INTERNATIONALCOURTOF JUSTICE
CASECONCERNING MARITIMEDELIMITATION
AND TERRITORIAQUESTIONS
BETWEEN
QATARAND BAHRAIN
(QATARvBAHRATN)
(QUESTIONSOFJURISDICTIOAND ADMISSIBILITY)
REJOINDER
SUBMTTED BY
THE STATEOF BAHRAIN
29 December 1992 CASE CONCERNINGMARITIMEDELTMIïATIONAND
TERRITORIALQUESTIONS RETWEENQATARANDBAHRAIN
(QATARv. BAHRAIN)
QUESTIONS OF JURXSDICTION ANI) ADMISSIBILETY
REJOINDEROFBAHRAIN
TABLEOFCONTENTS
Page
PARTONE
CHAPTER 1 INTRODUCTION ............................ 1
SECTION 1. The central elementsof th................... 1
SECTION2. Thepropriety of Bahraconduct
in the present proceedings.................. 3
SECTION3. The questiof "warning....................... 4
SECTION4. Bahrain's renewalof itstconclude
a SpeciaiAgreement.......................... 5
CHAPTER II ADMISSIBI1,ITY ............................ 7
CHAPTER III THE HISTORILAL PERSPECTIVE .............. 8
PARTTWO
JURISDICTION
CHAYTERIV THE 1987AGREEMENT ...................... 9
SECTION 1. The background to the 1987Agr.............. 9 SECTION 2 . The 1987Agreement ........................... 10
SECTION 3. 'Thework of the Tripartite Cornmittee............. 13
A. The Preiimitlary Meeting................... 14
B. The First Meeting........................ 15
C. The Second. Third and Fourth Meetings ........ 17
D. The Fifth and Sixth Meetings................ 18
.........................
CHAPTEKV THE 2990 MINUTES 23
SECTION 1 . Introduction................................. 23
SECTION 2. The meaningof the 1990 Minutes .................. 24
A . The meaning of al-tarqfdn ................. 25
1. The guidailcetobe derived from
the Qatari and Bahraini draft joint
subrnissionsof 1988 .............
2. The use of al-tarqfinin the
Bahraini Formula. 1988 .............. 28
3. The linguistic approach............. 30
D . Consistencyof the Bahraini interpretation
with the rest of the 1990 Minutes........... 31
1. The significanceofre-üffirming
"whatwas agreedpreviously" .......... 31 2. The significanceof the use of the
singular number in the expression
"the matter" or"the case" as
the object of the verb "submit" ......... 33
3. The significanceof the words
"and theprocedures arising therefrom" .... 34
C. The travauxp:réparatoiresleading to the
adoption of the 1990 Minutes supportthe
Bahraini interpretation..................... 35
D. Incompatibilityof the Qatari approach
with the idea of a single, fully
dispositive,case ....................
E. The failureof Qatar to insist on ciear language
authorizing a unilateral application........... 43
F. The general context of the 1990Minutes ........ 45
SECTION 3. The 1990Minutes are not a binding agreement ........ 49
A, The 1990Minutes are no more than a
record of a stagein diplornaticnegotiations...... 49
B, The 1990Minutes were not regarded by the
Parties asconstituting an international
agreement ............................. 52
C. Even if the text of the 1990Minutes were to
be constnied as a treatythe xequirements
necessary forits effective operation as a
treaty were not satisfied:theBahraini
constitutionalpoint ....................... 56 1. The Qatari allegation thatthe
1990 Minutes are an agreement in
simplifiedform.................... 56
2. The Qatari allegation thatArticle 37
of Bahrain'sConstitutionis irre.....57
CHAPTERVI THERELATIONSHIP BETWEET NHE 1987
AGREEMENTANDTHE 1990 MINUTES ......... 59
SECTION 1.The consentof the Parties to refer the "disputes"
to the Court ............................... 61
SECTION 2.The consentof the Parties to the subject matter
of the "disputes"to be subrnittedto th......... 61
SECTION 3. Seisinof the Court.......................... 63
PARTTHREE
CLOSINGCONSIDERATIONS
CHAPTEK VI1 DISADVANTAGES FORBAHRAINOF BEING MADE
DEFENDANT ............................... 65
SECTION 1 . The question of ArticleV..................... 65
SECTION 2. Thequestion of Zubar........................ 70
SECTION3 . Generaconsideratio.......................... 73
CHAPTERVIiI FORMALSUBMISSIONS ...................... 77
LIST OFDOCUMENTARY ANNEXES ........................... 78 ABHKEVIATIONS
The following is a ljst of the main abbreviationsused;
B/CM Bahraini Counter-Mernorial.
Qm Qatari Mernorial.
QR~P Qatari Reply.
Q/'T'CMBundle Bundle consisting of the Arabic text of minutes of meetings of the
Tripartite Committeewith English translations by Qatar deposited at
the Registryby Qatarin accordancewithArticle50,paragraph2 of the
Rules of the Court.
