theBritishin
thatconnection. Are thesecanplaints and thearchivaidocuments
concerningZubarah,annexed byBahrainto its-ter-Mgnorial (OB,
Annç. 111.13-111.1and 111.18-111.25 thebasisof Bahrain's claims?
Whoknows? Neither theCourtnorQataryetknowsan whatbais it cauld
be determhedwhetherBahrain's claimsconcerning Zubarahare admissible
or not,underthe Bahrainiformulawhichis incorporate dy referencein
the DohaAgreement. Thetaskis madeeven more diffidt because
Ebhrain'spleadingsoffer no evidenceof any claimhavingbeen made
concerningZubarahbetween 195a 0nd 1988.
32. Mr. President,as theCourtwillrecall,Qatar seised th Court
by meansof an Application,in accordance with Artic40, paragraph1,
of theStatuteof theCourtreadwith Articl3 e8 of theRulesof Court.
It is Qatar'sçuànissionthat theihha AgreementallowedeachPartyto
seisetheCourtunilateralli yn accordancwith the Statuteand Rules,
andto presentitsown claims aftet rhe periodendingin May 1991had
elapsed.Thisviewis confirmed by a recentcammication,dated
29 January1994, franthe ûnaniMinister for Foreignffairs, whoplayed -28 -
a centralmle inthe draftingof theDahaAgreemnt. Bahrains'cancern
that,becauseitsallegedclaimsarenotmentioned by Qatarin its
Application, theycannotbe adjudicateà,reeasilydispelled becauseof
theuse of the wrd "al-Man" in theDahaPqreement, &ch pexmits
Bahrainto filea separate application.
33.As willbe explaine later,thereplacemeno tf.-the.rds "aw
minal-mrafainfl ("eitheroneof the parties"b)y "al-tarafan(""thetwo
parties"or "thepartiesv) in thedrafttextof theMiratteisn Dahawas
quiteacceptable to Qatar,becausebothPartieshad distinct claim so
makebefore the Court,andbecausethislanguage wouldenable each Party w
to presentitsown claimsto the Court. TheDahaAgreement givesboth
QatarandBahrain, separately,theapportunity to haveal1thedisputes,
fallingundertheBahraini formula,considereby theCourt. The
Bahrainiformula wasdeliberateldyesignedto coveral1 themattersin
dispute between Qatar and Bahw rainoutspellingthemout in detail
becauseof theirsensitivity. Againstthis backgroundand in viewof the
longhistoryof the negotiatimforthereference of thedisputes to the
Court, it is unrealistito believethat inDecember1990,in Doha,the
Partieswould havemadeseisinof theCourtconditionau lponthe
conclusionof a specialagreement tboe jointlyçulxrcittedtheCourt.
34. The disputes which Qatar consid fa11withintheBahraini
formula,arebeforetheCourt. If Bahrain wishetso add othedisputes
which it consideralsofa11withinthe Bahrainifornrulaal1 it has to
do is subnitan applicatioto the Court.
35. Moreover,1 recallthatBahrainhas qed thatit has been
disadvantagebdy the fact thait hasbeenput inthe position of a
defendant. 1 wouldliketo statepublicly tcùay,as Agentof theState - 29 -
of Qatar.that 1 dd agreeto thetheles requesting theCourtto
authorizethem to file theirwrittenpleadings sidtaneously in thenext
phaseof theprcceeàingsi tn orderto avoidany suchalleged
disadvantage. In addition,1 wuuldremind Bahrainthat,if it files an
application, th eourtmay at anytimedirectthattheproceedings in the
twocases be joined.to whichQatarwnifd lilcewishaveno objection.
36.FWlly, another passageof paragraph2 of theDdiaAgreement
deservesmention. In furtheranceof paragraph4 of the 1987Agreement,
thatpassage states:
"Thefollowing wasagreed
(2)... SaudiArabia's gd offices will contin dueringthe
subnissionof thematterto arbitration;"
Qatar mt Sayherethatit is verygrateful to theMediatorfor not
havingdeparted franits role of mediatorand foral1hispatient
endeavourswhichhave, interalia, redted in ourpresenceheretoday.
Mediationis,of course,alsoa meançof solvingdisputes according to
Article 33of the Charte rf theUnited Nations. Qataris likewise very
gratefulto theMediatorforhavg acceptedso readilyto continue its
good officeswhilethe case ispending beforethe Court
37. In conclusion ,r. PresidentMembersof the Court, it is
significantthatwithin a periodof threeyears two international
agreementswereenteredintoby Qatarand Bahsain providingforthe -30 -
referenceof theirlong-standind gisputeto theCourt. 1 firmlybelieve
thatthisis evidence of thewillingnessi,ntention andconsentof both
Statesthatyuu should finallyrule upcmthe existingdisputed rnatters,
cwered by theBahraini fonmila,betweentheStateof Qatar and theState
of Bahrainwhichhavebeenbraughtbeforethe Cuurtby Qatar's
Applicatim. .. .-, ...
*
38.1 willnow indicate how andin whatorderthe counselforQatar
are goingto àiscussthe variousissuesin theseproceedings.
First,Sir IanSinclair willexamine the requirementfsor abasisof
jurisdictioonf the Courtas set outin theStatuteandRulesof Court.
He will be followedby Mr. Shankardaswshowillpresentthe factsof
thecaseincluding thoserelating to themediation, the1987 Agreement,
theworkof the Tripartite CorrPnitt eedthe 1990 ihhaAgreement.In
particular,he willdemonstrate thatBahrain's inçistenceon the joint
suànissionby a specialagreement is notconsistent wit the facts.
SirIan Sinclairwillthentake the flooragainto àiscussthe
statu of the Doha Agreement. ProfessorJeanSalniaw nillcanpletethis
analysisof thestatu of the Eoha Agreementby showingthat Bahrain
cannotvalidlyarquethatitsconsentto be boundby thatagreement has
beenexpressed in violationof Bahrain'sconstitutiona requirements,
therebyinvalidatin ghatconsent. -31 -
ProfessorJean-PierrQeuéneudecwillthenturnto the subject of the
interpretatio nf theDahaAgreement and,as counçel,1 willdealwith
the linguisticissuesraisedby Bahrainin connectionwiththe
interpretatio nf theDohaAgreement.
ProfessorJeanSalmonwillalsotakethe flooragain in orderto
reçpondto variousconcernswhich haveken-expressed by-Bahrainin
connection wit hhepresentproceedings. He willthendealwiththe
questionof theadmissibilito yf Qatar'Application.
Finally,SirFrancis Vallat willconcludethis firstroundof
Qatar'spresentationby surrunarizithe casefor Qatarin fa- of the
jurisdictioonf theCourtto entertainthedisputeandtheadmissibility
of Qatar'sPgplication.
39. Mr. President,Membersof theCourt, 1wouldliketo thank you
forthe attentiot nhatyou havegivento my speech. Itmighthavebeen
tm long,but 1 wouldlike torecallthat 1 wasmakingshort a lons gtory
betweenthetwosisterly State of Qatar andBahrain.
As 1 saidbefore,the roadwhichhas ledto the Courthas been a long
one,and 1 wouldliketo repeat my satisfactioant beingpresent here
beforeyou with mybrothers frm Bahrain.
The President,couldyounow cal1upn Sir Ian Sinclairplease.
Thankyou very much. - 32 -
The PRESIDENT: Thank you,Your Ekcellency. 1 givethefloorto
Sir IanSinclair.
SirIanSINCLAIR:Mr. President, Membersof theCourt,it is,of
caurse,a very greatprivilege forme to appearthis mrning and to
aàdressthe Court anbehalfof the State of Qatar. My taskthismrning,
followingthe introductorsytatementby the Pgentfich youhavejust
is to analysethe requirements,s setout in theStatuteand
heard,
mes of Court, forestablishinag basisfortheexercise of jurisdiction
by theCourtin thepresentcase. 1 willinitially discussthe
conditimsfor theexercise of jurisdiction,andwillthenproceedto
deronstratethattheseconditions areamplyfulfilled in thepresent
case.
1. The requirement of cansent
The Parties arefortunateliyn agreementthatthe consentof the
Parties,whether giveinn advanceof the çutxnissioof acaseto the
Courtor in the faceof theCourtitself,is an essential prerequisi ttoe
theassumption of jurisdictiobny theCourtin contentious cases. Thuç,
Qatar hasunequivocallsytatedin itsMernorial:
"Theprinciple of consentof the Partieas the basisof
the jurisdictioonf the Courtto decidein contentious case is
embodiedinArticle 36 of theStatuteandhas beenconfixmedby
the Court on nurnerousccasions." (MQ,Vol. 1,para. 4.04.)
Qatarcited in supportof thispropositiona lengthyseriesof
passagesfranthejurisprudenco ef the present Court and indefran
thatof itspredecessors ,tretchingbackas faras theJudgment of
the PermanenCtourton jurisdictiuna lssuesin the Chonw Factory
casein 1927. - 33 -
Now,theCourtwillhardlyneedreminding thatcasent need not
be givenadhoc in each individualcase andmay havebeen given
generallybeforehand,as wherea Statebecanesa partyto a treaty
pruvidingforthereference to a tribunaof al1disputes thatmay
ariseconcerning its interpretatioonapplicationo ,r des an
OptionalClausedeclaration. TheCourtwihl- equallybleawareof the
consideratiotnhatconsentto theexercise of jurisdictioins quite
distinctfrantheconsentto thegeneralfuncti&g andaperation of
the Courtas an institutiownhichis hlved by beinga partyto the
Statuteof theCourt. Qatardoesnotof cmse contendthat the
jurisdictioonf theCourtis or can be foundedupona treaty
enbdyingtheconsentof both Bahrain andQatargivenin advanceto
refer al1disputes concernii ngsinterpretatio or application to
theCourt; nor indeeddoesQatarseekto relyuponparallel
declarationrseccgnizintgheccmpulsoryjurisdictioonf theCourt
underArticle 36,paragraph2, of theStatute.
The titleof jurisdictioinnvokedby Qatarin thepresent case
is Article36, paragraph1,of the Court'sStatute,which reads:
"Thejurisdictioonf theCourtccmprises al1 cases
which thepartiesreferto it andal1mattersspecially
providedforin the Charte rfthe UnitedNationsor in
treaties and conventionin force."
As the Qatari Agenhas alreadymadeclear,Qatarçuànitsthatthe
basic consenotfboth Parties toconferjurisdictiopnn theCourt
in respectof definedand establisheddisputes between Qatanrd
Bahrainis clearly evidenceby theAgreement enteredintohetween
thetwoStatesin December, 1987. The firstelementin thisAgreement (wfüch1 willhenceforth referto asthe "1987 Agrement")
"Al1the disputedmattersshallbe referred to the
InternationaClourtof Justice,at The Hague,fora final
rulingbindingup bothparties, who shallhaveto execute
itsterms.
The 1987?greement is confid andindeedçupplemente dy theDoha
Agreemmt in the formof agreedMinutessignedby the Foreign
Ministersof Qatar, BahrairandSaudiArabiaon 25 December 1990.
