Summaries of Judgments, AdvisNot an official documentof the Internationa
l Court of Justice
CASE CONCERNING MARHTIMEDELIMITATION AND TERRITORIAL QUES-
TIONS BETWEEN QATAR AND BAHRAIN (QATAR v. BAHRAIN) (JURISDICTION
AND ADMISSIBILITY)
Judgment of 15 February 1995
The Court delivered its Judgment on jurisdiction and Bahrain in respect of certain disputes between the two
admissibility inthe case concerning Maritime Delimitation States relating to sovereignty over the Hawar islands, sov-
and Territorial Questions between Qatar and Bahrain. ereign rights over the shoals of Dibal and Qit'at Jaradah,
The Court was composed as follows: President Bedjaoui; andthe delimitation of the maritime areasof the two States.
Vice-President Schwebel; JudgesOda, Sir Robert Jennings, The Court then recites the history of the case. It recalls
Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, that in its Application Qatar founded thejurisdiction of the
Ranjeva, Herczegh,Shi,Fleischhauer, Koroma; Judgea sdhoc Court upon two agreements between the Parties stated to
Valticos, Torres Bernirdez; Registrar Valencia-Ospina. have been concluded in December 1987 and December
1990, ~:espectively,the subject and scope of the commit-
ment i:ojurisdiction being determined by a formula
proposed by Bahrain to Qatar on 26 October 1988 and
accepted by Qatar in December 1990 (the "Bahraini for-
mula"). Bahrain contestedthe basis ofjurisdiction invoked
Theoperative paragraph of the Judgment readsasfollows:
"50. For these reasons, by Qatar.
THECOURT, By its Judgment of 1July 1994,the Court found that the
(1) By 10votes to 5, exchanges of letters between the King of Saudi Arabia and
the An~irof Qatar dated 19 and 21 December 1987, and
Finds that it has jurisdiction to adjudicate upon the between the King of SaudiArabia and the Amir of Bahrain
dispute submitted to it between the State of Qatar and dated 19and 26 December 1987,and the document headed
the State of Bahrain; "Minutes" and signed at Doha on 25 December 1990 by
... the Ministers for Foreign Affairs of Bahrain, Qatar and
(2) By 10votes to 5, Saudi Arabia, were international agreements creating
Finds that the Application of the State of Qatar as rights and obligations forthe Parties; and that, by the terms
formulated on 30 November 1994is admissible. of those agreements, the Parties had undertaken to submit
... 9 9 to theCourt the whole of the dispute between them, as cir-
cumscribed by the Bahraini formula. Having noted that it
Those who voted IN FAVOURP:resident Bedjaoui;Judges had before it only an Application from Qatar setting out
Sir Robert Jennings, Guillaume, Aguilar Mawdsley, that State'sspecific claims in connection withthat formula,
Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer; the Court decided to afford the Parties the opportunity to
Judge ad hoc Torres Bernardez; submitto it the whole of the dispute. It fixed 30 November
AGAINST:Vice-President Schwebel; Judges Oda, 1994as the time-limit within which the Partieswerejointly
Shahabuddeen, Koroma; Judge ad hoc Valticos. or separately to take action to that end; and reserved any
other matters for subsequent decision.
On 30 November 1994,the Agent of Qatar filed in the
Regist~ya document entitled "Act to comply with para-
graphs (3) and (4) of operative paragraph 41 of the Judg-
Vice-President Schwebel, Judges Oda, Shahabuddeen ment of the Court dated 1July 1994". Inthe document,the
and Koroma, and Judge ad hoc Valticos appended dissent- Agent referred to "the absence of an agreement between
ing opinions to the Judgment of the Court. the Parties to actjointly" and declared that he wasthereby
submitting to the Court "the whole of the dispute between
Qatar and Bahrain, as circumscribed by the text..referred
to in the 1990Doha Minutes as the 'Bahraini formula' ".