NOTE KEGARDXNG TRANSLITERATIONOF ARABICMATERIAL
The system of transliteration followed in this Rejoinder is that set out at page 7 of the
Concise Encyclopedia of Islam,published by Stacey International, 1989, Save for names
which are in comrnonuse and quotationsfrom experts' reports and the Qatari Memorial.
NOTE REGARDING TRANSIJATIONS
ln this Rejoinder, Bahrainhas used, whereverpossible, translations whichare already before
the Court. Nevertheless,hrain does not wish to lirnit its right to raise questions relating
toparticular points of translation shouldit at any stage become necessary to do so.
NOTEREGARDINGANNEXES
Materialin supportof statementsmade in this Rejoinderwill be foundin the Annexes hereto,
unless it has already been produçedto the CoutheAnnexes to the Counter-Memorial.
Materialthatis already itheAnnexes to the Qatari Memorial or Repisgenerally not
dupliçatedunlessit is materid emanatingfrom Bahrain,materialof whichthe translationmay
be controversial or material to which the textmakes frequentreference. CASE CONCERNING MARITIME DELIMITATIO ANND
TERRITORIAL QUESTIONSHETWEENQATAR AND BAHRAIN
(QATAR V.BAHRAIN)
QUESTIONSOF JURISDICTION AND ADMISSIBILITY
REJOINDER OF RAHRAIN
PART ONE
CHAPTER1
INTRODUCTION
1.O1 This is the Rejoinder of Bahrain filed pursuant to the Order of the
Court of 26 June 1992. It responds to the Reply of Qatar onofuestions
jurisdiction and admissi.ility
1,O2 Bahraindoesnot considerthatitis nectoburdentheCourtwith
anespeciallylaborateor extensiverejoindertothe QatariReply. The latter,
as the Court will readily recogilise,is largely a restatement of the position
takenby Qatar in its Memori-though witha few changeinemphasis.
The present pleading will, therefore, concentrate on responding to
misstatementorerrorsin the QatariReply and onidentthosrespects
in which that pleading lias avoided, or failed to react to, points of
significance in Bahrüin's Counter-Mernorial.Bahrain will deal with such
matters within the same basic frameworkas that of its Counter-Mernorial,
SECTION 1. The central elementsof the case
1.03 The central elements of the case have not been altered as a result of the Qatari Reply. The case remains, as it has always been, essentially one
about the nature and effect of the 1990Minutes.
1.O4 The Parties are notreally at issuabout the 1987Agreement.Bahrain
does not deny thatthe text containedin general termsan undertakingby tlie
Parties to refer their dispute to the Court. However, the 1987 Agreement
was not complete in conferring jurisdiction. It was expressly conditioned
upon the successful outcomeof the workof a Tripartite Committeecharged
with "approaching the TnternationalCourt of Justice, and satisfying the
necessaryrequirements to have tliedispute submitted"to it.' At ail material
times the Parties saw the taskof this Cornmitteeas that of drawing up an
agreement whereby the Parties would jointly submit their dispute to the
Court in theform ofa special agreementcontainingprovisions acceptableto,
and accepted by, both sides. Nothing ever happened to change tllis
condition. The initiativeof Qatarin December1990was an attemptto alter
it, but this attempt was expressly andclearly rejected by Bahrain.
1.05 Turning, as the case does, upon the nature and effect of the 1990
Minutes, the Court will, no doubt, be struck by the faiIure of Qatar to
produce any first-hand evideiicein support of its understandingof the effect
of those Minutes. True, Qatarhas producedexpert statementsof a linguistic
kind seeking to interpret, particularly, the words al-tarafdn as meaning
"either of the parties". Ithas produced also an affidavit of a handwriting
expert to supportits contentionthatthe manuscriptinsertionof the words "in
accordancewiththe Bahrainiformu1a1w ' asmadenotbytheBahrainiForeign
Minister but by the Legal Adviser of the Qatari delegation. But the very
presence of these staternents servesto highlight the total absence of other
statements tllat could have had more bearing on the central issues. The
Bahraini Foreign Minister and the Bahraini Minister of State for Legal
Affairs have, on the other liand, both testified tliat they intended and
lQalaritrruislalion.The UnitedNationstranslationrcads:"...commuwithîhe Iritenialio~ial
Courtnî Jusliceand completingihrequirementsforrefcrrof the disputeUiereto".Boih the Qalari
and Bahraini translationsare shown side by side in B/CM,Amex 1.3,Volatp. 18. understood the wordsfinally used in the 1990Minutes as confimiing that
proceedings before the Court couldonly be instituted by the two Parties
together.
1.06 Nor will the Court overlook the details of the evolution of the final
text of the 1990 Minutes - an evolution wliich involved two changes in
earlier drafts which made it clear beyond any doubt that Balmainentitely
rejected any idea that proceedings before the Court could be instituted
unilaterally by either Party.
SECTION 2. The propriety of Bahrain's conduct in the ~resent
proçeedings
1.07 Qatar has seen fit to write of "the impropriety" of Bahrain having
raised objections to the jurisdiction of the Court and seeks to attribute
responsibilitytoBahrain for thefactthat Qatar "appearstobe in theposition
of a claimant" inrespect of the preliminary objection, that"forthe fïrst time
in the history of the Court two rounds of written pleadings have become
necessary in a preliminaryphase" and that "the adjudicationof questions of
jurisdiction and admissibilityhas been abnormallydelayed".'
