IN THENAME OF GOD
THEMERCIFUL, THEBENEVOLENT ----RNAI?[ONAL COURTOFJUSJTi[CE
CASECONCERI'IING MARITIME DELIMITATION
ANDTERRITORIALQUESTIONS
IBETWI3EN
QATARANI) BAHRAXN
(QATARV.BAHIPAIN)
THE STATEOF QATAR
(Questions JurisdictandAdrnissibility)
VOLUME I
28 Septembc1992 TABLE OF CONTENTS
CHAPTER 1 INTRODUCTION .......................................................
SECTIO 1. The Orders of the Courtin these Proceedings.................1...........
. SECTIO 2. General Comments on Bahrain'sConductin the
Present Proceedings ........................................2.......................
...
SECTIO 3N Structura oftheReply .......................................5..........................
PARTI THE FACTUAL ASPECTS OF THE PRESENT CASE ................................
CHAPTERII OBSERVATIONS REGARDINGTHE HISTORICAL
PERSPECTIVE ...............................................7...............
............
CHAPTER III SEïTLE THEDISPUTESATIONON...................................1.3.....................
SECTIO 1N The Principlesof the Framework .............................3.................
SECTIO 2. The 1987Agreement ........................................4.....................
....
SECTIO 3. The Proceedingsof the Tripartite Cornmitte................1.........
A. The PreliminaryMeeting ...............................1....................
B. Means"of Reference to the Court".......................8..............
C. TheSecond. Third and Fourth Meetings:
InconclusiveDiscussionson Drafts of a Special
Agreement ...........................................20.................
.........
D. The Fifth Meeting: FirsDiscussionof theBahraini
Formula ...................,..........................24...........
E. The Legal Experts'Meeting ............................2................
F. The Sixth(and Final) Meeting of theTripartite
Cornmittee .............................................................
SECTIO 4N Failureof the Tripartite Comrnittee ta Reach a Draft
SpecialAgreement .........................................31.....................
....
SECTIO 5. Lack of Progressduring1989-1990 ..........................32.................. SECTIO 6N The Doha Agreement of 1990 ..............................3.....................
A. Backgroundto the Conclusionof the Doha
Agreement ................................................................
........
.
B. the DohaenAgreementts...........................................................
SE~ON 7. The Conductof the Parties after the Doha
Agreement .................................................................
.................
SECTIO 8N Conclusion.................................................................
................
.PART II JURISDICTIONANDADMISSIBILiïY ..................................................
CHAPTERIV THE JURISDICTION OF THE COURT ........................3..............
SECTIO 1. The Basisof the Court'sJurisdiction......................................
SECTIO 2. The Burden ofProof withrespect tothe Question of
Jurisdictio.............................................................
.................
SECTIO3 N. The BindingCharacter of the Doha Agreement .........................
A . The Instrumental and Forma1Aspects ................................
1. Constitutionalaspects..................................................
a) Qatar'sConstitution..........................................
b) Bahrain'sConstitution.......................5...............
(i) Distinctionbetween existence and
validity................................-..4...................
(ii)Agreements insimplifiedform and
ratification..................................
(iiiThe irrelevance ofArticle 37of
Bahrain'sConstitution ........................
2. Questions of registration and til............................
a) Registration withthe United Nations...........8
b) Filinwiththe Arab League ..............................
B. The Substantive Aspects:the Content afthe Doha
Agreement ................................................................
........
1. The Doha Agreement isnot mereiy a
"diplamatic document" ............................-62.................
2. The intention of the Partiesbeobound ...................... CASECONCERNING MARITIME DELIMITATlON AND TERRITORIAL
QUESTIONS BETWEEN QATARANDBAEiRAIN
(Qatarv.Bahrain)
>.&+
QUESTIONSOFJURISDICTION AND ADMISSIBILITY
REPLY OF THESTATE OF QATAR
--------------*------------
This MemoriaI is filed in accordance with the Order of the Court26June
1992whichfixed28September 1992as the time-limitfor the Reply of the State of
Qatar.
CHAPTER I
mTRODUCTION
SECTIO 1.N TheOrdersof theCourt inthese Proceedings
1.01 On 8 July 1991,the State of Qatar ("Qatar") filed in the Registry of the
Court an Application institutjng proceedings against the Staof .Bahrain
("Bahrain") inrespect of certain disputes between the two States relating to
sovereignty overthe Hawarislands,sovereign rights aver the ofoDibaland
Qit'at Jaradah, and the delimitation of the maritime areastwo States.In
that Application Qatar founded the jurisdiction of the Court upon certain
Agreements between the Parties concluded in December 1987 ("the 1987
Agreement") and December 1990("theDoha Agreement"), the subject anscope
of the cornmitment to jurisdiction being deterrninadformula proposed by
Bahrain on 260ctober 1988 and accepted by Qatar in December 1990 ("the
Bahraini formula"). By Ietters dated 14July and 18August 1991, Bahrain
contested the basisofjurisdiction invokedbyQatar.
1.02 At a meeting between the Presidenofthe Court and the representatives .
of the Parties heon 2 October 1991iwas agreed that questions ofjurisdiction
and admissibilityshould be separately determined before any proceonithe
merits. An Order, made by the President of the Court on IlOctober 1991,decided that the written proceedings should first be addressed to "the questions of
the jurisdiction of the Court to entertain the disputeand of the admissibilityof the
Application" and, with reference to this decision, indicated that "it is necessary for
the Court to be-informed of al1the contentions and evidence of fact and law on
which the Parties relyin that connection".
1.03 In accordance with the Order, Qatar filed its Memorial on questions of
jurisdiction and admissibility on 10February 1992 and Bahrain its Counter-
Memorial on 11 June 1992. In its Memorial Qatar has formally submitted that
the Court has jurisdiction to entertain the dispute referred to in its Application
and that the Application is admissible. In its Counter-Memorial Bahrain has
formally subrnitted only that the Court is without jurisdiction over the dispute
brought before it by Qatar's Application.
1.04 A second Order was made by the Court on 26June 1992. Referring to the
Order of 11October 1991,it States that "inthe present case the filingof further
pleadings by the Partiesis necessary" and directs that "a Reply by the Applicant
and aRejoinder by the Respondent shall be filed on the questions ofjurisdiction
and adrnissibility".
1.05 From this Order, and in view of the previous Order of 11October 1991,it
is Qatar's understanding that the Court finds it necessary to be further informed
of al1the contentions and evidence of fact and law on which the Parties rely in
connection with the questions of jurisdiction and admissibility, and this Reply
accordingIy addresses such considerations of fact and law which may assist the
Court in deciding on those questions.
SECTIO 2. GeneralCommentsonBahrain'sConductin thePresent
Proceedin~s
1.06 Qatar would Iike to remark briefly in this Introduction upon the unusual
character of the proceedings in this phase of the case where, although it is
Bahrain which has raised objections to the jurisdiction of the Court, Qatar
appears to be inthe position of a cIaimant. This situation has arisen because of
Bahrain's attitude before the Court, in particular its failure to file preliminary
objections under Article 79of the Rules of Court.1.07 The impropriety of this action, especiallyby a State which is party to the
Statute of the Court and has indicated its "willingnessto corne to the court1" for
the adjudication of adispute, willnot go unnoticed. The result is that Qatar, the
natural defendant to any preliminary objections, hasapparently been put in the
position of a claimant; that for thefirstthe in the historyof the Court two rounds
of written pleadings have becorne necessary in a preliminary phase2; and that the
adjudication of the questions ofjurisdiction and admissibilityhas been abnormally
delayed.
1.08 Qatar is also impelled to comment briefly here on the grave accusation
that, in violation of the Arabo-lslamic tradition, it has affronted the honour of
Bahrain by filingits Application before the court3. Naturally, Qatar has never
had the slightest intention of affronting the honour of Bahrain, and it cannot
accept that this accusation isjustified. In general, engaging in peaceful means of
4
settIinga dispute can never be considered as a dishonour under any tradition . In
particular, it cannot create a situation where Bahrain is "impliedlypilloried as a
State being dragged reluctantly before the Court by a virtuous plalntiff5".
Moreover, in the particular circumstances of this case, by filing its Application
with the Court Qatar was acting in conformitywith the two Agreements entered
into between itself and Bahrain and with the Statute and Rules of the Court; and
it gave due warning ofits intention by repeated messagestothe Mediator prior to
the filing6.
1 %, BahrainiCounter-Mernorial,para.1.13,p6.
The normal proceedingsenvisagedunder Article79of the Rulesof Court are designed,
inter,afia, to deal fairlyand propwith situations wherethe Court's jurisdictisn
disputed.As the Court has stated in general terms,"Theprovisionsof the Statute and
Rulesof the Courtconcerningthe presentationofpleadingsandevidenceare designedto
securea proper administrationofjustice,and a fairandequal opportunity for eachparty
tocommenton its opponent'scontentions". (Militari and ParamilitaryActivitiesin and
against Nicaragua (Niarapua v. United States of Amcrical, Merits, JudgmenI.C.J.
Reports1986,para.26and, in general, par26-31.)
3
BahrainiCounter-Mernorial,para9.1,p.115.
4 a, inthis regard, theManilaDeclarationon the PeacefulSettlementof International
Disputes, adopted withouta voteasResolutioni371590of the GeneralAssemblyofthe
United Nationson 15November 1982,whichStatesthat"Recoursetojudicialsettlement
ofIegaldisputes,particularlyrefertothe InternalionCourt ofJustice,shauldnotbe
consideredan unfriendlyactbetweenStates".
5 BahrainiCounter-Mernorial,para8.15,p.113.
6 See,QatariMemoriai,Annexes11.34andII.35, Vol.III,pp.213and 217.1.09 Another aspect of Bahrain's conduct should be brieffy remarked upon
here. As the Court will recall, Bahrain improperly announced in its Counter-
Memorial that -
"To the end ...that a suitable joint submissionshouId be made to
the Court, Bahrain willwithinthe verynear future fonvard to Qatar
a fresh draftjoint agreement coupledwithan invitationthat the two
Parties should meet under the auspices of the Mediator wit 4 view
to discussingand resolvinganyremainingpoints of difficulty ."
Following this announcement, Bahrain unilaterally submitted to Qatar a new
draft special agreement, under cover of a note dated 20 June 1992. In that note
Bahrain requested Qatar to stop the present proceedings and signthe text of the
attached draft as itstood, imposing a time-limitafter whichthe offer would lapse
8
ifnot accepted byQatar .
1.10 Bahrain's unilateral subrnissionof a draft special agreement three and a
half years after the failure of the Tripartite Cornmittee's effortsto reach a special
agreement, and a year after Qatar's filingof its Application on the basis of two
Agreements whichclearlyestablishthe Parties' consent tothe Court'sjurisdiction,
isno more than a diversionarymeasure. In anyevent, Qatar understands that the
Court considers that the date of an application is thedate at which the Court has
to determine whether it hasjurisdictionand whether the appkation isadmissible.
Consequently, this step, taken after the filingof Qatar's Application on 8 JuIy
1991,can have no relevance to the present case 9. For these reasons Qatar does
not propose to burden the Court withthe text ofthis newdraft.
1.11 In sÙmmary, Qatar can only take the view that Bahrain's conduct is
designed to confuse the issue before the Court. This effort to confuse even
extends to Bahrain's Counter-Mernorial. Thus, for example, the very order in
7 BahrainiCounter-Mernoriapl,ara.9.p.116.
8 A copy ofBatirainnoteisattachedhçretoasAnnex 1.1,Vol. II,p. 1.
Sec aiso,BahrainiCounter-Mernorial,ara.7.22,p. 105,whereBahramakes reference
to asimilairrelevantproposalmadeinSeptember1991,nearlythreemonths afterQatar
had filed its ApplicatioIn late September,Qatardid receivea bare drafspecial
agreement, thetextofwhich isreproducedin the BahrainiCounter-Mernorial,Annex
1.24,Vol. IIp.143, at pp153-155 H.owever,Qatardid not receivethe "Explanatory
Memorandum" relatingto the draftuitappearedinBahrain'sAnnex124, at pp.151-
152.Itwillbe notedthatthisMemorandumbearsnodate.whichBahrain presents its argument is illogicallO;and Bahrain's novel definition
and interpretation of the term "joint submission"ll not only confusesjurisdiction
and seisin,but evenputs emphasis on seisin,whichisnot the issue in this case.
SECT~ O N Stnict~rt!of theReplv
>.&/
1.12 In its Mernorial Qatar provided a clear statement of its case on the
questions of jurisdiction and admissibility,and it confirms here the facts and
arguments contained therein and in its Application. Nevertheless, Qatar
welcomesthe opportunity to respond to Bahrain'sCounter-Mernorial in writing.
1.13 The structure of the Reply ofQatar followsthe directive of the Court in its
Order of 26June 1992, bearing in mind Article 49, paragraph 3, of the Rulcs of
Court which requires that a RepIy be directed to bringing out the issues that still
divide the Parties. In addition, Qatar has sought to present its Reply in such a
way as to eradicate any confusion which may have been created by Bahrain.
~owever, any failure by Qatar to answer specificallegations by Bahrain should
not of course be construed as an implicitadmissionof such allegations.
1.14
The Reply isdividedinto three parts:
Part 1. The Factual Perspective of the Present Case
Part II. Jurisdiction and Admissibility
Part III. Summary
l0 Forexample,para.6,5of Bahrain'sCounter-Memorial(p.52) readsasfollows:
"Thereare two principal pointo be developed inconnectionwith the 1990Minutes.
The firstin logicalorder is Bahrain'scontention thatthe Minutes donot havethe status
ofa bindingagreementandcannot,therefore,serveasa basis forthe Court'sjurisdiction.
The secondisthat, evenitheypossess sucha status,their contentdoes not support the
Qatari submissionthat the text accordseach Partythe right unilaterally tocommence
proceedings.It wibe convenientto beainthisconsiderationof the1990 Minutes with
rhesecondof thesearmiments....(Emphases added.)
Ilisdifficutounderstandwhyit is"convenient"toturn onitheadwhat Bahrain admits
isthe logimlorderofargument,unlessitisto confusethe issue.
l1 BahrainiCounter-Memorial,para.1.4,p.3.1.15 Part 1addresses the issues of fact inthe present case. Chapter II contains
observations regarding the historical perspective of the disputes and Chapter III
provides further information regarding efforts to settlethe disputes. Part IIdeals
with the legal arguments of the Parties put fonvard in the pleadings at this stage
of the proceedings as to the questions of the jurisdiction of the Court to entertain
the dispute and of the admissibiiityof Qatar's Application. Chapter IVwill show
that the junsdiction of the Court under Article 36, paragraph 1,of the Statute is
established by two international agreements: the 1987Agreement and the Doha
Agreement which confirm the consent of the Parties to the jurisdiction of the
Court in the present case. Chapter V deals with the admissibility of Qatar's
Application. The Reply concludes with a Sumrnary in Part III, and the
Subrnissions of Qatar.
1.16 Attached to this Reply is one volume of Annexes which contains
documentary annexes, a technical annex concerning the "Statements" annexed to
Bahrain's ~ounter-~emorial'~, and Supplementary Opinions by Professor
Ahmed El-Kosheri and Professor Shukry Ayyad.
- .--
l2 See,BahrainiCounter-Mernoria l,nnexes1-25and 1.26,VolII,pp.1-57and177. PART 1
TJ3EFACTUALASPECTSOFTHE PRESENT CASE
CWTER II
OBSERVATIONS REG-ARDING THE HISTORICALPERSPECTIVE
OF TBE DISPUTES
2.01 In Qatar's Memorial, a brief presentation was made of the origin and
histary of the disputes involindthis case13. The purpose of that presentation
was to show the Court that the disputes submittein Qatar's Application were
.
existing disputes and that they were governed by international Iaw within the
meaning of Article 38 of the Statute of the Court. The presentation was directly
related to the Order of the Court of II October 1991 and the questions of
jurisdiction anddmissibilitywhich the Parties were asked to address by the Court
inthat Order.
2.02 Bahrain's presentation of the history of the disputes, on the other hand,
makes no atternpt to discuss the relevant questions of jurisdiction and
admissibility14. Bahrain raises no issue whatsoever concerning the existence of
the disputes submitted by Qatarin its Application, nodoes it deny that these
disputesare governed by international law. Indeed, Bahrain admits that Qatar's
claims as framed in its Application are admissib~e'~. Having made this
admission, any presentation of historical facts by Bahrain is irrelevant and
inappropriate at the present stage of proceedings as it is not directed at
responding to the Order of the Court dated 11October 1991.
2.03 Nevertheless, as Bahrain has chosen to enter into the merits of the
disputes, Qatar cannot leave its contentionsllyunanswered. In what follows,
Qatar willnot seek to rebut every statement made by Bahrain but will restrict
itself to correctisome of the more self-seeking distortions in Bahrain's version
of the historical perspective of the disputes. To the extent that any statements
made by Bahrain are not specifically rebutted by Qatar, this doesofocourse
l3
See,Qatari Mernor,ahapter pp.Yg m.
14
%, BahrainiCounter-MernoriChapteII,pp.12gsep.
l5 IbJ.,para.1.16,p.11.imply an admission by Qatar of the accuracy of such statements, and Qatar
reserves the right to present a fullrebuttal in due course. For the above reasons
Qatar has not annexed to its Reply any documents relating tothe historicalfacts.
2.04 Bahrain acknowledges that "many of the individual statements of fact" in
Qatar's presentation of the history are accurate. On the other fiand, it accuses
,,,,
Qatar of painting an overall picture ofthe historywhich is"far£romaccurate",yet
does not produce any relevant evidence to support this sweepingstatement 16.
2.05 Itwas clearlyshownin Qatar's Memorial, with ample supporting evidence,
that the separate identities of Qatar and Bahrain were recognized duringthe
second half of the 19thcentury17. The territorial integrityof Qatar,.including the ,
whoIeof the peninsula aswellas islandsand other features closeto the peninsula,
was reflected in the exerciseof authority and control over this area by the ruling
Al-Thanifamily .
2.06 Bahrain alleges that from 1868 onwards the ruIing Al-Thani family only
"intemittently displayed ..a degree of lacal authority either on their own account
oras delegates ofTurkey during the period 1871-1915"in the limitedarea around
Doha on the eastern side of the Qatar peninsula". Bahrain goes on to assert
that "Thisauthority did not, however, extend to the administration or control of
the other areas of the penir~sula'~".
2.07 In support of this statement, which Qatar stronglydisputes, Bahrain relies
on the most implausible evidence. Thus, Bahrain üIlegesthat because the terrain
in the central and western parts of the Qatar peninsula presented physical
obstacles, the Al-Thaniswere unable to exercise control over the western Coast 20 .
This isneither a convincinglegal argument nor a geographicaliyaccurate one. Of
course, travel in the Gulf region can alwaysbe difficult,but this never prevented
the exercise of authority and control civervast areas of land during this period..
l6 See,BahrainiCounter-Memoriap l,aras2.1-24p.12.
l7 See,QatariMemorialp , aras2.08-2.27pp.11-17,andtheAnnexesreferred to therein.
l8 BahrainiCounter-Mernoria lara.2.4p. 13.
19 Ibid.
20 m., paras.2.5-2.6pp.14-15.Moreover, Bahrain contradictsitselfby arguingthat the Ai-Thani family'sactivity
wasdirected towardsthe area around Khor Al-OdaidS1. This area is further from
Doha than the Westcoast of Qatar and isseparated from Doha by far rougher
terrain than the relatively fertile areas in the centre of the peninsula lying
between Doha and the Westcoast.
2.08 Bahrain alsoseeksto showthe alleged limitedextent ofAI-Thaniauthority
and to stake the basisof itsclaimtothe Hawar islandsby stating that a part of the
Dawasir tribe from Zellaq and Budeyah in Bahrain "migrated annually with its
flocks ...to their villages an ~awar'~''. This statement is not only
unsubstantiated, it is also inaccurate. The Hawar islands are incapable of
sustaining human habitation and econornic life. In any event, such Msitswould
hardlybe of significance. Ztwascommon practice for fishermen £rom many areas
of the Gulf to visitislandsthroughout the region, includingthe Hawarislands,for
fishingpurposes duringthe fishingseason.
2-09 Bahrain seeks to support its allegations by reference to the works of J.G.
Lorimer, a distinguished Britishcivil servant working with the Government of
~ndia~~. However, the same author contrndicts many of the points made by
Bahrain, such as the false and whollyunsustainable statement that the Hawar
islands "havefor long been in the possessionof Bahrain and have never been in
the possession of ~atar~~". Infact, in setting out the extent of the territory of
Qatar, Lorimer includedthe wholeof the western coastof the peninsula ofQatar,
includingthe Hawar islands,as an integral part ofthe territory of aatarZ5.
2.10 Bahrain's allegationthat Qatari authority did not extendto the Westcoast
of the peninsula until the late 1930s~is also rehutted by evidence that Qatar has
already provided to the Court. For example,annexedto the Qatari Mernorial are
two maps demonstrating the recognition by Britain and Turkey, the two great
21 BahrainiCounter-Mernoria p,ra2.5,p.14.
22 Ibid.
23 m., para.2.4p.13.
24 u, ,ara.1.2p.1.
25 Sec . atarMernorial, nnex1.17Vol.II,p91,atp.95.
26 BahrainiCounter-Mernoria l,ar2.6,p.15.powers in the area at that time, ofthe separate identities and territorial integrity
of Qatar and Bahrain. The extent of Bahrain's territory is shown on a Turkish
map dated October 1867~'. That map does not includethe Hawar islands as part
of Bahrain. ~nither Turkish map made in Novernber 1884shows the extent of
Qatar's territory18. This rnap showsthe Qatar peninsula, and demonstrates that
the territorial integrityof Qatar included the Hawar islands and the shoals of
Dibal and Qit'at Jaradah. Subsequently, the 1913 Convention between the
United Kingdom and Turkey reconfirmed the separate identity of the Qatar
29
peninsula under Al-Thanirule, and its separation from Bahrain .
2.11 Further historical evidenceof the extent of Al-Thani authority over Qatar
will be provided at an appropriate stage. It should perhaps be, noted here,
however, that the display of authority in the Gulf region entailed particular legal
and factual questions, and it would be wrong to compare such displays of
authority with the authority exercised by modern-day States, a point recognized
by this Court and other tribunals inprevious cases 30 .
2.12 FinalIy, Qatar must cal1 attention to the fact that there are many
inaccuracies in Bahrain's Counter-Memorial concerning tribal allegiances and
their relationship with sovereignty, particularly concerningthe Dawasir and AI-
Naim tribes. For example, Bahrain's statement that the..Dawasir were Bahraini
subjects isa gross wer-simplification31. In fact, the Dawasir were dispersed over
many areas in the region,with parts of the tribe forming independent groups, and
they shifted their allegianceperiodically. Sirnilarinaccuracies appear in Bahrain's
27 w, Qatari Memorial, Annex 1.6,Vol. II, p.Thismap, entitled"Map ofBahrain, its
boundariesn,was prepared by the Turkish authorities on the aasurvq which they
had performed, and wasconfirmed by the British Governmeasmaybe seen from the
Britisslamp atthebottom of the map.
28 See,i.id Annex 1-11,VolII,p. 49. This map was also made by the Turkish authorities
on the basis asurveyby the Turkish Marine and wassimilarlymnfirmed by the British
Government.
29 See, Qatari Memorial,paras. 2oses p,. 15gseq.,and Annex 1.14,Vol. Ip.63.
30 &, forexarnple, the AdvisoryOpinion of the Court in the ~estem Sahcase,I.C.J.
Re~orts1975,p.42. The same point wasalso recognized and discusinsome detailin
the Awardof 19October 1981in the Dubai/Sharicase;sec .p.79-84.
31
Bahraini Counter-Mernorial,para. p.14.discussion of the Al-Naim tribe. However, since these matters are irrelevant to
the questions at issuein the present phase of the proceedings, Qatar willrespond
to thern onIy at the appropriate time.
2.13 For the purposes of the present proceedings, it is Qatar's belief that the
Court need only concern itself with the fact, shown by Qatar in its Mernorial, and
> _ /
acknowledged by Bahrain, that the Application submits existingdisputes between
the two States and that they are governed by international law. Those disputes
relate to sovereignty over the Hawar islands,sovereign nghts over the Dibal and
Qit'at Jaradah shoals, and the deIimitation of the maritime areas of the two
States. Claims relating to these disputes are presently before the Court byvirtue
of Qatar's Application. Anyother claimswhichBahrain mightwishto raise under .
the Bahraini formuIahave not yet been put before the Court. CHAPTER III
FURTHER INFORMATXON ONEFFORTS TO SElTLETEE DISPUTES
3.01 In its Mernorial Qatar has clearly demonstrated that, within the terms of,
Saudi Arabia's Principles for the Frarnework for Reaching a Settlement ("the
Framework") as agreed in 1978and modified in 1983~~and on the basis of the
1987 Agreement and the Doha Agreement, Qatar and Bahrain have agreed to
refer their long-standing disputes to the Court to secure adjudication of their
respective claims. Regrettably, Bahrain has sought to answer Qatar's
presentation of its caseby distorting it and obscuring the real issues before the
Court, rather than attempting to deal with them in a straightforward manner,
Moreover, Bahrain's Counter-Mernorial contains numerous inaccuracies in its
presentation of the facts relating to efforts to settle the disputes.