The consentgiven by the Partiesis thusan ad hocconsentevidenced
by theprwisionsof thetwoagreements to which1 havejustmade
reference.
In the jurisdictionalhaseof the CorfuChannel case,the
present Courtstated:
"Whilethe consentof the partiesconfersjurisdiction
on theCourt,neither theStatutenor theRulesrequire
thatthisconsentshouldbe expressed in anyparticular
form..." (I.C.J.Reports 1948,p. 27.)
1 cite this passag onlyto establishthatneithertheStatutenor
the Ruleslaydown thatthe consentof the partiesto confer
jurisdictioonn the Courtin respectof an individualcasemuçt be
evidencedby the conclusio nf a special agreement.
Thus, it is acceptedlawthatconsentgivenad hoc in an
individualcaseneednotbe givenin any specialform. In camienting
on thisproposition,
thelate SirGeraldFitzmaurica edds:
"Inparticular, it neednot takethe formof a joint
special agreementor carlpranicculcludeby the parties
before going t the Court.l1 (Fitzmaurice"TheLaw and
Procedure of the Internationalourtof Justice",29 BmIL
(1952),p. 43.)
Now, the requirementf consentby bothpartiesto the jurisdiction
of theCourtmay appearto weigh thescalesheavilyin favaurof -35 -
potentialor prospectivedefendants. However, theapplication of the
principleof consent hasbeenrefinedas a remit of thedevelapnent
of a rnnnberf conceptswithinthe f rameworkof the Court's
jurisprudence. 1 proposeto refervery brieflyto saneof these
concepts.
Thereis,in the firstplace, the distinctio netween the
principalandthe incidental jurisdictioonf theCourt. 1 neednot
fortunatelgyo intothisdistinctions ,inceit is not imnediately
relevantto thepresentproceedings.
A second concep whichservesto refinetheoperation of the
principleof consent isthe acceptedflexibilita ys reg& themeans
forexpressing consent,at leaçtwhere that consentis givenadhoc.
1 havealreadydrawnto the attentioo nf theCourtthepassagefran
itsJudgment in thejurisdictiona plhaseof the Cod Channelcase
wheretheCourt,of course,confirmed thatneithertheStatutenor
theRulesrequirethatconsentshouldbe expressed in anyparticular
form. As thateminentformerJudge, Sir HerschLauterpachtp ,utsit,
withreference to theRights of Muloritiesin üppr Silesia (Minority
Schools)case decide by the Permanen Court:
IlThCourt pointedoutoncemorethat its jurisdiction
in a particularcase is not subordinatetdo the observance
of certainforms such as theconclusionof a special
agreement, andthatthe conseno tf a Stateto the
subnission of a d-Lsputeaynotonlyfollowfranan express
declarationb ,utmay alsobe inferred frunacts
conclusivele ystablishinigt." (SirH. LauterpachtT ,he
Developnent of InternationaLaw by the Intematicad Court
(1958),p. 202.)
Now, Mr.F-resident thishasparticular significancien thepresent
casesince,as the Courtwill he awarefran thewrittenpleadings, - 36 -
Bahrainappearçto be insistingthatit is dy the
conclusionof aspecialagreement betweenBahrain andQatarthatthe
jurisdictiaonf theCourtto determine themeritsof thedispute
whichhasarisen betweet nhemwillbe perfected.
A thirdconcept affectin the operatioonf the principloef
consentis the notionof consentby subsequentect. This is,of
course, thebais of jurisdictiobny forum~orogatLnniq?anwhich,as
is alreadyapparent, Qatadroesnot relyin thepresentcase.
A fourthconceptwhichrefinestheoperatian of theprinciple of
consenthas been developedwithinthe frameworkof the Court's
jurisprudence- thisis theinability of a Stateto withdrawa
consentalreaùygiven,oncethat consen htasbeen acted by
anotherState. Anexampleof theprinciple that acançentto the
exerciseof jurisdictionby theCourtcannotbe withdrawn afterthe
Court hasbeenvaiidlyçeiçedof a caçeis theJudgment of the
presentCourt in the preliminary objectipohnsseof theRights of
Passagecase. It willbe recalledthat, inthatcasebetween
Portugal andIndia,Portugal hadacceptedthecanpulsory jurisdiction
of theCourt by anOptional Clause declaration maodne
19 December1955, Indiabeingon thatdateboundby a parallel
OptionalClausedeclaration. On 22 December1955, Portugal
institutedproceedingsagainstInàia byunilateral application.
Portugalrelied, asthebasisof jurisdiction ,n theparallel
ûptionalClausedeclarations.Indiaraiseda nurrbeo rf preliminary
objections ttohejurisdictioo nf the Court.Qne of those
preliminaryobjectionsmeritsattention in thecontextof thepresent
dispute. This waçthe objection whic challengedthevaiidityof the PortugueseOptimal Clausedeclaratioo nn thegruunà thatit
incorporatead conditionwhich,so Indiaalleged, enabledPortugal to
withdrawfranthejurisdictiao nf theCourta disputealready
referredto the Court. The Courtfoundthat,in fact,the Portuguese
cmditiandidnothavethelegaleffectallegedby India. But the
courtwenton to Say:
"Itis aruleof lawgenerally accepted,as wellas one
acteduponin thepast by the Court,that,once the Court
has beenvalidlyseisedof a dispute, unilateralaction by
thereçpondent State interminatingitsDeclarationi ,n
wholeor in part, cannotdivestthe Court of jurisdiction."
(IC.J. Reports1957,p. 142.)
The Court wenton to citeapprovinglay passagefran itsearlier
Judgementon thepreliminary objections raiseby Guatemalain the
Nottebc3rcase.
Thus,the jurisprudeno cfe theCourtfinnlyestablishes the
principlethat a Stateisnot entitled to withdrawa consentto the
jurisdictioonf theCourtalready givei nn sucha way as to have that
withdrawalof consent appltyo proceedingsinstitutedby anotherState
beforethewithdrawal of consent. In otherwords,lapseof a titleof
jurisdiction ,hether the laps ie the resultof effluxioof timeor of
a validdenunciation" ,oidytakeseffectfor thefutureand removesal1
foundationfortheexercise of jurisdictioby the Courton thebasisof
thelapsed title in respectto proceedingnsot instituteprior to the
effectivelapse" (Rosenne,TheLaw and Practiceof the Lntemational
Court,2ndRevised Ed. (1985)p. 502)-
So muchforthe conceptw shichrefinetheoperation of the principle
of consentor at any ratecirmcrihe its applicatio innparticular
cases. On theothersideof thecoin, it mightbe thuughtthat - 38 -
consideration selatingto the burdenof proofwodd offsetwhatever
advantagemight be thoughtto accrueto an applicantStatefranthese
indicationbsased uponthejurisprudenco ef theCourt thattheprinciple
of consentwillnotnecessarily be appliedwithunduerigidity and
krflexibility. Indeed- and it occasionsno surpriseto Qat= - -ah
has soughtto arguethatpatarmust bear a particulaturden of proofin
establishintghe consentof the Parties(bywhichof course is meantthe
ment of Bahrain)to theexercise of jurisdictio ny theCaurt onthe
meritsof thepresentcase (aulB,ara. 4.5).
Qatarsutxnitt shatthisBahraini argumentis a misconstructioof
the legal position.ObviouslyQatar.as an applicantState,is required
to specify,as it has in factdone,the legalgroundçuponwhichthe
jurisdictioonf theCourt is saidto be based. Bahrainconteststhe
interpretatio nhich Qatar puton the 1987Pgreement.as confirmedand
supplementebdy theDoha Agreementof 25December 1990,and indeed,in
the caseof the bha Agreement,contestswhethersuch an agreement exists
at all. Theseare essentiall yegalissueswhichthe Court willhaveto
detexmine.The determinatio of theseissuesraisesno particular
questionas to theburdenof proofon Qataras anapplicant State. Qatar
of coursefullyacceptsthe forceof the maxim actoriindit patio
wherebyeachpartyto a dispute has to proveitsownassertions, the
burdenof proofking in consequencs ehared betweetnheparties. Qatar
alsoacceptsthatit is a fundamentarlequiremenotf any judiciasystem
that apersonwho desiresa courtto takeactionmustestablish his case
to the satisfactioofnthecourt. But the jurisprudenc ofthe presentCourt, and hcieedof itç
predecessort,he PermanenCtourt,showsa marked reluctanceto rely
wmch on theincidence of theburden ofproof.
In a nwiberof cases,the presentCairthas indicatedthat the
Men of proofliessimultaneausl andequallyon bothparties. Thus,
in the Tapie of PreahVihearcase,the Courtma&. the ollowing
IfAcmcexns theburdenof proof,it nnmt be pointedout
that though,fran the formalstanàpointC,ambodiais the
plaintiff,havinginstituted theproceeàingsT ,hailandalsois
a claimantbecauseof the claim whichwas presentedby her in
the secondSulnissionof theCounter-Mernori anldwhich relates
Both
to thesuvereignto yverthe samepieceof territory.
Cambodia andThailandbase their respecti veaimson a series
of factsandcontentionw shich areasserted orput forwardby
one Partyor theother. The buden of proofin respectof
thesewillof course lie on the Partyaçsertingor puttingthm
forward." (I.C.J.Reports1962, pp.15-16.)
A broadlysimilarposition wastakenby theCourtin the Minquiersand
Ecrehoçcase (I.C.J.Reports 1953,p. 9).
Thepassage fran theCourt'sJudgement in theTqle casewhich 1
have juçtcited has aparticularrelevanceto the present proceedings.
It is indeedtrue thatQataris theApplicant Statein theseproceedings.
ButBahrainis contesting thebasisof jurisdictioo nf theCourtinvoked
by Qatarand,in so doing,is positivelyasserting that,in the
particularcirmtances. thejurisdictioo nf the Courtcanonly be
establishe dy meansof theconclusion of a specialagreemenbetween
BahrainandQatar. On thisissue - theallegedrequirement of a special
agreement- it isBahrain whichis in thepositim of applicantandQatar
in thepositionof respondent. On Bahrain'sown argument,therefore,the
burdenof pmf of this allegedequiremenrtestsonBahrain. Thisview
of thematteris,if anything,reinforcedby theconsideratiot nhat,in - 40 -
itsirregular canmmicatians of14 Julyand 18 Auwt 1991,Bahrain
vigorouslymtested the jurisdictioo nf theCaurtto entertain the
presentproceedmgswithout, however,formallyloCaginagpreliminary
objectionas mtemplated by Article79 of theRulesof Court. Qatarof
courseacknowledget shatthe ûrdermadeby thethenPresident on
11 Octaber1991, tookaccountof an agreemen-ma&& between the
representative of the Parties,t a meetingwhich theyheldwiththe
Presidenton 2 Octaber1991,thatquestions of jurisdictioannd
admissibilitsyhauldbe separatelydeterminedbeforeanypmeeàiqs on
the merits. Oatarmot, however,failto re4nindtheCourt that,if
main had followedtheprocedure indicatedinArticle 79 of theRules
of Court,as it shouldhavedme, it wouidthenhave been for Bahrainto
establish,bothfactually and legally,thegraunds onwhich the
preliminaqobjection is based. The Court will ofcoursebe awarethat
paragraph2 of Article79 of theRulesof Court pruvidesas follws:
"Thepreliminaryobjections shal setout the factsandthe
lawon which the objections based,thesubnissions anda list
of thedocuments in support; it shall mentionny evidence
whichthe party may desireto produce. Copiesof the
çupporting documentsshallbe attached."