He e:numeratedthe subjects which, in Qatar's view, fell
History of thecase and submissions within the Court's jurisdiction:
(paras. 1-15) "1. The Hawar Islands, including the island of Janan;
In its Judgment, the Court recalls that on8 July 1991 2. Fasht a1Dibal and Qit'at Jaradah;
Qatar filed an Application instituting proceedings against 3. The archipelagic baselines;
Continued on next page
72 4. Zubarah; The Court proceeds, first of all, to define the precise
scope of the commitments which the Parties entered into
5. The areas for fishing for pearls and for fishing for
swimming fish and any other matters cormected with in 1987 and agreed to reaffirm in the Doha Minutes of
maritime boundaries. 1990.In this regard, the essentialtexts concerningthejuris-
It isunderstood by Qatarthat Bahrain defines itsclaim diction of the Court are points 1 and 3 of the letters of
concerning Zubarah as a claim of sovereignty. 19 December 1987. By accepting those points, Qatar and
Further to its Application Qatar requests the Court to Bahrain agreed, On the One hand, that
adjudge and declare that Bahrain has no sovereignty or "All the disputed matters shall be referred to the Inter-
ot.herterritorial right over the island oJm-an or over national Court of Justice, atThe Hague, for afinalruling
Zubarah, and that any claim by Bahrain concerning binding upon both parties, who shall have to execute its
archipelagic baselines and areas for fishing for pearls terms"
arid swimming fish would be irrelevant for the purpose and, on the other, that a ~ri~~~i~ c~mmittee be formed
of maritime delimitation in the present case:."
On 30 ~ovember 1994,the Registry also received from "for the purpose of approaching the International Court
the .4gent of Bahrain a document entitled "E.eport of the of Justice, and satisfying the necessary requirements to
State of Bahrainto the 1nte:rnationalCourt of Justice on the have the dispute submitted to the court in accordance
attempt by the Parties to i.mplementthe Courl:'~Judgment with its regulations andinstructions sothat a finalruling,
of 1st July, 1994". In that "Report", the Agent stated that binding upon both parties, be issued".
his 'Governmenthad Qatar maintains that, by that undertaking, the Parties
1994 and understood it as confirming thatmthc:submission clearly andunconditionally conferred upon the Courtjuris-
to the Court of "the whole of the dispute" must be "con- diction to deal with the disputed matters between them.
The work of the Tripartite was directed solely
sensual in character, that is, a matter of agreement between to consideringthe proceduresto be followed to implement
the Parties". Yet, he Qatar's proposals had the commitment thus made to seise the Court. Bahrain, on
"taken the form of documentsthat can b''read as de- the contrary, maintains that the texts in question expressed
signed to fall within the framework of the maintenance of only the consent in to a seisin of the
case commenced Qatar" of 8th Court, but that such consent was clearly subject to the con-
1991"; and, further, Qatar had denied Bahrain "the right clusion of a Special Agreement marking the end of the
to dr:scribe,define or identify, in words of its own choos- work of the Tripartite Committee.
ing, the matters which it wishes specifically to place in
issue-, and had opposed -~~h~~i~* rght to iIlcludein the The Court cannot agree with Bahrain in this respect.
list of matters in dispute the itern of 'soveinignty over Neither inpoint1norinpoint 3ofthe lettersof 19December
Zubiirah' ". 1987 can it find the condition alleged by Bahrain to exist.
Bahrain submitted observations on Qatar':; Actto the It is indeed apparent from point 3 that the Parties did not
Court on 5 December 1994. It said that envisage seising the Court without prior discussion, in the
Tripartite Committee, of the formalities required to do so.
"t1994that it hadjurisdiction in the case brought before it But the two States had none the less agreed to submit to
b~'virtue of Qatar's unilateral Application of 1991. the Court all the disputed matters between them, and the
Consequently, if the C~urt did not have jurisdiction at Committee's only function was to ensure that this commit-
that time, then the Qatari separate Act of 30th Novem- mentwas given effect, by assisting the Parties to approach
bor, even when considered in the light of the Judgment, the and to seise it in the manner laid down by its
cannot create that jurisdiction or effect a v.alidsubmis- Rules. By the terms of point 3, neither of the particular
sion in the absence of Bahrain's consent". modalities of seisin contemplated by the Rules of Court
was either favoured or rejected.
A copy of each of the documents produced by Qatar and The Tripartite Committeemet for the last timeinDecem-
Bahrain was duly transmitted to the other Party. ber 1988, without the Parties having reached agreement
either as to the "disputed matters" or as to the "necessary
Jurisdiction ofthe Court requirements to have the dispute submitted to the Court".