3.02 Bahrain does however make certain important admissions. It admits that
by the Framework of 1983 the Parties accepted that their disputes should be
settled in accordance with international law. Furthermore, Bahrain doesnot take
issue with the fact that987 Agreement is a binding agreement under which the
disputes should be referred to the International Coun of ~ustice~~. However,
Bahrain alleges that the reference of the dispute to the Court was conditional
upon the conclusionof aspecial agreemenP4. The account set out hereafter will
show that the means to achieve the cornmitment to go to the Court in the 1987
Agreement was left to the Parties and thatspecial agreement was not the only
means contemplated. Finally, the Doha Agreement confirrned what had been
previously agreed by Qatar and Bahrain, and more particularly their consent to
refer theirxistingdisputes to the Court.
SECTIO 1.N The Principlesof theFramework
3.03 The 1978 Framework marked the beginning of the rnost serious effort to
resolve the disputesbetween Qatar and Bahrain, through a process of Mediation
by Saudi Arabia. The First Principle of the Framework referred to the pending
32 See,Qatari Mernorial, r3.19,p39 and Annex 11.10.Vol.III,p.49.The Framework
hasbeen expresslyaccepteby Bahraias "the'relevantcircumsta,na.',Bahraini
Counter-Mernoriapl,ra5.2p.28.
33 Sec .ahraini ounter-Memoriapara.1.6p.3, andpara.5.p.31.
34 m., para1.6p.3. disputes as "relating to sovereignty over the islands, maritime boundaries and
territorial waters ..,"The Fifth Principle, as amended in 1983, provided that in
case the negotiations in the course of theSaudi Mediation did not succeed -
".. he Governments of the two countries shall undertake, in
consultation with the Government of Saudi Arabia, to determine
the best means of resolving that matter or rnatters, on the basis of
the urovisions of international law. The ruling of t,&authority
agreed upon for this purpose shall be final and binding ."
,3.04 This Framework, therefore, not only clearly indicated the nature of the
pending disputes but also provided that in the event of failure to reach a
settlement through negotiations the disputed matters should be resolved "on the
'
basis of the provisions of international law" and that the "ruling of the authority
agreed upon for this purpose shall be final and binding". Bahrain accepts that in
recent years, &., since 1987, the specific reference has been to "settlement by the
International Court of ~ustiee~~".Aswillbe shown below, it was on the basis of
and with reference to the Saudi Framework that the 1987 Agreement and the
Doha Agreement were achieved. These agreements were secured upon the
initiative or with the involvement of theKing of SaudiArabia himself.
SECTIO 2N. The 1987A~reement
3.05 Invoking the Fifth Principle of the Frarnework, in December 1987 the
King of Saudi Arabia proposed, and Qatar and Bahrüin accepted, the 1987
Agreement according to which:
"Firstl~: Al1 the disputed matters shall be referred to the
Interqational Court of Justice, at The Hague, for a final Ilfnng
binding upon both parties, who shall have to execute its terms .
As can be seen from the text of the 1987Agreement, this paragraph isfollowed by
a substantial paragraph providing for the maintenance of the status quo between
the Parties.
35 QatariMemorial,Annex 11.10Vol.III,p49 (emphasis added).
36 BahrainiCounter-Mernoriapl,ara.1.4pp.2-3.
37
p.44,andBahrainiCounter-MemorialIIpara.l.Gp,3. alsoQatari Memorial, para.3.28,3.06 The third item, whichfollowsthe provision relating to maintenance of the
status quo, is not expressed either in form or in substance as a condition attached
to the first item.The third and fourth items read as follows:
"Thirdlv:Formation of a cornmittee comprising representatives of
the States of Qatar and Bahrain and of the Kingdom of Saudi
Arabia for the purpose of approaching the International Court of
Justice, and satisSring the necessary requirements ta have the ,,&
dispute submitted to the Court in accordance with its regulations
and instructions so that a final ruling,binding upon both parties, be
issued.
Fourthlv: The Kingdom of Saudi Arabia will continue its good
officesto guarantee the implernentation of these terms."
By virtue of this Agreement Saudi Arabia'srole became primarilythat of assisting
the Parties in approaching the Court so that a final ruling binding upon both
Parties could be rendered, and guaranteeing the implementation of the
Agreement.
3.07 Bahrain admits that the 1987 Agreement is a binding agreement.
However, Bahrain seeks to distort the true significance of this Agreement by
referring to Saudi Arabia's Announcement of 21 Decernber 1987~~. Using that
Announcement, it argues that the sole purpnse of the establishment of the
cornmittee was to "negotiate the terms of ü joint submission". However,there is
nothing in the terms of either the 1987 Agreement or the Announcement to
support such a contention. Even under the United Nations translation of the
1987 Agreement, which Bahrain apparently prefers to Qatar's translation, the
third item simplystated the Cornmittee'srole to be that of-
"...ommunicating with the International Court of Justice and
completing the requirements for referral of the dispute thereto in
accordance with the Court's regulations and instructions, in
preparation for the iss.nce of a final judgçment which shall be
binding on both parties ."
3,08 It will be noted that the third item of the 1987Agreement states simply
that reference of the dispute to the Court isto he "inaccordance with the Court's
regulations and instructions". Since Article 40 of the Statute of the Court alIows
38 BahrainiCounter-Mernoriap l,ara5.19p.37. B, for thetextofthe Announcement,
QatariMernorialA, nnexIL15,VOLIII,p.101,atp.105.
39 See,BahrainiCounter-Memona AlnnexL3,Vol. II,p13,atp.21. reference of cases to the Court "either bythe notification of a special agreement
or by a written application1',it is beyond comprehension how Bahrain can
construe the above provision of the 1987Agreement as meaning that reference
rnay bc made only by notification of a special agreement under Article 39 of the
Rules of Court and as excludingreference byan application under Article 38.
>.&,
3.09 Furthemore, Bahrain ignores the existenceand importance of the fourth
item in the 1987 Agreement which clearly stated that Saudi Arabia was to
guarantee implementation of the Agreement. As is clear, the principal purpose
of this Agreement was to refer the dispute to the Court, and Saudi Arabia wasto
take whatever actionwasnecessary ifthe Tripartite Cornmittee did not succeed in
its task or if there were any developments which came in ,the way of .
implementation of the 1987Agreement.
3.10 The nature of the basic agreement to go to the Court is clear also from the
letters of the Amir of ~atar~' and of the Amir of Bahrain to King Fahd of Saudi
Arabia. Inhis letter of 26December 1987the Amir of Bahrain wrote:
"It was Mth thanks and appreciation that 1received your letter of
28Rabi al-Akhar 1408, corresponding to 19December 1987. We
were pleased withthe tems contained in your letter, and whichwill
enable the matters which are differed upon to he referred to the
-CJ, as well as what was contained in the letter concerning the
composition of the committee which will be entrusted with
contacting the International Court of Justice in order to consider
this matter. 1am gllq that these conditions received the approval
of the State of Qatar ."
Thisletter didnot refer to any need for a joint submissjonbut left the door open
, to any means of referring the dispute to the Court, either by the filing of an
application or the notificationofa speciaIagreement.
3.11 From the above, it is clear that Bahrain's contention that under the 1987'
Agreement "the eventual submission of the dispute to the Court, was clearly
conditional upon the successful ncgotiation of a speçial agreement42''is wholly
unfounded.
40 Letterfromthe Amirof Qatar toKing Fahdof Saudi Arabia dated21 December 1987,
QatariMernorial ,nnexIi.16,Vol.III,p107.
41 BahrainiCounter-Memorial A,nnexL4, Vol.II,p23,atp. 27(emphasisadded).
42 BahrainiCounter-Mernoria plara1.6,p.3.3.12 The 1987 Agreement for reference of the disputes to the Court was
regarded in the Arab world as a most welcome development. This is reflected in
the following articlewhich appeared in the Gulf Times of 29 Decernber 2987,
reporting upon an amouncement by the Official Spokesman of the Gulf
Cooperatjon Council ("GCC')Summit Meeting in Riyadh, Prince SaudAl-Faisal, .,,,
the Saudi Foreign Minister:
"Saudi Foreign Minister Prince Saud al-Faisal has said that the
GCC was very happy that the two sisterly states of Qatar and
Bahrain had decided to settle their territorial dispute by referring it
to the International CourtofJustice.
Prince Saud, who was answering a question from an Egyptian
journalist at Sunday night's Press conference at the dose of the
day'ssessions ofthe GCC Summit,said the subrnission of the issue
to the court was sornething naturül, since the GCC members were
members of the United Nations.
'Therefore they were supposed to make use of that framework,
speciallyas the case is ofa Iegalnature and deals with borders,' he
added.
It was announced in Riyadh last week that the two states had
agreed to international arbitration followingthe endeavours of the
Custodian of the Two Holy Mosques KingFahd Ibn Abdul Azizof
SaudiArabia to mediate between the two parties.
A statement afterthe weeklySaudi Cabinet meeting said Qatar and
Bahrain had agreed witha Saudi proposal to take their dispute ver
the ownership of offshore islandsand reefs to the World Court4i.II
SETION 3. TheProceedinesof the Tripartite Cornmittee
3.13 ~ahrain's contention that the purpose of the Tripartite Committee was
limited only to securing a special agreement and that the Committee confined its
deliberations to that tasklone isinaccurate and makes it necessary to outIine the
Cornmittee'sproceedings insome detail.
A. The PreliminarvMeeting
3.14 Soon after the Announcement issued by the Kingdom of Saudi Arabia
followingthe conclusionof the 1987Agreement, there was a preliminary informal
meeting of representatives of Saudi Arabia, Qatar and Bahrain during the GCC
-
43
A copyofthe hiIreportiattachedheretoasAnnex1.2,VolII,p.11.Summit Meeting held inRiyadh on 26-29December 1987. At this meeting Qatar
presented a draft joint letter which it suggested the Parties could address to the
Registrar of the At the sarne meeting Bahrain presented a draft
procedural agreement for the purpose of "contacting" the Court. The opening
recital of Bahrain's draftas as follows:
"The State of Bahrain and the State of Qatar extend to the
Custodian of the TwoHoly Shrines their profound appreciationfor
continuing his persona1good offices to help the two Parties reach a
final and just solution for the disputed matters between th RI
submitting- these matters to the International Court of Justice .
There was no suggestion in the Bahraini draft that the reference of the disputed
matters to the Court was conditional upon the signingof a special apement 46.
B. The First Meeting:Discussion of "Ways and Means"of Refecence
tothe Court
3.15 At the forma1First Meeting of the Tripartite Committee in Riyadh on
17 January 1988,Prince Saud Al-Faisal, Saudi Arabia's Foreign Minister, defined
"the main purpose of this meeting" as follows:
"a) Sign the Agreement to farm the Committee and set its termsof
reference.
b) Consider ways and means for refcrrinn the issue to the
International Court of Justi# in accordance with the conditions
and procedures of the Court ."
44 Qatari Memorial,Annex11.1 8ol.IIIp.119.
45 M., Annex 11.1, ol.IIIp.113(emphasisadded).
46
Whetherinadvertentlyor in an attemto confusetheissue,Bahrainhasannexedto its
Counter-Mernoriala textwhichitdescribesasa"DraftProceduralAgreementto form
the Joint Committee, December 1987;translation into Engiish by Qatar" (Bahraini
Counter-Mernorial,Annex 1.5,Vol.II, p29).Articlel(1) of thattext does indeed
providefortheformationofa Cornmittee"withtheaimof reachingaspecial agreement".
However,thisis not Bahrain'sDecember draft,buthedraft it producedo17 Janualy
1988,as canbe seen from Volume III ofQatar's Memorial,which contains both the
Decernber and Januarydrafts as Annexe11.17and 11.19r,spwtiyeIy.The December
draft madeomentionofaswecialagreement.
47 Documentsrefatin~to the Meetincsof the TriwürtitCornmittee,depositedby Qatar
withthe Registryofthe Couron 10February1992 (hereinafterreferredas"Tripartite
Committee Documents"),Document No. 1,p.1,atp.4 (emphasisadded).3.16 The Tripartite Committee did not, therefore, commence its work on any
assumption that reference of the case to the Court could only be by a special
agreement. In fact Dr. Hassan Kamel, MinisterAdviserto the Arnir of Qatar and
a member of Qatar's delegation, specificallyreferred to Article 40 of the Court's
Statute and pointed out that there are twu waysof approaching the court4'.
3.17 It was at this meeting that Bahrain sought to amend its first draft
procedural agreement by deleting from paragraph (1) in Article 1 the words "for
the purpose of contacting the international Court of Justice" and substituting the
words "for the purpose of reaching a special agreement on subrnitting the
disputed issues ta the International Court of ~ustice"~~. Qatar rejected the
proposed amendment and Prince Saud pointed out that the Arnir of Qatar had .
accepted the draft procedural agreement in its original form as presented by
Bahrain in December 1987. He therefore asked whether there was any objection
to rnaintaining the agreement in its original form5'. However, as Bahrainh
representatives insisted that they would signthe procedural agreement only ifthe
amendment was accepted, the matter remained unresolved and no procedural
agreement was signed. Nevertheless, the members of the Tripartite Committee
eventually decidedthat Qatar and Bahrain should each submit,by 19March 1988,
a draft agreement for referring the dispute to the International Court of
51
Justice ,
48 Tripartite Committee Documents, DocumentNo. 1,p. 1,atp. 10.Bahrain distorts Dr.
Kamel'sstatement made at the same Meeting that "Cornmitmentto submit the case to
the Courtis a moral rather than a legalcommitment"(se, Bahraini Counter-Mernorial,
para.5.24,p.40).This isone ofa numberof instancesof Bahraia takinga statement out
of context andtwistingit to suiitsown case. In contcxt it is clear thDr.Kamel's,
conwrn wasto make the Court awareof thePartics'commitment to referthe caseto the
Court as soon as possible.(@, Tripartite Committee Documents,Document No. 1,
p. 1,at pp21-23.) a, also, the staternenl immediatelyfollowingthat of Dr. Kamby
Prince Saud indicating that what was requireto be done was ",..to transform these
commitmentswhich 1considerIegaland moral to a certain draft to be submitted to the
Court. 1don'twanteven tothink thatlhereisa doubt othc possibililyofsubmittingthe
subjecttothe Court. Ifthat happens thiswouldmeanthe cornmitteedoes not honour its
commitrnents".(TripartiteCommittee Documents,DocumentNo. 1,p.1,at p.22,)
49
See,Tripartite CornmitteeDocuments,DocumentNo. 1,p. 1at p.S.
51 m., DocumentNo. 2,p.49. 3.18 The proceedings of this First Meeting therefore clearly demonstrated that
the Committee was well aware that there was more than one possibility for
referring the dispute to the Court, and that a special agreement was not the only
method. They also reflect Qatar's refusa1to accept that the work of the Tripartite .
Committee was to be exclusivelydevoted to reaching a special agreement.
C. The Second,Thirdand FaurthMeetings: InconclusiveDiscussions
on Drafts of aSpecialAgreement
3.19 After the First Meeting, draft special agreements were duly submitted by
Qatar and Bahrain. It was only frorn this point that the Committee began its
efforts to see if a special agreement could be reached. However, it was
immediately apparent from the contents of the drafts and the discussion at the
Second Meeting of the Tripartite Committee on 3 April 1988 that Qatar and
Bahrain had very different ideas on how the disputes tobe referred to the Court
were to be defined.
3.20 In Qatar's Memorial it has already been shown that in its first draft
Bahrain sought to define the disputes in such a way as to secure in advance from
Qatar a recognition of its sovereignty over the Hawar islands and the Dibal and
Qit'at Jaradah shoals -the very issues which had been the subject of disputes for
over forty years - and thus effectively to prejudge those issues52. Bahrain also
sought to include among the matters to be referred to the Court a request for
determination of its so-called rights "in and around ~ubara"~~. After receiving
Bahrain's draft special agreement, the Amir of Qatar wrote to KingFahd of Saudi
Arabia on 25 March 1988, recording his strong protest at the terms of that draft
, and stating that it was quite obvious that Bahrain's object was to block the
referenee of the disputes to the courS4. He also described Bahrain's reference
to itsso-called rights in and around Zubarah as "astaunding" because -
"...in addition to the fact that al1legal and historical facts establish
decisive and clear cut evidence of the invalidityof Bahrain's claims
to rights in Zubara, this claim has pyer been raised by Bahrain at
any stage of the Saudimediation ... ."
52 B, QatariMemorialp , ara3.37p.47.
53
See,ibid.,Anncx11.22Vol. IIIp.139.
54
See,ihid.,Annex11.23, olIII,p.145,atp.154.
55 m., at p.151.3.21 The draft special agreements were then discussed at the Second Meeting
of the Tripartite Cornmittee, where it became ciear that the principal differences
.
related to the contents of ArticleXI of Bahrain's draft (which contained requests
to the Court) and Article V which in Qatar's view sought to exclude many
discussionsduring the Saudi Mediation relevant to a proper understanding of the
issues in dispute. Qatar, for obvious reasons, rejected both these Articles, As
noted above, Article II sought to prejudge the issues in favour of Bahrain; and in
connection with Article V, Dr. Hassan Kamel observed:
"There is no way for the Court to know about the case at issue
berneego the two countries unless the Saudi mediation was
'studied ."
3.22 In the lightof the difficultiesthat the Committee was havingin formulating
a definition of the disputes that could be included ina special agreement, Prince
Saud Al-Faisal made an important suggestion at the Second Meeting:
"There are two possible attitudes representing two different
perspectives. Would it be possible merely to inform the Courtthat
disagreements exist between the two countries as Qatar claims so
and sa, while Bahrain claims so nd so ? Or, could we agree on
points ta be put before the Court5719
3.23 This suggestion appears to be the origin of the idea that the onlyway the
claims could be adjudicated would he for each State to put its own separate
claims before the Court. Nevertheless, at the end of the Second Meeting Prince
Saud Al-Faisal asked whether -
".. .l1the points evoked by the two countries [c dl be included in
a common document to be put before theCourt 4 "
Both Bahrain and Qatar sought time ta consider this question.
56
TripartiteCommitteeDocuments, Document No. 4,p.67,atp.76.
57
-Ibidatp.84.
58
-.id9atp.87.3.24 At the Third Meeting of the Tripartite Committee on 17 April 1988,
Prince Saudspoke of the -
"..work of this Committee whichis responsible for formulatingthe
wav the matter in dispute is to be laid before the International
Court of Justice. Inthis regard, therefore, we have a task whichhas
its bounds, for we are not discussing the case in its entirety
investigating the format in which it is to be brought before the
Court.
At the last meeting we ended on a question. We are now meeting
again, and the matter before you iswhfg~r you wish to hegin by
discussingthisquestion inany other way .
3.25 In the event, the specificquestion posed by Prince Saud was not directly
dealt with at the Third Meeting and there was an inconclusive discussionon the
specific issues of dispute proposed tobe referred to the Court. Both Parties,
hnwever, reiterated their faith inSaudi Arabia'sMediation and their cornmitment
to go to the Court.
3.26 Dr. Hassan KameI, on behalf of Qatar, made the followingobservation:
"Whatis agreed withtotal convictionis that SaudiArabia shouldgo
on with its mediation until theecision the International Court
of Justice isissueand properly enforced86 ."
3.27 Similariy Sheikh Mohammed bin Mubarak Al-Khalifa, the Foreign
Minister of Bahrain, observed:
"Bahqain insists that the laudable efforts of Saudi Arabia must
continue as shownin the letter of 19/12/1987frorn the Custodian of
the Two Holy Mosques, until su& time as a judgment is given by
the International Court ofJustice ."
59 TripartitCommittee Documents, Document No.5, p109,at pp.-111-11(emphases
added).
60 m., atp.134.
61 m., atp.126.He also declared that -
"...to preserve the interests of both States, and mindful of our
peoples, and to maintain solidarity in our region, and in support of
Arab unity, it is essential that neither party retain demands once
the International Court of Justice had issued its judgment,
othenvise either of them could al e that there are rnatters in
dispute whichhave not been settled &I.
3.28 Despite the common concern of both Qatar and Bahrain to resolve al1
outstanding disputes, there wexe strong differences of opinion on the subject and
scope of the disputes that could be referred to the Court. This was the real
dilemma of the Tripartite Committee, making it impossible for it to agree on a
definition of the disputes that could be incorporated into a special agreement. In
the words of Dr. Husain Al-Baharna, now the distinguished Agent of the State of
Bahrain before theCourt, it was stillnecessary to agree on the matters indispute:
"The State of Bahrain considers that there has not been a legal
agreement on the matters in dispute, and consequently the task of
the committee is to define the subjects of dispute irrespective of
any proposals or exchange occurring duwg the mediation period.
Sadly,we have not yet reached that stage .
On the other hand, Dr. Hassan Kamel insisted on behalf of Qatar that the matters
in dispute had alreadybeen specified:
"We have come here to formufate a special agreement for the
referral of the matters in dispute and not to come to an agreement
on these matters, for they are s ecified in advance by agreement
between the parties. Therefore 6 atar's position is defined, namely
that this committee has no brief to discuss or identifj the matters
differed upon, since the rnaJpfs in dispute are defined within the
framework of the mediation .
3,29 FinaIly, it may be noted that there was a further brief discussion at the
Third Meeting of Bahrain's draft Article V. That discussionwas inconclusive,and
the matter was never raised again within the Tripartite Coinmittee.
62 TripartitCommitteeDocuments, DocumentNo. 5,p.109,alpp.127-128.
63 W., at p.131.
64
Ibidat pp.132-133.3.30 The Tripartite Committee held its Fourth Meeting on 28 June 1988 in
Jeddah. That meeting discussed new drafts submitted by Qatar and Bahrain
containing proposed definitions of the disputes to be referred to the Court. As
already explained in Qatar's Memorial, Bahrain's newdraft stiIIsought to obtain
65
concessions on the merits . Qatar also found it impossible to accept any
reference to any purported dispute regarding Zubarah. As Dr. Hassan Kamel
.,,
pointed out on behalf of Qatar at the Meeting -
".. hroughout the ten years of this med ion there has never been
any reference to the question ofZubara t ."
3.31 As there was no narrowing of the extremely wide divergence of views of
the two Parties on the definition of the disputes, the proçeedings of this Meeting
were also inconclusive.
D. The Fifth me et in^:First Discussion of theBahrainiFormula
3.32 Between the Fourth and Fifth Meetings, the Heir Apparent of Bahrain
visited Qatar. During 'thatvisit, in view of the dilemma in which the Comrnittee
was placed and as a result of a Saudi Arabianinitiative at the highest level,Sheikh
Hamad bin Isa Al-Khalifah, the Heir Apparent of Bahrain, transmitted to Sheikh
Hürnad bin Khalifa AI-Thani, the Heir Apparent of Qatar, on 26 October 1988,a
general formula forreference of the disputes to the Court (the Bahraini formula).
The text of the Bahraini formula, in its original English version as presented by
Bahrain, was as follows:
"The Parties request the Court to decide any matter of territorial
rightor other title or interest which may be a matter of difference
between thern; and to draw a single maritime boundary between
their rgypctive maritime areas of seabed, subsoii and superjaçent
waters .
3.33 Qatar's immediate reaction was that the formula might be too wide to
inçlude in a special agreement. At the Fifth Meeting of theTripartite Committee
held in Riyadh on 15 November 1988,Dr. Hassan Kamel expressed his doubts in
the foilowingwords:
- --
65
See, Qatari Mernorial, pa3.46-3.47pp.52-53.
(i6
TripartiteCommittee Documents,DocumentNa.6, p.163,at p.169.
67
QatariMemorial,Annex 11.29,VolIII,p191. "It is well known that the general traditional rule which bas been
followed by States in submitting their disputes to the I.C.J.- in al1
but two cases -is that the special agreement should include a clear
definition of the matters of those disputes. It was, therefore,
natural that the special agreement under which we will refer our
dispute to the Court should include a clear complete presentation
of the matters of our dispute which were agreed under the first
principle of the framework for mediation. But we are now faced
with a proposal which refers to matters of dispute in a broad
formula. Qatar was and still prefer [sic]a special agreement
prepared in the normal and traditional way, and not according to
the exceptional way adopted in two cases only. However, in order
to implement our agreement to refer our dispute to the I.C.J.which
is the best and fairest method to solve this dispute, we welcome the
new draft as& l!msis for the discussions aiming at reaching our
cornmongoal .
3.34 In the light of these reservations and Qatar's concern about accepting a
formula that wouid permit Bahrain to raise any new disputes, Qatar posed various
questions in a note submitted to Bahrain as to the implications of the Bahraini
formula.
3.35 Prince Saud informed the Meeting that he had been directed byKing Fahd
that thedate of the next GCC Summit Meeting in December 1988-
"...is the date for terminating the Cornmittee's missi0 89ether or
not it succeeded to achieve what was requested €romit ,
Sheikh Mohammed bin Mubarak Al-Khalifa, on behalf of Bahrain, pointed out
that "we have forrnulated a new frarnework70", and requested adequate time to
reply to Qatür's questions.
3.36 It was then agreed that prior to the next Tripartite Committee Meeting it
would be desirable for the legal experts first to discussthe implications of the new
Bahraini formula7'.