Thisprovision canbe interpreteads suggestulgthatthe burdenof
prwing the facts andthe law whichwdd çuçtaina preliminaryobjection
to the jurisdictiolnieson theStatewhichraisesthatobjection - that
is to Say,Bahrain. Qatardoesnot seekto put the position anyhigher
thanthat. Indeed, paragraph 6of Article79 of theRulesof Caurt may
rathersuggest, as indeedQatar hasal- asçumed,thatthe burdenof
prooffallsequallypn bothparties. This provision iscertainlynot
suggestiveof the ideathat aspecial burderof prooffallson one - 41 -
particularpartyin the contextof argument on the validityof
preliminary objections.
Mr. President,thismayperhaps be a cormenienttim at whichwe
couldpausefor a coffee break. It isa point at which 1startto move
rnyargument a bitfurtherforward.
, .. . + .-- .
ThePRESDENT: Thank you verymuch, Sir Ian. Thiswill,1
understandb,e a cdent momentfor the custanary cofeebreak; the
Court willadjournfor 15 minutes. Thank pu.
lZlCourt adjoumed fmn 11.25 a.m. to 11.45a.m.
ThePRESDENT: Pleasebe seated. Sir Ian.
Mr.SINCLAIR: Mr. President,beforethewelcanecoffeebreak, 1was
in theprocessof addressing theCourton thequestion of theburdenof
proof and itmay be worth in thiscontextrecalling that the late
SirHerschLauterpachtb ,othin hisjudicial capacity andin hisprivate
writings, doesnot appearto havebeen much impressedby arguments based
on theburdenof proof. Forexample, in his separateopinionin the case
of CertainNorwegian LnMnç, JudgeLauterpachs ttated:
"There is, in general,a degreeof unhelpfulnesi sn the
argumentconcerning theburdenof proof. However, sane prima
facie distributio on the burdenof proofthererrrus be ... the
degreeof burdenof proofthusto be adducedoughtnot to be so
stringentas to rendertheproofundulyexacting."
(I.C.. Reports 1957,p. 39.)
In the presentcase,Qatar acceptt shatit muçtestablish thatthe
Courthas jurisdictioo nn thebasisof thetwoagreements whic it has
invoked.But this, withrespect, Mr.President, in sotbecauseof the
incidence of anyparticular burdenof prooffavouring Bahrain andpenalisingQatar,or becauseof theexistence of any specialprinciples
of evidenceapplicablein thematterof establishint gheCourt's
jurisdiction. It is a simple application of tprinciplethatit is for
eachpartyto establish itsownassertions. Theposition hasbeen
felicitaiçlp yutby Sandifer:
"Thebroad basicruleof burdenof.proofadopted, in.
general,by internationatribunals ...may be simplystateà:
thattheburdenof proofrestsupn him who asserts the
affirmativoef aproposition tha ifnotsubstantiate dill
resultin a decisionaàverseto hiscontention. Thisburden
mayrest on thedefendant,
withtheplaintiff as theformermay incurtheburdenofually
substantiatinanyproposition he asser insanswerto the
allegatianoçf theplaintiff.I1(Sanàifer ,videncebefore
IntemationalIkihmais,RevisedEdition, 1975, p. 127).
A brcadly similarviewhasbeenexpressed by thelateand sadly
missedJudgeManfred Lachs in oneof thelast of hisprivatewritings.
He fin& that, in thecontext of the burdeof proof,thepositions of
applicantand respondentarevirtually indistinguishable:
"IntheStatute, they are assimilatetci eachother,which
&es a distinctioinn thisrespectratherdifficult.However
the case mabe, the partiesto a disputehave,as hasbeenso
rightlystated,notonlytherightbut thebty to prm their
claimandthey are underan obligationto CO-operateto this
endwith the internation judge."
Aftercitingwith apprml passagesfranan earlierarticle by
Witenberg,Manfred iachshimelf thenadds:
"Thepractice of theCourtindicates,in fact,thatthe
burdenwasplacedon theshoulders of eithertheApplicant or
theRespondent" (Lach, "Evidencein theproceàureof the
InternationaCourtof Justice: theroleof the Cairtn in
Mélanges Diezde Velasco,1993, p.428).
Now, Mr. Presiden,tif thetwoParties are in disagreements to the
incidenceof the burdenof prmf, there isless disagreeme nttweenthem
on the standardof proof. Of course,Bahrainseeksto muàày thewaters
by confusingthe burdm of prmf withthe standaro df proof; andit goesfurtherby accusingQatarof failing to drawto theattention of the
Courtcertain passagesfrm thewritings of SirGerald Fitzniauriacedof
Roçennewhich,according to Bahrain,areincaqatible with the arguments
advancedby Qatar (OB, para.4.5) . Thefactis , however,thatthe
passagescited by Bahraininparagraph 4.5of itsCounter-Mernori arle
selectiveandare farfm reflectintghe-balancweithwfüchboth
FitzmauricaendRosenne - thesehighlydistinguishe duthorities-treat
the issueof consentto thejurisdictioo nf theCourt. Forexample,
Fitzmaurice wisely poi nts that"by consent,in thelegalsenseof the
term, is notmeantwillingnessw ,hichrnaor rnaynotdst in the given
case". He gives theexample of theman preparedto undergoa surgical
operation; he doesnot actuallyundergoit willingly.Fitzmaurice
continuesby makinganother general point:
"Jurisdictionaobjections ar sometimesfrowneduponas
king an attempt by theState concerne to escapefranits
legalobligationo sr fran honourintheconsents it hasgiven,
but that of coursebegstheveryquestion whichthe
jurisdictiona objectionraises, andwhich hasto be decided,
namelywhether consen wtasgiven.Such a feelingmy be
natural, butit cannotjustify imputingto a Statea consent
that doesnotexist . Equally,if a trueconsentha been given,
theState oughtnot tobe allowedto escape itscançequenceson
a technicaltiy,or becauseof unwillingness&en it caneç to
thepoint." (Fitzmaurice lc. cit.,p. 86.)
1 woulddraw theparticvlar attentionoftheCourtto the lastsentence
of thiscitation. Here is thenecessary qualificatt ionthegeneral
point whichFitzmauriciesmaking,and it is a qualificatio nhichmust
not be forqottenor disregarded.It isnota question of.whichState
bearsthe burden of establishngconsent.WhattheCourthasto do is to
reviewal1theevidence and argumentsadducedby thepartiesrelating to
theallegedconsent and determinewhetheror not a trueconsenthas been -44 -
given. If theCourtconcludes thata truement has beengiven,the
respmàentStatecannotthereafter repudiateor disavowthat consent.
As 1 havealreaàyindicateà,there wouïd appear,on the faceof
things, to be lessdisputebetween theParties asto the standardof
proof than thereis as to theburdenof proof. Qatar&es not takeissue
withthe generalprincipleadmnced by thePexmanent Courtin the Factozy
at Chon&, Jurisdicticm ,açethat"the Court's jurisdictioins alwaysa
limitedane,existing anlyin so faras Stateshaveaccepteà ituandthat
ucançequently theCourt will,in theeventof an objection ...
oniyaffim itsjurisdictiop nrovidedthattheforceof the
argumentsmilitatingin favourof it is prepnderantw.
Thisis accordingly thetestto be appliedso faras the standardof
proofis cmcerned. But what doesit require?Whatis the meaning of
preponderantin thiscontext? Primafacie,it wwuïd seemto requirethat
the Court shouldcanparethe evidence adducb edthepmponent of an
issuewith the evidence addu ceditsapponentwitha viewto
detexminingthe relativeweightto be accorded to thatevidence. It
wouldthen be therelative weightwhichwouldrneaçurt ehe preponderance
of thearguments. Thiswouldaccordwiththedictionary definitionof
preponderant The Worù mg1 ish Dictonq, forexample, deinesthe
word "preponderant" as meanin in,the firstplace,"çurpassinign
weight; outweighingh ,eavier"and,in thesecondplace,"surpassin gn
influence,mer or importance;preàaninant". Boththesedefinitions
embodythe notion of canparisono,f relativity.So what is requiredof
the Courtin thiscaseis, Qatarwould çulxnita weighingof the
respective argumentfavowingor denying the exercio sejurisdiction.
Thesearguments will,of necessity,be a mix of factualandlegal
elements,proofof the factual elemenk tsng governed bythegeneral -45 -
rulesof evidenceto the exclusioonf any specialburdenof proofon
Qatarbeyondthatwhichflowsnaturally franits positionas applicant.
1 çhould perhapsat thisstageSaya few wordsabout thecanceptof
reciprocitoyf consent. Qatar,in its Memorial(para. 4.40to 4.43),
drewattention to the considerationsnderlyingthis conceptS.o faras
Qatar canjudge,Bahrain hasnot seen fitto cament directly anthis
partof theQatarMemorial.However, Bahrainappearsto be açserting
that, becauseQatarhas invokedthe jurisdictioonf theCourt in this
case by wayof unilateralapplicatiant,here isno effectivereciprocity
of consent,particularlbyecauseQatarhas not includedthe questianof
Zubarahwithinthe SC- of its Application.The Bahrainiargumenton
thispoint (CMF3paras. 8.4-8.14),it nnrçbe said,has, whether
deliberateloyr not and Qatairs in no positioto judge,distorted
argumentsadvancedby Qatar. Forexample, inparagraph 8.5 of the
BahrainiCaunter-Mernorial,t is statedthatQatarhad made
suggestiontso overcanethediffidty thatZubarahis not amongthe
issuescareredby theQatarApplication: the first is"forBahrain to
intrcducethe Zubarahclaim by wayof acounter-claiimn the present
proceedings". Tothisis appended a footnotereferenceto paragraph5.81
of theQatari Memorial. But if one look at paragrap5.81 of theQatari
Memorial,one fi& onlya citation £roma Bahrainiletterof
16 September1991,in which thenrqumentis advancedthat "itis by no
means clearthatBahrainwould be freeto raisethe issue of Zubarahby
way of counter-claim".But Qatarhas notmaintainedthatBahrainwould
haveto raise thequestion ofZubarah by way of a counter-claimo the
claimçachmnced byQatar in itsApplication. So al1the argumentatio nn
the BahrainiCounter-Memorlaabout therequiremenotf establishin g - 46 -
link betweena mter-claim andthe principac ll& is totallybeside
thepoint. WhatQatar has beenasserting, andcantinues to assert,is
that,under the Bahrainifoda, Bahrainis perfectlyat libertyto
raisethe Zubarah questionby makingits own separateApplicationto the
Qatarhasnot soughtto denythat, for
CourtagainstQatar.
jurisdictid purposes,the questionof-~ubamh-can~-k-~~ as
fallingwithinthe scopeof the Bahrainifornarla.The admissibilit yf
potentialBahraini claimswith respect t Zubarahis a separateissue
which willbe aàdressedby ProfessorSalmn.
