Summary of the Judgment of 1 July 1994

Summaries of Judgments, AdvNot an official documents of the Internationa
l Court of Justice

CASE CONCERNING MARITIMEIDELIMITATIONAND TERRITORIAL QUES-
TIONS BETWEEN QATAR AND BAHRAIN(QATAR v. BAHRAIN) (JURISDICTION

AND ADMISSIBILITY)

Judgment of 1 July 1994

The Court delivered a Judgment in the,caseconcerning (5) By 15votesto 1,
Maritime Delimitation and Temtorial Qur:stionsbetween Reservesany other matters for subsequent decision."
Qatar and Bahrain. Those who voted IN FAVOUR were: President Bedjaoui;
The Courtwas composedas follows:President Bedjaoui; Vice-President Schwebel; Judges Sir Robert Jennings,
Vice-presidentSchwebel;Judges Oda,Sir RobertJennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley,
l:arassov, Guillaume, Shahabuddeen,Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer,
\Neeramantry, Ran+, Herczegh, Shi, Fleischhauer, Koroma;Judges ad hoc Valticos, Ruda; and
ECoromaJ;udgesad hoc Valticos, Ruda; RegistrarValencia-
Ospina. AGAINSTJ:udge Oda.
Theoperativeparagn~phof theJudgmentreadsas follow:^:

"4 1. Forthese reasons,
THECOURT,
(1) By 15votes -to1, Judge Shahabuddeenappendeda declaration tothe Judg-
Findsthat the exchanges of letters betweenthe King ment; Vice-President Schwebel and Judgead hocValticos
of Saudi Arabiaand the Amir of Qatar dated 19and 21 appended separate opinions;Judge Oda appended a dis-
December 1987,anclbetween the King of Saudi Arabia senting opinion.
and the Amir of Bahrain dated 19 and 26 December
1987,andthe document headed 'Minutes' and signed at
Doha on 25 December 1990 by the Ministers for Foreign
Affairs of Bahrain, Qatar and SaudiArabia, are interna-
tional agreementscreatingrights and obligations forth.e
Parties; History of thecase
(paras. -14)
(2) By 15votes to 1,
Findsthatbytheterms ofthoseagreementsthe Parties In its Judgment,the Court recalls that on8July 1991the
have undertakento submitto the Courtthe wholeof the Minister for ForeignAffairs of the State of Qatar filed in
disputebetweenthem, as circumscribedby the text pro- the Registry of the an Application instituting pro-
ceedings against the Staof Bahrain in respect of
accepted byQatar in December 1990,referred to in the disputes between the two States relating to sovereignty
1990DohaMinutes as the 'Bahraini formula'; overthe Hawarislands, sovereign rights over the shoals of
... Dibal and Qit'ataradah,and the delimitationof the mari-
time areasof the two States.
(3) By 15votes to 1, The Court then recites the historyof the case. It recalls
Decidestoaffordthe Partiestheopportunityto submit that in its Application Qatar founded thejurisdiction ofthe
to the Court thewhole of the dispute; Court upon two agreements betweenthe Parties statedto
... have been concluded in December 1987 and December
(4) By 15votes to 1, 1990,respectively,the subject and scoef the commitment
Fixes 30 Noveml~er1994 as the time-limit within tojurisdiction being determin,ccordingto theApplicant,
whichthe Parties are,jointly or separately,totakeaction
to this end; by a formula proposed by Bahrain to Qatar on 26 October
1988 and acceptedby Qatar in December 1990. Bahrain
... contested the basis ofjurisdiction invoked by Qatar.