(parias.16-44) It ceased its activities at the instance of Saudi Arabia and
Tlle Court begins by referring to the negotiations held without opposition from the Parties. As the Parties did not,
between the Parties following the Court's Judgment of at the time of signingthe Doha Minutes in December 1990,
1July 1994,to the "Act" addressed by Qatar to the Court ask to have the Committee re-established, the Court con-
on 30 November 1994,and to the comments made thereon siders that paragraph 1 of those Minutes could only be
by Eiahrainon 5 December 1994. understood as contemplating the acceptance by the Parties
The Court then recalls that, in its Judgment of 1 ~~l~ of point 1inthe letters fromthe Kingof SaudiArabiadated
1994, it reserved for subsequent decision all!iuchmatters 19December 1987(the commitment to submitto the Court
as had not been decided in that Judgment. Accordingly, it "all the disputed matters" and to comply with the Judg-
must rule on the objectioris of Bahrain in its decision on ment to be handed down by the Court), to the exclusion of
itsjurisdiction to adjudicate upon the dispute :submittedto point 3 in those same letters.
it and on the admissibility of the Application.
Interpretationofparagraph 2 of theDoha Minutes
Interpretation ofparagraph 1 of theDoha Minutes (paras. 30-42)
(paras. 25-29)
The Doha Minutes not only confirmed the agreement
Paragraph 1 of the Doha Minutes places on record the reached by the Parties to submit their dispute to the Court, .
agreement of the Partiesto "reajfirmwhatwasagreedpre- but also represented a decisive step along the way towards
viouslybetween [them]". a peaceful solution of that dispute, by settling the contro-
73versial question ofthe definition ofthe "disputed matters". paragraph 2 of the Minutes. The Court further notes that
This is one of the principal objects of paragraph 2 of the the second sentence can be read as affecting the continu-
Minutes which, in the translation that the Court will use ation of the mediation. On that hypothesis, the process of
for the purposes of the present Judgment, reads as follows: media.tionwould have been suspended in May 1991 and
could not have resumed prior to the seisin of the Court. For
~~l~ M ~ ~ ~ ~ ~ofK~in, ~~hd B~~ ~bd~l Aziz, shall~ the Court, it could not have been the purpose of the Min-
continue between the two countries until the month of utes t~ delay the resolution of the dispute or t~ make it
Shawwal 1411A.H., corresponding to May 1991.Once more difficult. From that standpoint, the right of unilateral
seisin was the necessary complement to the suspension of
matter to the International Court of Justice inaccordance mediation.
with the Ehhraini formula, which has been accepted by The Courtthen appliesitselfto an analysisofthe meaning
Qatar,and with theproceduresconsequentonit.Thegood and ,,:ope of the terms "in accordance with the Bahraini
offices of the Kingdom of Saudi Arabia will continue formula, which has been accepted by Qatar, and with the
duringthe period when the matter is under arbitration." procedures consequent on it-, which conclude the second
Paragraph 2 of the Minutes, which formally placed on rec- sentence of paragraph 2 of the Doha Minutes. The Court
ord Qatar's acceptance of the Bahraini formula, put an end must ascertain whether, as is maintained by Bahrain, that
to the persistent disagreement of the Parties as to the sub- reference to the Bahraini formula, and, in particular, to the
ject of the dispute to be submitted to the Court. The agree- "procedures consequent on it", hadthe aim and effect of
ment to adopt the Bahraini formula showed that the Parties ruling out any unilateral seisin. The Court is aware that the
were at one on the extent of the Court's jurisdiction. The Bahraini formula was originally intended to be incorpo-
formula had thus achieved its purpose: it set, in generalbut rated i.ntothe text of a special agreement. However, it con-
clear terms, the limits of the dispute the Court would siders that the reference to that formula in the Doha Min-
henceforth have to entertain. utes rnust be evaluated in the context of those Minutes
rather than in the light of the circumstances in which that
~h~ parties none the less continue to differ onthe ques-
tion of the method of seisin. For Qatar, paragraph 2 of the referred back to the Bahraini formula, it was in order to
~i~~~~~ authorized a unilateral seisin of the court by determine the subject-matter of the dispute which the Court
means of an application filed by one or the other party,
whereas for Bahrain, on the contrary, that text only author- have entertain. But the was longer an
ized ajoint seisin of the Court by means of a special agree- element in a special agreement, which, moreover, never
ment. saw the light of day; it henceforth became part of a binding
The Parties have devoted considerable attention to the tionsrj'orseisin of the court. ~h~courdettotes that the very
meaning which, according to them, should be given to the
essen,:e that fornula was, as Bahrain clearly stated to
expression "al-tarafan" [Qatar: "the parties"; Bahrain: the ~ ~ i ~ ~ coim~m~ittee,to circumscribe the dispute with
"the two parties"] as used in the second sentence of the which the court would have to deal, while leaving it to
original Arabic text of paragraph 2 of the Doha Minutes. each of the Parties to present its own claims within the
The that the form in Arabic framework thus fixed. Given the failurc to negotiate a
simply to express the existence of two units (the parties or special agreement, the Court takes the view that the only
the two parties), so what has to be determined is whether , proce(lura1implication of the Bahraini formula on which
the words, when used here in the dual form, have an alter- the Parties could have reached agreement in Doha was the
native or a cumulative meaning: in the first case, the text possibility that each of them might submit distinct claims
would leave each of the Parties with the option of acting to the court.