1.OS Qatar fails to recall that the Order of the Court of 11 October 1991
was only made dter a meeting betweenthe President of the Court and the
Parties at which Qatar agreed to the course proposed.
1.09 Moreover,despite Qatar's stated reluctanceto be put in the position
of ~lairnant,~it sees fit to question Bahrain's own desire that pleadings
shouldbefiled simultaneously,andwithouteitherpartyappearingasplaintiff
2
QfRep.,paras.1.06-1.0pp. 2-3.Qatarappcarsi,ncidentally,to haveoverlookedtheprecedents,
set outin par20 oftheAnnexto the BahrainilcttertLheCourtof 18August1991,for the separate
treatrnentf questionsof jurisdiction.
3
Qmep., para.1.08,p. 3. or defendant, as liad always been envisagedby bot11State~.~
1.10 The Court,knowing as it does the circumstancesin which it decided
to order the filing of a Reply and a Rejoinder in the present case and,
especially, that Bahrain was quite uninvolved in this development, will
immediately recognisethat these assertions arequite withoutfoundation. In
themselves, they require no answer; but they are of a piece with much else
in the Qatari Reply that is a medley of imagination and unsupportedand
unsupportable invention.
SECTION3. The question of "warning"
1.11 Qatar also makesa preliminarypoint of the alleged conformityof ts
conductwith "twoAgreements enteredintobetween itself and~ahrain"~and
of the fact that it gave repeated warningof its intentions to the Mediator.
AlthoughBahrainwillpresentlydeaimorefullywith thefirst of thesepoints,
it wishes immediatelyto stress again that though there wasone agreement,
that of 1987, it was imperfect and conditional,The 1990 Minutes do not
constitute a further agreement entitling Qatar unilaterally to commence
proceedings. Moreover,as to the messages saidto have been coiiveyed to
the Mediator, whatever may have been their content, they were not
communicated to Bahrain and Bahrainwas coxnpletelytaken by surprise by
the filing of the Applicationon 8July1991.As Qatar must be aware, itwas
the constant practice of Saudi Arabianot to communicate correspondence
from one partyto tlie otherS6
See below,paras.7.21-7.22,pp.75-76.
Q/Rcp.,para. 1.08,p.3.
As Prince Saud Al-Faisal,the SaudiArabian Ministcrof Forcign Affairsaid aithe second
meetirigof the Tripartite Cornmitt"1shouldlike toconfirmIhat,thmughoutthe perioduf Saudi
Mediativn,SaudiArabiadid not dclivcrto cithcrBahraior Qatardocumentsbelonging tothc otlicr
Party. Itsrolewas limitcd toproposing certainidcas, with the cxprcss purposc of avoidiany
exploitationof Saudirnediatinnstrenglheieilherparty'spositionathccxpcnscofthc otherparty".
(Translatiobny Qatar)Annex 1.5at p. 129. SECTION 4. Bahrain's renewal of its offer to conclude a Special
Agreement
3.12 Qatarhasdescribedas "adiversionarymeasure"Balirain'spreseiitation
to Qatar of a draft SpecialAgreementfor thejoint submissionof the case to
the Far from being "adiversionarymeidsure",Bahrainsees its offer
as being a specificand positive contributionto the settlementof the dispute
between Qatar and itself. Bahrain has thus made plain its willingness to
participateinthe implementationof the 1987Agreement inthe only manner
foreseen in that Agreement.
1.13 The text of the Bahraini draft agreement is annexed to this
~ejoiiider.~Rahrainreaffirms itsadherenceto its offer to concludea Special
Agreement on these terms. Bahrain recalls what it said in its Counter-
Mernorial: "The Court should not feel tllat a proper striving to ensure the
applicationof thejudicial processtothe presentdisputecan onlybe satisfied
by permittingQatar to proceed with the present casein its presentform. An
approach that is much more likely to be conduciveto a properly conducted
case is one in whiclithe Partiescorneto the Courtjointly and willingly - as
was and remains the intention of the Mediator and of Bal~rain".~
1+14 It may, indeed, be observed that even after Qatar's unilateral
application on 8 July, 1991,the Saudi Mediator presented to the two sides
in September, 1991,a furtherproposal for a joint agreement.''In its Reply
Qatar, although admitting that it did receive in September, 1991, such a
proposa1 for a joint agreement,fails to reflect the fact that such an initiative
on the part of Saudi Arabia is quite incompatiblewith Qatar'sthesis that at
7
Q/Rep., para. 1.10,p.4.
B/CM,para. 9.3pp. 115-116.
10Q/Rep.,note9 topara.1.10,p.4. Dohahtheeslier comrnonunderstanding thatthe Court was to be seised by
way of a SpecialAgreementhadken abandoned."