Nw, Mr.President, 1 willconclude theserelativelygeneral
observationosn the notionof consentby drawingattention to a
distinctionwhich has been made,kathindoctrine andin the
jurisprudencoef the Court,betweenthecategories of treatyi~oa nhich
the jurisdictioonf theCourtmay be founded. Thisis thedistinction
betweena treaty emboCtying generalobligationto accept the
jurisdictioonf the Courtin relationto any dispute whicmhayarise
concerningits interpretation a orplicationanda treatyembodying a
çpecificobligation taoccept the jurisdictioonf theCourtin relation
to a concrete dispute betwe the Parties. TheCourtitself has
acknowledgetdhis distinction. In itsJudgmentin thejurisdictional
phaseof the Fideries Jurisdicrim casebetweentheUnited Kingdan and
Iceland,the Court had occasion tcarnienotnan aryumentput fomard by
Icelandto theeffect that treatiesof judicialsettlementor
declarationosf acceptanceof the canpulsoryjurisdictioonfthe Court
are subjectto unilateraldenunciatioinn theabsenceof qress
provisionsas regardsduration or termination.Referringto this
argument,the Court stated: "Itis sufficient toreniarkthatsuchviews havereference
onlyto instrumentsin whichtheparties had asçumed ageneral
abligation to sut to judicialsettlemental1or certain
categoriesof disputes whicmhightarisebetweenthem inthe
unpredictablf euture. The 1961Bchaqe of Notesdoesnot
embodyan agreementof this type. Ictontainsa definite
canpdssory clauseestablishint ghejurisdictioo nf theCourt
todealwitha concrete kindof disputewhichwas foreseen and
çpeciicallyanticipate dytheparties. (IC.J. Reports
1973,p. 16.)
. .
1 havedrawnattention to this distinctio because,inthe presentcase,
the Courtis, Qatar wouldçubnit, canf-ted witha canbinatioo nf
twotreaties which,betweenthem, embdy a specificundertakingby both
Partiesto referto the Court identifiedand identifiable disputes
between Qatarand Bahrain.In otherworàs,the situation i sot
dissimilarto thatwhich the Court hadto dealwith in thejurisdictional
phaseof the FiçheriesJurisdictioncase,withthesignificand tifference
thatBahrainhasat least appeared in orderto arguethattheCourt has
no jurisdictiotno dealwith the meritsof thepresent case.
Now, Mr.President, 1 turnfranwhathas hitherto beena fairly
broad andgeneral discussio on the legalimplicationosf therequirement
of consentto theto a morefmed analpis of the essential aspec ts
the consentof both Qatarand Bahrainto conferjurisdictioo nn theCourt
in respectof the mtzers in disputebetweenthem,as evidenced by the
Agreementof 1987,confirmed and supplementebdythe Doha Agreementof
2. Theconsent ofBahrain andQatar to refarthe
dieputee to theCourt
Thebasic conseno tf bothStates to sutsrniternatterisn dispute
betweenthemto the jurisdictioonf the Courtis wressed in the
Agreementof December1987,whose existenc evenBahrain doesnot
dispute.
TheAgenthasalreadycited paragraph1 of thatAgreement. - 48 -
It is difficulto conceiveof a more unequivocaexpressio nf
consentby bothPartiesto the jurisdictioo nf theCourtin respectof
al1 thedisputed mattersthan is representedy thislanguage. It only
rernainfsorme to reminciheCourt thattheAgentfor Qatar hasalready
explainedthismrning the nature and scopeof thesemattersindispute
betweenBahrain andQatar.
Mr. Shankardaçsw,howillfollow me,will be reviewingthe long
drawnouthistoryof attempts to resolvethesedisputesandwill,in
particular,explainthe cirmtances of themediatica iffortundertaken
by the Kingdcmof Saudi Arabiafrun1976 onwaràs.
Dsspitethebestendeaxursof Saudi Arabia as mediatoràuringthe
pericdfm 1976to 1987,it had not pruvedpossible to securean
agreementon the substancoef anyof the disputebsetweenQatarand
Bahrain. In thecirmtances, KingFahdof Saudi Arabia wroteidentical
lettersto themers of QatarandBahrainon 19 December1987makinga
four-pointproposal. Paragraph1 of thatpropal, of course,prwides
for referencoef al1 the disputedriattetrs the Internationalourtof
Justice. Paragraph2 of theproposalcoveredthemaintenance of the
statusquoand relatedmatters; for presenpturposes,1 neednot recite
its tem. Paragraph3, on the otherhand,is significanta,nd its
wordingis important:
"Thirdly: Formationof a cum-iittecarprishg
representative of the Statesof QatarandBahrainand of the
Kingdanof Saudi Arabia fo thepurposeof approaching the
InternationaC lourtof Justice,and satisfyinthe necessary
requirementtso havethedisputeçubnitted to theCourt in
accordancewith its regulationasnd inçtructionso that a
final ruling,bindingupn bothparties, be issued. - 49 -
1 will come back to paragraph 3 in a moment. Finally, paragraph 4 of the
proposa1 provided for the continuanceof the good offices of the Kingdom
of Saudi Arabia to guarantee the implementationof these terms.
Both Qatar and Bahrain accepted this four-pointproposal, so that a
public announcement could be made on 21 December 1987 recording the
agreement of the Parties.
Now, Bahrain has of course argued that paragraph 1 of the 1987
Agreement wasexpressly made conditionalupon completion of the procedure
outlined in paragraph 3 of the Agreement.
Thus, Bahrain contends, with reference to paragraph 1 of the 1987
Agreement:
"The provision is certainly notan unconditional
undertaking togo to the Court. Quite self-evidently,the
commitment was vitally qualified by the provision for the
formation of a committee consisting of representativesof the
Parties and the Mediator" (CMB,para. 5.12).
This argumentbetrays a certain misunderstandingof what is Qatar's
position. Qatar has not asserted that the terms of the 1987 Agreement by
themselves provided animmedlatebasis forenabling the Courtto exercise
its jurisdiction. Qatar does not however concede that the clear
commitment of both Parties under paragraph 1 of the 1987 Agreement to
accept the jurisdictionof the Court in relation to "al1 the disputed
matters" was in any sense qualified or conditional upon the successful
outcome of the activities of the committee constituted under paragraph 3.
Qatar does not underestimatethe significanceof paragraph 3 of the
1987 Agreement, but paragraph 3 was clearly designedto facilitate the
reference of al1 the disputed mattersto the Court, and not to be used as
a weapon in the hands of one of the Parties to frustrate such a
reference. Mr. Shankardasswill, in the course of his presentation, - 50 -
review the proceedings of the Tripartite Committee and will demonstrate
that at no time was the conclusionof a "special agreementn considered to
be an essential prerequisiteto the establishmentof the jurisdictionof
the Court. Qatar was prepared to participate in the process of seeking
to elaborate a "special agreementu acceptable to both Qatar and Bahrain,
but most certainly did not regard the-failureof~the..joint effort to draw
up a "special agreementw within the framework of the proceedingsof the
Tripartite Cornmitteeas in any way invalidatingthe consent which both
Parties had already given to the jurisdictionof the Court in relation to
al1 matters in dispute between them by virtue of the 1987 Agreement.
3. Tha conmant of Bahrain and Qatar to tha subjact-matterand mcope of
the disputes to be referred to the Court
It was the Doha Agreement of December 1990, which confirmedand
supplementedthe 1987 Agreement, and thereby finallyestablished the
jurisdictionof the Court over al1 the matters in disputebetween Bahrain
and Qatar. As 1 have just indicated, the 1987 Agreement had recorded the
basic consentof both Parties to refer al1 the disputed matters to the
Court for adjudication. Prlma facie, the expression "al1 the disputed
matters" would have covered the dispute relatingto title over the Hawar
islands, to sovereign rights over the two shoals of Dibal and Qit'at
Jaradah, and to the course of the sea-bed boundary between Bahrain and
Qatar. These were certainly the matters to which the mediation efforts
of Saudi Arabia had been directed.
The wording of the first Principleof the Framework formally
approved by both Bahrain and Qatar in 1983 clearly embracesthe specific
disputes between Qatar and Bahrain to which 1 have just made reference.
On the other hand, this formulationwould not have covered the question - 51 -
of Zubarah. Bahrain indeedseems implicitly to admit that Zubarahwas
not included within the first Principleof the Framework, since Bahrain
does not assert that the question of Zubarah fell within the initial
scope of the Saudi Mediation. Bahrain is careful to confine itself to
arguing that "The dispute over Zubarahthus forms an integral part of the
background (1 stress the word -mbackgrounda I-to-thc.differences--between
Bahrain and Qatarw (CMB,para. 2.11). Bahrain did not attempt to raise
the question of Zubarah within the Framework ofthe Saudi Mediation until
1986, when it supposedly filed a memorandum with Saudi Arabia (CMB,
para. 2.11). But Qatar never received a copyof this memorandum, nor
indeed has Bahrain filed a copyof this memorandumwith the Court. In
addition, it is noteworthy that no reference is made to the question of
Zubarah in the identicalletters of 19 December, 1987 £rom King Fahd of
saudi Arabia to the Amirs of Bahrain and Qatar. The Court will of course
be aware that it was the failure of Bahrain andQatar to agree uponthe
formulationof the question or questionsto be put to the Court which led
to the complete breakdown inthe work of the Tripartite Committeein
December, 1988. As Mr. Shankardasswill make clear, Qatar had made a
good faith effort during the last five meetingsof the Tripartite
Committee betweenMarch and December, 1988, to reach agreementon the
formulationof an agreed question orquestions to be submitted jointly to
the Court by Qatar and Bahrain. But the formulations proposedby Bahrain
in their draft special agreementsof March, 1988 (MQ,para. 3.37) and
June, 1988 (MQ,para. 3.46) were clearly designedto prejudge, in
Bahrainls favour, some of the major issues in disputebetween the Parties
and were therefore unacceptableto Qatar. It was not until late October,
1988, that Bahrain put forward a general formula for reference of the - 52 -
disputes betweenQatar and Bahrain to the Court. That general formula
subsequently came to be known as "the Bahraini formula". Qatar welcomed
this as a step forward but has sought some clarificationof its tem.
At the sixth and final meeting of the Tripartite Committeeon 7 December,
1988, Qatar suggested that it couldaccept the inclusionof Zubarah as a
subject of dispute if any Bahraini claim in,respectof eubarah was
restricted to claims of private rights and not claimsto sovereignty; but
this suggestionwas refused by Bahrain. 1 will not go into further
detail about the final meetingsof the Tripartite Committeein December
1988, as Mr. Shankardass will be covering that. Al1 1 would Say is that
both Qatar and Bahrain had been put on notice by Prince Saud towards the
close of the fifth meeting of the Tripartite-Committeeon 5 November;
1988, that the King of Saudi Arabia considered that thedate of the
beginning of the GCC summit, in December, 1988, was the date for
terminating the missionof the Tripartite Committee, whetheror not it
had succeeded in achieving its mission (MQ,para. 3.50). So it is quite
clear that the Tripartite Committee had become functus officio after its
sixth meeting on 7 Decernber, 1988.