unilaterally, and, in the second, it would imply that the Consequently, it seems to the Court that the text of para-
question be submitted tothe acting graph 2 of the Doha Minutes, interpreted in accordance
in concert, either jointly or separately. with the ordinary meaning to be given to its terms in their
The Court first analyses the meaning and scope of the
phrase "Once that period has elapsed, the two parties may context and in the light of the object and purpose of the
said Minutes, allowed the unilateral seisin of the Court.
submit the matter to the International Court of Justice". It In these circumstances, the Court does not consider it
notes that the use in that phrase of therb "may" suggests necessary to resort to supplementary means of interpreta-
in the first place, and in its most material sense, the option tion in orderto determine the ofthe ~~h~ ~i~~~~~
or right for the Parties to seise the Court. In fact, the Courtbut has recourse to them in order to seek a possible confir-
has difficulty in seeing why the 1990 Minutes, the object mation of its interpretation of the text. Neither the travaux
andpurpose of which were to advancethe settlement ofthe pr~pa,,toires of the ~ i ~ ~ ~ ~ how,ever, nor the circum-
dispute by giving effect to the formal commitment of the stances in which the ~i~~~~~ were signed, can, in the
Parties to refer it to the Court, would have been confined view, provide it with conclusive supplementary
to opening up for them a possibility of joint action which elemellts for that interDretation.
not only had always existed but, moreover, had proved to
be ineffective. On the contrary, the text assumes its full Links betweenjurisdiction and seisin
meaning if it is taken to be aimed, for the purpose of
accelerating the dispute settlement process, at opening the (para. 43)
way to a possible unilateral seisin of the Court in the event The Court still has to examine one other argument. Ac-
that the mediation of Saudi Arabia had failed to yield a cording to Bahrain, even if the Doha Minutes were to be
positive result by May 1991.The Court also looks into the interpreted as not ruling out unilateral seisin, that would
possible implications, with respect to that latter interpreta- still not authorize one of the Parties to seise the Court by
tion, of the conditions in which the Saudi mediation was way of an Application. Bahrain argues,in effect, that seisin
to go forward, according to the first and third sentences of is not merely a procedural matter but a question of juris-
74diction; that consent to unilateral seisin is subject to the bound to weigh the preparatory work ofits text, which in
sameconditions as consent tojudicial settlement and must fact had been the principal focus of the argument of the
therefore be unequivocaland indisputable; and that, where Parties. That preparatory work showed that,as the price of
the texts are silent,joint seisinmust by default be the only signature of the Doha Minutes, Bahrain had required that
so'lution. the draft text as proposed at Doha be altered to exclude
The Court considers that, as an act instituting proceed- applicationto the Court by "either party", in favourof the
inl;s,seisin is a procedural step independentof the basis of agreed text authorizing application by "the two parties".
jurisdiction invoked. However, the Court is unable to en- In proposing and achieving this alteration, Bahrain could
tertain a case so long as the relevant basis of jurisdiction only have intendedto debar application by "either party"
has not been supplemented by the necessary actof seisin: and hence to require applicationby both parties.