68
TripartiteCommittee DocumentsDocumentNo. 8,p.193,atpp.204-205.
69 1bid atp.208.
70 m., atp.210.
71 M., atp.211. E. The Legal Experts'Meeting
3.37 The meeting of the legal experts took place at Riyadh on 6 December
1988. Dr. Hassan Kamel noted at the beginning of the meeting that Qatar "hoped
that a joint formula be found for Article II of the agreement which will be
submitted to the International Court of ~ustice'l~",but that he had various
..,,,
questions on how the formula would work. Dr. Husain Al-Baharna began his
response by recalling Dr. Hassan Kamel's statement at the Fifth Meeting that
Qatar considered the Bahraini formula to be -
"..a good step forward as, unlike the two previous drafts, it submits
to the Court the points at issue between the two States without any
prejudgment. It is understood from the draft that it leaves to the
Court, as it should, to decide on the claims of both firties
according to the evidence and argumentspresented by them j3."
3.38 With respect to Qatar's remark that the general traditional rule was that a
special agreement should contain a clear definition of the subjects of the dispute,
Dr. Husain Al-Baharna made the followingcomments:
"..1 would like to make clear that in consulting the Statute and
Rules of the I.C.J.(Article 40, Article 38) I did not find any
provision requiring the two parties to a dispute to submit it to the
Court according to the general traditional rule referred to by the
Qatari note. Moreover, the Statute gives the two parties the full
right and freedom in selecting the formula they consent to. Al1that
is required is that the formula should contain two basic
foundations: the subiect of, and parties to the dispute. I conclude
from this that rules and practicë allow the parties to submit any
formula agreeable to thern as long as it contains the said two
foundations.
..1 would like to state that the reason which prompted Bahrain to
formulate the question in this way is that, as is known, there has
been. so far, no n-eneral agreement on the subjects of the dispute
between the two ~arties, which made it very difficult for us to
define these subie&, particularly followingQatar's objection tothe
Zuharah subject being mentioned. Therefore. we saw this as a
compromise formula since we are formulatine. a general formula
and it is left for each Party tasubrnit whatever claims it wants
concerning the disputed matters 14."
72 Tripartitc CornmitteeDocumentsDocument No. 9,p.231,azp.233.
73 I.id3atp.234 (emphasisadded).
74 I1id atpp.234-235(emphasesadded).3.39 Dr. Al-Baharna further stated:
"With respect to the specific formula contained in the Bahraini
question, I would like to say that the legal concept of the phrase
'territorial rights'is that the two parties be left to submit whatever
legal arguments or evidence thëv have concerning their claims
whether they relate to the land or ihe sea. The phrase 'legal rights'
or 'other interests' is intended to open the way for both parties to
submit whatever arguments they have concerning claims related to
sovereignty or rights and interests which could be less k n
sovereignty and which wouldbe left to theCourt to decide upon ."
3.40 The followingdialogue ensued:
"Dr. Hassan Kamel:
Dr. Hussain Baharna started with a general remark saying that
there is nothing in the Statute and Rules of the Court to indicate
the necessity of having anything more than generaI terms. To
ernphasise this, he mentioned ...
Dr. Hussain Baharna:
Excuse me, Dr. Hassan, 1 did nut say that. 1said that the Statute
and Rules of the Court do not impose any particular formula for
the question. Al1that is required is that the a~plication submitted
to the Court contained twothings: the subiect of, and parties to the
dis~ute.
Dr. Hassan Kamel:
1 would like to answer your generaI observations by remarking that
when we last met on 15/11/1988,Bahrain asked for a period
exceeding two weeks to respond to enquiries about a draft
prepared by it.Dr. Hussain Baharna has dealt with many issues, in
a long note he described as brief, each of which needs to be studied
and answered. Furthermore, you referred tu Article 40 of the
Court's Statute and Article 38 of the Court's Rules, but yoygealt
with Article 40only,and did not in fact deal with Article 38... ."
From the above, it is apparent that both Qatar and Bahrain were discussing not
only a special agreement but alsri the possibility of submitting the dispute to the
Court bymeans of application.
75 TripartitCornmitteeDocuments,Document No. 9, p.231, aipp.235-236 (ernphascs
addedj.
76 )bidat p.237(emphasisadded).3.41 In the course of further discussion, Sheikh Abdul Rahman Mansuri of
Saudi Arabia stated:
"Bahrain proceeds from the view that there is no agreement to
define particular points for presentation to the Court. It, therefore,
proposes that a particular formula satisfying both Parties be
reached, which will give the Court the jurisdiction to consider any
claims by them whether they relate to sovereignty, rights or
interests. Thus, the Parties go to the Court not with defined
disagreements but bv ~ivingthe CourtArisdiction and power and
the disagreements willbe defined there "."
3.42 The above statement, as well as the discussionwhich followed, showsthat
the Bahraini furmula was designed as a compromise to allow each Party ta bring
its own claims before the Court. Thus, in the same discussion, Dr. Husain Al-
Baharna stated:
"If the two Parties agree as to the subjects of dispute, and put the
question in the forrnuIa they choose, it is impossible that either
Party would to al1practical purposes present claims that have no
legal ground. Each Party would, rather,present the subjects agreed
upon as those of dispute. 1 have already said that the formulation
of the question inthis general waywas because of the refusa1by the
State of7@tar of our express mentioning of Zubarah in the
question .
Dr. Hassan Kamelresponded:
"This is not the only reason. You, too, have said that the
sovereignty over Hawar is not a matter for disygssion,and that you
do not accept that it be submitted to the Court ."
3.43 The,dilemma was expressed by Dr. Husain Al-Baharna as follows:
"1 agree with you on the following grounds: that the question,
whether put in general terms or a specific form, in both cases the
Parties should go ta Court knowing exactlywhat each one of them
will claim. We are faced with a delicate ~roblem which hindered
the two Parties $romreaching an accepted formula for the Special
Agreement for a whole vear. That is Qatar's objection to the
77
TripartitCornmitteeDocuments,Document No. 9p.231,at p238(emphasisadded).
78 W., atp.241.
79 -Ibid. reference to Zubara, and the attitude of Bahrain regarding Hawar.
It is the sensitivityof this maer which has, undoubtedly, made us
propose thisgeneral formula ."
He went on to Say:
"1think we have similar concepts regarding the subjects of dispute.
Would you like me to explain ours '? 1would do that by way of
explanation as well as to help the two Parties reach a general
formula for the question. In Ourview, the general formula gives
both Parties the chance to submit to the Court al1the claimsthey
have, inclqjng those regarding sovereignty and maritime
delimitation .
Consequently, in response to a question raised by Qatar about how Bahrain ,
wouldpresent its daim on Zubarah, Dr. AI-Baharna observed:
"1 çan Say that 1 would present claims ~upporte5~with legal
arguments and let the Court look into them and decide ."
F. TheSixth landFinal) Meeting ofthe Tripartite Committee
3.44 At its Sixth and final Meeting, the Tripartite Committee continued the
discussion of the issues raised during the earlier legal experts' meeting as to
whether the Bahraini formula was too wide. It also took up two suggestionsthat
had been made by Qatar at the end of the Iegalexperts' meeting in response to
Dr. Al-Baharna's proposa1 that each Party should submitits own clairns.The first
suggestionwasthat certain amendments shouIdbe made to the Bahraini formula.
The secondwasthat there should be two annexessetting out the respective claims
of Qatar and Bahrain. In this connection Dr. Hassan Kamel clarified Qatar's
. suggestion.asfollows:
Tripartite CommitteeDocuments,DocumentNo. 9,p.231,al p.242(emphasisadded).
W., at p.243(emphasis added).TheArabicwordcorrespondingto "bnth Parties"is"&
tarafan"- the sameword introducedby Bahrain inthe Doha Agreement. Clearly the
word isused hereby Dr. Al-Baharnain a disjunctivesensegivingeach Partythe ritot
submit itsown claimsto theCourt. B, also, par3.38,above,wherc Dr. Ai-Baharna
gavethe sameinierpretationofthe Bahrainiformula.
82 Tripartite CornmilteeDocuments,DocumentNo. 9,p.231,at p.244. "Each party willsign its own annex. & isunreasonable that we sign
the annex containing Bahrain claims ."
Bahrain took the same position, stating:
"Similarly,we willnot signthe annex containing Qatar's claims 84.11
.,,
This attitude seemed to confirm the idea that each State would have to seek
85
adjudication of its own claims .
3.45 Minutes of the proceedings of the Sixthand final Meeting of the Tripartite
Committee were signedon 7December 2988. Bahrain contends that these signed
minutes record "the agreement of the parties on the subjects to be.submitted to
the Court within the framework of a joint submission" and are "no less an
agreement" than the 1987or Doha ~~reements~~.
3.46 This contention is inaccurate and unfounded. The signed minutes in fact
record the inconclusive outcome of the final Meeting of the Tripartite
Committee. Thus, with regard to the Bahraini formula the minutes record
Qatar's proposed amendment of this formula and Bahrain's request for time to
study Qatar's proposal. With respect to the definition of the disputes, the
Minutes do not, contrary to what Bahrain contends, record an "agreement ..on
the subjects to be submitted to the Court". Rather, they record Qatar's proposa1
that there be two annexes and that eech State "would define in its annex the
subjects of dispute itwants to refer to the a proposa1 which Bahrain
also requested time to study.
, 3.47 In addition, it is clear from the minutes of the proceedings of the earlier
legal experts' meeting that there was no agreement on the subjects of the dispute.
Thus Dr. Al-Baharna, referring to the list of subjects later recorded in the signed
Minutes, stated that thiswasBahrain's own "concept of the subjects of dispute8'".
83 TripartiteCommitteeDocuments, Document No. 9,p.231,atp.265.
84 Ibid.
85 Tee paras.3.22-3.23,and 3.27seq.above.
86 BahrainiCounter-Memorialp ,ara.6.2p.63.
87 Tripartite Cornmitteeocuments,DocumentNo. 10, p.279,atp.282.
88 W., Document No. 9, p.231atp.243.Dr. Hassan KarneI agreed that these were subjects "m would like to submit to
the ~ourt~~''. It wasalso clear frorn the minutes of the SixthMeeting that neither
State was willingto agree to the subjects of dispute specifiedby the other. Thus,
Dr. Al-Baharna stated:
"In the Iegal experts' cornmittee we agreed to draft a single annex
containing the disputed subjects which will be submitted to the
Court. When we do that itd!l8tlnot mean that Qatar agrees to
Bahrain'sclaimsand viceversa .
Dr. Hassan Kamel replied:
"Weagreed on tw annexes not one. We are followingprecedents
in this connection& .Il
3.48 The disagreement on defining the subjects of the dispute in a joint
document was therefore not resolved, and each side refused to sign an annex
containing the listf subjectsthe other sidewishedto refer to the Court.
SECTIO 4.N Failure of the Tripartite Committee tn Reach a Draft Special
Agreement
3.49 Bahrain failed to react or respond to the amendments proposed by Qatar
and recorded in the signed minutes of 7 December 1988 during the two weeks
preceding the GCC SurnmitMeeting held on 19-22December 1988. Pursuant to
Prince Saud Al-Faisal'sstatement at the Fifth Tripartite Committee Meeting, this
was the date when the work of the Tripartite Committee was to be regarded as
terminatedg2. It was thus dear, givenBahrain'slack of iesponse, that the efforts
of the Tripartite Committee had ended in failure as it had been unable to resolve
the dilemma of defining the subjects of dispute which could be incarporated in a
special agreement.
89
TripartiteCommitteeDocuments,DocumentNo. 9,p.231,atp.243 (emphasisadded).
-.id3atp.266.
91 -Ibid.
92
-Seepara.3.35a,bove.3.50
It is important to appreciate that the basic reason for the failure of the
TripartiteCornmittee was that the approaches adopted to identify the subjects of
dispute which each State wished to refer to the Court were so divergent that they
could not be grouped together to form a precise enough definition suitable for
incorporation in a special agreement. It was becoming apparent that the claims
of each Party were such that they would have to be resolved either by give-and-
take in the course of the Saudi Mediation or by separate presentation to the
Court by each ~arty~~. This certainly was the therne which began to develop
from the time that Prince Saud asked the question at the Second Meeting as to
whether itwould he possible sirnply to go to Court with each Pürîy claiming
whatever iwanted, leaving it ta the Court to adjudicate the The general
formula proposed by Bahrain developed out of the difficulties of the Tripartite ,
Committee in defining the subjects of dispute in a manner which would not
prejudice or compromise the position of the other. It became clear that the
adoption of a general formula suchas that proposed by Bahrain would alloweach
Party to submit its ownclaims. The observations of Dr. Husain Al-Baharna at the
legal experts' meetingon 6December 1988demonstrate that Bahrain understood
the Bahraini formula in this way.
3.51 In its Counter-Mernorial Bahrain has failed to address the fact that the
work of the Tripartite Committee had terminated in failure in December 1988.
Bahrain does acknowledge, however, that between the Sixth Meeting in
Decernber 1988and the Doha Agreement of 25 December 1990 two years went
by without a Tripartite Cornmittee
SECTIO 5.N LackofProrrressduring1989-1990
3.52 In the light of the Tripartite Cornmittee's failure, at the GCC Summit
Meeting of December 1988King Fahd of Saudi Arabia offered to make further
efforts to see if he could help reach a negotiated settIementon the merits. He
therefore requested a period of su months for this purpose rather than
g3 a, forexample,observationsofDrHusainAl-Baharna,reproducedinparas3.38-3.40,
above.
94 %, para.3.22,above.
g5 B, BahrainiCounter-Mernoriapl,ar5.38p.47. immediately considering other rneans of implernenting the 1987 Agreement by
reference to the Court in accordance with Saudi Arabia's obligation under the
fourth item of that Agreement.
3.53 Regrettably, the proposals of King Fahd to try to achieve a mediated
settlement between the Parties did not make any progress during 1989. The
matter was therefore takenup again at the GCC Summit Meeting held in Muscat
in December 1989,where King Fahd once again requested a further period of
two months to try to secure a settlement of the disputes. Accordingly the
irnplementation of the1987Agreement for reference of the disputes to the Court
was again delayed for that period. Unfortunately, even during this period of two
months and, for that matter, during the entire remaining period of ten months up
to the time of the GCC Meeting in Doha in Decernber 1990,proposals made by
King Fahd did nnt leüdto a settlement ofthe pending disputes.
SECTIO 6N TheDohnAgreementof 1990
A. Bnck~roundto the Conclusionof the DohaA~reernent
3.54 Bythe time of the GCC SurnmltMeeting held in Doha in December 1990,
Qatar had been seeking resolution of its disputes with Bahrain for over forty
years. Tthad been extremelygrateful for the initiativestaken by KingKhalid and
later by King Fahd of Saudi Arabia from 1978onwards to attempt to settle the
disputes through Mediation, as well as for King Fahd's assistancein concluding
the 1987 Agreement. Qatar was however frustrated by the failure of the
Tripartite Committee to secure a speciaIagreement acceptable to both Partieas
, well as by the fact that in the two years since the termination of the work of the
Tripartite Committee in December 1988Saudi Arabia had found it impossibleto
secure the agreement of both Parties to an amicable settlement. Qatar was
therefore left with no alternative but to raise the question yet again at the GCC
Summit Meeting in Doha in December 1990 and seek implementation of the
1987Agreement.
3.55 Bahrain tries to give the impression that it was surprised when Qatar
.
brought up the issue at thGCC SumrnitMeeting inDoha. However, as is now
confirmed in the Statement of 21 May 1992 of Sheikh Mohammed binMubarak Al-Khalifa, Bahrain's Foreign ~inister~~, when the GCC Foreign
Ministers met on 8-10December 1990 to discuss the agenda for the Summit
Meeting, Qatar's Foreign Minister raised the issue of the dispute between Qatar
and Bahrain and asked that it be added to the agenda. Bahrain's Foreign
Minister states that -
"1disagreed with this suggestion saying that the matter had always
been outside the formabggenda for GCC meetings and should
therefore not be included ."
3.56 Despite the fact that the matter had always been outside the forma1
agenda for GCC Summit Meetings, it had been raised on the occasion of every
such Meeting since 1988. It was in accordance with this practice that the Amir of
Qatar raised the matter at the opening of the first formal session of the Summit
Meeting in Doha on Sunday, 23December 1990. There could therefore he no
96 Bahraini Counter-Mernorial, Annex 1.25,Vol.IIp. 157. Bahrain's Counter-Memorial
contains two "Statements":Annex 1.25,the Statement by Bahrain'sForeign Minister, and
Annex 1.26,a Statement byDr. Husain Al Baharna, Bahrain's Minister of State for Legal
Affairs and the Agent of the Staof Bahrain in the prasent case. Qatar leaves to the
appreciation of the Courtwhether these Statementswere properly filed and Eomplywith
the general principles and rules applicable to the admissibility of evidenw. In any evcnt,
Qatar submits that, except for the admissions contained therein, no evidentiary weight
should be given tothese Statements. Both Statcments have been madebyMinisters of
the Government of Bahrain, one of whom is the Agent of Bahrain, who cannot be heard
asa witness.As the Court has stated:
"...hile in no wayimpugning the honour or veracityof the Ministers of either Party who
have given evidence, the Courtconsiders that the special circumstanceof this case
requireit ttreat such evidencewith great reserve." (Militan and Paramilitan Activities
in and anainst Nicara~ua (Nicaragua v. United States of Arnerica), Merits. Judgment,
I.C.J. Reports 198p.43.)
Moreover, in the circumstances of the present case no credence can be givcn to the
Statements.In thc view of Qatar, statements byMinisters oa Government who have
taken part in negotiations cannot affect in any way the legal consequences of the %
signature on behalf of the Governmenofa document which on its fac:ppears to be an
agreement. Such testimonyis"highlysubjectiveand "cannot take the place of evidence"
(W., p.42). In fact the Statements annexed to the Bahraini Counter-Memorial are
mcrely pleading,elf-servingBahrain'sthesis.
97 Bahraini Counter-Mcmorial, Annex 1.25,Vol. II,p. 157pp. 159-160.question of Bahrain being taken by surprise because Qatar raised the matter
"withoutany warning whatsoeverg8".
In accordance with Saudi Arabia's guarantee under the fourth item of the .
3.57
1987 Agreement to ensure implementation of that Agreement, King Fahd of
Saudi Arabia stated at the Meeting that the time had corne for the dispute to be /,
referred ta the International Court of Justice. He went so far as to indicate that
he wished he had not asked for more time in Decernber 1988 and December
1989,as othenvise the disputes would already have been before the As
the Bahraini Foreign Minister's Statement correctly notes, after the King's
statement -
"It was ..supgested by His Majesty Sultan Qaboos of Omanthat a
further period should be agreed, say to the end of Shawal, during
which time the parties should try once again to reach a political
solution of ail the$60differences. If not, then the matter might
proceed to the ICJ ."
3.58 To facilitate such reference to the Court and to overcome the difficulties
faced in agreeing on the subject and scope of the dispute, the Amir of Qatar
stated that he now accepted the Bahraini formula in accordance withwhich Qatar
and Bahrain would be able to present their respective claims to the court1''.
Bahrain's Prime Minister, who represented the Amir of Bahrain at the meeting,
questioned the fact that Bahrain htidcommitted itself to go to the Court, but this
irnmediately led to angry remarks £rom KingFahd, who declared that if Bahrain
98 BahrainiCounter-Mcmorial,para. 1.9p. 4,and para.6.63,p.80. Itis alsoworth noting
that,despitits criticisofQatar forhavingraisedthe subjectat the1990 GCC Summit
Meeting although it was no1 on the agenda, Bahrain admits that "the dispute was
advertedto atthe GulfCooperationCouncilSummitConferencc in December 1988 and
again at the correspondingrncctingin December 1989" (Bahraini Counter-Memorial,
para.5.38,p.47) - although it was similarlynot on the agenda for either of those
meetings.
99 =, Qatari Memorial, para3.55,p.56.
100
Bahraini Countcr-Memorial,Annex 1.25,Vol.II, p. 157,at p. 160. Bahrain'sForeign
Ministerthus admits that this initiative was takby the Sultan of Oman, and it is
incorrectforBahrain to state elsewherein its Counter-Memorialthat "Qatarbegan by
insistingthat the period for thc continuaofethe SaudiArabianefforts toachievean
amicablesolution shouldterminate soon after the endof the next.Ramadan and that
afterMay 1991 thePartiesshould be free to take the matter to the Court".(Bahraini
Counter-Memoriat, para. 1.9,p. 4 (emphasis added).) =, also, Qatari Memorial,
para.3.55,p.56.
-7e Qatari Memorial, para.3.55p.56. sought to go back on the agreement already reached for the reference of the case
to the Court, he would have nothing further to do with the resolution of the
disputes. King Fahd further obsewed that now that Qatar had accepted the
Bahraini formula there was no excuse for Bahrain not to refer the dispute to the
~ourt.102.
',+,
3.59 As a result of the discussion on 23 December 1990 an agreement was
reached that, subject to a further period of time for the Saudi Mediation until
Shawwal, the disputes covered by the Bahraini formula, which Qatar had
accepted, could be submitted to the Court. Efforts therefore began to prepare
and finalize a written document incorporating this agreement.
3.60 As willbe apparent from the above and as willbe discussed further below,
the Doha Agreement was reached at the initative of Saudi Arabia, with the
assistance of Oman and with the full accord of Qatar and Bahrain. Itis wrong to
Saythat the agreement was signed onlyto "avoidconveyingthe impression to the
other GCC Heads of State that the Amir of Qatar had entirely failed to secure his
objective103" and tu get Qatar "off the hooklo4". If anyone in this case is
dishonoured it is Qatar, and particularly the Amir of Qatar, by such disparaging
rernarks. Qatar does not propose to make an issue of this matter, however, and
would simply Say that disparagement is no substitute for effective answers to
Qatar's case.
B. The Sequence of Events concerninr the Drafting of the Doha
Aereement
, 3.61 The sequence of events that occurred after the discussion at the Sumrnit
Meeting, as known to Qatar's representatives, was as follows. The Omani
Foreign Minister took the initiative to mediate between Qatar and Bahrain in
order tn secure an agreed and signed document. On 24December he came to
meet H.H. The Heir Apparent of Qatar with a handwritten draft containing three
points. In view of the attempt by Bahrain's Prime Minister to deny Bahrain's
cornmitment in the 1987Agreement to refer the disputes to the Court, Qatar was
particulariy gratified to see the first point,k., the reaffirmation of "what was
lo2 QatariMernorial,para3.55,p.56.
lo3 BahrainiCounter-MemoriaI,Annex 1.25,Vol. Ip. 157,atp.165.
lo4 BahrainiCounter-Memonal,para. 6.70,p.82.previously agreed between the two parties". It was quite obvious that the
reference was to the 1987 Agreement to submit the disputes to the Court.
Secondly, the draft text brought by the Omani Foreign Minister correctly
expressed the decision to give King Fahd until Shawwal ta seek an amicable
settlement of the disputes, whereafter the disputes could be submitted to the
Court. Thirdly, it provided that King Fahd's good offices would continue even
> ?,
after such reference to the Court and that the case would be withdrawn if a
solution acceptable to the Parties wasreached.
3.62 After consideration of the Omani draft, Mr. Adel Sherbini, Legal Adviser
to the Qatari delegation, added in his handwriting the words in Arahic which,
translated, reads "in accordance with the Bahraini formula, which has been a
accepted by Qatar". A copy of the Arabic text includingMr. Sherbini'saddition,
together with its English translation, is annexed heretolo5. Bahrain's Foreign
Minister assertsin his Staternent that he added the words mentioned abovelo6.
This is wrong, yet the same error is made again in the Statement ofDr. Husain
AI-~aharna'~~.
3.63 In case there should be any doubt about this point, Annex 11.1hereto is a
graphological report which analyses the handwritten addition of the words "in
accordance with the Bahraini formula,whichhas been accepted byQatar" as they
appear on Attachment B to each of the two Statements annexed to Bahrain's
Counter-Mernorial. That report confirms that this phrase was indeed added by
Mr. Sherbini.
3.64 Bahrain's own Counter-Mernorial, signed by Dr. Al-Baharna in his
capacity asAgent of the State of Bahrain, contradicts not onlyBahrain's Foreign
Minister's Statement but also Dr. Al-Baharna's own Statement. Bahrain's
Counter-Memorial correctly States that the draft presented by the Omani
los A photocopyof the Omani draft discussedin paras.3-61-3.62, together wMr.
Sherbini'saddition,wtakenby Qatar before tdraftwashandedback to the Ornani
Foreign Ministe. , Annex1.3A, Vol. Ip.15.
lo6 BahrainiCounter-Mernorialnnex 1.25,VolIf,p157,atp.163.
Io7 u. ,nnex 1.24,VolII,p177atpp. 180-181.Minister for Foreign Affairs already llreferr[ed] to Qatari acceptance of the
Bahraini formula 10811.
3.65
Because of the errors in Bahrain's record of these discussions, it is
necessary to recount the chain of events in some detail. After the addition made
by Mr. Sherbini, the draft was taken bythe Omani Foreign Minister and shownto .,, ,
Bahrain'sForeign Minister. The Foreign Minister ofOman then againvisitedthe
Qatari delegation in the eveningof 24 December and advised them that Bahrain
wouldliketo studythe draft and that it had been sent by faxto Bahrain'sMinister
of State for Lega1Affairs, Dr. Al-Baharna, who would arrive in Doha early the
next morningwith hiscomments.