As the Court will be aware, the Saudi Arabian Mediation was
continued in 1989 and 1990 as a result of decisions taken at the GCC
summit meetings in Bahrain in 1988 and in Muscat in 1989, but no progress
was made on the substance of the disputes between Qatar and Bahrain.
Qatar was becoming increasinglysuspicious that Bahrain was intent
on either withdrawingfrom its commitment to refer the disputed matters
to the Court or on so wearying the Qatari authorities as to cause them ta
accept language for such a reference whichwould be prejudicial to Qatari
interests. Qatar therefore decided toraise the subject at the opening - 53 -
session of the GCC summit at Doha on 23 December, 1990. ~ahrain proposed
that the Saudi Arabian Mediationbe further extended without any time-
limit. Qatar stronglyopposed this proposal. In so doing, and in order
to reach a solution on the subject-matter and scope of the disputes to be
referred to the Court, the Arnirof Qatar stated that Qatar now accepted
the "Bahraini formulam. It is noteworthy that the Sultan of.ORILlll.als0
played a prominent role by persuadingboth Parties to agree to the
continuanceof the good offices of Saudi Arabia until May 1991, after
which the Parties would be at liberty to submit the matter to the Court
in accordance with theBahraini formula. These developments opened the
door to the conclusion of the Doha Agreement represented by the Agreed
Minutes of 25 December, 1990. 1 and other of my colleagues, including
Professors Salmonand Quéneudec will, in later interventions, address
inter alia the status of the Doha Minutes as a treaty or convention in
force within the meaning of Article 36(1) of the Statute, the Bahraini
argument that, even if the Doha Minutes constituteda binding
international agreementat the time of their conclusion, Bahrain's
consent to be bound had been expressed in violation of Bahraini
constitutional requirements so as to invalidate that consent, and the
interpretationof the Doha Minutes, including Bahrain's falsedistinction
between jointand unilateral seisin. For the time being, 1 would simply
draw attentionto the considerationthat the Doha Minutes reaffirmed and
perfected the consent of both Qatar and Bahrain to the jurisdictionof
the Court over al1 the matters in dispute between the two States. They
did so by embodying two distinct elements which had not been covered in
previous exchanges, including the 1987 Agreement. These two distinct
elements are: - 54 -
(1) Qatari acceptanceof the "Bahraini formulan, that is to Say, the
neutral general formula which wouldensure that al1 Qatari and
Bahraini claims, including the Qatari claim tothe Hawar islands and
the Bahraini claim to Zubarah, would fa11 within the jurisdictionof
the Court;
(2) An agreed date (15 May 1991), after-which.-ttrta~Part= ieds be at
liberty to submit the matters in dispute to the International Ccnirt
of Justice in accordance with theBahraini formula, notwithstanding
the continuance of the Saudi Arabian mediation.
1 should add that theDoha Minutes also served another purpose. The
Tripartite Cornittee in 1988 had failed to fulfil the task entrusted to
it under paragraph 3 of the 1987 Agreement. The Doha Minutes succeeded
in elaborating alternative arrangements, including time-limits, for the
reference of the matters indispute between Bahrainand Qatar to the
Court. These alternative arrangementswere a substitute for the non-
fulfilment by the Tripartite Cornmittee of its mandate in 1988; they also
served to ensure that legal effect couldbe given to the consent to the
jurisdictionof the Court alreadygiven by both Bahrain and Qatar,
notwithstanding effortsby one Party to frustrate referenceof the
disputed mattersto this Court.
In sum, Mr. President, Qatar contends that the consent of both
Parties to the exercise of jurisdictionby the Court over identifiable,
territorial and maritime boundarydisputes is evidenced by the 1987
Agreement as confirmed and supplementedby the Doha Minutes of 1990.
Qatar likewise contends that, as Professor Queneudec will demonstrate,
there is a clear and acknowledged distinction between thejurisdictionof
the Court to entertain a dispute or series of disputes and the method of - 55 -
seisin of the Court. At the same time, Qatar denies that it ever agreed
with Bahrain that the only method of seisin of the Court in relation to
the disputes between the two States should be by joint submission
pursuant to a special agreement. Mr. Shankardass will show that Qatar
was willing to negotiate such a special agreement withinthe framework of
the Tripartite Committeein 1988, but nnfortunately-it-wasn -ot.possible
for the two States to agree upon a text before the work of the Tripartite
Committee came to an end in December 1988.
Mr. President,Members of the Court, 1 thank you for your patience
.
and courtesy. It would now be convenient,Mr. President, if you were to
cal1 on Mr. Shankardass. Thank you.
The PRESIDENT: Thank you Sir Ian. 1 give the floor to
Mr. Shankardass.
Mr. SHANKARDASS: Mr. President,Members of the Court.
May 1 Say what a very great honourand a privilege it is to address
this HonourableCourt and thevery distinguished membersof this great
institution.
Sir, it is my task today to address the Court on a number of
important issues on which Che Parties before the Courtremain divided -
and, in particular, on the question whether theirdecision to refer their
existing disputes to this Court was subject to a condition that such
reference had to be by joint submissionpursuant to a Special.Agreement.
The Court will have seen from the opening address of the Agent for
the State of Qatar, H.E. Dr. Najeeb Al-Nauimi, the presentation of
Sir Ian Sinclair, and the pleadings filed by the Parties, that disputes
arising out of two decisions of the British Government admittedlyexisted - 56 -
between Qatar and Bahrainat least £rom 1939 onwards in respect of
sovereignty over the Hawar islands; as also since December 1947 in
respect of sovereign rights over the Dibal and Qit'at Jaradah shoals and
the delimitationof the Qatar-Bahrainmaritime boundary. An attempt was
made to resolve the disputeswhen, in 1965, Qatar proposed a reference to
arbitration,and the proposal was approwd by t,he-BritishGovernment.
Bahrain at first acceptedthe proposal, but later frustrated the attempt
at arbitrationby seeking to exclude Qatar's claim to the Hawar islands.
Sir, for the purpose of addressing someof the developmentsrelating
to the subsequent efforts at resolving the disputes, with which this
Court is now concerned, 1 will focus on four main periods: first, the
period £rom the beginningof the Saudi Mediation up to the conclusion of
the 1987 Agreement. 1 will refer to the circumstances leadingto the
acceptance of the proposal by both Qatar and Bahrain that their dispute
had to be settled by this Court in accordancewith internationallaw;
second, 1 will examine the 1987 Agreementitself and its scope as it was
understood by bothBahrain and Qatar. 1 will seek to show the Court,
from the documents and from the record of views expressedby
representativesof the two Parties, that there is no substance whatever
in Bahrain's contention that the commitment of the two Parties in the
1987 Agreement to refer their disputes tothis Court was conditionalupon
the successful negotiationof a Special Agreement; third, 1 will attempt
to demonstrate that although during the work of the Tripartite Conunittee
the Parties tried to reach an agreementon the terms of a Special .
Agreement, this effort ultimately failed, and the Tripartite Conunittee
ceased to function in December 1988; fourth, and finally, 1 will examine
the circumstances surroundingthe conclusion of the Doha Agreement, which - 57 -
allowed both Qatar and Bahrain tosubmit their respectiveclaims to this
Court in accordance with the Bahraini formula, and the events that
followed the Doha Agreement.
1. THE SAUDI MEDIATION UP ULJTILTHE 1987 AGRgKMENT
Following theoutline 1 have just given, 1 will begin by discussing
. . ....
the period of the Saudi Mediation upuntil the 1987 Agreement.
(il The 1976 Agreement on Saudi Wediation and th. Pranrowork
By 1976, a few years after the British presence in the Gulf had
ended, it had been agreed that Saudi Arabia would act as Mediator between
Qatar and Bahrain in an endeavour to resolve the outstanding disputes.
The first significant stage reached in the course of the Mediation was
the proposa1 made by King Khalid of Saudi Arabia in 1978 of a set of Five
Principleswhich have been referredto as "the Frameworkl1 within which
the Mediation was to operate. Al1 important developments in the course
of the Mediation have been affirmedto be pursuant to this Framework.
The Court hasalready been addressed this morning about the content of
the Five Principles of the Framework and 1 will therefore,Mr. President,
only refer to those relevant to my presentation. The First Principle of
the Framework,which gave an indicationof the subjects of the disputes,
read :
"Al1 issues of dispute betweenthe two countries,relating
to sovereignty overthe islands, maritime boundaries and
territorialwaters are to be considered as complementary,
indivisible issues, to be solved comprehensivelytogether."
The Fourth Principle provided forthe formation of a Committee with
representatives fromQatar, Bahrain and Saudi Arabia and 1 quote "with
the aim of reaching solutions acceptableto the two Partiesu.Unlike the - 58 -
Committee under the 1987 Agreement, to which 1 will shortly refer, this
Committee was charged with the task of finding solutionson the substance
of the disputes. The FifthPrinciple, as originally proposed, stated
that if the Parties failed to reach agreementon any of the disputed
matters, Saudi Arabia would be authorised to propose a compromise which
would be regardedas "the solution agreed-upcmbetween the,PartiesU. In
other words, Mr. President, the compromise to be proposed by Saudi Arabia
was to be the finalsolution.
(ii) 1981-1983: Coneideration of Qatar1. proposa1 of an amended Fifth
Principle for the Franiework
However, in 1981, in response to a request from SaudiArabia for
comments on the terms of the draft Framework, Qatarproposed.an amended
text for the Fifth Principle,suggesting, that since the dispute was a
purely legalone, and so as to avoid any embarrassmentin the sensitive
relations betweenQatar, Bahrain and Saudi Arabia, "the resolution of the
dispute be left to ... the principles and rules of internationallaw ...If
and that the "decisionof the authority, which will be agreed upon for
this purpose, shall be final and binding on both Parties" (see,MQ,
Annex 11.4).
Considerationof the proposed Framework,and Qatar's amendment of
the Fifth Principle,continued until May 1983, during a period of
increasing tension between Qatar and Bahrain over their long-standing
disputes. As explained in Qatar's Memorial (paras. 3.17-3.191, this
tension was a matter of serious concern to other countriesin the Gulf
region - so rnuchso that the GulfCooperation Council, generallyreferred
to as the GCC, also resolved, in March 1982, to request SaudiArabia to - 59 -
use its good offices to try and resolve the disputes between Qatarand
Bahrain .
Saudi Arabia subsequently convened ameeting on 22 May 1983 with
representativesof Qatar and Bahrainin Riyadh and the agenda for this
meeting was "to discuss the disputeon Hawar islands and the maritime
boundariesoo(see,MQ, para. 3.19 andyAnns. 11.8 and 11.9). .Thismeeting
finally approved the text of the Framework including the amended text of
The acceptance by the Parties of
the Fifth Principle proposedby Qatar.
the Fifth Principlerequiring resolutionof their disputes accordingto
InternationalLaw, a fact acknowledged byBahrain (see, CMB, para. 5.5),
was, Mr. President, in a sense the first step towards referring their
disputes to this Court.