Continued on next page The Court then refers to the different stages of the pro- The good offices of King Fahd did not leadtothe desired
ceedings before it and to the submissions of the Parties. outcome within the time-limit thus fixed, and on 8 July
1991Qatar instituted proceedings before the Court against
Sunzmaryof the circunzstancesin which a solution to the Bahrain.
dispute between Bahrain and Qatar has been sought According to Qatar, the two States "have made express
over thepast two decades commitinents in the Agreements of December 1987 ... and
(paras. 15-20) December 1990 ...,to refertheirdisputesto the... Court".
Qatar therefore considers that the Court has been enabled
Endeavours to find a solution to the dispute took place exercisejurisdiction to adjudicateuponthose
in the context of a mediation, sometimes referred to as and, as aconsequence, upon the Application of Qatar.
"good offices", beginning in 1976, by the King of Saudi
Arabia with the agreement of the Amirs of Bahrain and Bahrain maintains on the contrary that the 1990Minutes
Qatar, which led, during a tripartite meeting in March do not c:onstitutea legally binding instrument. It goes on
1983,to the approval of a set of "Principles for the Frame- to say tyhat,in any event, the combined provisions of the
work for Reaching a Settlement". The first of these prin- 1987 exchanges of letters and of the 1990 Minutes were
ciples specified that not such as to enable Qatar to scise the Court unilaterally
and concludes that the Court lacksjurisdiction to dcal with
"All issuesof disputebetweenthetwo countries,relating the ~~~li~~~oif~Q ~~~~~.
to sovereignty over the islands, maritime boundaries and
territorial waters, are to be considered as complemen- ~h~nature of the exchanges ofletters of 1987 and of tite
tary, indivisible issues, to be solved comprehensively ,990 Doha Minutes
together. " (paras. 21-30)
Then, in 1987,the King of Saudi Arabia sent the Amirs
of Qatar and Bahrain letters in identical terms, in which he The Court begins by enquiring into the nature of the
put forward new proposals. The Saudi proposals which texts upon which Qatar relies before turning to an analysis
were adopted by the two Heads of State included four of the content of those texts. It observes that the Parties
points, the first of which was that agree that the exchanges of letters of December 1987con-
the disputed matters shall be to the Inter- stitute an international agreement with binding force in
nationalcour t f justiceat=he Hague, for a final ruling their mutual relations, but that Bahrain maintains that the
binding uponboth who shall have to executeits Minutes of 25 December 1990were no more than a simple
terms." record of negotiations, similar in nature to the Minutes of
the Tripartite Committee, and that accordingly they did not
The third provided for formation of a Commit- rank as an international agreement andcouldnot, therefore,
tee, composed of representatives of the States of Bahrain serve as a basis for the jurisdiction of the
and Qatar and of the Kingdom of Saudi Arabia, After examining the 1990 Minutes (see above), thc
"for the purpose of the International Court Court observes that they are not a simple record of ameet-
of Justice, and satisfying the necessary requirements to
have the dispute submitted to the Court in accordance ing, similar to those drawn up within the framework of the
with its regulations andinstructions sothat afinalruling, Tripartite mcrcl~ give an account
binding upon both parties, be issued". of discussions and summarize points of agrcement and dis-
Then, in 1988, following an initiative by Saudi Arabia, agreement. They enumerate the commitments to which the
the Heir Parties have consented. They thus create rights and obliga-
transmitted to the Heir Apparent of Qatar a text (sub-ar, tions in international law for the Parties. They
sequently known as the Bahrainiformula) which reads as an international agreement.
follows: Bahrain maintains that the signatories of the 1990 Min-
utes never intended to conclude an agreement of that kind.
"Question The Court does not, however, find it necessary to consider
what might have been, in that regard, the intentions of the
The Parties request the Court to decide any matter of Foreign Minister of Bahrain or, forthat matter,those of the
territorial right or other title or interest which may be a ~~~~i~~~ i ~ i ~ ~of~Q~~ ~ ~N~~does it accept ~~h~~i~'~
matter of difference between them; and to draw a single contention that the subsequent conduct of the Parties
maritime boundary between their respective maritime showed that they never considered the 1990Minutes to be
areas of seabed, subsoil and superjacent waters." an agreement of this kind.
The matter was again the subject of discussion two years
later, on the occasion of the annual meeting of the Co-
operation Council of Arab States of the Gulf at Doha in Thecontent of the exchanges of letters of 1987 and of the
1990 Doha Minutes
December 1990. Qatar then let it be known that it was (paras. 31-39)
ready to accept the Bahraini formula. The Minutes of the Turning to an analysis of the content of these texts, and
meeting which then took place stated that the two Parties of the rights and obligations to which they give rise, the
had reaffirmed what was agreed previously between them;
had agreed to continue the good offices of King Fahd of Court first observes that, by the exchanges of letters of
Saudi Arabia until May 1991; that after this period, the December 1987 (see above), Bahrain and Qatar entered
matter might be submitted to the International court of into an undertaking to refer all the disputed matters to the
Justice in accordance with the Bahraini formula, while Court and to determine, with the assistance of SaudiArabia
Saudi Arabia's good offices would continue during the (intheTripartiteCommittee),the way inwhichtheCourtwas
submission of the matter to arbitration; and that, should a to be seised in accordance with the undertaking thus given.
brotherly solution acceptable to the two Parties be reached, The question of the determination of the "disputed mat-
the case would be withdrawn from arbitration. ters" was only settled by the Minutes of December 1990.