3.66 At about 11am. an 25 December, the Omani Foreign Minister came and
showed the Qatari delegation what he termed the final version of the text
(hand~itten)~~~. This version incorporated the addition made by Mr. Sherbini
and two further amendments which, the Omani Foreign Minister advised, had
been made by Bahrain: the words "either of the two parties" (whichwere in the
first Omani draft seen by the Qatari delegation) had been substituted by "the
parties" ("al-tarafan");and the words "andthe proceedings arisingtherefrom" had
been added. Qatar found the word "al-tarafan"(the parties) and the words "and
the proceedings arisingtherefrom" perfectly acceptable because both Parties had
distinct claims tomake before the Court, and because thislanguage wouldenable
each Party to present its own claimsto the Court. There was no suggestion inthe
amendments proposed by Bahrain either that Bahrain was thinking of further
negotiations or that it was considering a special agreement. Qatar therefore
agreed to Bahrain's amendments and the Omani draft was thereafter typed and
signedbythc Foreign Ministersof Qatar, Bahrain and Saudi Arabia.
3.67 The Statement of Bahrain's Foreign Minister indicates that he received
two drafts of the proposed Minutes to record the agreement of the Parties, one
from Prince Saud Al-Faisal of Saudi Arabia and one from the Omani Foreign
Minister. ThisStatement (like the Statement of Dr. Husain Al-Baharna) seeks to
ln8 BahrainiCounter-Memorialp,ara.1.11p.5. ThefactthatheStatementsannexedto the
BahrainiCounter-Mcmorialcontain a certainnumber of mistakes isan additional
groundfor givingno wçight to those StatementsAs statedbyJudgeAzevedo inhis
Dissenting Opinionin the Corni Channcase,"We areboundin anycase to rewgnize
the inadequacyof a proobasedalmostentirelyonone witnesswhose staternentswere
inadequateon many points".(Corfu Channel, Mer, C.J.Reports1949p.89.)
lo9 Annex1.3B,Vol. II,p.15. givethe impression that the final text of the Minutes was negotiated onlybetween
the Omani Foreign Minister and the Bahraini Ministers and gives no indication
that Qatar made any contribution to the formulation of the text. Qatar confirms
that it was unaware of the Saudi Arabian draft and therefore of any changes
proposed in that draft by Bahrain. However, as willhave been apparent from the
above description of the sequence of events, Qatar played a significantpart in the
finalization of the text of the Doha Agreement. It made an amendment to the
Omani Foreign Minister's firstdraft, and it gave its approval to the amendments
made byBahrain before the Agreement was typed for signature.
3.68
The question of the interpretation of the Doha Agreement is examined in
Chapter IV below. Suffice it to Saythat it was recognized both at the Surnmit ,
Meeting and during discussions on the draft that a new agreement was being
negotiated in order finallyto resolve a long outstanding problem. The approach
of Saudi Arabia and Oman during the negotiations clearly reveals that they did
not think of these negotiations as merely leading to an agreement to make a
further effort to reach a special agreement but as expressly allowing reference of
the case tothe Court ifthe Mediation had not sucçeeded by the time of the expiry
of the May 1991 deadline. Moreover, Bahrain's suggestion that the Doha
Agreement was intended to do no more than record Qatar's acceptance of the
Bahraini forrnula1l0 and that "this was the lirnit of the agreement 11111is
erroneous on its face. It is clear from the text of the Doha Agreement that many
more cornmitments were recorded: it reaffirmed the Parties' consent to the
jurisdiction of the Court, provided for the continuation of the good offices of
Saudi Arabia, contained a deadline after which the matter could be submitted to
the Court, and provided that the case would he withdrawn if in the meantime a
, settlement 'wasreached on the substance of the disputes. These commitments
cannot magicallydisappear nowhyvirtue of a simple denial byBahrain.
BahrainiCounter-Mcrnorial ,ara6.74, p.84. Aithough Bahrain acknowledgesthat
underthe Doha AgreementQataracceptedthe Bahrainiformula,it nowevcn attempts
to change the actul ordingof the formulItwill be rememberedthat the formula was
originallysubmittedto QatarinEngiishwithanArabictranslation,andthatthe English
textbcgadwiththewords "The partierequesrthe Court...Y.etBahrainnowStates that
"thisformula..spokeof a requestbythe Parties&., BahrainiCounter-Mernorial,
para.1.10p.5 (emphasisinoriginal)&, alsom., para.5.43 (iip.50.
111 BahrainîCounter-Mernoriapl,ara.7.1p.104.SECTIO 7N The Conductofthe Parties after the DohaA~reernent
3.69 Events after the signingof the Doha Agreement until the filingof Qatar's
Application of 8 July 1991have already been descnbed in paragraphs 3.61 to3.67
of Qatar's Memorial, but further clarification is necessary in the light of
allegations made in Bahrain's Counter-Mernorial.
3.70 Bahrain repeatedly alleges that Qatar seised the Court without warning.
However, it suffices to refer to the documents filed by Qatar with its Memorial,
and also to a document now filed by Bahrain itself, to see that thiswas not the
case. Qatar's intention to seise the Court was made perfectly clear both in the
letters addressed by the Amir of Qatar to King Fahd of Saudi Arabia on 6 May
1991 and 18June 1991112 and dunng a meeting with King Fahd on 5June
1991113. It is most unlikelythat this intention was not comrnunicated to Bahrain
by SaudiArabia, sinceBahrain's ownForeign Minister Statesthat at a meeting on
3 June 1991between KingFahd and the Amir of Bahrain -
"KingFahd confirmed that he had been approached several times
by the Amir of Qatar regarding the rnatter and that he had asked
the Amir of Qatar not to be in such a rush. King Fahd also
confirmed that he had sent Prince Saud Al Faisal, the Saudi
Foreign Minister, to Qatar with Saudi Arabia's proposals
concerning the mattpifnd when Saud Al Faisal returned he would
send him to Bahrain ."
Indeed, at the meeting on 5 June 1991between KingFahd and the Amir of Qatar,
the Arnir of Qatar had agreed to a three-week extension before submitting the
case to the ~ourtl'~,
3.71 In Qatar's view, therefore, Bahrain must have heen under notice that
unless a solution was achieved within the time fixed and subsequently extended,
Qatar would submit an appropriate application to the Court. It therefore seems.
extremely unlikely that Qatar's Application came as a complete surprise to
Bahrain.
l2 QatariMemorial,Annexes 11.34and11.35,Vol. pp.213and217.
113 See, QatarMernoria lara.3.64p.60,andAnnex 11.35, ol. Ip.217.
Il4 BahrainiCounter-MernoriaAlnnexL25,Vol. IIp.157,atp.165.
115 See, QatariMernoria, ara.3.6p.60, anAnnex 11.35, ol.IIp.217.SECTIO 8.N Conclusion
3.72 The facts set out in Qatar's Mernorial and in the present Reply
demonstrate that Bahrain's case is based on a number of errors of fact. Thus
aIthough Bahrain accepts that the 1987Agreement to submit the disputes to the
Court is binding, it rnisinterprets that Agreement by stating that any eventual
,,,:,
reference to the Court "wasclearlyconditional upon the successfulnegotiation of
a special agreement116i'. In fact the basic consent of both Parties to the
jurisdiction of the Court in the 1987 Agreement was clear and unqualified.
Nuwhere was it stated that the consent tojurisdiction wassubject to any condition
to negotiate a speçialagreement.
3.73 The details of the Tripartite Committee's proceedings set out above
demonstrate that neither Qatar nor Bahrain interpreted the task of the
Committee to be onlythat of drawingup a specialagreement. Indeed, it was only
after the First Meeting that the Committee began to examine the possibility of
drafting a special agreement. When this possibilitybegan to seem remote at the
Second Meeting, Prince Saud Al-Faisal of Saudi Arabia asked the Parties to
considerwaysof placingtheir separate clairb nsfore the Court. Frvm the time of
the Fifth Meeting when the Bahraini formula was discussed as a way of breaking
the deadlock and allowing each State to present its claims separately, this
question dominated the discussionsof the Committee.
3.74 Moreover, Bahrain overlooks the failure of the Tripartite Committee to
reüch a special agreement and the resulting termination of the Committee's work
at the end of 1988. It thus tries tu ignore the circumstances that led to the
conclusion'of the Doha Agreement.
3.75 Bahrain also ignores the existence, importance and meaning of the fourth
item of the 1987Agreement whichprovided for acontinuingrole of the Mediator
to guarantee implementation of the cornmitment in the Agreement to refer the
disputes to the Court, whether through the Tripartite Committee or otherwise. It
was pursuant to this role that Saudi Arabia persuaded the Parties to accept the
Doha Agreement to implement the 1987Agreement.
BahrainiCountcr-Mernorial,ara.1.6p.3.3.76 Bahrain does admit, however,that in the context of the Doha Agreement -
"...there was one positive element in the situation which needed to
be placehqn recard, namely, Qatari acceptance of the Bahraini
Formula ."
Thus Bahrain acknowledges that there has been an unequivocal and
unconditional acceptance by both Parties of the Bahraini formula, which stands
on its own and defines the subject and scope of the disputes to be referred to the
Court.
3.77 However, as explained above, this is not al1 that the Doha Agreement
achieYed. Inter alia, it ais0 reaffirmed the Parties' consent to the jurisdiction of ,
the Court and recorded their agreement to submission of the case tr,the Court
after May 1991.
3.78 In view of the Parties' consent to jurisdiction and Bahrain's repeated
assertion of its "willingnzssta come to the courtllb Qatar invites Bahrain to file
its own Application pursuanttothe Doha Agreement, as it is perfectly entitled to
do, with full faith inthe Court to do justice to each of the two Parties on their
respective claimspresented in accordance with the Bahraini formula.
Bahraini Counter-Mernoriapara.6.71,p.83.
118
Ibid.para.1.13p.6. PARTII
JURISDICTIONANDADMISSIBILITY
CFL4PTER IV
THEJURISDICTIONOF THE COURT
4.01 The present Chapter will address the main legal issues which still divide
the Parties relating to the jurisdiction of the Court. In Section 1below, Qatar will
discuss briefly the legal basis of the Court'sjurisdiction and in particular the true
relation between the 1987 and Doha Agreements. Qatar will then show that
Bahrain's position as tothe existence ofaspecial burden of proof with respect to
the question ofjurisdiction isunfounded (Section 2).Bahrain has not taken issue ,
with the binding character of the 1987 Agreement. It continues, however, to
contest the binding character of the Doha Agreement. Qatar willtherefore show
in Section 3 that this fundamental contradiction in Bahrain's position is
unsustainable and that the Doha Agreement like the 1987Agreement isa binding
international agreement. Qatar willthen address Bahrain's attempts to interpret
the Doha Agreement in an effort to modifj that Agreement to suit its present
thesis. It will be shown that the Doha Agreement clearly expresses the Parties'
consent to submit to the Court the disputes existingbetween them in accordance
with the Bahraini formula (Sections 4 and 5). Finally,in Sections 6 and7, it will
be show that the Doha Agreement issufficient to establish the jurisdiction of the
Court under Article 36,paragraph 1,of the Statute, and that the issue of seisin, as
indeed the alleged disadvantages suffered by Bahrain as a result of Qatar's
Application to the Court, are really non-issues inthe present proceedings.
SECTIO 1. ' TheBasis of theCourt's.lurisdiction
4.02 The legal basis of the Court'sjurisdiction in the present case has been fully
discussedin the Qatari Memorial, and further factual elements have been givenin
Chapter IIIahove. There is no need tu repeat what has already been said except
to recall that the jurisdiction of the Court is founded an two closely interrelated
Agreements. For convenience of reference the more important parts ofthese
Agreements relating tothe question ofjurisdiction are setout below.4.03 The fir Asgreement is the 1987Agreement by which the Parties accepted,
--ter dia, tha-
"Firstlv~AU the disputed matters shall be referred to the
International Court of Justice, at The Hague, for a final ruling
binding upon both parties, who shallhave to execute its terms.
Thirdl~: Formation of a committee comprising representatives of
the States of Qatar and Bahrain and of the Kingdom of Saudi
Arabia for the purpose of approaching the International Court of
Justice, and satisfying the necessary requirements to have the
dispute submitted to the Court in accordance with its regulations
and in~~~ctionsso that a final ruling, binding upon both parties, be
issued ."
This Agreement was concluded by two parallel exchanges of letters between the
King of Saudi Arabia and each Amir. It was made known by an Announcement
by Saudi Arabia made public on 21 December 1987'~'.
4.04 The 1987 Agreement included, inter alia, two clear and quite separüte
provisions121. The first, set out in the first item, describes the ultirnate stage to
be reached as a final obligation -an obligation de résultat. This obligation is
couched in mandatory language and leaves no doubt as to the uItimate stage
which the Parties agreed to reach: a final ruling of the Court and execution by the
Parties ofthe judgment arrived at. The second provision, set out in the third item
of the 1987Agreement, Ieaves to the Parties the choice of means to achieve the
obligation set outin the first item. To this end, a Tripartite Cornmittee was to be
established to approach the Court and to satisfy the necessav requirements to
have the dispute suhmitted to the Court. The choice of procedural methods by
which the case would be submitted ta the Court -special agreement, separate
applications,unilateral applicationor othenvise -was left open. The Parties were
119 QatariMemorial,Annex 11.15,ol.III,p.101.
120 Ibid. Contraryto what Bahrainsays (BahrainiCounter-Mernoria, ara.5.19, 82,
p.361,Qatardoes notseethiAnnouncementasanintegralpartof the 1987Agreement;
itisapressreleasemakingknownthe Agreementresultingfromthe cxchangesof letters.
l2I
w, QatariMemorial,paras.5.40-5. pp1,112-113.thus only accepting an obligation ta negotiate in good faith in order to achieve
cornpliancewithArticle40 of the Statute ofthe ~ounl~~.
4.05 After its First Meeting, the Tripartite Cornmittee decided to attempt to
draft a special agreement as a possible means of referring the dispute to the
Court under Article 40. Unfortunately, for the reasons set out in Chapter III
above, the Commirtee failed to accomplish its task, and another solution was
eventuallyfound to implement the 1987Agreement.
4.06 The second agreement is the Doha Agreement. That Agreement,
implementing the 1987Agreement, was concluded atthe initiative of the Heads
of State or their representatives who were present atthe GCC Summit Meeting
held in Doha in December 1990,andwiththe assistance of the Omani Minister of
Foreign Affairs. In this new Agreement it was agreed that the good offices of
Saudi Arabia would continue until the end ofMay 1991but that -
"After the end of this period, the parties may submit the matter to
the International Court of Justice in accordance with the Bahraini
formula, which hgq2,:en accepted by Qatar, and the proceedings
arisingtherefrom .
4.07 The Bahraini formula incorporated by reference in the Agreement reads
asfoIlows:
"The Parties request the Court to decide any matter of territorial
right or other title orinterest which may be a rnatter of difference
between them; and to draw a single maritime boundary between
their rtective maritime areas of seabçd subsoil and superjacent
waters ."
4.08 In its Counter-Memorial Bahrain presenfs the Court with a false
alternative byposing the folIowingquestions:
Iz2
It is necessatyheretocal1attention to thewayBahraindistortsQatar'scase.Inp5.18
of its Counter-MernorialBahrain argues that the conditional characterof the
undertakingin the firstiteofthe 1987 Agreement iseven recognizedby Qataritsclf,
referringtoQatar'sstatementin para.5.41ofits Memorialthat the Parties were "only
submittingthemselvestoanobligation to negotiatein goodfaith inordto achievethe
seisin of the Court".This statement related onyo the third item, andnot to the
obligationunderthefirstiteas Bahrainalleges.
123 Qatari Memorial, AnneIxI.32,VolIII,p205.
124 I9id Annex 11.29,ol. IIp. 191. "'Didthe parties to the 1987Agreement acce t 'urisdictionso as to
be bound bvvirtue of that A-reement alone ?P J
'Did theyrnerelyagree in principle to submit their disputes to the
Court, but sup&ct to a Special Agreement to be negotiated
subsequently?' "
..,.,
This is a false dichotomybecause these are not the only possibilitiesand in any
event the answerto both questions isin the negative.
4.09 As Qatar has made abundantly clear, neither of these questions
corresponds to its position. As to the first question, as recalleübove, Qatar has
not claimed that the Parties to the 1987Agreement were bound bytvirtue of that
Agreement alone. On the contrary, the interrelation and complementary
character of the 1987 and Doha Agreements has been constantly underlined by
Qatar. As to the second question,Qatar has shownindetail in Chapter III above,
in relatingthe historyof the Mediation, that a special agreement was not the only
means contemplated to approach the Court nor the one ultimately chosen by the
Parties.
4.10 Bahrain's "specialagreement" syndrome is al1the more specinus in that
the Doha Agreement, implementing the 1987 Agreement, unquestionably
contains the consent of the Parties on the subject and scope of the dispute and the
consent of the Parties to the submissionof the matter to the International Court
125 BahrainiCounter-Memorialp,ara.3.pp. 19-20.of Justice after the lapse of a givenperiod126. The relationship between the 1987
and Doha Agreements is the following. The former was sufficient under Article
36, paragraph 1, of the Statute to express the consent of the Parties to submit
their disputes to the Court. The Doha Agreement not only confirms the consent
to the jurjsdiction of the Court but also allowsthe Parties to submit the matter to
the Court after a given date in accordance with the Bahraini formula which
defined the subject and scope of the disputes which could be submitted.
SECTIO 2.N TheBurden of Pmof with respect to the Question ofJurisdiction
4.11
In itsCounter-Memorial, Bahrain devotes a whole section to the question
of the burden of proof in which it tries to demonstrate that there is aspecial rule
of evidence for appIicants as regards the establishment of the jurisdiction of the
court 127:
"..the onus rests upon Qatar of establishing that the Court has
jurisdiction. The parties are, in this res ect, notin equal positions.
..sornething more is called for from 8atar by way of proving its
positive assertion than is required of Bahrain in establishing its
denial that the Court has jurisdiction. The general principle is
encapsulytjj,iJin the Latinmaxim ei incumbit probatio qui dicit non
qui negat ."
l26 In this respectBahrain'sattempts to draw a parallewith the Aegean Sea case are
irrelevantBahrainiCounter-Memorial,para. 7.4,p100).As the Courtwillappreciate,
thcsituationhereisquitedifferent fromthesituationbetweenGreeceandTurkeyinthat
case.There, Turkey'sconsent to jurisdictiowas expresslyconditional upon "joint
submission",and theparties had agreedto negotiatea special agreement forsuch "joint
submission" to the Court. Those negotiations had hardly begun when the joint
Communiquéon which Greece purported to foundthe jurisdictioof theCourt was
issuedAs the Court pointedout, the positionsof the Greek andTurkishGovernments
appeared to have beenquite unchanged bctween a meeting during which initial
considerationwasgivento thetextof a special agreement, andthe meeting inBrussels
oniya fewdayslaterwhichwas toresultin thejoint Communiquérelieduponby Greece.
(w, Aegean Sea Continental Shelf,JudgmcntI.C.J.Reports 1978,paras100 et seq.,.
pp.41g seq.)This isincornpietecontrastwiththe present case.Here, not onlywasthe
commitment to go to the Court not made subject to the conclusion of a special
agreement,butnegotiationsfor a special agreement hadbroken dowtwo yearsbefore
theDoha Agreement, andhad neverbeen resumed.Furthermore, theDohaAgreement
madeno referenceto anyrequirementofa specialagreement and,giventhefailurcofthe
Tripartite Cornmittee, itlear that the Partiescould not haveexpetoenegotiata
special agreemenaftexthe conclusionof the Doha Agreement. In addition,unlikc the
Brussels Cornmuniquk,the Doha Agreement specified the subject and swpe of the
disputeswhich coulbe submittedtothe Court,and provideda dcadlineafterwhichthe
Courtcouldbe seised&, aiso,para.4.51,below.
127 See,BahrainiCounter-Mernorial,paras.4.5-4.9,23.g~.
12' M., para. 4.5,23.The wayBahrain presents the customary rules of international law inthis regard
calls for clarification. Basicallythree questions are to be examined: (i)whether
the applicant has a greater burden of proof than the respondent; (ii) the standard
of proof; and (iii)whether there isany type ofpresumption in this matter.
.,,,,
4.12 With regard to the question of whether the applicant has a greater
burden than the respondent, Article 38,paragraph 2,of the Rules of Court simply
provides that -
"The application shall specify as far as possible the legal grounds
upon which the jurisdictionof the Court issaidto be based ..."
Similarly,Article 49,paragraph 3,of the Rules states onlythat -
"A Memorial shall contain a statement of the relevant facts, a
statement oflaw,and the submissions."
In anyevent, it isa truismthat an applicant has to giveevidence of the grounds on
which the Court has jurisdiction. However, there is nothing in the Rules of Court
which indicates a departure from the ordinary rule of evidence that each party to
a dispute has to prove its own assertions and that the burden of proof is
eonsequently shared between the parties. Accordinglythe maximactori incumbit
probatio is here more to the point. Many authors have advocated .that in
application of that maximthe Court willrequire the party puning forward a claim
to establish the elements of fact and of Iaw on which it seeks to rely without
129
regard forthe applicant/respondent relationship .
129 &, forexample,ManfredLachs,"Lapreuveet laCourinternationalede Justice",in
preuveen droit, Etudes publieepar Ch. Perelmanet P. Foriers, Bruxelles, Bruylant,
1381,pp.110-111;S. Rosenne,The LawandPractimof the International Court,ijthoff,
1965, Vol.II,p.580; Gilbert Guillaume, "Preuveest mesures d'instruction"i,La
juridiction internationalepermanente,S.ED.L, Paris, Pedone, 19.pp.199-201;J.-
C.Witenberg,L'or~anisatioiudiciairelaprocedureetlasentenceinternationale,Paris,
Pedone, 1937,pp.235 g y.; idem. "Onusprobandidevantles juridictions arbitrales",
R.G.D.I.P. 1951, p.327; idem, "La Theorie des preuves devant les juridictions
internationaleR.C.A.D.I.1936,II,Vol.56,pp.44-45;Bin Cheng, General Principlosf
Law asAmlied byInternationalCourtsand Tribunals,London,1987,p.332.4.13
Furthermore, another form of the same principle is expressed in the
rnaxim reus in excipiendo fit actorlî0., This is al1 the more important in the
present case in that, as explained above, although no forma1 preliminary
objections have been presented by Bahrain, this separate phase of the
proceedings is nevertheless addressed to questions of jurisdiction and
adrnissibilitywhich would normally be dealt with in prelirninary
> * a
Allusionis made indirectlyto this maximin Article 79,paragraphs 2 and 6, of the
Rules of Court, relating to the procedure concerningprelirninary objections:
"2.The preliminary objection shall set out the facts and the law on
which the objection is based, the submissions and a list of the
documents in support; it shall mention any evidence which the
party may desire to produce. Copies of the supporting documents
shallbe attached.
6. In order to enable the Court to determine itsjurisdiction at the
preliminary stage of the proceedings, the Court, whenever
necessary,may request the parties to argue al1questions of lawand
fact, and toadduce al1evidence,whichbear on the issue."
In conclusion, there is no special principle of evidence in the matter of
jurisdiction, but the fundamental principle that each party must prove its own
assertions applies.
4.14 The second point raised by Bahrain concerns the standard ofproof. In this
regard, Bahrain refers to excerpts from the Factorv at Chorzow.Jurisdiction case
and the Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdictinn and Adrnissibilitvcase to support its view that Qatar must satisfy a
higher standard of proof than 13ahrainlf2. In fact, the excerpts from these cases,
whichwere also cited by ~atarl~~, sirnplyapplythe concept of preponderance of
the force of argument, i.e.t,e relative force of the arguments presented bvboth
parties. Itisan obviousfact that the positionwhich,for the majorityof thejudges,
is the more convincing,willprevail. This does not entail any special standard of
proof on one par9 or another.
130 See,Separatc Opinion of Judge Castro in the caseof the Appeal concernine the
Esdiction of the ICA0 Council,I.C.J.Reports1972p. 135.
3l See,paras1.06-1.07,above.
132 BahrainiCounter-Mernoria lara4.5,p.23.
133 QatariMemorial,para.4.20pp. 71-72.4.15 The thir qdestion is whether there are any presumptions governing the
proof of the existence of consent. The Qatari Memorial has shown that both the
extensive and the restrictive theories have to be rejected. There is no .
presurnption one way or another, although one author quoted in the Qatari
Memorial tends to believe that objective reasons concerning the settlement of
,+,
disputes support the view that the scope of consent to jurisdiction should be
interpreted liberallyl34. The followingpassagefrom the Border and Transborder
ArmedActions, (Nicaragua v. Honduras) Jurisdictionand Admissibilitvcase is,in
this regard, most relevant:
"The existence of jurisdiction of the Court in a given case is
however not a question of fact, but a question oflaw to be resolved
in the light of the relevant facts. The determination of the facts
may raise questions of wof. However the facts in the present
case ...are not indispute ."