During the years following the May 1983 meeting, SaudiArabia
continued to try to secure a settlement on thesubstance of the disputes.
Despite the Saudi efforts, no significantprogress was, however, made.
On the other hand, there were a number of occasions when Qatar found it
necessary to protest against actionsby Bahrain which it considered were
violations of the status quo and which led to a further increase in
tension betweenthe two countries.
(iii) The 1986 Crisie
Early in 1986 a serious crisis erupted - which the Agent for Qatar
this morning referredto -when Qatar discovered that Bahrain had begun
constructionwork on the Dibal Shoal in an attempt artificially to
transform its nature £rom a shoal to an island andto make it a post for
its coastguard. On 26 April 1986, Qatar sent a security forceto put an
end to this violation. Saudi Arabia immediately intervened by diplomatic - 60 -
action to resolve the crisis. In his letter of 14 May 1986 (MQ,
Ann. 11-12, p. 791, King Fahd of Saudi Arabia calledupon the parties
'net to use force as long as Saudi mediation is continuing and not to
execute any new works ...lu. As a result of the Saudi intervention, the
offending constructionwas removed. Saudi Arabia also intensified its
efforts to find a solution for the long-standing.dispute8.
Unfortunately, success continued to elude the Saudi efforts; and
complaints by both Parties about infringements of the statu8 quo
continued. It was againstthis background, Mr. President, that Saudi
Arabia eventuallybrought about what hasbeen called the 1987 Agreement -
to which 1 will now turn.
2. THE AGREgMENT OF DECEEiBER1987
Because Saudi Arabia had not succeeded in securing a resolution of
the disputes through its own Mediation since 1976 - that is in a period
of over 11 years - King Fahdeventually decidedto invoke the Fifth
Principle of the Framework - that thedisputes be settled in accordance
with international lawby an authority whose decision would be final and
binding on both Parties. In hls identical lettersof 19 December 1987
(see,MQ, Ann. 11.15, p. 103) to the Amirs of Qatar and Bahrain,
King Fahd proposed to the two Parties an effectivealternative means of
reaching a final and just solution - words that 1 will have occasion to
refer to again - to what he termed"the long-standingdispute ... over
the sovereignty over Hawar islands, the maritime boundaries of the two
brotherly countries, and any other mattersu. He called upon them to
agree to refer their disputes to this Court for a final and bindingruling. Both Bahrain andQatar accepted this proposa1 and "the
1987 Agreement" came into existence.
1 believe, Mr. President, it is appropriate for me to recall (in
this instanceby using the United Nations translation which Bahrain
prefers) the relevant paragraphsof the new Agreement that had been
reached. These were:
"1. The issues subject to dispute shallbe referred to the
International Court of Justice at The Hague for the issuance of
a final and binding judgement whose provisions must be applied
by the two parties.
2. (The second paragraph referredto maintenance of the status
quo) .
3. A committee shall be formed, comprising two representatives
of the State of Qatar and the State of Bahrain and two
representativesof the Kingdom of Saudi Arabia, for the purposc of
communicating withthe International Courtof Justice and completing
the requirements for referralof the dispute thereto in accordance
with the Court's regulationsand instructions,in preparation for
the issuance of a final judgement which shall be binding on both
parties.
4. The Kingdom of Saudi Arabia shall continue to use its good
offices to ensure that these conditionsare fulfilled."
(UnitedNations translation; see CM., Vol. II, Ann. 1.3.)
The Court will have noticed from Qatar's pleadings thatthe announcement
of this 1987 Agreement by Saudi Arabia in December 1987 was welcomed by
rnemberStates of the GCC as 1s shown by a newspaper report which appeared
in the Gulf Times of 29 December 1987 (see,RQ, Ann. 1.21, which said:
"Saudi Foreign Minister PrinceSaud al-Faisal has said that
the GCC was very happy thatthe two sisterly Statesof Qatar
and Bahrain had decided to settle their territorial dispute by
referring it to the International Courtof Justice. ..
Prince Saud, who was answering a question from an Egyptian
journalist at Sunday night's Press conferenceat the close of the
day's sessions of the GCC Summit, said the submission of the issue
to the Court was something natural, since the GCC members were
members of the United Nations. 'Thereforethey were supposed to make use of that framework,
specially as the case is of a legal nature and deals withborders1
headded.I1 (See,RQ, Ann. 1.2, p. 13).
The Court will see that a solution for resolving the long pending
disputes had been found and agreed. Al1 that remained was to ascertain
and follow the procedure for implementingit. The Parties had at that
stage apparently notapplied their minds in.any way- as to the~particular
Rules of the Court which were to be invoked to implement their decision.
That appears to be the reason why they optedfor a procedural solution
through the constitutionof a Tripartite Committee.
In contrast to the Committee formed under the Framework whose task
as 1 said was to find solutions on the substance of the disputes, the
Tripartite Committee under the third paragraph of the 1987 Agreement was
to be constituted rnerelyfor procedural purposes,i.e., "for the purpose
of communicating with the International Court ofJustice and completing
the requirements for referral of the dispute thereto in accordance with
the Court's regulations and instructions ..." (see,CMB, Ann. 1.3, p. 18,
para. 3; emphasis added). Mr. President, it is impossible to see how
Bahrain can contend that this enabiing provisionfor "communicatingwith"
the Court and "cornpleting the requirernents" of its regulations to
lrnplernent the agreement was a condition requiring joint subrnission to the
Court pursuant to a special agreement and that otherwise the disputes
could not be subrnittedto the Court. 1 submit, Mr. President, that
Bahrain is wrong in contending (see,CMB, para. 5.13) that "the
irnplernentatio of the first paragraphwas expressed to be dependent upon
the subsequent activityof the Tripartite Committee referredto in the
third paragraph". The irnplernentatio of the decision in the first
paragraph to referthe dispute to this Court was dependent upon the - 63 -
applicable Rules of this Court and not upon the "activity"of the
Tripartite Committeeas such.
~s I have already explained,prior to the 1987 Agreement the Parties
had not addressed the questionof the method of approach to the Court.
In any event, the text of the 1987 Agreement says nothing about aSpecial
Agreement. To the contrary, it is clear that.part of .the.-td6k of.the
Committee establishedunder the third paragraph was to ascertain an
appropriatemethod. As 1 will presentlyshow, even Bahrain admits to
having concluded sornetimeafter the 1987 Agreement was reached that
"contactwith the Court should be through a Special Agreement''.
Bahrain assertsthat prior to the 1987 Agreement the Partieshad
always thought in terms of a "joint submissionwand never in terms of a
unilateral application; and that this backgroundis a "pertinent
consideration"in the interpretationof the 1987 Agreement isee,CMB,
paras. 5.3-5.6 and RB, para. 4.03). To support this assertion Bahrain
relies on Qatar's proposa1 of arbitration in 1965; on the fact that the
Frarneworkdescribed al1 issues of dispute between the Parties as being of
a cornplernentary indivisible natureto be solved comprehensively
together; and on King Fahd's proposa1 that the 1986 Dibal crisis might
have to be resolved by arbitration sanctionedby both Parties. In fact,
Mr. President, as is obvious, none of Bahrain's so-called pertinent
considerationshas anything whateverto do with the method of approaching
this Court. Bahrain also cites the Dubai-Sharjaharbitration as an
acceptable precedentof a joint subrnission in the Gulf area (see, CMB,
para. 1.7). 1 subrnit,Mr. President, firstly that it is obvious the
Dubai-Sharjahcase is not a valid precedent to cite for the simple reason
that the parties in that case are rnembersof a Federal State, namely theUnited Arab Emirates, and could not have brought their disputeto this
Court in any event; and secondly, it is most important to keep in view
the significant fact thatin December 1987King Fahd did not propose a
joint referenceto arbitration by nominated arbitrators (which wouldhave
required a further elaborateagreement) as in the Dubai-Sharjah case, but
instead proposed a reference to apermanent institution,. i-e.; this Court
with its established rules of procedure which permit the invoking of its
jurisdictionby a unilateral application or a reference (jointor
otherwise) under a Special Agreement.
In the light ofthese facts, there can be no justificationwhatever
-
for Bahrain's contentionthat the 1987 Agreement
"though evidently contemplatingthe eventual submission of the
dispute to the Court, was clearly conditional uponthe
successful negotiationof a Special Agreement ...IV(see, CMB,
para. 1.61,
or for the statement that the 1987 Agreement was merely"a cornmitment to
negotiate in good faith a Special AgreementN (see,CMB, para. 7.1). As 1
will show from the record of proceedings of the Tripartite Cornmittee,the
1987 Agreement was clearly understood and repeatedly referred to by al1
the parties as embodying the commltment of Bahrain and Qatar to submit
their disputes to the Court isee,e.g., the Signed Minutesof the First
Tripartite Committee Meeting-Qatar'sT.C.M. Documents, p. 51).
3. PROCEEDINGS OF THE TRIPARTITE COMMITTEE
1 now turn to the period after the conclusion of the 1987 Agreement
and, in particular, the Meetings of the Tripartite Committee. Bahrain
seeks to rely on what it calls "the conduct of theParties in the period
following the acceptance of the Agreement" and argues that this conduct
shows that the Parties "immediatelyand continuously recognizedthat they - 65 -
had to negotiate an agreement for a joint submissionn (see, CMB,
paras. 5.20 et seq.).
1 would respectfullysubmit, Mr. President, that when two States
agree to refer their disputes tothis Court, it would be natural for them
to try to see if they could also mutually agree on the terms of a special
agreement and the procedure to be followed (which may, or may nOt,
necessarilyprovide for a joint reference). But surely, Sir, that does
not mean that another available methodof approach is precluded if they
do not reach a special agreement. Qatarhas never denied that during the
Tripartite CommitteeMeetings theParties tried to reach a mutual
agreement on the text of a special agreement, an effort which ended in
failure when theTripartite Committee ceased to function in December-of
1988.
What Qatar does not accept, however, is Bahrain1s proposition that
the Parties "immediatelyand continuouslyrecognized that they had to
negotiate an agreement for a joint s~bmission~~.Such a proposition finds
no support in the facts, as 1 will now show.
(il The preliminarymeeting of the Tripartite
Committee and the draft procedural propoeale
At the time of the GCC Summit meeting in Riyad. in December 1987 at
which the 1987 Agreement was announced, there was a preliminary informa1
meeting of representativesof Saudi Arabia, Qatar and Bahrain where both
Qatar and Bahrain presenteddraft proposals in respect of the procedure
to be followed for "communicatingwith the Court". This was an
initiativeby the Parties to begin implementationof the third paragraph
of the 1987 Agreement. Findingno evidence in the text itself to support
its argument that the 1987 Agreement was conditionalupon the conclusion - 66 -
of a Special Agreement, Bahrain seeks to buttress its argument by praying
in aid these two procedural proposals (see, CMB, paras. 5.21-5.24).