" B/CM, para.7.23,pp105-106. CRABTERII
2.01 Subject to one important reservation, Bahrainis inagreement with
Qataron thequestionof admissibility. Bahrain doesnot deny that the Qatari
claim as at present framed isadmissible.12
2.02 Bahrain must, however, affh the reservation that it made in its
Counter-Mernorial,paragraphs 9.6-9.8, pp. 116-117, to the effect that, if
Qatar shouldin anyotherproceedingsraise anyobjectionto the admissibility
of Bahrain's claimin respect of Zubarah, Bahrain must be free to invoke
against Qatar's presentclaims any points of admissibilitythaare suggested
by the natureof any such Qatari objection.
2.03 This reservation is necessitakd by the obscuritywhich still attaches
to Qatar's position regarding the Zubarah matter. Though invited to
acknowledge the admissibilityof Bahrain's claim in respect of Zubarah,
Qatar Ilas not done so- as the Court will see frornparagraphs 5.03-5.04of
the Qatari Reply. This hesitation itself demonstrates Qatar's fulidamental
unwillingness tmly to accept the Bahraini Formula - a formula which was
intendedtoensure thatthere couldbe no objectionto the admissibilityof the
matter of Zubarali.
12BICM,para. 1.16,p.11. CHAPTERIII
THE HISTORICALPERSPECTIVE
3.01 Enough has now been said in the Qatan Mernorial, the Bahraini
Counter-Mernorialand the QatariReplyonthe historyof the disputetomake
unnecessary any further detailed discussion. Bahrain does no more than
reikrate that the Qatari nardtive of events is incomplete and tendentious.
There is no substance in the mere reassertioii13by Qatar that during the
second hdf of the 19thcentury the Al-Thanifamilyexercised authorityand
control over the whole of thepeninsula. It demonstrated no presence in
Zubarah and itwas absent from the Hawar Islands. The pair of Turkish
maps invoked by ~atarl~do not provide any evidence whatsoeverof Qatari
presence in the islands. If the Al-Thanireally exercisedauthonty overthese
areas there would be some concreteevidence of it. In fact, there is none.
3.02 These are notmatterswith whichthe Courtneedfurtherconcem itself
in connection with questions of jurisdiction and admissibility. Bahrain
expresses the hope thatQatar wil not refer to themin the course of the oral
proceedings. Any such reference wiIl necessarily occasion a substantive
reply from Bahrain and theresultingexchangewill lengthenthe proceedings
ina manner that willnot assist the Court or benefit either side.
l3QIRcp.,para. 2.08, p. 9.
14Q/Rep..para. 2.10, pp. 9-10. PARTTWO
JURISDICTION
4.01 In dealing with the remainder of the Qatari Reply, Bahraiwillnot
attempt to rnirror exactly the headingsand sub-headings used by Qatar.
Instead Bahrainwiilrelate its responsetthe main issues in the case as set
outin the Bahraini Counter-Mernorialand the manner in which the Qatari
Reply impingeson them,
THE1987AGREEMENT
4.02 The principal disagreement between the Parties regarding the1987
Agreementis whetherit contemplatedonlyajoint referenceto the Court (as
Baliraincontends) or whetherit also gave expressionto the consent of both
Parties to the possibility of a unilateral application(as Qatar contends).
SECTION1. The backnroundto the 1987Agreement
4.03 Bahrain, in showingin its Counîer-Mernorialthat the approactothe
Court would be by the Partiesjointly, began by noting that the background
to the1987 Agreement containednothing suggestive of the possibility of
unilateral recourse tojudicial settlementQatar,it may be observed, has
entirely disregarded that pertinent element intlie interpretation of the 1987
Agreementand makes no comment onthe course of the discussionpriorto
the1987Agreement.
l5BICM,paras.5.2-5.6pp.28-30.
-9- SECTION 2. The 1987Agreement
4.04 The first item in the Agreementprovides that:
"Al1the disputed mattersshall be referred to the InternationalCourt
of Justice,..for a final ruling binding upon bothpartie..."
Initially, Qatar contended thatby this item the Parties:
"unequivocally and unconditionally accepted the reference of their
existiiig disputesto the InternationalCourt of Ju~tice."'~
Bahrain deniedthis in its Counter-Memorial,I7arguing that:
"the cornmitmentwas vitally qualified by the provisioii [in the third
item] for the formationof a cornmitteeconsisting of representatives
of the Parties and the Mediator."
In its Reply Qatar, thoughcontestingBahrain'sstatement thatthe third item
qualifies the first, longer repeats that thefirst item servesby itself as an
unequivocal and unconditional acceptanceof the Court'sjurisdiction. This
is not surprising. If,in fact, the987 Agreementliad been a complete and
unconditional submission to the jurisdiction,Qatar woud find it impossible
toexplainwhy it has waitedfour years beforefilingits Applicatioil,and why
the TripartiteCornmitteehas wastedthose four years in trying to agree on
matters over which nofurther agreement wasnecessary.
4.05 The continuing disagreementbetween the Parties relates tothe third
item in the Agreement:
"Formationof a comrnittee comprising representatives of the Statesof
Qatar and Bahrainand of the Kingdom of SaudiArabia for the
purpose of,.,"
l6Q/M,para.5.40,p. 112andpara. 6.08, p135.
l7B/CM, para.5.12,p.33. JOatari translation)
"...approachingthe International Courtof Justice, and satisfying the
necessaryrequirementsto have thedispute submitted to the Court in
accordance with its regulations and instmctioiisso that afinalruling,
binding upon bothparties, be issued."