Repeating the words of the Permanent Court in the Factorv at Chorzow,
Jurisdiction case,the Court alsodeclared that itwas its dutyto -
"..ascertain whether an iiygption on the part ofthe parties existsto
conferjurisdiction upon it ."
In the present situation of a mixedfactual and legal nature, proaf of the factual
elements is governed by the general rules of evidence described above,which put
the Parties on a totallyequal footing. In any event, as the followingSections will
demonstrate, the consent to the jurisdiction of the Court is clearly estabiished in
thiscase bythe 1987and Doha Agreements.
SECTIO 3N. The BindingCharacterof theDnhaAgreement
4.16 In its Memorial, Qatar has shownthat the 1987and Doha Agreements are.
international agreements under customary international law as reflected in the
Vienna Convention on the Law ofTreaties, Article 2 ofwhichprovides:
134 B, Qatari Memorial, aras.4.17-4.pp.69-70,and the referencethereto anartbyle
Jonathan1.Charney.Bahrainreadsthatquotatianasif it wasendorsedQatar,but this
inot thecase.g, BahrainiCounter-Mernorial,ara.4.p.25.
135 Judment, I.C.JReporis1988,p.76.
136 Ibid. "...treaty' means an international agreement concluded between
States in written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever itsparticular designation."
Although Bahrain does not deny that the 1987 Agreement is a binding
international agreement, it has argued in its Counter-Mernorial that the Doha
',*,
Agreement does not amount ta a legaflybinding agreement for various reasons of
a formal and substantive naturel3'. The former willbe dealt with in sub-section
A, the latter in suh-sectiB.
A. TheInstrumental and Formal Asaects
4.17 It shouldbe noted at the outset that Bahrain-
"...does not take issue with Qatar regarding any question of the
-ormof the claimed agreement ..there isno pointin spending tirne
denying the possibility that an agreement can take the form of
minutes of meetings ..Accordingly,there is no need for Bahrain to
deal furt'herwiththe abstract question ofom to y&ch paras. 4.31-
4.39inclusiveof the Qatari Memorial are directed ."
Furthermore, Bahrain does not Eindit necessary to question the description by
Qatar of the 1987text as "the 1987~~reement'~~'',and has announced that itwill
not make an issue of the existence of an agreement in the terms of the Saudi
proposa~s'4B Notwithstandingthis, Bahrain disputes the characterization of the
Doha Agreement as an agreement in simplified form entering into force upon
signature141 .
4.18 Bahrain's arguments concerning instrumental and formal aspects of the
Doha Agreement basically revolve around two themes: firs cotnstitutional
aspects in both Qatar and Bahrain; second, questions of registration with the
United Nations and of filingwith the Arab League. Each of these points willbe.
examined in turn.
137 BahrainiCounter-Memorialp,ara.1.14(2pp.7-8.
138 m., para.6.3pp.51-52.
139 Ihid.para1.6,fn.,p.3.
140 U.,para.5.7,p.31.
141
Ibid.paras6.92-6.9pp.93-96. 1. Constitutional aspects
4.19 Bahrain disputes the validity of the Doha Agreement on constitutional
grounds relating to both Qatar's and Bahrain's Constitutions.
a) Qatar's Constitution
4.20 Bahrain contends that neither Party regarded the Doha Agreement as an
international agreement; and it purports to find evidence of this in the failure by
Qatarto take the steps allegedly required by Artide 24 of Qatar's Constitution in
relation tothe conclusion of treaties. Article 24 reads as follows:
"The Amir concIudes treaties by a decree and communicütes same
to the Advisory Council attached with appropriate explanation.
Such treaties shallhave the power of lawfollowingtheir conclusion,
ratification and publishing in the OfficialGazette.
In no case shail such treaties includel49ecret provisions in
contradiction with their declared provisions ."
According to Bahrain, Qatar's alleged failure to fulfilthese requirements has had
the following results: f&, that Bahrain was not put on natice that the Doha
Agreement was considered by Qatar as an international agreement'43; and,
second, that Qatar is now estopped by its own conduct from asserting the "treaty
quality"of the Doha ~~reernent'~~, Bahrain is wrong both in fact and in law.
4.21 With regard to the issue of fact, as explained above, Bahrain was clearly
put on notice of Qatar's view that the Doha Agreement was a binding
international agreement by virtue of the stepsundertaken by Qatar to implement
that ~~reernent'~~.
4.22 Bahrain is also wrong in law since Qatar's Constitution is designed tn
provide for the application of treaties in municipal law; it does not determine the
way treaties are concluded in international law. As in many countries, in Qatar
142
&, Annex1.4,Vol. IIp.25,hereto.
143
BahrainiCounter-Mernoriapl,ara.6.86-6.pp.89-90
144 Ibid.,parâ.6.87,p.90.
145 -Seepara.3.70,abovc.treaties are concluded on the international plane by the appropriate person
whether it be the Head of State, the Foreign Minister or any other authorized
person. The argument that if Qatar regarded the Doha Agreement as a treaty it
would have followed its constitutional procedure of concluding a treaty thus
cornpletely missesthis point. Moreover, just like anyother State, Qatar isfamiliar
with the practice of agreements in simplified form as a valid form of giving ...,,
consent to be bound. In the present case, there was no need to apply Article 24of
the Constitution. The decision of the International Court, when delivered, willbe
executed by Qatar in accordance with its earlier legal commitments under the
1987and Doha Agreements.
4.23 There is nothing in the Vienna Convention which would justify Bahrain
invoking a provision ofQatari internal law as a ground for invaIidating Bahrain's
consent to be bound by a treaty. It can onlyrely on an alleged violation of its own
146
internal law,subject, of course, to the provisionsof Article 46 .
b) Bnhrain's Constitution
4.24 Bahrain asserts in its Counter-Mernorial that the Daha Agreement was
allegedly not concluded in conformity with Bahrain's Constitution. According to
Bahrain, agreements such as the Doha Agreement require ratification under the
Constitution, and cannot be concluded in a sirnplified f01-m'~~.Bahrain argues
that Qatar should have been aware of this requirement through the exchange of
Officia1Gazettes and because the draft special agreement tabled by Bahrain on
19March 1988provided for ratificati~n'~~. Bahrain suggests that these defects
do not rnerely affect the validityof the Doha Agreement but its veryexistence149,
although if the question of validity were to be dealt with, such agreement would
be found to be invalid, the consent "having been expressed in violation of a
provision of [Bahrain's] internal law regarding cornpetence to conclude treaties
146 Bahrain'ssuggestionthat the cstoppelrule mightbe appliedhere isalso cornpletely
inappropriate.No possibledisadvantagor handicapcan have ariseforBahrain, evenif
Qatar hadfailedtoapplyitsConstitutionw,hichinany eventisapurelyinternalmatter.
147 BahrainiCounter-Mernorial,paras.6.92-6.9pp. 93-96.
148 m., para.6.91,p.93.
149 IIid para.6.97p. 96.that was manifest and of fundamental These contentions of
Bahrain cal1for the followingcomments.
Distinction betweenexistence andvaliditv
(i)
4.25 Although the Counter-Memorial speaks about the intention of the ..,,,
Bahraini Foreign Minister and claims that the treaty could not have entered into
force, it really seems to be trying to make a distinction between the existence and
the validity of a treaty. The question of the entry into force of the Doha
Agreement is dealt with elsewhere in this Reply, as is the irrelevance of the
Foreign Minister's secret intentionsl5l. In any event, Bahrain7s implicit
distinction between the existence and the validity of a treaty is far from being .
accepted in municipal law,and is even more difficultto apply in international law.
To quote the late Professor Reuter:
"On trouvera peu de trac ra une véritable inexistence dans la
jurisprudence internationale ."
Leaving aside the theoretical aspects of the concept, its lack of application is
explaineci by the fact that in order for the non-existence of a treaty ta be
established, proof has to be provided of a blatant absence of the elements which
are necessary for the existence of a treaty. If it is taken for granted that the
definition of a treaty is "an international agreement concluded between States in
written forrn and governed by international law1531:it is difficult to allege non-
existence inthe present case. Indeed, the Doha Agreement is an act concluded in
written form, between States, containing international rights and obligations and
governed by international law. A claim of non-existence would therefore be
inconceivable.
15* BahrainiCounter-Mernorial,para.6.98p.96.
lS1 See,paras.4.27and4.56-4.60below.
152 PaulReutcr, Droit internation~ublic,PUF, Paris,1973,p.Ml;&for furthercriticism
ofthe notion, JVerhoeven,"Les nullitesdu droidesgens",Droit internationa1,Paris,
Pedone 1981,pp. 19-20.
153 Article2,para.1,sub-para(a) of thc 196Vienna Conventionon the Law ofTreaties. (ii) Agreements in simplified form and the alle~ed requirement of
ratification
4.26 Bahrain aho alleges that in the circumstances it cannot be baund by
signature of an agreement in simplifiedform but onlyby a ratified agreement. It
should firstbe recalled that consent to be bound by a treaty is a problem not of
municipal Iaw but of international law. The forms of consent to be bound in
international laware spclt out in Articl12of the Vienna Convention on the Law
ofTreaties whichenumerates signature among the forrnsof expression of consent
to be bound by a treaty {Article 12). Ttshould be further noted that the Vienna
Conference expressly rejected the idea of a general presumption or a residuary
,
rule stipulating the necessity of ratificationBahrain can surely pot deny the
existence of a well recognized rule of international law (reflected in Artic7of
the Vienna Convention) according to which a Minister of Foreign Affairs is able
to bind his country by an agreement in simplifiedform and is presumed to have
the power to do so. As iswellknown,ratification is not the sole method bywhich
a State may give its consent to be bound internationally, and agreements in
simplifiedform are frequently used in State practice generally.
4.27 In the circurnstancesof the present case it is hardlypossible to contest that
the Doha Agreement isan agreement in simplifiedform:
Its text was signed by Bahrain's Foreign Minister, who was
competent under international law to enter into such an agreement. The
presurnption that a Foreign Minister is authorized ex officio to conclude an
agreement to confer jurisdiction upon the International Court of Justice is
reinforced in the present circumstances by the fact that high-ranking Bahraini
officiais,includingthe Prime Minister, were present at the Doha Summit and that
the Minister of State for Legal Affairswasspeciallysummoned to Doha to handle
this matter.
- Its text was to enter into force on signature, if onlybecausofthe
express provision of a tirne-limik., up to the end of May 1991. In this regard,
Bahrain has not been able to adduce any evidence that the Doha Agreement was
not to enter into force immediately according to its own terms. For al1 that . Bahrain might say to the contra~y~~~,agreements in simplified form generally
enter into force on signature.
- Etstext did not provide for ratification. If no ratification clause is
included in such an agreement entering into force upon signature, the
presumption is indeed that no ratification is necessary. The fact that Bahrain had
'"
proposed in a former draft text of a special agreement that it be ratified155 -
unlike Qatar which injts draft of 15 March 1988had proposed entry into force
upon signature - is of course totally irrelevant. The idea of ratification was never
raised in Doha, it was not provided for in the Doha Agreement, and it would have
been contrary to the need to bring that Agreement into force immediately to have
provid'edfor ratification.
- Its text aimed at implementing a previous agreement (the 1987
Agreement), itself not subject to ratification. In this context, it is
incomprehensible how Bahrain believes it can reconcile the fact that it accepts as
ü binding agreement the 1987exchanges of letters, whichwere also an agreement
in sirnplified form applied immediately after signature by the Parties, with its
refusal to recognize that the Doha Agreement has the same irnmediate effect.
4.28 For al1the foregoing reasons, Bahrain's attempt to deny that the Doha
Agreement has the character of an agreement in simplified form entering into
force upon signature istotaIlyunconvincing.
(iii) Theirrelevance ofArticle 37 ofBahrain'sConstitution
, 4.29 Bahrain further alleges that "Qatar was equally aware that any agreement
givingthe Court jurisdiçtion would require approval in ~ahrainl~~". The text of
Article 37 of Bahrain's Constitution of 1973reads as follows:
"The Amir shalI conclude treaties by decree and shall transmit
them immediately to the National Council with the appropriate
statement. A treaty shall have the force of a law after it has been
signed, ratified and published inthe OfficialGazette.
Is4 BahrainiCounter-Mernorial ,ara.6.92p.93.
fS5 See, ibid., para.7p.3103.
Is6 W., para.1.14(2)p.7. However, treaties of peace and alliance; treaties concerning the
territory of the State, its natural resources or sovereign rights or
public or private rights of citizens; treaties of commerce, navigation
and residence; and treaties which entail additional expenditure not
provided for in the budget of the State, or which involve
amendment to the laws ofBahrain, shall come into effect onlywhen
made by a law. In no case treaties include secret provisions
contradicting those declared .
> >,
The assertion that Qatar knows the Bahraini Constitution is unfortunately mere
wishful thinking. It iswell-known that it is always extremely difficuIt to interpret
the text of the Constitution of another State. Even the most obvious phrase may
have unexpected meanings arising from constitutional practice. Furthermore,
interpretation of another State's Constitution may easily be considered as an
interference in that State's interna1affairs.
4.30 IfBahrain insists that Qatar try to understand the meaning and ratio legis
of Bahrain's Constitution, Qatar is bound to repeat what it has said in its
Memorial, that is, that prima facie Article 37 spells out conditions for the
introduction of treaties into municipal Bahrain has been careful not to
answer this argument. Qatar is also aware of some treaties which have been
concluded by Bahrain and have not been subject to ratification. Qatar presumes
that any such treaties, whatever their effect in municipal Iaw, bind Bahrain in
international law.
4.31 To come now to the position of Bahrain with regard to the application to
the Doha Agreement of the second paragraph of Article 37 of its Constitution,
such application is hardly compatible with the fact that the Bahraini authorities
did not consider itnecessary to have recourse to this special municipal procedure
with respect to the 1987Agreement, which included the followingparagraph :
"Firstly: Al1 the disputed matters shall be referred to the
International Court of Justice, at The Hague, for a final ruling
binding upon both parties, which shallhave to execute its terms."
This was, however, a cardinal cornmitment from a substantive point of view. The
commitment to refer to the Court the disputed matters, which concerned rights
over territory, natural resources and sovereign rights, was undertaken in that
Agreement. Qatar is not aware that the 1987Agreement has been submitted to ,
1s7 See, AnnextoBahrain'sletterof 18August1991,para.16pp. 13-14.
1% QatariMemorial,paras.5.31gtm., pp.108-109.the allegedly competent authorities under Bahrain's Constitution. If Bahrain felt
in 1987that the procedure of a decree or a lawwas unnecessary, although it does
not deny that the 1987Agreement was a binding international agreement, it is
difficultg fortiori, to see how Bahrain can argue that such a procedure wouIdbe
necessary with respect to the Doha Agreement.
4.32 Furthermore, both the 1987 and Doha Agreements seek ta obtain frorn
the Court a judgment which will dedare the Iaw. The judgment has no
constitutive effect, but only a declaratory effect stating the situation in law. This
might account for the absence of reaction by Bahrain in 1987,but the sarne logic
should then be extended to the Doha Agreement.
4.33 In conclusion it must be said that Qatar could not in good faith believe that
Bahrain did not mean to honour the terms to whichit was putting its signature. In
such circumstances, alleged non-compliance with the Bahraini Constitution is no
more than a pretext.
2. Ouestions ofregistration andfilinp,
4.34 In its Counter-Memorial Bahrain has also raised certain formalistic
arguments about registration of the Doha Agreement with the United Nations
and filingwith the League ofArab States ("the Arab League").
a) Registrationwith the UnitedNations
4.35 Two arguments are raised inthis context by Bahrain. The argument is
that registration was made so late that it is evidence that Qatar did not believe
that the Doha Agreement was an international agreementlSg. In this regard,
Article 102of the Charter of the United Nations provides:
"1.Every treaty and every international agreement entered into by
any Member of the United Nations after the present Charter
cornes into force shall as soon as possible be registered with the
Secretariat and published by it.
2.No party to any such treaty or international agreement which has
not been registered in accordance with the provisions of paragraph
1 of this Article may invoke that treaty or agreement before any
organ ofthe United Nations."
159 BahrainiCounter-Mcmoriap l,ara1.14(2),pp.7-8. Thesameargument is repeatedal
para6.89,p.91.Article 102,paragraph 1, sets no time-limitbut provides for registration "assoon
as possible"; nor has the United Nations Secretariat inpractice fixed any time-
limit. The relevant provision requires that registration must take place before a ,
treaty or international agreement is invoked before an organ of the United
Nations. As regards the allegedly last-minute registration of the Doha . + l
Agreement, this does not indicate any change in Qatar's perception as to the legal
stütus of the Agreement, but simply the knowledge that registration would be
essential if Qatar wished to invoke the Agreement before the Court. In any
event, and as a practical matter, since the Doha Agreement was registered with
the United Nations before the case was submitted to the Court, there can be no
question about Qatar's right to invoke it.
4.36 The second argument concerns Bahrain's protest against Qatar's
registration of the Doha Agreement. In this connection, Bahrain states that in
answer to its protest it received a reply from the Office of Legal Affairs of the
Secretary-General of the United Nations to the effect that:
"... Registration of an instrument subrnitted by a Member State,
therefore, does not imply a judgement by the Secretarjat on the
nature of the instrument.
It is the understanding of the Secretariat that its action does not
confer on the instrument the status of a treaty or an international
agreement if such tre or international agreement does not
already have that status f& ."
Bahrain concludes:
"Bahrain believes that this was the first occasion on which, in the
activitiesof the United Nations relating to registration, a State had
objected to the registration of a treaty on the ground that idid not
regard the text tgl auestion as amounting to an agreement in
international 1aw .
4.37 This conclusionis not consonant with the practice of the Secretariat of the
United Nations which has taken n neutral approach to such questions since the
adoption of the first regulations on the subject in 1945'~~. The standard position
160
BahrainiCounter-Mernoria lara6.90,pp.91-92.
-bidp. 92.
lo2
Resolution97(Iof theGeneralAssernbly.of the Secretariat in this respect is reflected as follows in the Repertom of
Practice of United Nations Ornans:
"...since the terms 'treaty'and 'international agreement' have not
been defined either in the Charter or in the Regulations, the
Secretariat, under the Charter and the Regulations, follows the
principle that it acts in accordance with the position of the Member
State submitting an instrument for registration that so far as that
party is concerned the instrument is a tre or an international
agreement withinthe meaning of Article 102 %3 .!l
For various examples of States' interpretation of this practice and of their
consequent abstention from objecting to registration, further reference may be
made to the Reoertory of ~racticel~~. In fact, what Bahrain views as a unique
event in the history of the United Nations isjusta result of the standard cautious
policy of the Secretariat which has been applied since the beginning of the
practice of registration.
b) Filina withtheArab haeue
4.38 Bahrain states that -
"...despite the requirements of Article 27 ofthe Pact of the Arab
League, Qatar did not filel&e 'agreement' with the Secretary
General of the Arab League ."
4.39 The non-filingof the Doha Agreement is without significance. Since the
Arab League came into existence in 1945, approximately 47 years ago, only ten
agreements have been filed with the Arab League byits rnembers, includingonly
one byBahrain.
B. The SubstantiveAspects:the Contentof the Doha Agreement
4.40 lnthe previous sub-sectionit has been shownthat from the forma1 point of
view,the Doha Agreement must be regarded as an international agreement. In
addition, an examination of the content of the Doha Agreement demonstrates
Ifi3 Rcpertoryof PracticeofUnitedNationsOrgans,SupplenientNo. 1, Vol.IINewYork,
1958para.12,p.400.
164
m., paras.14-20pp.400-402.
lfi5
BahrainiCounter-Mernoria pl,ra1.14(2)p.7.&, alsoW., para.6.88,pp.90-91.that it qualifies as an international agreement. The following paragraphs will
therefore examine the Doha Agreement from a substantive point of view, &, in
the light of its content. This is al1 the more essential because of Bahrain's
contention that there is a great deal wrong with Qatar's case as regards the
"substantive and substantial" aspects of the Doha ~greçrnent'~'.
.'
4.41 In its letter to the Secretary-General of the United Nations of 9August
1991~~~and in its letter dated 18Aupust 1991 to the Registrar of the Court,
Bahrain stated that the Doha Agreement was not an international agreement
governed by international law. In its Memorial, Qatar has refuted this
unsubstantiated allegationlag. Howevïr, the Bahraini Counter-Mernorial again
asserts that "the 1990Minutes do not constitute an agreement in the sense of a -
binding legal undertakinglog''. Although Qatar has already rebutted this
assertion in its Memorial, it is necessary to make certain additional comments,
due to Bahrain's unorthodox approach to this question in its Counter-Mernorial.
4.42 In its Counter-Memorial Bahrain correctly states at the outset that -
"..the question of whether a particular instrument to which two
States have subscribed their signatures is to be regarded as a
binding ~8rnational agreement is dependent upon their
intentions ."
But then, in a rather obscure passage, it states:
"The determination of the intention of the parties can be cnntrolled
by subjective or objective considerations. If the subjective
considerations alone are sufficient for this purpose then the
declaration by one of the States that it had not intended to
conclude a binding agreement would be sufficient to dispose of the
matter. Bahrain submits that that is an acceptable approach tothe
problem ...Insofar, however, as the matter is one to be dealt with
on the basis of objective evidence, then Bahrain contends that in
this respect also the indications of the attitudes of the parties in the
BahrainiCounter-Memoria p,ra.6.3p.51.
16' Qatari Memorial, AnnexII.37, Vol.III,p. 225,at pp.238-243; BahrainiCounter-
Memorial,Annex1.21,Vol. TIp,125.
168 QatariMsmorial,paras.5.04 seq., p98gt seq.
169 BahrainiCounter-Mernoria para.6.75p.84.
I7O Ibid. present case ...compel the conclusion t the 1990Minutes were
not intended to be, and are not, binding% ."
4.43 The first part of this passage - relating to the so-called "subjective
cnnsiderations" - is virtually a petitio urincipii. In essence, Bahrain is simply
asserting that a single party's alleged lack of intention to be bound, even if
undeclared when signing the agreement, would be sufficient to deprive the .,.
agreement of any binding character. Understandably, from its point of view,
Bahrain submits that this is "an acceptable appraach to the problem", but as will
be shownbelow this isnot an "accepted" approach tothe problern 172,
4.44 As for the objective considerations, these have already becn dealt with in
sub-section A above dealing with the formal aspects. Claiming tobbe taking an
objective approach, Bahrain also asserts that the Doha Agreement was a purely
"diplomatic document" not involving the intention of the Parties to be bound.
The following discussion will demonstrate that the Doha Agreement was not
merely a diplomaticdocument and that it expressed the intention of the Parties to
be bound.
1. TheDohaAereement isnot merelya "diplornaticdocument"
4.45 In arguing that the Doha Agreement isnot a bindmg agreement and is "no
more than a diplomntic d~curnentl~~", Bahrain attempts to put it into the
category of so-called "non-binding international agreements", which are
considered as having nu legal effe~tl~~.In the same vein, Bahrain tries to give
the Doha Agreement no greater value than that of a moral or political
undertaking, such as might be incorporated in diplomatic instruments which
deliberately do not create any legal obligation. These contentions are not
çonvincing. It will be shown below that the Doha Agreement cannot be
assimilated to a non-binding document, such as proceedings of a meeting, a joint
communiqué,or a declaration of intention.
171 Bahraini Counter-Mernorial, para. p.84.
172 &, paras. 4.56-4.60,below.
173 Bahraini Counter-Mernoriap.85.
174
Recht und Volkerrecht, Vol.29 (1969pp.1-11;0. Schachte"ThesTwilightExistencentliches
of Nonbinding International Agreements", Arnerican Journal of InternatiLaw,
Vol. 71 (1977),No. 2,pp. 296-304;and Qatari Memorial, parp.99.07,4.46 m, itis obviousthat the Doha Agreement, although entitled "Minutes",
is not the equivalent of minutes of a meeting, which generally are limited to
recording certain facts, situations or declarations, and where, for example, "a
majority of items minuted involvedobservations of fact, explanations, statements
of views or notes of matters left for fuither con~iderationl~~. Nevertheless,
because it was entitied "Minutes",Bahrain does not hesitate to compare the Doha
Agreement with the minutes of the Tripartite Committee Meetings 176 .
However, if one looks at the content of the Tripartite Cornmittee minutes
mentioned by Bahrain, in particular those of the Second and Fourth Meetings, it
has to be acknowledged that they were framed merely as a record of the
proceedings of those Meetings, and simplyreported the statements made at the .
Meetings. Moreover, it is noteworthy that the wording "it was agreed" in these
minutes, on whichBahrain insistsso heavily,was pIaced in parentheses at the end
of the record of the proceedings and dealt with matters such as future meetings
177
whicbwere incidental ta the conduct ofbusiness ,
4.47 As far as the signed minutes or procès-verbaux (referred to as "Agreed
Minutes" in the Bahraini Counter-Memorial) of the First and Sixth Meetings of
the Tripartite Committee are concerned, their nature and content were also
completely different from those of the Doha ~~reernent'~~. The signed minutes
of the First Meeting, for example, after listing the members of the three
participating delegations, related only what had happened during the Meeting.
The signed procès-verbal of the Sixth Meeting was aIso drafted in a purely
narrative manner.