from this point of view, the question of whether the Court The Court, despite the compelling characterof the pre-
was validly seised appears to bea question ofjurisdiction. paratory work, gave it inconclusive weight.In effect it set
Th.ereis no doubt that the Court'sjurisdiction can only be aside the preparatory work either becauseit vitiated rather
est.ablishedon the basis of the will of the Parties, as evi- than confirmed the Court's interpretation,or because its
denced by the relevant te:xts.But in interpreting the textof construction of the treaty's text wasin the Court's view so
the Doha Minutes, the Court has reached the conclusion clear that reliance upon the preparatory work was unnec-
that it allows a unilateral seisin. Once theC:ourthas been
essary.
validly seised, both Parties are bound by the procedural In Judge Schwebel's view, the Court's constructionof
consequences which the Statute and the Ru1r:smake appli- the Doha Minutes for such reasons wasat odds with the
cable to the method of seisin employed. rules of interpretation prescribed by the Vienna Conven-
In its Judgment of 1 Jllly 1994,the Court found thatthe tion on the Lawof Treaties.It did not comportwitha good-
exchanges of lettersof Clecember1987andthe Minutes of faith interpretation ofthe treaty's terms"in the light of its
December 1990 were international agreements creating object and purpose" because the object and purposeof
rights and obligations for the Parties, andthat by the terms both Parties to the treaty was not to authorize unilateral
of those agreements the Partieshad undertaken to submit recourse to the Court. It did not implement the Conven-
to it the whole of the dispute between them. In the present tion's provision for recourseto the preparatory work be-
Judgment, the Court ha:; noted that, at Doha, the Parties cause, far from confirming the meaning arrived atby the
had reaffirmed their consent to its jurisdicti.onand deter- Court's interpretation, the preparatory work vitiated it.
mined the subject-matterof the dispute in accordance with Moreover, the Court's failureto determinethe meaning of
the Bahraini formula; it has further noted .thatthe Doha the treaty in the light of its preparatory work resulted, if
Minutes allowed unilateral seisin. The Court considers, not in an unreasonable interpretationof the treaty itself, in
comsequently,that it has:jurisdictionto adjudicate uponthe an interpretation of the preparatory work which was
dispute. "manifestly . ..unreasonable".
Admissibility These considerations have special force where the treaty
(paras. 45-48) at issue is one that is construedto confer jurisdiction on
the Court. Where the preparatory workof a treaty demon-
Having thus established its jurisdiction, t.heCourt still strates-as in this case--the lack of a common intentionof
has to deal with certain problems of admissibility, as the parties to conferjurisdiction on the Court,the Court is
Bahrain has reproached Qatar with having limited the not entitled to base itsjurisdiction on that treaty.
scope of the dispute to only those questions set out in
Qatar's Application. Dissenting opinion of Judge Oda
:[nits Judgment of 1July 1994,the Court decided:
It is Judge Oda's view that the Parties in the case had,
"to afford the Parties the opportunity to ensure the by 30 November 1994, failed to take any action, either
submission to the Court of the entire dispute as it is jointly or separately, in response to theCourt's Judgment
1:omprehendedwithinthe 1990Minutesandthe Bahraini of 1July 1994(which,in any case, in Judge Oda's opinion
:formula,to which they have both agreed". was not so much a "Judgment" as a record of the Court's
Qatar,by a separateact of30November 1994,submitted attempted conciliation).
to the Court "the whole of the dispute between Qatar and On 30 November 1994,the Registry receivedan "Act"
Bahrain, as circumscribe:d"by the Bahraini formula (see by Qatar and a "Report" by Bahrain. The "Report" of
above). The terms used by Qatar are similarto those used Bahrain was not intended to have any legal effect.The
by Bahrain in several draft texts, exceptin so far as these "Act" byQatar was, in Judge Oda's opinion, intendedto
related to sovereignty over the Hawar islands and sover- modify or add to the original submissions presentedinthe
eignty over Zubarah. It a.ppearsto the Court that the form Application of Qatar.
of words used by Qatar accurately described the subjectof
the dispute. In thecircumstances, the Court, while regret- Inthe eventof any modificationof or additionto its sub-
ting that no agreement could be reached between the Par- missions by Qatar, the Court should have formally notified
ties as to how it should be presented, concludes that it is Bahrain of that modification or addition and should have
now seised ofthe whole 'ofthe dispute, and that the Appli- given Bahrain an opportunity toexpress its views withina
cation of Qatar is admissible. certain time. The Court did not take any such action.