{UN translation)
"...communicating with the lnternational Court of Justice and
compIeting the requirements for referral of the dispute thereto in
accordance with the Court's regulations and instructions, in
preparation for the issuance of a final judgment which shall be
binding on both partie^."'^
4.06 Basically, Bahrain contends that this item subjects the general
understanding contained in the first item to a condition, namely, that the
Parties agreeupon a joint submission. Qatar contends that:
"Theaccountset outhereafterwillshow thatthemeansto achievethe
cornmitmenttogo to the Courtin the 1987Agreement was leftto the
Parties and that a special agreement was not the only means
contemplated. "19
4,07 Qatar appears to attachgreat weight to an argument expressedthus:
"It willbe noted that the third item of the 1987 Agreement States
simply that reference of the dispute to the Court is to be in
'accordance with the Court's regulationsand instructions'. Since
Article 40 of the Statute of the Court allows reference '...either by
notification of aspecial agreementor by a written application', it is
beyondcomprehensionhowBahraincanconstruethe aboveprovision
of the 1987Agreementas meaningthattteferencsmay be made only
by notificationof a special agreementunder Article 39 of the Rules
of the Court and as excluding reference by an application under
l8B/CM,Annex 1.3Vol.II,at p.18.
19Q/Rep.,para.3.02, p. 13. Article 38."20
4.08 The response to this has two aspects: First, the Qatari Reply
misrepresents the terms of the third item of the 1987 Agreement in saying
that it "states simply that reference of the dispute to the Court is to be 'in
accordance with the Court's regulations and instructioiis"'. This
uiisatisfactory abbreviation omitsthe first lines of the third item, namely,
"formationof a cornittee ...etc., which precede the words "in accordance
with the Court's regulations and instructions".Qatar thus omits the maior
rwuirement that a TripartiteCornmitteeshould be formed to approach the
Court and complete the requirementsfor the referral of the dispute tliereto.
The introduction of the Tripartite Cornmitteeshows clearly that the Parties
must act jointly in their approach to the Court; and this requiremerit
fundamentally qualifieswhatever theoretical possibilities Qatar mayseek to
extract from Article 40 of the Statute and Articles38 and 39 of the Rules,
4.09 In the second place, the Qatari argumentcontains a fundarnentally
rnistakeiiview ofArticle 40 of the Statute. This Article only indicates the
method of seisin. The alternatives of "special agreement" or "written
application"there specifiedhaveneverassumedthat,forthelatteralternative,
ail agreed basis of jurisdiction wasnet necessary. On the contrary, the
"written application" presupposes either a pre-existing agreed basis of
jurisdiction (i.e.a compromissory clause in a treaty) or a subsequent
agreement to jurisdiction (forum prnrogatum) as in the Curfu Channel
case."
4.10 Qatar also invokesin supportof its positioila letterfrom the Amir of
Bahrain to King Fahd of Saudi Arabia of 26 Decernber 1987.
Notwithstanding the express referencein the letter to "the conditions"
20
QfRep.,para.3.08, pp.15-16,
21This is clearfrom ansurveyof doctrineandpractice. See,e.g.,RosemLAWund Procedure
r$ the InternarioriaCourt, pp. 524-525;Guyomar, Cumrnentairedu Reglcment de la Cour
laternationaltide Justice, pp.230-245. controlling the submissionof the matterto the international Courtof Justice,
Qatar observes tl~at "this letter did not refer to any need for a joint
submissionbut leftthe door open toanymeansofrefemng the disputetothe
CO UT^ ^ec*^use, it would seem, the Amir of Balmin did not in 1987,
before the work of the Tripartite Committee even begail,expresslyxeferto
any need for a joint submission, Qatar preteiids tl~atby implication he was
accepting the possibilityofaneventual unilateralsubrnission. The ideais so
extraordinary as to defy belief - the more so because its expression is
coupled with total silencein response to the comment madeby Bahrain on
thedraftletter dated27 December1987thatQatarput forwardatthe summit
meeting, held in Riyadhon26-29 December, in implementationof the 1987
Agreement and which contained the express statement that tlie Foreign
Ministers of the two Partieswould "open negotiationsbetween them with a
view to preparing the necessarv Special Agreement.. ." (emphasis
~upplied).~~
SECTION 3. The work of the Tri~artiteCommittee
4.11 Qatar devotes a section of its ~eply'~to an attempt to establish that
Bahrain's analysisof the work of the TripartiteComrnitteewas "inaccurate".
This attempt must fail, as Bahrain will now show. Nothing is said in the
ensuing 15pages2'of the Qatari Reply thatin any way diminishes the force
of the section in the Bahraini Counter-Mernorialthat demonstrates in detail
how the workof that Comrnittee wasdirectedto the preparationof a Special
Agreement for a joint submissionand nothing el~e.~"
22
Q/Rep.,para.3.10,p.16.