4.48 Noîvhere in the various minutes of the Tripartite Committee cited in the
Bahraini Counter-Memorial was the verb "agree" used with reference to legal
commitments, and the "agreements" reached at those Meetings were not legally
175 Repertorvof United NationsPractice,Vol. V, New York,19p.295.
176 BahrainiCounter-Mernoria lara.6.79p.87.
177 m., Annex 1.10Vol. IIp.53,alp.74,andAnnex1.13,Val. IIp.85,atp.88.
178
%, Qatari Mernorial,Annexes IL20 and 11.31,Vol. IIpp.129 and 199; Bahraini
Counter-MernorialA, nnexes1.7and1.18,Vol. pp.37 and109.binding in character, as Bahrain has ackn~wled~edl'~. Indeed, no legal
commitment can be inferred from phrases such as:
"Itwas agreed that the basicdocuments should be in English ...";
- "Itwasagreed to hold another meeting ...";
"It was agreed that the three countries would keep in contact in order to
agree on the date ...";
- "It was agreed that the next ..meeting would be agreed upon in due
course ...Il.
4.49 The content of the Doha Agreement is of an entirely different nature. A
simple cornparison between the texts speaks for itself. Therefore, it is not
possible for Bahrain lo infer that the Doha Agreement is non-binding simply by
reference to the non-binding character of the minutes drafted after each of the
Tripartite Committee Meetings.
4.50 Second, the Doha Agreement cannot be considered as equivalent to a
joint communiquéor a press release, which dues nothing more than note an
understanding about certain international problems or common questions, or
whichembodies a particular commitment to enter into negotiations in the future.
AIthough it is true that Bahrain has not expressly assirnilated the Doha
Agreement to a joint communiquk,in a roundabout way it nonetheless suggests
something of the kind when discussing"The relationship between the Agreement
of 1987and1the 1990Minutes 18081.
4.51 Although Bahrain admits that the 1987exchangesof letters between King
Fahd of Saudi Arabia and the Arnirs of Qatar and Bahrain constitute an
international ngreementlgl, it argues that the 1987Agreement was not "a treaty
or convention in force for the purpose of Article 36(1) of the Statute", that it
contained merely "a commitment to negotiate in good faith a Special
179
BahrainiCounter-Mernorialpara6.80p.87.
W., ChapterVII,pp.99gtsec~.
m., para.5.7p.31.~~reement"'~~, and that it has created a situation "remarkably sirnilar to that
faced by the Court in the Aeeean Sea as el^^ 'n'making this argument, as
noted ab~ve'~~,what Bahrain is reallytryingto do is irnplicitlyto draw a parallel
between the Doha Agreement and the Brussels Communique issued on 31 May
1975 by the Prime Ministers of Greece and ~urke~l~~. However, the actual
content of the Doha Agreement clearly shows that the intention of the Parties
was, inter aIia, the submission of their disputes to the International Court of
Justice after the expiryof a certain period of time, the identification of the subject
and scope of the dispute through reference ta the Bahraini formula, and the
definition of legalcommitments with regard to the continuation of Saudi Arabia's
Mediation. These provisions are of a legal, not a poIitical, nature and are
therefore legallybinding.
3.52 Third, Bahrain presents the Doha Agreement as a purely poIitical
instrument, thus treating it as expressing no more than a declaration of cornmon
intent, without any legal cornmitment. When States agree on a text that isjust a
statement of cammon intent, they have no intention of being legallybound, and
they do not necessarily intend to deprive themselves of the possibility of
subsequently changingtheir mind and of eventually taking another position, if
they deern it necessary to do so. However, it is impossible to read the Doha
Agreement inthis way. The wording of the Doha Agreement indicates that an
agreement has already been reached and is not merely a declaration of intention
either to reach an agreement inthe futureor otherwise.
4.53 Thus, in stating that "After the end of this period, the parties may submit
the matter to the International Court of Justice...",the Doha Agreement clearly
recognizes a legal rightwhich maybe exercised after a certain date. Sirnilarly,by
reaffirming "what was agreed previously", the text also confirrns the legal
obligation entered into in 1987 concerning the mandatory reference of the
disputes to the International Court of Justice.
Is2 Bahraini Counter-Memorialp,ara.7.1p.99.
lS3 M., para.7.2p.99.
lg4 Ss, para.4.10,footnute126,above.
IX5 See, BahrainiCounter-Memorialp,ara7.4,p.lûû.4.54 By enunciating legal rights and obligations, the Doha Agreement was
clearly drafted in order to produce legal effect between the Parties, and is
therefore "governed by international law",as provided in Article 2 of the Vienna
Convention on the Law of ~reatiesl'~. Moreover, not only the actual terms of
the Doha Agreement but also the circumstançes in which it was drafted support
the conclusion that it is a binding international agreement and not merely a
187 .,.&,
declaration of intention .
4.55 Since the text of the Doha Agreement as it stands gives rise to
international obligations, in accordance with the principle of effectiveness itis
necessary to give that text al1the legal effect that good faith and the actual words
of its provisionsallow,in the lightof the objeand purpose of the Agreement. In
particular, effect has to be given tu the ostensible purpose of the Doha
Agreement which was to implement the consent to the jurisdiction of the Court
set out in the first item of the87Agreement and to ensure a final settlement of
the dispute. In order to achieve that purpose the Doha Agreement defined the
subject and scope of the disputes that cou1dbe referred to the Court, the period
after which the Court might be seised, and the relationship between such
settlement by adjudication and Saudi Arabia'sMediation.
2. Theintentionof the Parties tobebound
4.56 The intention of the Parties to create legal rights and obligations, which is
required in any binding international agreement, is apparent in thelanguage and
structure of the Doha Agreement and the attendant circumstances of its
conclusion and adoption. The intention of the Parties to be bound appears from
the text itself, and what has to bene js to give effect to the Parties' intention as
expressed18'. The latter aspect, b, the interpretation of the Doha ~~reement,
willbe examined in the followingSection of this Chapter. At this stage, suffice it
to say that, according to the standards generally accepted for determining the
186 Under Article 2, para. 1, sub-para.(a), "'trmeans an internationalagreement
concludedbemeen States in writtenformand govcrnedby internationalIaw,whelher
embodiedin a singleinstrumentor two ormorerelaledinstrumentsandwhateverits
particulardesignation".
187 =, ingcnerdl,ChapteIIISection6, above.
lS8 B. Lord McNair, The Law of Treaties, OxFord,1961, at p.365; anP. Reuter,
Introductionto theLawofTreaties,London,198p.74.binding character of agreements in international la^^^' the text of the
instrument signed in 1990has a certain precision and specificity. It sets forth the
undertakings arrived at between Qatar and Bahrain, whichconcern the institution
to be called upon to resolve the dispute, k, the International Court of Justice,
the subject and scope of the dispute to be dealt with by the Court, and the
deadline after which the matter rnay be submitted to the Court. From the
behaviour of both Qatar and ~ahrain'~', it appeared to be their clear
understanding at that tjme that these undertakings were intended to have a legal
effect, and were not merely of a politicalor moral nature, and therefore that they
were bindingupon the signatories.
4.57 Bahrain contends that it never had the intention to be legally.bound by the
content of the Doha Agreement. That contention, however, is a mere assertion
put fonvard after Qatar filed its Application instituting the present proceedings.
When the two States were engaged in the drafting of the Doha Agreement at the
initiative ofaudi Arabia and with the assistance of Oman, Qatar heard nothing
about any reservation which Bahrain might have had concerning the binding
character of the instrument. Similarly,as far as Qatar is aware, Bahrain did not
express any doubts after the signature of the Agreement as to its binding
character. It was only after Qatar had filed its Application that, through the
letters dated 14Julyand 18August 2991from the Minister of Foreign Affairs of
Bahrain to the Registrar of the Court, it became aware for the first time of
Bahrain's intention to consider the Doha Agreement as not legally binding.
Furthermore, since Qatar acted on the basis ofwhat was apparently the common
intention of the Parties as expressed in the terms of the Doha Agreement,
Bahrain cannot nowproperly maintain that its intention was not what it appeared
to be at the time of the conclusionofthe Agreement.
4.58 Bahrain'scontention may be further criticisedfrom another point ofview.
Accordingto its Counter-Mernorial -
"...it is evident from al1that has so far been said, as weli as from
what the Foreign Minister of Bahrain has affirmed regarding his
intentions at the time of the adoption of the 1990 Minutes, that
lg9 A particulaexpressioof thesestandardswagiven,forexample,inthe Mernorandumof
12March1976fromthe State DepartmentLegal Adviser, on"Case Act proceduresand
Dcpartment of Statecriteriafordecidingwhatcunstituansinternationalagreementn,
Dices1of U.S. PracticeinInternatilnaw,1976,pp.263-267.
190 B. Chapter IIISection6, above. Bahrain did not regardl@ose Minutes as constituting a binding
internationalagreement ."
The opposite, however,is the case. The drafting history of the Doha Agreement,
'
upon which Bahrain relies so heavilylg2, clearlyevidences the close involvement
of Bahrain's Ministerof State for Legal Affairs in the drafting process from the
earliest stages, leading up to his inclusion in the Bahraini delegation in Doha in
the later stages193. While the intention - or the lack of intention - of Bahrain is
claimed to be "evident"inthe passagejust quoted above, Bahrain does not in fact
. nffer any evidence to support its contention other than the Statements by its own
Ministers appended to its Counter-Mernorial. There is no question here of
weighingthe value of these Statements in thernselves, a point which has already
'
heen addressed in the present ~e~l~~~~.In the view of Qatar, the intention
allegedly revealed in these Statements cannot be taken into consideration, not
only because such alIegations of intention are exclusively seIf-serving, but
principallybecause they cannot affect in anyway the legal consequences fiowing
from the signature of the Doha Agreement by the Foreign Minister of Bahrain.
4.59 When a Minister of Foreign Affairs appends his signature to an
instrument, the content ofwhichincludesa commitment couched inlegal terms as
in the present case, he is presumed to act with the intention of creating a lepl
obligation on behalf of his State. This presumption is ciearly reflected in Article
7, paragraph 2, of the Vienna Convention on the Law of Treaties, which provides
that "Invirtue of their functions",Miriistersfor Foreign Affairs "are considered as
representing their State", "for the purpose of performing al1acts relating to the
conclusion of a treaty1t195, It is hardly conceivable that a Minister of Foreign
lY1 Bahraini Counter-Mernorial, para. 6.8p.89, footnote omitted.
192
I.id >paras. 6.37 a., pp.6û g ses.
lY3 $,,, Bahraini Counter-Mcmorial, Annex 1.26,Vol. IIp.177.It iscurious, to saythe least,
that the direct and active participation of thc Minister of State for Legal Afwasrs
thought to be necessary if the document to be signewas really understood10havc no
legal significance and to be non-binding, and if that particiwasijust to ensure that
the document tobe signedwas notbinding.
1g4 See, para. 3.55, footnote 96, above. Moreoveas underlinedby the Permanent Court in
,
the case concerning Certain German Interests in Polish Upper Silesia, "The Courtis
cntirely free to estimate the value of statements mbythe Parties" (Meriis. Judcrment
No. 7, 1926,P.C.I.J..SeriA, No. 7,p.73).
195 Sir Ian Sinclairdescribes thispresurnption as "incontestable".Thc Vienna Convenonon
theLaw ofTreaties, 2nd edition,Manchester UniversityPress, 198p.32.Affairs, havingthe inherent capacity to perform acts relating to the conclusîonof
interiiational agreements, and particularly to sign them, can later say that he did
not have the intention of bindinghis Government byhis signature.
4.60 In the particular circumstances of this case, the fact that Bahrain's
assertion that it did not intend to enter into a binding agreement was made only >.&,
after the filing of the Application by Qatar must surely be taken into
consideration. Insofar as the instrument adopted in December 1990was drafted
in such a way as necessarily to create a new legal situation in relation to the
existingdisputes between Qatar and Bahrain, owing to the content of its operative
part, it would have been for Bahrain to make an express reservation as to its
binding character,ifthat was reallythe intent ofBahrain atthe time., This derives
from the principle of trust and confidencein international relations. Accordingtu
a dicturnof the Court in the NucleürTests (Australiav. France) case:
"One of the basic principles governing the creation and
performance of legal obligations, whatever their source, is the
principle of good faith. Trust and confidence are inherent in
international cooperation, in particular in an age wh %6! h's
cooperation inmany fieldsisbecoming increasinglyessential .
Accordingly,Qatar concludesthat Bahrain7spresent contention that a declaration
by one State that it had not intended to conclude a binding agreement would be
sufficient to dispose of the matter is not at al1an "acceptable approach to the
problem". It is hardly necessary to comment further upon that contention which,
if it were correct, would mean that any State could at will repudiate its
international commitments sirnplybystating that it had not intended to undertnke
them.
SFKTIO 4. The Interpretationofthe DohaAgreement
4.61 As to the question of interpretation, Bahrain takes issue with Qatar
concerning both the 1987Agreement and the Doha Agreement. However, since
the question of the alleged conditionality of the first provision of the 1987
Agreement has already been discussed in the present ~e~l~~~~ Q,atarwillturn
IY6 Jud~mcnt,I.C.J.Reports 1974para46,p.268;G, also,M. (New Sealand v.France),
para.49,p.473.
197 See,paras3.07 gtseq., ndparas.4.04-4.05,above.directly to the points of interpretation raised by Bahrain in connection with the
Daha Agreement.
4.62 In the previous Section, it has been dernonstrated that the Doha
Agreement is a binding international agreement. Consequently, it must be
interpreted in the light of the principles and criteria embodied in the Vienna .>,:,
Convention on the Law of Treaties. Articles31 and 32of the Vienna Convention
are the relevant Articles.
4.63 The ordinary meaning of the words used in the Doha Agreement willbe
taken up first, the wording being analysedwithin its cantext. As for the travaux
pré~aiatoires, it must be borne in mind that these are only a supplementary
means of interpretation and cannot be used so as to modify the clear result
pointed to by the ordinary meaning of the words in their context, when that
meaning is clear. Thisiswhy Qatar has previouslytaken the view,and maintains,
that there isno necessityto refer to the travaux préparatoires, as the conditions
laid down by Article 32 of the Vienna Convention are not fulfilledin the present
case198. Howçver, if recourse is nevertheless to be had to any supplernentary
means of interpretation of the Doha Agreement, it will be found that what are
known in the Vienna Convention as "the circumstancesof its conclusion"support
Qatar's position 199.
A. TheOrdinarvMeanin9of theWords
4.64 In the Bahraini Counter-Mernorial,the discussiondevoted to "the meaning
of the 1990 Minutes" is somewhat selective. It mainly concentrates on the
meaning of asingleArabic expression, "al-tarafan",and its English translation as
"theparties" or "the two Tho meaning ofthe othçr words isexarnined
198 QatarMernurial ,aras.5.57-5.5pp.119-120.
199 Accordingto Lord McNair,any interpretatioprocessconsists in~givingefftotthe
intentionof the parties"asexpressedin the words used by thernin lighrof the
surroundingcircurnstanceso,p. cit.,Oxford,1p.365.
200 BahrainiCounter-Mernorial,aras.6.g m., pp.54 sea.- if indeed it is examined - in a cursory manner, as if it were to be entirely
subordinated to the meaning attributed by Bahrain to the word "a~-tarafan"~~l.
Bahrain greatly exaggeratesthe importance of this point, as maybe seen from the
numerous expert upinions annexed to its letter of 18 August 1991 and to its
Counter-Mernorial. In fact the real problem is a legal problem, not a purely
linguisticone,
>8
4.65 In concentrating its attention on the meaning of "al-tarafan", Bahrain is
jugglingaway other parts of the text as it stands. On the pretext that the "Major
disagreement between the Parties is limited to the meaning of two phrases20211 _
these two phrases, according to Bahrain, are "theparties" or "the two parties",and
"and the arrangements relating thereto" - Bahrain pays no attention to the first
and third sentences of the second paragraph of the text. Similarlynothing is said
in the Bahraini Counter-Mernorial concerning the third paragraph of the text.
This is clearly contrary to one of the most basic principles of interpretation,
according to which the meaning of words is to be taken in the proper context of
those words and in the light of the object and purpose of the whole text203.
Accordingly,each of the three paragraphs constituting the operative part of the
Doha Agreement wilInowbe considered in turn.
1. Thefirst aara~raphof theDohaAzreement
4.66 Under the firstparagraph of the Agreement it was agreed -
"To reaffirm whatwasagreed previousIybetween the two parties."
Bahraini Counter-Mcmorial,paras. 6.26et seq., pp.62 et seq. In this respect,itis
signifiant that in ChapterVI of the Bahraini Counter-Mernorial, withinthe Section
devoted to "Themeaning of the1990 Minutes", sub-sectionA, entitled "The relevant.
languageis Arabic",compriseson@one point: "Themeaningofal-tarafan".
202 BahrainiCounter-Memorial, para. 6.6p.53.
203 Accordingto Article 31,para. 1,of the Wenna Conventionon the Law of Treaties"A
treatyshallhe intcrpreted in good faiin accordancewith the ordinarymeaning tobe
givento the termsofthe treatin their contextandinthelightofilsobject and purpose".
In its1922AdvisoryOpinionon the Cornpetenceof the IL0 in Regardto International
Reaulation of the Conditions of Labour of Persons Emvloved in Apricuiture, the
Permanent Court statcd: "In considering the question before the Court upon the
languageof the Treaiy,it isobvious ththe Treatymustbe readas a whole, andthat its
meaning isno1 to be detcrminedmerelyupon particular phraseswhich, idetachedfrom
the context, maybe interpreted inmore than one scnse" (P.C.I.JSeries B. No.2, at
p.23).As already demonstrated in Qatar's Mernorial, the reference to "whatwas agreed
previously" can apply only to the Agreement arrived at in December 1987within
the frarnework of the good offices of Saudi Arabia204. It must simplybe recalled
that the basic commitment undertaken at that moment was that -
"Al1the disputed matters shall be referred to the International
Court of Justice, at The Hague, for a final rulingbinding upon both
parties, who shallhave tu execute itsterms."
4.67 Bührain prnceeds on the false assumption that there were other
"agreements" that were reaffirmed in the first paragraph of the Doha Agreement,
in particulür those allegedly contained in the minutes of the Meetings of the
Tripartite Committee, notabiy those of the Sixth Meeting held in December
1988~'~. This contradicts entirely what Bahrain has said concerning the value of
mere "minutes" in its attempt to negate the Iegallybinding character ofthe Doha
Agreement simplybecause it was entitled i in ut es"^ Bah^r.in's approach here
is unsustainable, al1 the more because Bahrain has recognized the binding
207
character of the 1987Agreement asan international agreement .
4.68 Inthe same context Bahrain also repeats its argument that its commitment
to go to the Court was conditional upon the joint submission of the dispute to the
Court under a special agreement:
"...in re-affirming what had previously been agreed, the parties
were intending to reaffirm a course of conduct pursued exclusively
on the basis that the Parties would jointly subBthe entirety of
their dispute to theCourt by a special agreement ."
204 Qatari Mernorial,para3.58,4.49and 4.52pp.58,87 and 88.
205 Bahraini Counter-Memoriai, para6.29, p.63. In fact, as alreadshown, the signed
minutesof theSixthMeetingdid not containanyrelevantagreement but ratherrecorded
thedivergent positionsoftheParties%, paras3.45-3.47,above. InQatar's opinion,
althnughthe minutes ofthe Tripartite Committeecannot be equatedwiththe binding
international agrecmcntstherwise entcrcdinto between Qatar and Bahrain, this of
coursedoes not mean thatthey are to be completely disregardedwith respect to ather
aspectsof thiscase.
206 See,Section3,subsectionB ofthisChapter,abavc.
207 Bahrain has indicated that there is no issto theexistenceof an agreement in the
terms of the Saudi proposaisof December 1987. &, Bahraini Counter-Memorial,
para.1.6p. 3and paras5.1g scq.,p.28gt seq.
208 BahrainiCounter-Memorial,para. 6.27p.62.This contention has already been dealt with above2". In any event, it is a strange
interpretation of the Doha Agreement that leads to the conclusion that its
purpose was limited to reaffirming a course of conduct whichhad patently led to a
deadlock. In fact the inclusion of a paragraph in the Doha Agreement
reaffirming what was agreed previouslywas at least in part the result of Bahrain's
attempt to repudiate itsubligation under the first item of the 1987~~reement~l',
2. The secondpnrarraphof theDoha Agreement
4.69 According to the second paragraph of the Doha Agreement it was agreed -
"to continue the good offices of the Custodian of the Two HoIy
Mosques, King Fahd Ben Abdul Aziz, between the two corintries
till the month of ShawwaI, 1411 H, corresponding to May of the
next year 1991. After the end of this period, the parties may submit
the matter to the International Court of Justice in accordance with
the Bahraini formula, which has been accepted by Qatar, and the
proceedings arising therefrom. Saudi Arabia's good offices will
continue during the submission ofthe matter to arbitration."
This paragraph is obviouslythe cornerstone of the whole Agreement. While its
second sentence is the provision enabling the Parties to institute proceedings
before the International Court of Justice, it must be underlined that the three
sentences comprisingthe paragaph are strictlyinterrelated.
4.70 Both the first and third sentences of this paramaph deal with the
continuation of Saudi Arabia's good offices, but they cannot be viewed as both
having entirely the same purpose, othenvisc the two provisions concerning the
continuation of those good officeswould have been incorporated in one and the
same sentence. The first sentence allowed the Mediator to rnake a last effort to
resolve the substance of the disputes until the month of May 1991,during which
time the disputes would remain exclusivelysubject to the Mediation process. On
the other hand, the last sentence provides for the concomitant action of the
Mediator after submission of the matter tojudicial settlernent, the two methods of
settlement then being pursued pari oassu211. Thus, the Doha Agreement
established twa distinct systems for Saudi Arabia's good offices:one providing for
209
See,inparticular,para3.07g seq-above.
210 %, para.3.58,above.
a, QatariMernoriaIp,ara5.56p.118.Mediation alone up to May 1991,the other one providingfor two parallel lanes of
peaceful settlement after that date. This is not disputed in the Bahraini Counter-
Memoriai, where it is stated that Saudi Arabia's good offices were to continue
even when the casewasbefore the ~ourt~l~.
4.71 It is clear from the second sentence of the paragraph that the reference of .8
the case to the Court was dependent on the passingofthe tirne-lirnitof May 1991,
if no settlernent had been arrived at by that time under Saudi Arabia's auspices.
Qatar's acceptance of the Bahraini formuIa and the agreement that "the parties
may submit the matter" to the Court at the end of a certain periad oftime were
new elements enabling the cornmitment to go to Court in the 1987Agreement to
be implemented.
4.72 In support of its basic contention that the text of this sentence does not
accord to each Party the right unilaterally to commence proceedings, Bahrain
relies essentially upon a long discussionof the meaning of the Arabic word "&
tarafan213. If has annexed to its Counter-Mernorial no fewer than four expert
opinions, al1dealing with the meaning of this word. In fact Bahrain's purely
linguisticarguments are quite subsidiary,and Iargelyirrelevant for two essential
reasons. m, it must be recognized that the issue before the Court is not
primarily one about translation from Arabic into English. As conceded by
Bahrain -
"..the task of the Court is not to choose one or the other of these
English expressions [i,e .te parties" or "the two parties"] but
instead to identifya form of wfigs that best reflects in English the
true sense of the Arabic words ."
If it isthus not so much a question of choosingbetween two English translations,
but of determining what, in the text in question, best represents the rneaning of
the terms, then the purelylinguisticarguments cannot be decisive. Second, as has.
already been shawn by Qatar, and even by Bahrain's own experts, the word "&
tarafan" dues not necessarilyimpfyjoint action, the question ofwhether the action
is joint or separate depending upon the context in which the word is to be
212
BahrainiCounter-Mernorial, paa..7p.83.
213
l.id9paras.6.7gseq.pp.54 gta.
214
m., para.6.8p.54,footnotesomitted. found215. In the contextof the second paragraph of the Doha Agreement, and in
the wider context of that Agreement read as a whole, as well as of the previous
Agreement concluded in 1987,the word "al-tarafan" does not necessarily imply
joint action by the Parties. Rather, the context showsthat in the present case the
use of the word "al-tarafan" indicatesthat under the Doha Agreement each Party
has the right to refer its own claimsto the Court. This interpretation can alsobe ?*,
supported, if necessary,by the "preparatory works"and the circumstances of the
216
conclusionof that Agreement .
4.73 The word "al-tarafan" was also used both in the ~rarnework~l~ which
initiated the Mediation process and in the 1987Agreement. A consideration of
these two important documents, entered into prior to the Doha Agreement,
clearly demonstrates that the wnrd "al-tarafan" can be interpreted in the
conjunctive or the disjunctive sense, depending on the context. Thus, for
example, in the Framework, the word "al-tarafan"is used inparagraph (a) of the
Third Principlewhichprovides that "TheParties shallundertake to refrain ..from
engaging in any propaganda activityagainst each other ...". learly, "al-tarafan"
here means "each of the parties". A similar interpretation would necessarily be
placed on the word "al-tarafan" as used in paragraph jb) of the Third Principle.