70 Those Minutes placed o-nrecord the fact that Qatar had clear whether the two States had agreed to refer their dis-
finally accepted the Bahraini formula. Both Parties thus pute to the Court or whether their agreement had also re-
acceptedthatthe Court,onceseised,shoulddecide"any matter lated to the subject of the dispute and the method of seisin.
of1:erritorialright or other title or interest wl.ich may be a Onecould, of course, acceptthat an agreementwas reached
matter of difference between [the Parties]"; and should but, as regards the Minutes of the Doha meeting, it was
"draw a single maritime boundary betweentheir respective couched in ambiguous terms. There was, in particular, a
maritime areas of seabed, subsoil and superjacent waters". problem relating to the Arabic term "al-tarafan"used in
The formula thus adopted determined the limits of the that connection by the Parties.
dispute with which the Court would be asked to deal. It
was devised to circumscribe that dispute, but, whatever the In any case, the Court should only proceed to deal with
manner of seisin, it left open the possibilitfix each of the the merits of the present case if both States were to seise
Parties to present its own claims to the Court, within the it of their disputes, whether jointly or separately, and in
accordance with the formula which has been accepted by
framework thus fixed. However, while the Bahraini for- them and which provides that each State is to submitto the
mula permitted the presentation of distinct claims by each Court the questions with which it would like the Court to
of the Parties, it none the:less presupposed t:hatthe whole deal.
of the dispute would be submitted to the Court.
The Court notes that al:present it has before it solely an Dissenting opinion of Judge Oda
Application by Qatar setting out the particu.larclaims of
that State within the framework of the Bahraini formula. Judge Oda finds himself unable to vote in favour of the
Article 40 of the Court's Statute provides that when cases present Judgment, as it transforms the unilateral Applica-
are brought before the Court "the subject ctfthe dispute tion by Qatar into a unilateral filing of an agreementwhich
anclthe parties shall be indicated". In the present case the is found to have been improperly drafted. In his view, the
identity of the parties presents no difficulty, but the subject Court should rather have determined whether it had juris-
of the dispute is another matter. diction to entertain that unilateral Application. The Court
now appears-for the first time in its history-to render an
In the view of Bahrain, the Qatar Application comprises interlocutory judgment. Judge Oda maintains, however,
only some of the elements of the subject-matter intended that it cannot take this course without first having settled
to 'becomprised in the Bahraini formula and that was in the jurisdictional issue. What will happen if the Parties do
effect acknowledged by Qatar.
The Court consequently decides to afford the Parties the not "take action" to submit the whole of the dispute to the
opportunity to ensure the submission to the Court of the Court? Will either or both Partiesbe considerednot to have
whole of the dispute as it is comprehended within the 1990 complied with the present Judgment; or will the Court
Minutes andthe Bahraini formula,to which tlneyhave both simply decide to discontinue the present case, which has
agreed. The Parties may (loso by ajoint act or by separate already been entered in the General List and of which it
acts; the result should in any case be that the Court has will assume that it has been seised? It seems to Judge Oda
befbre it "any matter of' territorial right or other title or that the Court is simply making a gesture of issuing an
interest which may be a matter of difference between" the invitation, in the guise of a Judgment, to the Partiesto pro-
Pa~ties, and a request that it "draw a single maritime ceed to the submission of a new case independently of the
bo~mdarybetween their respective maritime areas of sea- present Application.
bet!, subsoil and superjacent waters". The question in the present case is whether the "1987

Agreement" or the "1990 Agreement" is of the nature of
Declarationo,fJudgeShahabudderen "treaties and conventions in force" within the meaning of
lay preference would have been for the issue ofjurisdic- Article 36 (1) of the Statute, i.e., whether they contain a
tio:nto be fully decided atthis stage. Ihave, however,voted compromissory clause. After an examination of the nature
for the Judgment, understanding the intent to be to offer to and contents of the 1987 and 1990documents, Judge Oda
the Parties an opportunity, which merits acceptance, to comes to the conclusion that neither Agreement falls
submit the whole of the dispute to the Court. The reasons within this category.
for the preference are accordingly not set out. What were Qatar and Bahrain then trying to achieve in
the negotiations by endorsing those documents?

Separate opinionofVice-PresidentSchwebel After examining the negotiations which had been going
'Vice-president Schweibelw , ho voted for the operative on for more than two decades, Judge Oda concludesthat if
paragraphsof the Judgmentas "unobjectionable", described any mutual understanding was reached between Qatar and
the Judgment as novel ariddisquieting. It lacked an essen- Bahrain in December 1987,it was simply an agreement to
tial quality of ajudgment of this or any court: it did not form a Tripartite Committee, which was to facilitate the
drafting of a special agreement;he further concludes that
adjudge the principal issues submitted to it. It was a com- the Tripartite Committee was unable to produce an agreed
manding feature of the practice of the Court that itsjudg- draft of a special agreement; and that the Parties in signing
ments disposed of the submissions of the parties, but this the Minutes of the Doha meeting agreed that reference to
Judgment failed to do so, because it neither upheld nor
declinedjurisdiction. Vice-President Schwetlelquestioned the International Court of Justice was to be an alternative
whetherthejudicialfbnctionis servedby such aninnovation. to Saudi Arabia's good offices, which did not, however,
imply any authorization such as to permit one Party to
Separate opinion ofJudge Valticos make an approach to the Court by unilateral application,
ignoring "what was agreed previously betweenthe two par-
1.nhis separate opinion, Judge Valticos took the view ties", that is to say, the drafting of a special agreement in
that the case in hand was confusedandthat it .wasnot really accordance with the Bahraini formula. In conclusion, Judge Oda is confident that neither the they arejointly referred to the Court by a special agreement
"1987 Agreement"northe "1990 Agreement" can be deemed under Article 39 (1) of the Rules of Court which, in his
to constitute a basis for thejurisdiction of the Courtin the view, has not occurred inthis case. The Courthas nonethe
event of a unilateral application under Article 38 (1) of the less opted forthe role of conciliator instead of finding, as
Rules of Courtand that the Courtis not empoweredto exer- he believes it ought to have done,that it lacksjurisdiction
cise jurisdiction in respect of the relevant disputes unless to entertain the Application filedby Qatar on 8 July 1991.