23See B/CM, paras.5.21-5.22,p38.
24Section3. The procecdii~sf the TriparLeornmiltee,Q/Rep.,paras3.13-3.48pp. 17-31.
25
Q/Rcp.,paras.3.13-3.51pp. 17-32.
26
See B/CM, paras.5.21-5.42,pp. 39-49.
-13- 4.12 Before entering as sumrnatilyas possible intothe detail of this series
of meetings, one general observation shouldbe made. Nowherein its Reply
does Qatar grapple with one basic consideration in the light of which the
whole of the Tripartite Comrnittee's work is to be assessed. If it was
anticipated that the outcome of the work of the Committee would be that
each side wouldbe able separatelyto instituteproceedings before the Court,
why wasit deernednecessary to establishthe Committee? Thetruth is that
in the light of what preceded the 1987 Agreement, as well as of the 1987
Agreement itself, the only thoughtin the mind of, at any rate, Bahrain (and,
it is believed, Qatar also notwithstanding its present assertions ta the
contrary) was that the case would go to the Court on the basis of a joint
submission under a Special Agreement and inno other way.
4.13 In dealingwith activitybeforetheFirst Tripartite Committee meeting
the Bahraini Counter-Mernorial drew attention ta a draft letter of 27
December 1987 to the International Court of Justice which Qatar had put
forward at the Riyadh SurnrnitMeetingof 26-29 December that~ear.~ The
secondparagraphof this lettercontemplatesthatthe ForeignMiiiistersof the
two Parties would"opennegotiationsbetween them witha view topreparing
the necessary Special Agreement" to subrnit their differences to the
TnternationalCourt of Justice. In its Reply Qatar, though rnentioning this
draft letter,2hakes no attempt to rebut the inference that Bahraindrew
from it.
4.14 The Qatari Reply then proceeds to quote £rom a Bahrain draft
27B/CM, paras.5.21-5.23,pp. 37-35)and QfRep.para.3.14,pp. 17-18.
28
BICM,para. 5.21, p.38.Seeabovc,para. 4.10,pp. 12-23.
29
Q/Rep.,para. 3.14,p.18.
-14- agreement proposed at the same meeting3'and comments tl~at"there was
no suggestion in the Bahraini draft that thereference of the disputedmatters
tothe Court wasconditionaluponthe signingof a special agreement". Since
the Bahrainidraft was directed preciselytowardsthejoint submissionof the
dispute to the Court, it is impossibleto seehow thisQatari statementcan be
s~~~orted.~'
B. The First
4.15 Qatar introduces a quotation froni the opening remarks of Saudi
Arabia'sForeign Minister to theeffect that the mainpurpose of the meeting
was to "consider ways and means for referring the issue" to the Court as
showing thattheCommittee"didriot ...ommenceits workonanyassumption
that reference of the case to the Court could only be by a special
agreement"." Whatevermayhave beenthe course of the exchangesin that
meeting,34it is clear that at no stage during that meeting did the
30
B/CM,para.5.21,p. 37; Q/Rep.,para. 3.14,p. 18.
31
Forclürity Bahrairsiubsequentlatthe First TripartiteCnmmittccMeetingun 17January1988
submilled a revised drafi Agreementsubstitutingthe words "withthe aim of reaching a speciai
agreement tu submitthe disputed mattersbetween the partiesto the IntemationaiCourtof Justicefor
a finaljudgmentbindinguponthe Parties"(Q/M, Annex11.19,Vol.III at p. 125),fur the words"with
thc aimof contüctingthc JnlernatiunalCour1oî Justiceand fulfillidl thcrequirementsncccssary
to liavcthe disputesubmitiedlothe Courtaccordingtu jtproceduresandso thal a finaand binding
judgment be rendered"thai had appcareditithe drdftsubmittedon 27 Dccc~nber1987 (Q/M, Annex
11.17,Vol. III,atp. 115). Thus, evcn if ifierewere, wluch is not mittcd,any ambiguity in the
Agreemenlof 27 Dccember 1987 Bdxain's positionwas made completcIy cIearin the subsequelit
draft.
32See BJCM,para. 5.24,pp. 39-40;Q/Rep.,paras. 3.15-3.18,pp. 18-20.
33Q/Rcp.,paras. 3.15-3.16,pp. 18-19.
" Thc discussionaboutreplacingthc words"forlhepurposcofcoiilactingthc IntemalionalCourt
of Justice"wiihthewords"forthepurposeofreachinga special agreement ...(sceQ/Rep.,para. 3.17,
p. 19and note 30 above)hardlysupporlsIheviewthatthe Committee was"well awarethatthcrcwas
more than onc possibilityof rcfemrigthe disputcto theCourt". Butcven if the discussiondidshow
such an"awareriess"(whichBahrainccrtainlydoesriotadmit),it isdiîîicult tu sechow "awareness"
of the possibilicm be equatedwitha willingnesstu givc cffeioit; mi, it inaybe observed,Qatar representatives of Qatar envisage the possibility of a unilateral application,
On the contrary,the letter which Qatar envisagedwas to be folIowedby the
subrnission of an agreement. The inescapable fdct is that the meeting
concluded with an agreement that each side would by 19 March 1988
prepare adraft agreementfor thejoint submissionofthe disputeto the Court.