What did ha~uenwas that the Court received Bahrain's
"Comments" 6; the "Act" of Qatar which were sent to
Dissenting opinion of Vice-PresidentSchwebel the Rea-.trv on Bahrain's own initiativeon 5 December
'dice-President Schwebel dissented from. the Court's 1994, only a few days after it had received a copy of the
Judgment. Since the terms of the treatyat issoe-the Doha "Act" of Qatar from the Registry. As no further oral pro-
Minutes-were "quintessentiallyunclear", the Court was ceedings were orderedby the Court, Bahrainwas not giventhe opportunity to expressits formal position on those dictionof the Courtexistsonly in so far as the partiesto a
modificationsof or additionsto the submissions by Qatar. dispute have acceptedit and, more particularly,is contin-
The procedure taken by the Courtappearsto Judge Odato gent onthe consentofthe Respondent State. Such consent,
have been very unfortunate,asthe Court proceeded instead he furtherobserved,must be clearand indubitable.
to draft the present Judgment.
In the present case, the Respondent State, Bahrainh,ad
The Court seemsto Judge Oda to be saying that the consistentlymaintainedthat its consentto thejurisdiction,
" 1987documents" and the "1990Doha Minutes" together if at all granted, was conditional upon reaching a special
constitute an international agreement containing a com- agreement withQatar,to submit alltheir disputed matters
promissory clause as contemplated by Article 36, para- to the C:ourt,and seisethe Court jointly or together.
graph 1,of the Statute. The Courtappears further to con- The Court, in its Judgmentof 1July 1994,held thatthe
sider that by its amendedsubmissionsas of 30 November documentson which the Applicantreliedto found
1994Qatar has submitted"the wholeofthe dispute" to the itsjurisljictionconstitutedinternationalagreements,creating
Court,sothat the Applicationof Qatarnowfallswithinthe rightsand obligationsfor the Parties.TheCourtwas,how-
ambit of the "1990 Agreement". ever,unableto find that ithadjurisdiction to hear thedis-
Forthe reasons already set out ihis dissentingopinionto pute, but instead foundthat the terms of those agreements
the July 1994Judgment and partly repeatedhere,Judge Oda to submit the whole of the dispute had not been met. It
is ofthe view that neither the1987exchangesof letters nor therefore decided to afford the Partiesthe opportunityto
the 1990Doha Minutes fall withinthe categoryof "treaties submit the wholeof the dispute, jointly or separately.
and conventions in force" which specially provide for
certain mattersto be referredto the Courtfora decisionby 1, hilsview, the 1july 1994Judgmentwas a findingin
favourofthe contentionthatthe consentto conferjurisdic-
graph 1,of the Statute.pplication under Article36, Para- tion onthe Courtwas subjectto the conclusionof a special
agreement, defining the subject-matterof the dispute.The
After examining the negotiations whichhad been going Parties were unableto reach agreementto seise the Court
on between the Parties, Judge Oda concludes that ifany of the '.'wholeof the dispute" withinthe time-limit pre-
mutual understanding was reached between Qatar and scribed by the Court.It, therefore, follows thatthe Court
Bahrain in December 1987,it was simplyan agreementto is not in a positionto assumejurisdiction inthe matter.
form a Tripartite Committee, whichwas to facilitate the M ~ ~ ~ ~o~ne~o~th,e legalinshumentsonwhichthe court
drafting of a special agreement. Hefurther concludes that based itself to foundjurisdiction hadat the insistenceof
the TripartiteCommitteewas unableto produce an agreed ~~h~i~,employed the ~~~bie~ xpression ~~l-~~~~f~~-,
draft of a special agreement;andthat the Parties insigning translated to mean uthe two or uthe
the Minutesof the Doha meeting agreedthat referenceto insteadof ofthe two parties- as had beenproposed,
the International Courtof Justice.was to be an alternative as a means of seising the court ~..h~cour tnstead was
to Saudi Arabia's good offices, which did not, however, seised This issuewas ofcrucial importanceto
imply any authorization such as to permit one Party to the finding ofjurisdiction andwas at best ambiguous.The
make an approachto the Courtby unilateral application-
Judge Oda is further of the viewthat, even if the "1990 ground of ambiguity.clinedto assume jurisdiction onthis
Agreement" can constitute a basison which the Court may
be seisedof the dispute,there seemsto be nothing in the It is well understood that the powers of the court to
present Judgmentto show that the amended or additional assumejurisdiction are limited by the termsof the agree-
submissionsof Qatar filed on30 November 1994 in fact mentbetweenthe underwhicha disputeis submitted
to it. The Agreements in issue a special
comprise "position which seemspute",have been taken by agreementandjoint seisinby the Parties.Those conditions
Bahrain. He is therefore unableto vote in favour of the werenot met andthe Court,therefore,lacked the powerto
decide,:hecase and shouldhave declaredit inadmissible.
present Judgment.