This, 1 submit with respect, Mr. President, is really scrapingthe
bottom of the barrel. The proposals referredto by Bahrain which were
made just after the conclusion of the 1987 Agreement were not agreed to.
It must be doubtful therefore whether theycan be--of .any-~relevance. This
would be bad enough if Bahrain had not, as 1 will shortly explain, also
misdescribed itsown proposal.
Qatar's proposa1 consisted of a draft joint letter £rom Qatar and
Bahrain to be sent to the Registrar of this Court inmediately informing
the Registrar of three things:
First, a list of the disputes betweenQatar and Bahraini- Second,
that Qatar and Bahrain had agreed to submit the disputes to the Court;
and Third, that the two States were now opening negotiations for a
Special Agreement.
Qatar's airnin making its proposa1 was to get the matter before the
Court as soon as possible. But according to Bahrain this shows that
Qatar itself thought that the 1987 Agreement rneantthat a special
agreement was "necessary". This cannot be true, Mr. President, because,
as 1 shall explain, during the first Meetingof the Tripartite Committee,
Qatar was careful to avoid any language which would limit the Cornmittee's
role only to that of helping the parties to reach a special agreement.
In any event Bahrain rejected Qatar's proposa1 that 1 have just described
which then ceased to be a factor in the negotiations.
On the other hand, Bahrain's original proceduralproposa1 consisted
of a draft agreement to be signed by both Parties, but contained no
special agreementlanguage at all. It expressed profound appreciation - 67 -
for Saudi Arabia's help to the two parties in reaching what Bahrain
called in the preamble to its draft "a final and just solution for the
disputed matters between them by submitting these matters to the
~nternationalCourt of Justicen. Article 1, paragraph 1, of the draft
described the aim of theCommittee as "contactingthe InternationalCourt
of Justice" and "fulfilling.al1 .the. requirements..necessar -4o.have-the
dispute submitted to the Court accordingto its procedures and so that a
final and binding judgmentbe rendered" (see,MQ, Ann, 11-17). The Court
will no doubt immediatelyrecognize that this language reflectsthe
language of the 1987 Agreement itself and contains no implicationof
conditionalityand no suggestionthat Bahrain thought thatthe work of
the Tripartite Committeewas to be concerned only.with a special
agreement.
In fact Qatar offeredto accept this draft proposa1 during the first
forma1 Tripartite Cornmittee meeting on 17 January 1988; but at this
stage, i.e., several weeks after the 1987 Agreement was reached, Bahrain
sought to amend this first draftby changing the description of the aim
of the Tripartite Committee from "contactingthe International Court of
Justice and fulfilling al1 its requirements ..." to "reaching a Special
Agreement ..." - an amendment which Qatarrejected.
Bahrain's Counter-Memorial (in paragraph 5.1) contains a serious
inaccuracy (1 note in parenthesesthat this is a fact which Bahrain now
accepts - as will be seen from footnote 31 at page .l5of Bahrain's -
Rejoinder). The inaccuracyis in the atternptto suggest that Bahrainls
own draft procedural agreement referred to a special agreement. As 1
have just shown, Bahrain soughtto add such a reference by an amendment
which Qatar rejected. Despite this rejection,Bahrain annexed only the - 68 -
amended draft agreementas Annex 1.5 to its Counter-Memorialand then
proceeded to use it, together with a reference toQatar's proposa1 to
support its assertion that a Special Agreement was always regarded as a
prerequisite to the making of a reference to this Court.
Thus, Mr. President, the amended draftthat Bahrain refers to in
paragraph 5.21 of the Counter-Memorialis of 1ittLe.help to its cause.
First, it was not Bahrain's first reaction. Second, the amendment
proposed by Bahrain was categorically rejected by Qatar precisely because
of its reference to a specialagreement, and this rejection encountered
no comment or protest either from the Mediator or Bahrain. Third, and
most importantly,the very fact that Bahrain felt it necessary to amend
its first draft clearly impliesthat it did not think that in and of
itself the language of the 1987 Agreement requireda special agreement.
If the language of the 1987 Agreement had already required a special
agreement as Bahrain now alleges, Bahrain would not have needed to revise
that language to specifythe need for a special agreement. The truth
Mr. President is that the 1987 Agreement contained no such requirement.
There is thus no substance in Bahrain's contentionthat the 1987
Agreement was "clearly conditional uponthe successful negotiationof a
special agreement" (see,CMB, para. 1.6). There is no evidence for this
in the text of the Agreement, nor can any evidencebe found in the draft
procedural proposals presented by Qatar and Bahrain that 1 have just
referred to.
Let me now turn, Mr. President, to the deliberationsof the First
Meeting of the Tripartite Cornmittee. - 69 -
(ii) The Firet Meeting of the Tripartite Cdttee
The discussions in this First Meeting on 17 January 1988 clearly
shows that those present didnot think a special agreement wasthe only
method available for the approach to the Court. The commentsof the
Chairman of the Meeting, Prince Saud Ai-Faisal, the Foreign Ministerof
Saudi Arabia, are particularlypertinent in,this.-regard .;.-Hopened the
meeting by defining its main purpose as considering "ways and means for
referring the issue to the InternationalCourt of Justice" (see,Minutes
of the First Meeting of the Tripartite Cornmittee, Qatar's T.C.M.
Documents, p. 4). Later in the meeting he stated that the only concern
was "to discuss how to refer the subject to the InternationalCourt of
Justice" (ibid.,p. 21).
Such statements,Mr. President,make no sense whatever if it is
assumed an agreement had already been reachedto pursue only the rnethod
of a special agreement.
Even more striking is the explanation of Bahrain's attempt to amend
its first draft proceduralproposa1 (that 1have just referred to) - so
as to include a referenceto a special agreement - given by Dr.
Al-Baharna, one of Bahrain's representativesin the Tripartite Committee
Meetings, and now the distinguishedAgent forthe State of Bahrain in
this case. He said:
"The procedural agreement(i.e.,Bahrain's first draft)
referred to the contact, but after referring the subject to the
experts we learned that the contact with the Court should be
through a special agreementthat would allow the Court to
consider the subject." (Minutesof the FirstTripartite
Committee Meeting, CMQ, Documents,p. 9; emphasis added.)
This, Mr. President, is again clear evidence that at the time of the
1987 Agreement Bahraindid not thinkthat the conclusionof a special - 70 -
agreement was the only method of "contacting"the Court. It was only
later, after consultation with"experts"that Bahrain decided themethod
of approach should be througha special agreement. However, this was a
separate conclusion that Bahrain had reached, not something required by
the 1987 Agreement.
In this context it is also significantthatwhen-Dr. Al-Baharna
stressed at the First Meeting that "what is required is a special
agreement specifyingthe disputed points and giving the Court the
authority to consider the matterw, Dr. Hassan Kamel for Qatar read out
paragraph 1 of Article 40 of the Court's Statute and drew attention to
I
the fact that it provides for cases to be brought before the Court either
by notification of a special agreementor by a written application (see,
Minutes of the First Meeting ofthe Tripartite Committee, Qatar's
T.C.M. Documents, p. 10). He was thus drawing the Committee's attention
to both the available methods of contacting or approaching the Court.
It is also important to stress that during the meeting Prince Saud
of Saudi Arabia expressly referred to the commitment of Bahrain and Qatar
to refer their disputes to the Court and to the Cornmittee'sduty to
transform the commitrnentlnto a submission to the Court; and said that
if it did not do so "this would rneanthe Cornmitteedoes not honour its
cornrnitrnent(s"inutesof the First Tripartite Meeting,Qatar's
T.C.M. Documents, p. 22). However, as 1 said earlier, at this First
Meeting of the Tripartite Committeeboth Parties rejected each other's
draft of the proceduralproposals. Therefore, the question of how to
rnakea reference to the Court rernained unsolved. The record of the
proceedings of the First Meetingclearly demonstratesthat the Parties' - 71 -
ideas on the question of how the disputes wereto be submitted to the
Court had not yet crystallized.
Finally, Mr. President, it is illuminatingto note that Bahrain's
own translationof the Signed Minutes of the TripartiteCommitteeasFirst
Meeting annexed to Bahrainus Rejoinder records that it met, that is, the
Committee met, ato consider the. procedures by whhh .thecmi Unent -of
the State of Bahrain and the State of Qatar to refer the differences
between them both to the InternationalCourt of Justice would be
implemented" (see, Ann. 1.1, p. 83; emphasis added). These Minutes
dernonstrate Bahrainas own clear understandingof the scope of the first
and third paragraphsof the 1987 Agreement; that is that thedecision to
refer the disputeto the Court wasa corniunentand the work of the
Tripartite Committee was merely "to consider the procedures to implement
the commitment". This was in fact the common understandingof the two
Parties and it is therefore impossible, Mr. President, to understand how
Bahrain can today contend that the commitment or what Bahrain also
describes as "an undertaking" (see,RejB, para. 1.04) of the Parties was
"vitallyqualified by the provision for the formation of a committeen
(see,CMB, para. 5.12). As already explained, the role of the committee
was merely to assist the Parties ln determiningand completing the
procedural requirernents of this Court's Rules. Al1 this is in itself
evidence that the 1987 Agreement did not reguire a special agreement.
It is true that inview of Bahrain's insistence at the First Meeting
that a special agreementwas the appropriate wayto refer the dispute
between the Parties to the Court, the Tripartite Committee then entered
upon an exercise to see if an acceptablespecial agreementcould in fact
be finalised. As Qatar has shown in its written pleadings,this attemptto reach a special agreementended in failure in December 1988, when the
Tripartite Comrnitteeceased to function, but at no time was it stated or
even contemplatedthat if no special agreement was reachedthe commitment
of the Parties in the 1987 Agreement to refer their disputes to the Court
would not be implemented.
(iii) Th6 Draft Spatial--hgroemants
After the Firstmeeting of theTripartite Committee, both Bahrain
and Qatar submitted in March 1988 drafts of a suggested text for a
special agreement. The Court will haveseen from Qatar's Memorial that
in Article II of its draft the following questions were raised (see, MQ,
AM. 11.21):
"1. To which of the two States does sovereigntyover Hawar
islands belong?
2. What is the legal status of the Dibal and Jaradeh shoals?
In particular,does either State have sovereignty, if any,
over the Dibal or Jaradeh shoal or any part of either
shoal?
3. By a letter dated 23 December 1947, the British Political
Agent in Bahraln informed the Ruler of Qatar and the Ruler
of Bahrain of the decision of the British Government
establishing the existing median line which at present
determines the respective continental shelvesof the two
States. Does that median line representthe right boundary
between the said continental shelves?
4. Having regardto the answers to questions one, two and
three, what should be the course of the boundary or
boundaries betweenthe maritime areas appertaining
respectively to the State of Qatar and the State of
Bahrain?