It is this decision that matters because it shows what the Tripartite
Cornmittee believed the 1987Agreement requiredit to da3"
4.16 Furthermore, on 27 Marc111988, Qatar presented a memorandum
containing comments on the Bahraini draft special agreement. These
comments contained a paragraph relatingto Article II of the Bahraini draft
which was omittedin the translationfiled by Qatarwiththe Courtin Volume
III of its Memorial, Annex 11.24, pp. 158-9. At precisely the point where
accuracy is importantinreflecting Qatar's understanding of the natureof the
exercise, there was omitted fromthebottom ofp. 158andthe topof p. 159,
the following:
"First:With regard to Article II:
(1) Whatwas agreed between our three stateswas to prepare
a joint Special Agreement to refer the matters of the difference
existing between us to the ICJ for a decision in accordance with
international law. It is quite clear -and this is the formulationused
for special agreementsin sirni ciacrmstances - that this necessitates
tliatthe special agreementshouldcontain a subrnissionof the matters
of difference and the request that it be decided.
But instead of this, the Bahraini draft, at..."
properlyrefrainfrom pushing itsargumentso îar,
35In note48 on p. 19of theReply,Qatar mentionsthestatementmadeby Bahrainat the topof
p.40 of its Counter-Mernorialanclstates "thisis oneofa numherof instancesofBahraintaking
a statement outof contextand twistingtnsuit itsowticase". Bahrainbothrcjcctsthc substanceof
this remarkand objectsto the use of a wordsuch as "twist-na word which falls belowthe level
of courtesyexpectedinpleadingsbefore theCourt,The agrccdminutcssignedby al1threeStatesat
the end ofthefirsTripartiteCommitteeMeelingon 17 January 1988referredto thepreparationof
draftsby Bahrainand Qatar for "the formulationof the SpecialAgreemeto refethe differenceto
the ICJ..."Bahrain'stranslationisetout atAnnex 1.1,p. 81. For Qatar'stranslationscc QFI,
Annex 11.20,Vol. IIIpp.131-2. This paragraph demonstratesthree tliiiigs.
1. Qatar expresslyagreedto preparea SpecialAgreementincornpliance
with the 1987 Agreement.
2. Tliis agreementfell within the scope of the reaffimation in the first
paragraph of the 1990Minutes of what had previously been agreed.
3. Such are the cliaracter and significanceof the omitted passage that
legitimate doubts arise as to whetherits omissionby Qatar was ac~idental.~"
C. The Second, Third and Fourth Meetings
4.17 If one bears in mind that Qatar introduced into its Reply the
examination of the proceedings of the Tripartite Committee for thepurpose
of supporting the proposition expressedin paragraph 3.13 of that pleading
(i~amely,that it was inaccurate of Bahraiil to cûntend that the task of the
Committee was limited to securing a special agreement), it will quickly be
seei-ithat the sub-section that deals witli the Second, Third and Fourth
~eetin~s~~does not advance the Qatari case at all. That sub-section - as
its title indicates - was concerned only to describe the "Inconclusive
Discussions on Drafts of a SpecialAgreement". Its net effect is to support
what is said in the BahrainiCounter-Mernorial,paras.5.27-5.32,pp. 41-44.
The words "First: wiih regard to ArticTI" atthebcginnhlg of the seclion which starlswilh
rhis paragraphare omittcd,as is the resof theabove quotrition. The only sectionwith a similar,
undcrlincd headingin ilieentiîe 13pagcs of Arabic tcxtis concenied wilh Article V ofdrafithe
other article to which Qatar objcctcd. This headirig, "Secondlv: with regato ArticlcV oftiic
Bahrainidraft", haalso bccn omilted inIheQataritranslation. Of coursif a hcading whichbcgins
with the word 'Secondly" Iiad remained in the text, a reader wouhavc noticcd lhe absence ofa
headirig startin"First" at an carlier poi~itin the document, andwould have bccii alcrtcdIhat
somethitig had been umittedfrom the texl. As ilis, the omission (or deletion) of both "First" and
"Secondly" conceals from tiic rcader ihe fact that thehrc;been rendered incomplctely until thc
Arabic ha7 been checked against the Eriglishoa line by line basis. See Annex L2, p. 85. Scc also
para. 5.18below, pp. 32-33.
37Q/Rep., paras.3.19-3.31,pp. 20-24. D. The Fifth and SixthMeetings
4.18 The same comment may be made regarding the rnanner in which
Qatar deals with the ift th^'and Sixth3' meetings of the Tripartite
Cornmittee. In vain does one seek in the Qatari narrativeany reflection of
the propositionwith whichthe whole sectionopens, lndeed, at onepointthe
Qatari representative, Dr Hassan Kamel, isreported as having said: "Qatar
was and slill prefer [sicla special agreement prepared in the normal and
traditional way il40- an observation which can only be read as reflecting
Qatar's understanding thatthe task of the Tripartite Cornmitteewas that of
producing a Special Agreement for a joint institution of proceedings.