Dissenting opinionofJudge Valticos
DissentingopinionofJudge Shahabuddeen
In his dissenting 'pinion, Judge Shahabuddeen'greed JudgeValticos considers thatthe Courtis not competent
that the Parties had conferred jurisdictionon the Court to to considerthe dispute,amongotherthings because,by its
preceding Judgment of July 1994,the Court had asked
adjudicate On the of the In his how- bothStaresto submitto it the wholeof thedispute,whereas
ever,the wholeofthe disputewasnot beforethe Court,for only one of them did so. Among the contentious
the reason that Bahrain's claimto sovereignty over issues thus mentioned by Qatar is the question of
''barah had not been submitted to the Court Or with "&barah", whichBahrainrejectedbecausethelatterState
the authorityof Bahrain;further, if that claim was before had asked fortheterm G'sovereignty7 t, be includedin the
the Court, the manner in which it was presented did not wordingof the question.Althoughthe Courtconsidersthat
enable the Court to deal withit judicially. In addition, he the mentionofzubarah makesit possibleto raisetheques-
considered that the Partieshadnot agreedto a rightof uni- tion of sovereigntyover that territory, this is questionable
lateral application. He concluded that thecase was not since reality Qatar proposed that it should simply be
within the Court's jurisdiction; alternatively, that it was notedthat Bahraindefinesits claimconcerningZubarah as
inadmissible. a claim of sovereignty, whichmightenableitto disputethe
competenceof the Court onthis topic. Hence, thereis no
Dissentingopinion ofJudge Koroma full agreementofthe two Statesregardingthe subject-matter
In his dissenting opinion, Judge Koroma observedthat the
it is well established in international law and has been Furthermore,the Courthad indicated that,in submitting
fundamentalto the jurisprudenceof the Courtthat thejuris- to it the whole of the dispute, the Parties were to react
76joirrtly or separately. This raises the question of the Arabic In the Judgment of 1 July 1994,the Court did not rule
terrn al-tarafan, used in the Doha Minutes, which had on itsjurisdiction, wishing "to affordthe Parties the oppor-
raised the problem of whether this term refisrredto both tunity to submit (to it) the whole of the dispute between
Parties taken together or separately. In the conditions in them". Only one of the two States responded to this re-
which this text was adopted-following an amendment quest; the other, disagreeing with the form of words of its
proiposedby Bahrain-this term should have:been under- opponent, was opposed to the case being brought before
stood to mean "both Parties at once". the Court.
As regards the Judgment of 1July 1994,the aboveword- The Court should therefore have concluded that it had
ing manifestly referred, in either case, to an act by the two nojurisdiction to entertain the question.
Parties, whether effected jointly or separately. Moreover, The Court may thus perhaps have provided an opportu-
this was a logical consequence of the principle according nity for the prevention of a conflict, at the same time for-
to vvhichthe Court can only be seised by the two Parties mulating a thesis intended to satisfy both Parties, since it
to a dispute, unless there is an agreement to the contrary, accepts that its jurisdiction covers sovereignty over
which was not the case here. Furthermore, the two Parties Zubarah. However, the Judgment suffers from the legal
endeavoured, unsuccessfully, to negotiate a special agree- weakness constituted by the absence of actual consent by
ment. Also, the reference to the Bahraini formula pre- one of the Parties and the inadequacy of the seisin.
supposes a combined ope:ration.
The Court thus showed itself to be insufficiently exact-
There was thus neither full agreement of the Parties on ing as regards the consensual principle which lies at the
the subject-matter of the dispute, nor an act by which the root of its jurisdiction and the trust placed in it by the
two Parties submitted the whole of the dispute to the Court. international community.
Summary of the Judgment of 15 February 1995