As for paragraph (c), which provides that "The Parties shaII undertake not to
present the dispute to any international organization",the sarne words could be
translated either as "both parties" or "each party". Again, in paragraph (b) of the
second item of the 1987Agreement, the word "al-tarafan" could be translated in
either of the same two ways. Moreover, it must be added that, where Qatar has
translüted this item as "The parties undertake to refrain from to-date from any
media activities agdinst each other218", the translation prepared by the United
, Nations Secretariat and referred to by Bahrain States"The two parties undertake
hereafter to refrain from carrying out any propaganda activityagainst the other
215
See,for example ,he Opinionof Dr.Holes submittedbyBahrainasAttachment5 to the
Annex to Bahrain'sletter of 18August 1991, atp.5. &, also, the Supplementary
Opinionsof ProfessorAhmed El-Kostieriandof ProfessorShukryAyyadinVolumeIIof
thepresentReply,Annex 111.1,.77, andAnnex111.2p,.101,respectively.
216 See, ChapterIIISection6above.
217 QatariMernorial, nnex11.1,Vol.III,p1.
218 QatariMernorial, nnex11.15V, ol. Ip.101,atp. 104.partv219t1. In sucha case, it is obvious that "al-tarafan", even when it is translated
as "the two parties", in fact means "eachparty".
4.74 The artificial nature of Bahrain's argument regarding "al-tarafan" is al1the
more evident in that it takes no account of the condition that the matter has to be
submitted to the Court "inaccordance with the Bahraini formula". In fact, the use .,.
of the word "al-tarafan",whether translated as "the parties" or "the two parties", is
perfectly consistent with the use of the Bahraini formula, as this formula was
conceived precisely in order to allow each Party to submit its own claims to the
Court. Indeed, this has been made clear byBahrain itself. At the meeting ofthe
legal experts held on 6 December 1988, preceding the Sixth Meeting of the
Tripartite Committee, Dr. Husain Al-Baharna commented upon ,the formula, .
stating -
"..we sawthis as a compromise formula sincewe are formulating a
general formula and it is left for each Party submit whatever
claims itwantsconcerning the disputed matters $90 .l
4.75
As has been explained in Chapter III above, and contrary to Bahrain's
allegation, Qatar tvak the initiative of adding the phrase "inaccordance with the
Bahraini formula, which has been accepted by Qatar" to the text of the Doha
~~reernent~~'. When Bahrain then amended the text by replacing "cither of the
two parties"by "the parties" or "the two parties" ("al-tarafan") and by adding "and
the proceedings arising therefrom", these two amendments were regarded by
Qatar as reflecting Bahrain's position that it wanted each Party to be able to
formulate its own claims and present thern to the Court, so as to safeguard its
interests222 .
4.76 The amendments proposed by Bahrain and accepted by Qatar, if they
were really intended to give the meaning which Bahrain now contends, could
easily have been introduced in clear explicit words to that effect. The Statement
219 BahrainiCounter-MemorialA , nnex1.2,VolII,p.5,at p.9 (emphasesadded).
TripartiteCommitreeDocuments, Document No. 9,p.231,atp.235 (emphasisadded).
221 See, ChapterIIISection6,above.
222 Ifthe language"citheof thetwoPartieswhadbeenretained,thiswouldhaveentailedan
obligationforone Partyalone to submitthewholc disputeto the Court,i&,the othei
Party'scase in additionto iown, whichin thepresentcircumstances would be both
nonscnsicaland impossible.of Bahrain'sForeign Minister annexed to the Counter-Memorial indicates that he
and Bahrain's Ministerof State for LegalAffairs had extensiveconsultations with
the Omani Foreign Minister regarding the wording of the Doha Agreement, so
that they could have insistedupon inclusionofwords to the effect that only"both
the parties together" could approach the Court. If the intention was that a joint
submission was needed, and bearing in mind that the words "al-tarafan" were
introduced by Bahrain, some more precise wording might have been expected,
and the amendment should have been drafted using clear language known to al1
Arab lawyers, so that it was clear that what was intended was "the two parties
together", or "j~intl~"~~~.When it now interprets the word "al-tarafan" as
rneaning "the parties jointlv" or "the two parties to~ether", it is obvious that
Bahrain istryîngto add somethingwhich itshouldhave introduced into the text at
that time, if that was reaIlyits intention, but whichit did not actually add. Qatar
maintains that, in interpreting the Doha Agreement, the common intention is to
be found in the words actuallyused in the text ofthe Agreement, and not in the
aIleged subjective intentions of one of the Parties when such intentions are not
reflected in the terms used in the Agreement. If Bahrain's positionwere adopted
this would amount not to an interpretation but to a modification or amendment
to that Agreement.
4.77 As for the words "and the proceedings arising therefrom", or "the
procedures arising therefrom" (as translated by Bahrain), Bahrain contends that
they were introduced into the Doha Agreement "inorder to make it quite clear
that Court proceedings could only be begun by both Parties together and,
therefore, that further steps would need to be taken by the two parties jointly to
bring the case to the To support this contention, the Bahraini
Counter-Memorial relies on the Statement of Dr. Al-Baharna, "who formulated
the phrase", and who has declared in his Statement "thathis intention in usingthe
words was to emphasize that the Parties would need to take further steps jointly
to bring the case to the ~ourt~~~''. It rnust again be observed that private
intentions of delegates participating in a negotiation are absolutely irrelevant for
the subsequent interpretation of an agreed text. Onlythe intention of the Parties
as expressed in the document can be taken into account. Ifas Bahrain contends
now,such language was to mean steps to negotiate a special agreement, it was up
223 -See,SupplementaryOpinionof Prof.Ahmed El-Kosheri,Annex111.1,ol. Ip. 77.
224 BahrainCounter-Mcmoriap l,ar6.33,pp.65-66.
225 m., para.6.35,p.66.to Bahrain to propose precise wording to this effect when it drafted its
amendment.
4.78 Bahrain contends also that the words "and the proceedings [or
"procedures"] arising therefrom" related to the Bahraini formula, and that the
proceedings or procedures arising from the Bahraini formula necessarily imply
"joint submission" under a special agreement, since the formula was initially
intended to be incorporated into a special agreement226. Such a contention
simplyignores the fact that the Bahraini formula can stand on its own,and that it
was assuch that it was accepted by Qatar.
4.79 Qatar maintains that "the proceedings [or "procedures"] arising therefrom" ,
are those arising from the submission of the matter to the Court in accordance
with its Statute and ~ules~~~. This is sirnilar to the position in rnany
compromissory clauses in ad hoc agreements which confer jurisdiction on the
Court under Article 36,paragraph 1,of the Statute, but which do not specib the
manner of seisin. Even if it isassumed, for the sake of argument, that this phrase
refers exclusivelyto the words "in accordance with the Bahraini formula", the
followingquestion must then be asked: What proceedings could arise from the
text of that formula, which contains rnerelythe identification of the disputes to be
put to the Court ? The answer can onlybe found in the Statute and Rules of the
Court, because the Bahraini formula is a general formula stating the subject and
scope of the disputes to be referred to the Court. Being a general formula, it
leaves it to each Party to formulate its own daims228?at least under the first part
of the formula, the second part being more specific in that it asks the Court to
draw a single maritime boundary. Accordingly,contrary to Bahrain's contention,
the words "the proceedings arising therefrom", which echoed earlier references to
cornpliance with the Court's procedures229, not only do not prevent each Party
226 BahrainiCounter-Mernoriap l,ara.6.34,p.66.
2.2' -Sce,QatariMernorial,paras.4.58-4.5p.92,and para5.60,pp.120-221.
228
As alreadyexplainedin the Mernonal,this would have been the situationeven the
Bahraini formula were contained in a special agreement. g, Qatari Memorial,
para.5.69p.125.
229 Such references occur bothin the 1987 Agreementand thcTripartiteCommittce's
discussionsg. forexample,Tripartite CornmitteDe ocuments, DocumentNo. 1,p. 1,
atp. 4, where Prince Saud Al-Faisalspoke of referrinthe issue to the Court "in
accordanccwiththeconditionsandproceduresofthe Court". from submitting the matter to the Court by a unilateral application as Bahrain
contends, but positivelyenable the Court tobe seised in this way.
3. Thethird~aragra~hofthe DahaAgreement
4.80 The last paragraph of the Doha Agreement reads as follows:
"should a brotherly solution acceptable ta the two parties be
reached, the case willbe withdrawn from arbitration."
This paragraph ernbodies the cornmitment to withdraw the case from the Court if
another solution is reached, notably through Saudi Arabia's good offices, which,
under the second paragraph, "willcontinue during the submission of.thematter to
arbitration". In its Memorial, Qatar asked the question: "whyprovide that if the
Saudi good offices succeed, the case shall be 'withdrawnfrom arbitration', ifthe
sole cornmitment of the Parties in the Doha Agreement is to resume negotiations
to make a special Bahrain refrained from answering this
question in its ~ounter-~ernorial~~~. The existence of such a provision, which
was not incorporated in the two States' respective drafts when they tried to
conclude a speciaI agreement, is further evidence that the submission of the
matter tothe Court might be made immediately after the expiry of the deadline
provided for in the Doha Agreement. Otherwise, such a provision would make
no sense at all, in view of Articles 88 and 89 of the Rules of Court concerning
discontinuance of a case.
4.81 Qatar therefore concludes that the language of the Doha Agreement is
cIear, and that the ordinary rneaning of the words in their context leads to the
a conclusion'that the jurisdiction of the Court has been definitely established by this
Agreement. As willbe shown below,Qatar's interpretation of the Agreement can
also be supported, if necessary, by the "preparatory works"and the circumstances,
of the conclusion of the Agreement.
230 QatariMemorialp , ara5.49p.116.
231 Perhapsthe answer wasta beinduded inparas.6.66and6.67 whichdo notappear inthe
BahrainiCounter-Mernoria asitwas filedon 11June1992. B. TheCircumstancessurroundinethe Agreement
4.82 The circumstances in which the Doha Agreement was drafted have been
recalled in Chapter III of the present Reply. It is not necessary to repeat them
again,for they speak for themselvesand clearlyshed light upon the new approach
taken in the Doha Agreement to the manner of settling the existing dispute
between Qatar and Bahrain,
4.83 Bahrain itself has conceded that the Doha Agreement was an important
nçw dzveloprnentU2 However, invokingthe particular circumstances in which
the Agreement was drawnup, Bahrain considersthat -
"...the purpose of the Minutes as finallyadopted was not primarily
to achieve a major alteration in approach, but, by any appropriate
means short of major change to pf@ diplomatic end to an untimely
and ill-conceivedQatari initiative ."
This is an extraordinary assertion, since the surrounding circumstances of the
conclusionof the Doha Agreement al1point ta the fact that the Mediator himself
thought thai the tirne had cornefor the dispute to be submitted to the
It must also he borne in mind that the Doha Agreement was arrived at, as stated
in its preamble, "Withinthe framework ofthe good officesof the Custodian of the
Two HolyMosques, King Fahd Ben Abdul Aziz".
4.84 It is indisputable that the Doha Agreement, while constituting a logical
progression in a course of events which had been entirely aimed at trying to
submit the dispute to the Court, introduced a new element into the situation
which had prevailed prior to its adoption. The step fonvard taken in the Doha
Agreement resulted, inter alia, from the impossibilityofagreeing in the Tripartite
Committee on an acceptable formulation ofa special agreement submittingtothe
Court al1the matters in dispute between the two Parties. The Doha Agreement
was clearly aimed at escaping from the deadlock with which both States were
confronted after the failure of their efforts to negotiate a special agreement in
1488. In order to escape from the deadlock, a new approach was introduced by
the Doha Agreement which consisted in linking Qatar's acceptance of the
232
Bahraini Counter-Mernoriapara.6.71,p.83.
233
-IbiIpara.6.70pp.82-83.
234 &, para.3.57above.Bahraini formulation of the subject matter of the disputes together with the
determination of a deadline after which the Court mibe seised of the disputes.
Thus, the Agreement reached at Doha in 1990emerged as having the function of
an 4 hoc agreement containing a compromissory clause making it possible for .
each Party to subrnit an application to the Court presenting its own claOns.
the other hand, in the light of the circumstances of its conclusion, Bahrain's
interpretation of the Doha Agreement would make the Agreement ineffective for
a fulfilment of its object and purpose.
SECTIO SN. Consentinthe Doha A~reernent
4.85 The interpretation of the Doha Agreement according to, the Vienna
Convention leads to the conclusionthat, by means of that text, Qatar and Bahrain
have expressed their consent to submit the Court the disputes existingbetween
them as defined by the Bahraini formula, and that their consent besregarded
as final.
A. TheExchangeofConsentsbetweenthe Parties
4.86 In its Mernorial Qatar has shown that the terms of the Doha Agreement
confirmed the existence of an exchange of consents between the Parties both to
submit their disputes to the Courtand with respect to the definition of the subject
rnattçr of those disputes235. The Bahraini Counter-Mernorial has not discussed
these questions, which remain at the root of the present case, to anyextent.
1. The consentofthe Partiestureferthe disputesto the Court
4.87 The Doha Agreement confirmedwhatwas previously agreed by Qatar and
Bahrain and more particularly their acceptance of referral of their existing
disputes to the International Court of Justice, as provided for in the 1987
Agreement. However, where the 1987 Agreement stated that "Al1the disputed
matters shall be referred to the International Court of Justice", the Doha
Agreement added that "After the end of this period [k. after May 19911,the
parties may submit the matter to the InternationaI Court of Justice..."The
consent of both States dealt not only with the reference of the disputes to the %
Court -a question already settled in the 1987 Agreement - but also with the
23
@, ingcneralQatarMernorial,hapterIV.moment frorn which the Court could be seised.
Asis evident £rom the record of
the drafting of the Doha Agreement, this particular provision was incorporated in
the first draft presented by the Omani Foreign Minister and was never challenged
either by Qatar or by Bahrain 236.
4.88 The indication that the Court could be seised after the expiryof a time-
8
limitwas something new,to whichthe two interested States gave their agreement,
For the first time, a deadline was agreed upon, and it is important to recognize
the significanceof this deadline with respect to the consent of the Parties to refer
their disputes ta the Court.
4.89 This indication of the period after which "the parties mqy submit the
matter to the International Court of Justice", was one of the most important
aspects covered bythe Doha Agreement. It determined the date from which the
proceedings before the Court might be instituted.
2. The consent of the Parties tn the subiect matter of the disputes to
be submittedto the Court
4.90 The second essential element which was dealt with in the exchanged
consents relates to the subject and scope of the disputes. As explained in Chapter
III above, at the opening session of the GCC Summit Meeting in Doha in
December 1990, the Amir of Qatar declared that he accepted the proposa1
previouslymade byBahrain concerning the definition of the subject matter of the
disputes so that the matter could be referred to the Court without delay.
4.91 Bahrain admits that the "Qatari acceptance of the Bahraini formula ..was
a major step forward by ~atar~~~'';but, looking at the Doha Agreement only as
part of an "ongoing political pracess23'' aiming at the conclusion of a speeial
agreement, Bahrain considers simply that "progress was made at Dohah as
regards the definition of 'the question'2391'.Hypnotised now by the idea of the
need for a special agreement, Bahrain refuses to put Qatar's acceptance of the
236 a, ChapterIII,Section6, above.
237 BahrainiCounter-Mernorial,para6.71p.83.
238 Ibid.para.1.14(2)p.8.
239 Ibid.para.7.18p,104.Bahraini formula in its proper context. In fact, in the Agreement this acceptance
of the Bahraini formula was a suid uro quo for Bahrain's undertaking to alIow
submission of the disputes to the Court after May 1991. Bahrain also fails tu
mention that it endorsed the Qatari acceptance of the Bahraini formula bysigning
the Doha Agreement, and that it isitselfthus bound by the Bahraini formula.
>../
4.92 The Bahraini Counter-Mernorial has exerted enormous efforts to try to
reduce the Doha Agreement to a single point, i.e Q.,tar's acceptance of the
Bahraini formula240. But how can it be asserted that the Doha Agreement did
no more than record Qatar's acceptance of the Bahraini formula, when the first
Omani draft show to Qatar did not even include the reference to the Bahraini
,
formula, whichwas subsequently added by Qatar it~elf~~'? In short, according to
Bahrain, the Doha Agreement was intended to serve no other purpose than that
of recording a change in Qatar's position with regard to the Bahraini formula. It
would be difficult to distort more wildlythe content and the significanceof the
Doha Agreement.
B. Absence ofRequirementof DoubleConsent
4.93 Since the consent to the jurisdiction of Court and to the submissionto
it of defined disputes after May 1991 was given under the 1987 and Doha
Agreements, there is no need for further confirmation of the consent so
established. As stated in the Joint Dissenting Opinion of Judges Sir Hersch
Lauterpacht, Wellington Koo and Sir Percy Spender, in the Aerial Incident of
27July 1955(Israel v.Bulgaria) case-
"Thp requirement of consent cannot be allowed to degenerate into
ofndo,y)P consent, namely,aofsconfirmation of consent previouslyt
given ."
4.94 While Bahrain does not expresslyargue that a double consent is required,
it implicitlydoes soBy assumingthat the conclusion of a special agreement was
necessary inorder to implement the Doha Agreement after May 1991,Bahrain is
trying to transform the general requirement of consent into a requirement of
240
BahrainiCounter-Memorial,para.7.p.104.
Z4l
e, paras.3.61et st., above.
242
I.C.J.Reports 19p.187."double consent". This is nothing but an attempt to negate or to withdraw a
consent which has already been given. Going back on what has been expressly
agreed upon between Qatar and Bahrain wouId certainly be contrary to the most
well-established principles of international law.
4.95 As Qatar has already shown in its ~ernorial~~~, the consent given by the
Parties to the jurisdiction of the Court and to the definition of the disputes was
irrevocable, and there was no need for that consent tobe further confirmed.
SECFIO 6.N Seisin ofthe Court
4.96 'Qatar's position with respect to the distinction between jurisdiction and
seisin was made clear in paragraphs 4.57to 4.64 of its Memorial. In Qatar's view
seisinis a rather simple matter. It is the procedural way by which the Court is
seised of a case. This matter is explicitlygoverned by Article 40, paragraph 1, of
the Statute and hy Articles 38 and 39 of the Rules of Court. According to Article
40,paragraph 1,of the Statute -
"Cases are brought before the Court, as the case may be, either by
the notification of the special agreement or by a written application
addressed to the Registrar. Ineither case the subject of the dispute
andthe parties shallbe indicated." (Emphases added.)
Seisin of the Court is thus achieved either by notification of a special agreement
or communication of a written application. When - as in the present case -
jurisdiction is based on an Agreement containing provisions having the same
effect as an ad hoc agreement, seisin rnay be made by unilateral application
unless othenvise stated in the agreement concerned.
4.97 In contrast, Bahrain's assertions are revealing of some misconceptions on
this point244. m, Bahrain obscures the distinction between the jurisdiction of.
the Court to deal with the case - a question which is entirely governed by the
agreements in force between the parties - and the validity of the formal step by
which the proceedings are to be instituted - a matter which is prirnarily governed
by the Statute and Rules of the Court, subject to any special provisions upon
243
QatarMemorial ,aras.4.44-4.46,pp.84-85.
244
g, Bahrain i ounter-Mernorial,ara.3.p.20,para.4.4p.22,para.5.43 (iip.49and
para7.20,p.105.which the parties may have agreed as to the method of instituting proceedings
under a given title ofjurisdiction.
4.98 second, Bahrain rnistakenly equates the notion of "specialagreement" with
that of "joint seisin". This is certainly wrong. A special agreement is an
agreement to submit an elristingdispute to the jurisdiction of the Court. Such an
.>+,
agreement may provide that the Court willbe seised by the parties jointly, or by
one of the parties,or indeed provide nothing at all. Article 39, paragraph 1,of the
Rules of Court isexplicitin thisregard:
"When proceedings are brought hefore the Court by the
notification of a special agreement, in conformity with Article 40,
paragraph 1,of the Statute, the notification may be effected by the
parties jointfy or by any one or more of them. Ifthe notification is
not a joint one, a certified copy of it shall forthwith be
cornmunicated by the Registrar to theother party."
4.99 The basic distinction seems to be whether the agreement has provided for
a mode of seisin of the Court or not. If there is such a provision, itbinds the
parties and must be followed closely. Ifthere is no provision in the agreement,
245
several courses are open .
4.100 According to Article 38,paragraph 1,of the Rules.of Court -
"When proceedings before the Court are instituted by means of an
application addressed as specified in Article 40,paragraph 1,of the
Statute, the application shall indicate the party makingit, the State
against which the claim isbrought, and the subject of the dispute."
Thus, whep the Court is seised either pursuant to a cornpromissory clause in an
agreement falling under Article 36, paragraph 1, of the Statute or pursuant to a
245 In this conta, in Bahrain'sCounter-Mcmorialwherc the institution of proceedingsin
the caseof the Territorial Dispute (LibyanArab JamahiriyafChadIis addressed, Bahrain
stales that"The referenceat para.4.61 [of Qatar's Memorial] tothe institution of
proceedings in the Libya/Chadcasismistakcn. Both Libya and Chad agreed thatthey
notifiedto the Court a Special Agreement (the 'Framework Agreement') under
Articl40" (Bahraini Counter-Mernorial,para3.2(c)fn.42, p.19).Although it is true
thatChad subsequedtlyagreedthat itcouldbe consideredthat the "Accard-Cadre"wasa
special agreement, each party seisedthe Courtunilalerally, on different dates; and
whereas Libya notified what it considered tbe a special agreement, Chadfil& an
application instituting proceedings.Thisisciselwhat Qatar hasstatedin paragraph
4.61of its Memorial, and Qatar therefore fails to see witshould be describedby
Bahrain asbeing "mistaken".declaration made under Article 36, paragraph 2, seisin is norrnaHyby unilateral
application.
4.101 Accordingly,it is Qatar's position that in thtwo Agreements upon which
Qatar founds the Court's jurisdiction the mode of seisin was left open, provided,
of course, that it compliedwith the Statute and Rules of the Court. This is clear>.&.
from the plain terms of each Agreement. In addition, the Doha Agreement
records the Parties'mplicitconsent to seisin of the.Court in any manner allowed
by the Statute and Rules of the Court once the May 1991deadline had expired.
Thus, Qatar wasentitled to seise the Court o8 July 1991.
4.102 Bahrain contends in its Counter-Mernorial that the expresslapguage of the ,
Doha Agreement required joint seisin. Even when the idea of a special
agreement was being contemplated, the question of seisinwas not discussed. In
any event, the Doha Agreement contains no provisionrequiringjoint seisiri. The
only condition in the Doha Agreement concerns the period which had to run
before the Court might be seised,Le. ,he expiryof the May 1991deadline. That
provisionwas compliedwith byQatar.
4.103 In conclusion Qatar maintains that the seisin of the Court was properly
made by its Applicationfiledwiththe Registryof the Court on 8July 1991.
SECTIO 7N Bahrain'sAIlegedDisadvantases
4.104 In the preceding Sections Qatar has shown that the Court has jurisdiction
in the present case, since both States have giventheir consent tojurisdiction, and
that the question of seisin raised by Bahrain is not an issue. The Court was
properly seised by Qatar's Application. Unable to address the above questions
with legal arguments, Bahrain has devoted a great deal of energy to extra-lega1
arguments about alleged disadvantages arising frorn the factthat the Court has
not been seised bya joint submission, A. The AIIeged Disadvantages in bein~ placed in the Position of a
Defendant
4.105 According to Bahrain "the procedure of joint submission" avoids "one
par9 being plaintiff and the other being defer~dant~~~",and "Bahrain is
disadvantaged by being made ~efendant~~~". This isan extraordinary assertion, >,&
since procedural equality between the parties in a particular case cannot be
viewedas being destroyed or impeded bythe respective positions of the parties in
the proceedings. In any event, there have been cases which have been brought
jointly to the Court where one party is really the plaintiff and the other the
defendant (for exarnple, the North Sea Continental Shelf case). The respective
position of the parties infact depends on the substance of the case apd the nature .
of each State'sclaims.
4.106 However, Bahrain alleges that there is a disadvantage inherent in the
position of a defendant. Thus, it implies that an applicant secures advantages
sirnplybyvirtue of adopting the posture of a plaintiff in cantentious proceedings;
that onlythe points of view of the applicant are reflected; that the nature, order
and timing of the written pleadings can no longer be agreed between the
parties248; and Bahrain even suggeststhat a defendant is "impliedlypilloried as a
State heing dragged reluctantly before the indeed, it goes further,
affirrningthat thisisa "dishono~r"~~~ ! Suchallegationshave no foundation.
4.107 The allegation that a plaintiff secures advantages by adopting the posture
of a plaintiff and that this results in a real substantive inequality between the
partiesamounts to sayingthat in the judiciaI settlement of international disputes,
, parties are'never equal when therc isan applicant and a respondent, and that the
respondent is alwaysdisadvantaged and dishonoured !This is totally contrary to
246 BahrainiCounter-Mernoria p, ra1.7p.4.
247 W., p.113.
248 m., para.8.15,p.113.
249 Ibid.,para.8.15,p.213.
250 W., para.9.1,p.115.the principle ofequalitybetween parties before the Court, if not an affront to the
impartiality of the l. As the Court stated inthe Barcelona Traction case:
"The scope of the Court's process is however such as, in the long
run, to ne~~~lizeana initial advantage that might be obtained by
either side ."