Mr. President and Membersof the Court, 1 submit to you with great
respect, that this description of the issues to be referred to the Court
accurately reflected thedisputes which the parties sought a resolution
of under the Framework and under the 1987 Agreement. - 73 -
As 1 mentioned a short whileago, the Framework had referred to "Al1
issues of dispute between the two countries relatingto sovereignty over
the islands, maritime boundariesand territorialwaters"; and King Fahd
of Saudi Arabia had proposed the 1987 Agreement "as a basis for settling
the dispute", which he had stated (in his letter of 19 December 1987) was
"with respect to sovereigntyover the Hawar Islands,--the marine boundary
between the two brotherly countries andany other matters". This was
therefore a descriptionof the disputes which had already been accepted
by both Parties and was now incorporated in thequestions which 1 have
just read that Qatar proposed should be included in a special agreement.
As against this, Mr. President,let me now read out to you Bahrainas
unbelievably slanted description of the disputes contained in its draft
special agreement also submitted in March 1988:
"1. The Parties request the Court
(a) to draw a single maritime boundarybetween the respective
maritime areas of Bahraln and Qatar; such boundary to pass
between the easternmost featuresof the Bahrain archipelago
including most pertinently the Hawar Islands,Fasht ad
Dibal and other adjacent or neighbouringfeatures and the
Coast of Qatar, and to preserve Bahrain's rights in the
pearling bankswhich lie to the north east of the Fasht ad
Dibal, and in the fisheries betweenthe Bahrain archipelago
and Qatar
(b) to determlne the rights of the State of Bahrain in and
around Zubarah." (see, MQ, Annex 11.22.)
As the Court will çee, this descriptionof the disputes to be
referred to the Court assumed therewas no dispute with regard to the
Hawar Islands orthe Dibal and Qit'at Jaradah shoals and in effect
required an advance recognitionby Qatar that these belonged to Bahrain
The question posed by Bahrain only askedfor a decision of the Court on a
maritime boundary based upon recognition,despite the fact that the - 74 -
Framework and the December 1987 Agreement clearly showed that disputes
relating to these islands and shoals were outstanding. F'urthermore, as
has been explained by Sir Ian Sinclair, Qatar was made aware of a claim -
which had at no time been the subject matter of Saudi Arabia's Mediation
- for the determinationby the Court ofBahrain's alleged rights"in and
around Zubara" on the western Coast,ofQatar, without any- indication of
the nature or basis of such rights. Bahrain acknowledgesthat the claims
to Zubarah were not includedin the First Principleof the Saudi
Framework (see, CMB, para. 5.4) but alleges that it brought the issue of
Zubarah to Saudi Arabia's notice in 1986. As Sir Ian Sinclair has
already explained tothe Court, Bahrain has offeredno evidence in these
proceedings in support of this allegation,nor indeed that Qatar was
informed.
Bahrain also included in its draft texta provision which would have
in effect prevented Qatarfrom adducing evidence relevant toshow the
existence and nature of the disputes. This provision - Article V - will
be discussed indetail by my colleague Professor Jean Salmonin a later
presentation. It suffices for me to mention here that Qatar also
strongly rejected this provision.
The terms of Bahrain's draft, which Qatar found outrageous, also
gave grounds for a strong suspicion that Bahrain had decided eitherto
obstruct the reference of the disputed mattersto the Court in the same
way as it had frustrated the 1965 decision to go to arbitration, or to
use the opportunity of drafting a Special Agreementradically to
transform the scope of the issues to be referred, by ignoring those
issues which had been the subject matter of the Mediation under the
Framework, and by adding new issues, including that ofZubarah. The Amirof Qatar said as much in his letter of 25 March 1988 to King Fahd
conveying his "total rejection" of the Bahraini draft coupled with his
Mstrongestprotestw at this development.
It is also useful to refer to the Memorandum of 27 March 1988
incorporating Qatar's detailed views on Bahrain's proposed Special
Agreement circulated to the Tripartite Conmittee, in which Qatar
submitted thatthe terms of the Bahraini draft, including ArticleV,
meant :
"the impositionon the State of Qatar of express admissionof
the non-existenceof the dispute whichactually exists between
it and the Stateof Bahrain ... and of conceding al1 Bahrain's
claims as well as abstaining £rom including in the evidence and
arguments presented by it any document whose dates precedethe
date of the Special Agreement.
In the face of al1 this, the Government of the State of
Qatar cannot but totally rejectthe Bahraini draft, and couple
this rejection with the strongestpossible protest". (See,
M.Q., Annex 11.24, p. 165.)
(iv) The Second Tripartite Codttee Meeting
The drafts submittedby the two Parties were taken up for discussion
at the Second Meeting of the Tripartite Cornmittee held on 3 Aprii 1988
when the above views were conveyed to Bahrain.
It was in this Meeting afterboth Parties had rejected each other's
descriptionof the disputes to be referred to the Court, that the
Chairman of the meeting, Prince Saud, observed:
"There are two possible attitudes representingtwo
different perspectives. Would it be possible, he asked,
merely to inform the Court that disagreements existbetween the
countries as Qatar claims so and so, while Bahrain claims so
and so ? Or, could we agree on pointsto be put before the
Court ?" (See,Minutes of the Second Tripartite Cornmittee
Meeting, Qatar's T.C.M. Documents,p. 84). - 76 -
In many ways, Mr. President, this question became the crucial issue
and marked the beginning of the realisationthat it might be difficult to
agree on a list of subjects to be included in a comrnondocument for a
joint submission, even if a Special Agreement was concluded andthat each
Party would have toplace its own separate claims separatelybefore the
Court. In fact, Prince Saud summarized-the.position-at-.te hed.of the
Meeting by saying: "The question to be put to both countriesis the
following: could al1 the points evoked by the two countries be included
in a common document to be put before the Court ?" (Ibid., p. 87.) The
Parties took time to consider their response to this question.
(VI The Third TripartiteCommittee Meeting
At the commencementof the Third Meeting of the Tripartite Committee
held on 17 April 1988 in Riyadh, Prince Saud reminded those present that:
"we are not discussingthe case in its entirety but
investigating the formatin which it is to be brought before
the Court". (see,Minutes of the Third TripartiteCommittee
Meeting, Qatar's T.C.M. Documents, p. 111).
However, at this Third Meeting the question posed by Prince Saudwas
not specificallyaddressed and the meeting continuedto discuss the
drafts of the Special Agreement presented by each of the States at the
previous Meeting without reaching any agreement. Bahrain continuedto
take the position that the subjects of the dispute were notdefined, Dr.
Al-Baharna, Bahrain's representative, stating:
"The State of Bahrain considersthat there has not been a
legal agreement on the matters in dispute, and consequently the
task of the comrnitteeis to define the subjects of dispute
irrespectiveof any proposals or exchange occurring during the
mediation period. Sadly, we have not yet reached that stage."
(Ibid., p. 131).
On the other hand Dr. Hassan Rame1 for Qatar, took the position
that:"thiscommittee has no brief to discuss or identifythe
matters differed upon,since the matters in dispute are
defined withinthe framework of the mediation" (ibid.,p.
133). The Court will observe that the emphasisin the deliberationsof
the Committee had shifted. Now, instead of considering waysof
"communicatingwithw the Court and "completingthe requirements for
referral of the dispute" the Committee becarneengaged in a
controversy on what the disputes were. Qatar maintained that the
issues in dispute had been clearly defined during the Mediation,
while Bahrain claimedthat this was not so and sought the inclusion
of a number of other issues. It was this controversywhich, from the
Second Meeting onwards, dominated the proceedings of the Tripartite
Committee and not the method of "communicatingwith" this Court
either through a SpecialAgreement or otherwise.
Both Parties however continuedto reiterate their commitment to
refer the disputes to the Court. Dr. Hassan Kamel stated on behalf
of Qatar:
"We are as brothers, as brothers who have made a commitrnent
to refer their disputes to the International Courtof
Justice. What do we have to do to fulfil this commitment ?
We have to agree on a reasonable formulaacceptable to both
sides." (Ibid., p. 116.)
Sheikh Mohammad bin Mubarak Al Khalifa, Foreign Minister of
Bahrain, stated:
"Bahrain insists that the laudable effortsof Saudi
Arabia must continueas shown in the letter of 19.12.1987
from the Custodian of the Two Holy Mosques, until such tirne
as a judgment is given by the International Court of
Justice." (Ibid., p. 126).
Except for these statements reiteratingthe commitment to come
to this Court with their disputes, The Third Meeting ended
inconclusively. - 79 -
(vi)The Fourth Tripartite Committee Meeting
The Fourth Meeting of the Tripartite Committeetook place on
28th June 1988 in Jeddah. Prior to thisMeeting both Bahrain and
Qatar had submitted revised descriptionsof the disputes to be
included in a possible SpecialAgreement. The revised draft version
presented by Bahrain was again found unacceptable by,Qatar for
substantiallythe same reasons as in the case of the first draft.
In his letter of 9 July 1988, sent after the Fourth Meeting, the
Amir of Qatar again complained to King Fahd of Saudi Arabia that in
its revised draft Bahrain had followed the very course it took in
preparing its firstdraft, entirely ignoringthe fact that the
subjects of dispute for referenceto this Court weredefined by the
First Principle of the Saudi Mediation; andthat Bahrainls action
appeared to be designed to block a reference to this Court (seeMQ,
Annex 11.28).
In spite of the objectionablenature of Bahrainls description of
the dispute in its second draft, Bahrain's Foreign Minister claimed
that Bahrain was disappointedand dissatisfied withQatar's new
proposa1 and alleged that al1 concessionswere being made only by
Bahrain (seeMinutes of the Fourth Tripartite Committee Meeting,
Qatar's T.C.M. Documents, p. 168).
The so-called "concession"in the new Bahraini draft he was
presumably referringto was, that insteadof asking the Court to draw
a maritime boundaryeast of Hawar (that is implying a recognitionin
advance by Qatar that the Hawar islands belongedto Bahrain), the
Parties were now to ask the Court to consider the limited questionof
the extent to which the two States had "exercisedsovereignty over - 80 -
the Hawar islands". In reality this formulation was justas
unsatisfactoryas Bahrain's former draft. Moreover, the maritime
boundary was still to be drawn so as to grant Dibal and Qit'at
Jaradah shoals to Bahrain (see,MQ, Annex 11.27).
The Fourth Meeting, therefore,ended with a sense of despair
amongst Qatar's delegation,without any further progress.
At this stage, the search for a formula describing the issuesin
dispute in a manner acceptable to bothQatar and Bahrain had reached
a deadlock, and no effort was made to summon another Meeting of the
Cornmitteefor some months. As 1 have said, the issue now was: could
the Parties agree on a list of subjects to be referred to the Court?
And if not, was there some way (regardlessof whether this would be
by a joint submission or otherwise) in which each Party could place
its own claims before the Court - a question which Had been posed by
Prince Saud at the Second Meetingand still remainedunanswered.
Mr. President, perhaps thiswould be an appropriate momentto stop.
The PRESIDENT: Thank you, Mr. Shankardass. The Court will now
rise, and the hearings will be resumed tomorrowat 10 a.m.
The Court rose at 1.10 p.m
Public sitting held on Monday 28 February 1994, at 10 a.m., at the Peace Palace, President Bedjaoui presiding