4.108 The statement that onlythe points ofviewof Qatar are reflected must also
be rejected. As a general principle, it can never be said that in contentious
proceedings anlythe viewsof the plaintiffare reflected. Moreover, in the present
case, as Qatar has explained above, the Bahraini formula was designed by
Bahrain preciselyso that each Party mightpresent its ownclaims to the Court. If,
at the present stage, only Qatar's claims are before the Court, jt is because *
Bahrain has chosen to refrain £rom making use of the Bahraini formula. If
Bahrain were to file a parallel application, Qatar would evidently become
defendant with respect to the claimsso presented.
4.109 The idea that the nature, order and timingof the written pleadingscan no
longer be agreed between the Parties is also unconvincing. If Bahrain, in
conformity with the Doha Agreement and the Bahraini formula, files an
application in its turn and presents its clainis,the Rules of Court would allow the
f resident of the Court, after havingascertained the viewsof the Parties, to order
simultaneous exchangesof written pleadings. For its part, Qatar would make nu
objection to simultaneous exchangesof written pleadings. This is consequently a
non-issue.
4.110 Finally, the suggestion that Bahrain could be moraliy harmed by being
made a defendant is totally alien to the process of judicial settlement. As has
been noted above,the Manila Declaration provides as follows:
251
Aspointed outbyRosenne:"Thecharacteristic fcatureof the procedurcof the Court,as
hasbecn repeatedlystressedisthe equalityof the partinis is, in the Cournotan
abstractnotion or a mere declarationof principle,bu1a firrnreaIityoriginatingin the
non-eclecticcharacterof internationaandwthevery natureand objectof thejudicial
proccss". (The Law and Practiceofthe International Court, Sijthof,965, Vol. II,
p. 546.)a, also, the long discussionby thsame author which evidences that the
applicantirespondentelationshipis purelyproceduralandwithouteffecton substance,
pp.5%-527.
252 BarceIonaTraction, Light and Power Company,Limited. PrelirninaryObiections,
Judpment,1.C.J.Re~orts1964p.25. "Recourse to judicial settlement of legal disputes, particularly
referral to the International Court of JFfjce, should not be
considered an unfriendly act between States ."
B. AHe~edDisadvantaees deriving from the so-called "Evasion of
Bahrain'sconstitutional requirements"
4.111 To the extent Bahrain discusses its Constjtution in relation to the question
of jurisdiction, this has been dealt with in detail ab~ve*~~.However, Bahrain also
alleges that it is disadvantaged by the "evasion" of its alleged constitutional
requirements. However, the question of alleged constitutional requirements is
totally irrelevant in this context. It is sufficient to say here that if any
requirements ofBahrain's Constitution have nat been fulfillcd, it is,Bahrain, and ,
not Qatar, whichis guiltyof the "evasion". Thus, Bahrain simplycannot say that it
is disadvantaged when the remedy to any alleged disadvantage is entirely in its
own hands.
C. Alleeed Disadvnntaees deriving from the Absence in the Doha
Agreementofa ClauseonNon-Disclosureof Settlement Proposais
4.112 In several places inits Counter-Mernorial Bahrain repeats the idea that -
".. ,y starting proceedings unilaterally Qatar has entirely by-passed
an important question relating to the admissibility of certain
evidence uponwh the Parties were at the time of the application
stillnot agreed ."
This rnatter was dealt with in detail in Qatar's ~ernorial~~~. Bahrain has not met any
of Qatar's arguments, but simplyrepeats several times that the mcltter was outstanding.
Bahrain ignores the fact that there was no further discussion of such a clause in the
Tripartite Cornmittee after itsThird ~eetin~~~~. In any event, Bahrain cannot ignore
the fact that thisatter was not mentioned in the Doha Agreement.
253 -See,para1.08,above.
254 %, paras.4.24-4.33,above.
255 Bahraini Countes-Mernoria,ara.1.13p.6;-, alsom. para.5.49(3)p.48,para.7.9,
p.102and para.8.3p.108.
256 -See, QatarMernorialp,aras5.83-5.8pp. 130-132.
257 a, para3.29,above.4.113 Qatar rejected such a clause because Bahrain's proposed draft appeared
excessiveand unreasonable. Bahrain now contends that the draft provision was merely
intended to reflect rules of custornary international law258 and normal rules of
confidentiality. Thisis obviouslynot the case as appears from the text of the proposed
draft. However, if Bahrain were right in that contention the clause would be
redundant.
D. Alle~edLackof Equalib in Submitting Claims;the Question of Zubarah
4.114 Although Bahrain States that it is not "unwiIlingthat the dispute should corne
before the Court", it adds tha-
"...its willingness to corne to the Court is conditioned upbn al1
pertinent issues being brought to the Court at the same time ...As
can be seen, the issue of Zubarah, which to Bahrain is if~ll lnd
important, forms no part of the case as presented byQatar .
What Bahrain fails to say is that the alleged inequality which it appears to believe it
suffers as a result of the fact that the issue of Zubarah is not now before the Court
arises not from Qatar's Application but fram its own failure to make use of its right
under the Doha Agreement ta file its own application to the Court in accordance with
the Bahraini formula.
4.115 Bahrain continues to question the possibilityfor it of proceeding by way of a
separate application or a counter-claim, referring again to tAsylum and Le~al Status
of the South-Eastern Territory of Greenland cases260. Bahrain alleges that, unlike in
those cases, where there was an underlying and demonstrable willingnessof the Parties
to go to the Court and a common subject matter, the same is not true in the present
case. However, as Qatar has amply demonstrated, there is a common consent to the
jurisdiction of the Court (the 1987 and Doha Agreements) and an agreement on the
subject and scope of the disputes (the Bahraini formula), and there should therefore of
course be no obstacle tojoinder ifBahrain were to file its own application.
4.116 Qatar has made its position perfectly clear with regard to each Party's right to
submit claims fallingwithin the Bahraini formula:
25X See,Annexto Bahrain'sletter of 18August19para.20(c)pp.18-19.
259 BahrainiCounter-Mernorial,ara.1-1p.6.
260 m., paras.8.7-8.1pp.109-113. "...when defining the disputes to be submitted to the Court, the
Bahraini formula is worded in neutral language, both with respect
to disputes concerning'territorial right or other title or interest' and
with regard to disputes on maritime delimitation. Therefore, under
the Bahraini formula, each of the Parties has the perfectly
reciprocal right to file before thCoun an~daims, insofar as they
are covered bythis definitionof the dispute ."
Thus, Qatar can also onlyrepeat its position for the third time, the first time being in a
letter from the Agent of Qatar to the Registrar of the Court dated 31August 1991and
- the second inthe Qatari Memorial 262..
"Itis Qatar's viewthat this formula giveseach Party an equal right
to present its own claims to the Court and that therefore neither
State can obtain an advantage over the other in the formulation of
its claims. Consequently, Bahrain is not precluded from raising
what it refers to as the 'question of Zubarah',- for example by an
application to the Court,"
The anxiety expressed by Bahrain on this issue, and in particular about Zubarah, is
really not understandable, aven that it was acknowledged by Bahrain - and in fact
advocated by Dr. Husain Al-Büharna himselfin the Tripartite Committee - that one of
the reasons for proposing the Bahraini formula was precisely to allow each State to
bring its ownclairns,and Bahrain'sdesire to includeZubarah as one d those ~lairns~~~.
4.117 In conclusion, it may be said that Bahrain suffers no real "disadvantages"
resulting from Qatar's Application. In any event, such allegations can have no
relevariceto the real issuesin the present proceedings.
261
QatariMemorial,para.4.42,p.83.
262
W., para.5.80p.129.
263 -, para.3.38,above. CaAPTER V
THE ADMISSIBILITYOPQATAR'SAPPLICATION
5.01 The Court's Order of 11October 1991required the Parties to address the
question of the admissibility of Qatar's Application. In accordance with the
Court'sOrder, in its Memorial Qatar provided the Court withinformation both as .8..
to the Bahraini formula incorporated in the Doha Agreement, and as to the origin
and nature of the claims submitted by Qatar's Application. In this regard Qatar
concluded that -
"..the three subjects on which Qatar's Application requested the
International Court of Justice to pronounce are existingdisputes of
a legai character and are governed by international Iaw;they fulfil,
in Qatar's submission,the regfcements of admissibilityin terms of
the Court'sStatute and Rules ."
5.02 Neither in its reasoning nor in its submissions does Bahrain's Counter-
Memorial raise any question about the adrnissibiiity of Qatar's Application.
Indeed, Bahrain states that it does "not abject[.,.to the admissibilityof Qatar's
present ~~~lication~~~". With regard to the adrnissibility of Qatar's claims,
Bahrain also raises no objections:
"Understandably, Qatar has addressed the question of admissibility
onlyin terms of the issueswhichit has itselfsubmitted ta the Court.
As regards these, Bahrain is prepared not uestion that the
Qatari claimas at oresent framed isadmissible y68 ."
5.03 Subsequently,however,Bahrain adds a rather nebulous reservation:
"Suqh acceptance of adrnissibility cannot extend to any other
proceedings, even ones involving the same issues as those now
Qatar were to question the admissibilityof any Bahraini daim tos
Zubarah by reference to considerations which, in its turn, Bahrain
might perceive at that time and in that context as also being
applicable to Qatar'sclaims,Bahrain would feel free toinvoke such
considerations - to the extent of their relevance - against the
adrnissibilityof an5grns that Qatar mightassert, e.g.in relation to
the Hawar Islands .
264
QatariMemorial p,ara.6.0p. 134.
265
BahrainiCounter-Mernoria lara.9.8p.117.
2M
m., para.1.16p.11(emphasisinoriginal).
267
m., para.9.8p.117.5.04 Given Bahrain's first statement quoted in paragraph 5.02 above, Qatar
understands that Bahrain has acknowledged that Qatar's claims, as presently
framed in the Application, are admissible, Bahrain's discussionsubsequent to this
acknowledgement is purely hypothetical. m, it refers to possible other
proceedings. Qatar does not know what such proceedings might be, and
consequently cannot make any comment on this subject. Second, it refers to the
admissibility of claims which Bahrain might raise. In this regard, the Court's
Order of 11October 1991requires the Parties to address "the question..of the
admjssibilitof the Application"& of Qatar's Application. It is therefore legally
impossible for Qatar to address the admissibility of any other hypothetical
.
application, and iany event it wouId also be rnaterially impossible tp address an
application whichup to the present, Bahrain has refrained from filing. PARTIII
SUMMARY
6.01 Qatar welcomesBahrain'sparticipation in the present proceedings. Qatar
also welcomes the opportunity givenby the Court's Order of 26June 1992to file
a Reply on "questions of jurisdiction and admissibility". For the convenience of
the Court, Qatar willsurnmarize hereafter the contentions and evidence of fact
and law contained inParts 1and IIof this Reply which are directiy relevant to
those questions.
FactualEIemen ts
6.02 Bahrain has raised no issue concerning the existence and nature of the
disputes submitted to the Court by Qatar's Application and which relate to
sovereignty over the Hawar islands, sovereign rights over the Dibal and Qit'at
Jaradah shoals, and the delimitation of the maritime areas of Qatar and Bahrain.
Since Bahrain has accepted the admissibility of Qatar's claims as at present
frarned, it would be inappropriate to re-examine the facts relating to these
disputes stated in Qatar's Memorial. Qatar has, however,considered it necessary
to put on record268 its rejection of some of the inaccurate statements concerning
the history of the disputes made by Bahrain in its ~ounter-~ernorial~~Y in
particular as to the extent of Qatar's territory and of Al-Thani authority and
controI over that territory in the latter part of the 19thcentury and the first part of
the 20th century.
6.03 Qatar relies on two Agreements, which are '"treaties" within Article 36,
paragraph 1, of the Statute of the Court, as providing the legal grounds upon
which the jurisdiction of the Court isbased. These are the 1957Agreement and
the Doha Agre-ment of 1990, which were made between the Parties in the
rnanner and circurnstnnces described in Qatar's ~ernorial~'O supplemented by
the explanatory detailin this ~e~l~~~~.
2G8 See,ChapterII,above.
269 BahrainiCounter-Mernoriril,hapterII,Secti1.
270
See QatariMernorial,ChapteIII.
271
See,ChapterIII,above. 6.04 The 1987Agreement was entered into pursuant to the Framework of the
Mediation whichhad been undertaken bySaudiArnbia between the Parties. The
First Principle of the Framework as originallyagreed in 1978provides that al1
issues of dispute between Qatar and Bahrain, relating to sovereignty over the
islands, maritime boundaries and territorial waters, are to be considered as
cornplernentary, indivisible issues,to be solved comprehensively together. The
Fifth Principle of the Framework, as agreed in May 1953,provides that in the
event that negotiationson the substance of one or more of the disputes fai-
"...the Governments of the two countries shall undertake, in
consultation with the Government of Saudi Arabia, to determine
the best means of resolvingthat matter ormatters, on the basis of
the provisions of international law. The ruling of &authority
agreed upon for thispurpose shallbe finaland binding ."
6.05 Since the negotiations on the substance which were undertaken over
several years pursuant to the Framework of the Mediation failed to reach a
successfulconciusion,in 1957the Parties took the first step towardsimplementing
the Fifth Prinçiple,by entering into the 1987Agreement.
6.06 The first item of the 1987Agreement establishes the Parties' consent to
thejurisdiction of the Court in unambiguousterins, as follows:
"AI1 the disputed matters shall be referred to the International
Court of Justice, at The Hague, for a final ruling bindingpon both
parties, whoshall haveto execute itsterms."
At that time, the Parties had not defined "the disputed matters" whiçh were
covered by their consent to jurisdiction other than as follows:"the long-standing
dispute ..over the sovereignty overthe Hawar Islands, the maritime boundaries
...and any other mat ter^^ In^t"esecond item the Parties agreed to maintain
the status quo between them pending a finalsettlement.
6.07 In this Agreement, the Parties left open the way in which the disputed
matters were to be submitted to the Court. They were, however,agreed that this
should be done in accordance with the "reçulations and instructions"of the Court.
272 See,QatariMernorialp,aras3.09g W., pp.35 3 ses and Annex H.10,Vol.III,p.49.
-ec,aho. for BahrainsecognitionthathesePrincipleswereacceptebyboth Parties,
BahrainiCounter-Mernoriapl,ara.5p.30.
273 QatariMemurial , nnexII.15Vol.III,p101,atp.103.Accordingly,the third item of the 1937Agreement provided for the creation of a
cornmittee to perform a procedural role-
"...for the purpose of approaching the International Court of
Justice, and satisfying the necessary requirements to have the
dispute submitted to the Court in accordance with its regulations
and instructions."(Emphasis added.)
6.08 When the Tripartite Committee was established, neither Party considered
that the 1987 Agreement made reference to the Court conditional upon the
conclusion of a special agreement274. Indeed, the conduct of the Parties in the
preliminary and First Meetings ofthe Tripartite Comrnittee confirmsthat neither
understood that the 1987 Agreement required the conclusion of a special
agreement. It was on@at the end of the First Meeting that the'Committee
decided to explore the possibilityof reaching a special agreement. Both Parties
presented drafts, and thereafter discussion centred around the definition of the
dispute to be submitted to the Court. However,the Parties were unable to agree
on the inclusion of certaimat ter^^'^ I, the light of this difficulty,between the
Fourth Meeting of the Tripartite Committee in June 1988 and the Fifth in
November 1988,on 26 October 1988Bahrain produced a general formula, which
becarneknownas the Bahraini
6.09 During the Fifth Meeting, on 15November 1988, Qatar raised various
questions about the formula, whichBahrain requested time to answer. However,
at the same Meeting, it was announced that King Fahd considered that the date
of the beginningof the forthcoming GCC SummitMeeting in December 1988was
the date for terrninating the Tripartite Cornmittee'swork, whether or not it had
succeeded in achieving what was requested from it277. It wÿs then decided to
hold a final Meeting, which took place on 6-7 December 1988. At that Sixth
Meeting, Qatar suggestedthat an ainended version of the Bahraini formula might
be fitted into a special agreement with the addition of two annexes setting out the
clairnsof Qatar and Bahrain, respectively. Thisproposal reflected the idea which
had already begun to emerge that each Party would have to seek an adjudication
274
&, paras3.07gtW., above.
275
See. ingeneral, ChapterIII,Section3, above "The Pxoceedingsof the Tripartite
Committee".
276
See,para.3.32above.
277 See,para.3.35,above.of itsown çlairns. In thevent, no agreement was reached on the text ofa special
agreement and the Tripartite Committee's work was terminated. Neither
Bahrain nor Qatar made any atternpt to reconvene the Tripartite Corninittee 278 .
6.10 Despite the efforts of King Fahd, who was given renewed periods of time
in 1988and 1989to seek an agreement between the Parties on the substance of'
the dispute, bythe time of the GCC Summit Meeting held in Duha in December
1990 no progress had been made in this regard. When Qatar raised the subject
again at the formal opening of the Summit Meeting, King Fahd stated that the
time had corne for dispute to be referred to the International Court of Justice.
The Amir of Qatar then announced that he would accept the Bahraini formula to
allow immediate reference to the Court. However, the Parties agreed to grant .
Saudi Arabia a further period of five months to üttempt to recicha settlement on
the merits before submissioncould be made to the Court.
6.11 After there discussionsat the Summit Meeting, there were consultations
between the Foreign Minister of Oman and the two Parties separately. These
consultations led to the drafting in thfarm of minutes ofthe second Agreement
which Qatar invokes as a basis of juri~diction~~~.This (the Doha Agreement)
was signed on 25December 1990by the Foreign Minister of Qatar, Bahrain and
Saudi ~rabia~~'.
TheQuestionsofJurisdictionandAdmissibilitv
6.12 Bahrain does not take issue with the fact that the 1987Agreement is a
bindingagreement. However, it alleges that the Doha Agreement isnot a binding
agreement but was a rnere diplornatic gesture to save the face of Qatar. This
allegation iswithout any foundation. The Doha Agreement provided the means
needed for the fuifilment of the 1957 Agreement and was negotiated within the
Framework which had for its ultimate objective the settlement of the disputes
between Qatar and Bahrain. Hsivingregard to al1the circumstances and the
history of the events leadingto the signature of the Doha Agreement, it is plain
275 &. paras.3.37-3.5above.
27Y See,ingeneralChaplerIII,Seclio6.above.
280 The ArabietextandanEnglish translation of Doha Agreementmayconvenientlybe
foundin Annex 6 to the Applicatia,. also,QatariMernorial, nnex1i.32,VolIII,
p.205,for thEnçlishtranslation.that the objective at the Doha Meeting was the final settlement of the disputed
matters. The Doha Agreement was designed to effect this purpose by providing
that, if the dispute was not settled through Mediation by the end ofMay 1991,it
could be referred to the International Court ofJustice:
"Mter the end of this period, the parties may submit the rnatter to
the International Court of Justice in accordance with the Bahraini
formula, which hils been accepted by Qatar, and the proceedings
arisingtherefrom."
63 Although the Doha Agreement is entitled "Minutes",the structure of the
document is set out in the farm of an agreement. The preamble refers to the
Framework of the Mediation and the consultations between the three Foreign
Ministers. It then recites what "wasagreed" and sets out the operati\;e provisions
in three paragraphs. The text is formally signedby the three Foreign Ministers.
In the absence of compellingevidence to the contrary, this is,on the face of ita
binding international agreement arnounting to a treaty within the Vienna
Convention on the Law of Treaties. It is also sufficient to establish the
jurisdiction of the Court under Article 36, paragraph 1, of the Statute of the
Court.
6.14 Qatar maintains that this Agreement, which irnplemented the 1937
Agreement, provided the means necessaryto meet the requirements ofArticle 40
of the Statute so asto enable the Court ta exercise itsjurisdiction in relation to
the existingdisputes between the Parties in accordance withthe Bahraini formula.
6.15 If the Foreign Minister of Bahrain had intended that Bahrain should not
be bound, he ought to have expressed this intentionon or before the signature of
the Agreement. The Agreement being on the face of it valid and binding,
Bahrain isnot now entitled to invoke its ownconstitutional requirements in order
to escape itsinternational obligations. Accordingly,Qatar maintains that both the
1987 Agreement and the Doha Agreement are treaties in force within the
meaning of Article 36,paragraph 1,the Statute ofthe Court.
6.16 The position of Qatar with respect to the operative part of the Doha
Agreement isas follows:
a) Paragraph 1 reaffirms the consent to the Court's jurisdiction
embodied in the 1957 Agreement. b) Paragraph 2 defines the subject and scope of the disputes which
rnay be referred to the Court in accordance with the Bahraini and
authorizes the Parties to submitto the Court claimsfallingwithin the terms of the
Bahraini formula.
The Doha Agreement, however, does not provide any particular method of
commencing proceedings before the Court other than that of cornplying with the
Court's Statute and Rules, as indicated by the use of the wording "and the
proceedings arisingtherefrom". Etisthus open to each of the Parties to submit its
own claims to the Court. Contrary to what has been contended by Bahrain, the
word "al-tarafan" does not require joint action and al1the circumstances and the
object of the Agreement demonstrate the right of each Party to submit its own
claims. Of the alternatives between the notification of a special agreement and
the filing of riwritten appIication provided by Article 40 of the Statute of the
Court, the one to which the Doha Agreement obviously points is the latter.
Qthenvise the Agreement would have no object or purpose. The only condition
remaining to be fulfilledbefore the disputes could be referred to the Court was
the expiry in May 1991 of the period during which the Mediator was given n
further opportunity to tryto reach a settlement on the substance of the dispute.
Püragraph 2 also provides for the continuation of Saudi Arabi~i'sgood offices
during the submissionof the matter to arbitration which indicates that, folIowing
the expiryof the period in May 1991,the expectation was that the matter would
be referred to the Court.
c) Paragraph 3 confirms this conclusionbyprovidingthat, ifa solution
a acceptable to the two Parties is reached, the case will be withdrawn from
"arbitration".
6.17 In broad terms, these are the çrounds on whichQatar maintains that, on '
the basis of the 1957 Agreement and the Doha Agreement, the Court has
jurisdiction to entertainthe disputes referred to in the Application.
281 The textof theBahrainiformulais as follows"nie Partiesrequestthe Courtto decide
any matter of territoriarighl or othertitle or interest which may be amatter of
difference between them; and to draw a single maritime boundarybetween their
respective maritimareasof seabed, subsoilandsuperjacenwaters" .QatariMemorial,
Annex11.29,Vol. IIIp.191.)6.18 Bahrain has not objected to the admissibilityof Qatar's ~~~lication~~~.
Moreover, Qatar has noted that, despite the Court's Order of Il October 1992,
Bahrain has not made any forma1subinission on the issue of the admissibilityof
the Application itself, and indeed has not addressed this question in its Counter-
Mernorial. lt must therefore be regarded as having implicitlyadmitted the
admissibilityof Qatar's Application, and Bahrain's only reservation relates to
possiblefuture proceedings and has no relevance to the present proceedings. For
these reasons, Qatar has nothingfurther to add on the question of admissibility,
282
See,BahrainiCounter-Mernorial,par9.8,p.117. SUBMISSIONS
ln viewof the above the State of Qatar respectfullyrequests the Court to adjudge
and declare, rejecting all contrary claimsand submissions,that -
The Court has jurisdiction to entertain the dispute referred toin the Application >,
filedby Qatar on 8 July 1991and that Qatar'sApplication is admissible.
(Signed) Najeeb ibn Mohammed Al-Nauimi
Minister Adviser,
Agent of theState of Qatar LISTOBANNEXES
VOLUMEII
Paae
DOCUMENTARYANNEXES
>.'
1.1 Note verbale from the Embassy of Bahrain in Saudi Arabia to the
note frorn the Foreign Ministry of the State ofahrain to the Foreign
Ministry of the State of Qatar dated 20 June 1992 (Translation into
Englishtogether witha copyofthe originaldocuments inArabic) ..............1...........
1.2 Report of statements made by the Saudi Foreign Minister, Prince Saud
Al-Faisal, at press conference in Riyadh on 27 December 1987,wf
Times,29December 1987 .................................................1..........
.............
1.3 Drafts of theDoha Agreement (Translation into Englishtogether with a
copy ofthe originaldocuments inArabic) ...................................15.....................
A. Draft of the Doha Agreement in the handwriting of the Omani
Foreign Minister, containing Qatar's amendment in the
handwriting of Mr. Adel Sherbini
B.
handwritingof the Omani Foreign Ministerior to signature, in the
L4 Article 24 of the Amended Provisional Constitution of the State of
Qatar promulgated on 19April 1972(Translation into English together
with a copyof the originaldocument inArabic)..............................25........................
TECHNICAL ANNEX
11.1 Letter from the Director of the Department of Evidence and Criminal
Information dated 15June 1992enclosinga report of the De artment
of ExarniningForgery and Counterfeiting, Ministryof Interior, hohaon
lhe document attached as Attachment B to Annexes 1.25and 1.26to
copyaof the originaldocument(inArabic)...........................................................
OPINIONS
111.1 Supplementsry Opinion by Professor Ahmed Sadek El-Kosheri dated
16September 1992 ........................................................77
................................
111.2 Supplementary Opinion of Professor Shukry Ayyad, dated
17September 1992 ..................,............ 101
Reply of the Government of the State of Qatar