Basically, during the course of these two meetings the focus of discussion
shifts, instead, to the Bahraini Formula. Qatar seeksto imply that Dr. Al-
Baharna referred to an application during the course of discussions. The
word which he used(and is recordedin theSaudi minutes)was tulub, which
has the general senseof "reque~t".~' Itis the word used for "request"in the
Arabic text of the BahrainiFormula. lt is clear tliat Dr. Al-Baharnawas not
38QJRcp.,paras. 3.32-3.36,pp. 24-25.
39Q/Rep., paras. 3.37-3.48,pp.26-31.
40QiRep., para. 3.33,p. 25. The trarislationby Qatar is from thc QflCM Bup.205. (Annex
1.6,p. 131).Thc quotalion continues "anut accvrdingto thc cxceptionalway adopted in two cascs
only..". Balirainbelievasmore accurate translation wouldbe: "...Qatarhas preferred and,naturally,
would (still) prefer tout rpccial Agreement shouldbe prepared in thc traditional way and not
according tu what was followcd inlwo exceptional cases only." (Emphasis added). If Dr. Hassan
Kamel's speech is rcad iilsenlirely it is clear that he is contrasting thc cxpressiorlof the question
in ArticleIin Uicfonn of Bahrain's "yeneralformula" with its cxprcssiotiirom of a fistof the
issues in disput(Le. "in thenomial and traditional way"). Dr. HassanKamelwas expressing a
preference foa question which listed the issues, and it is thahisargument was dircctcd.Hc
was not contra~lina special agrcemcntwith anapplication.
411îthe word "request" is substitutcdfor "application"in Qatar's lranslation of Dr. Al-Baharna's
statemcntquoled at para3.40onp. 27 of thc QatariRcply,the iniplicationwhich Qatarseeks tomakc
disappears:
"Excuseme Dr. Hassan, 1did notsay thal.1said lhat the Statute and the Rules of thc Court
do not impose any particular forniula forquestion. A11lhat is required is that thc rcaucst
submilted to the Court containcd two thiiigs:the subjecof,and parties tu the dispute".
(Empfiasisadded). referring to an application in the sense of a unilateral institution of
proceedings, but to the possibility of each of thetwo sides, within the
framewosk of a single joint submission,submitting its own iiidependently
formulated questions. Thiscornesout very clearly in the sentencesquoted
by Qatar from the statements of both Dr. Hassan Kamel and Dr. Al-
~aharna:~~
"Each partywill sign its own annex"
and
"Sirnilarlyw, e wiIl not sign the annexcontiining Qatar's claims."
The annexes here spoken of were seen as annexes to the single joint
submission, not as separate unilateral applications. The technique of two
sepirate annexeswas designed to overcome the failureof the two Partiesto
agree on a cornrnonformulationof "The Question" (ArticleII); but always
as annexes to a Special Agreement. Indeed, this is admittedin the Qatari
Re~ly.~~
4.19 Thegeneraltrendofthesediscussionsissummedupinparagraph3.48
of the Qatari Reply:
"Thedisagreement on definingthe subjects of the dispute in a joint
documentwas theseforenot resolved,andeach siderefusedto sign an
annexcontaiaing the list of subjectsthe other side wished to refer to
the Court."
The record of the discussions does not containan iota of support for any
suggestion that the Parties had in mind the submission of the case to the
Court by separate uniIateraIapplication- and quite rightlyso, because no
such idea was intheminds ofthe Parties.The ideawas to have annexes
toone Special Agreement.
42Q/Rep.,para.3.44,p. 30.
43Q/Rep.,para.3.46p.30. 4.20 Moreover, this particular theme is implicitly abandoned in the next
paragraph of that same section44when the Replystates:
"Itwas becoming apparent that the clairnsof each Party were such
that they would have to be resolved either by give-and-take ..or by
separate presentationto the Courtby each Party."
Here, again, there is no statement that separate presentation would mean
separate Applications; and, again, it is rîght that there should be no such
statement because that idea was not present in theminds of anyone.
4.21 When the idea of two annexes was raised by Qatar in the Sixth
Tripartite meeting, the Parties at the same tirne sought agreement on one
formula for Article II, drafted in a comprehensiveand "neutral"way so that
each Party could,consistentlywith this formiila,Emmeits written pleadings
so as to put fonvard its own claims. But this was still ta be pursuant to a
SpeciaIAgreement,jointly notifiedto the Court. The ideaof Article11being
drafted so asto allow each Party thefreedom to make its own claims in its
own pleadings did not reflect any thought that either Party wasfree to
proceed by unilateral application.
4.22 A further consideration which belies the Qatari argument that the
discussion of the individual formulationof questions was equivalent to an
understanding that each Party should be allowed to file individual and
separate Applicationsis that, if such an approachliad begun to fom part of
the thinking of the Parties,it is extraordinarythat there shouldhave been no
discussionof which sidewouldtakcthe initiativein startingthe proceedings.
It isardly likely that the recordswould failto reflect discussionof the very
firstquestion that would have corne to mitidif this approach hadever been
considered!
44QJRep.,para.3.50,p. 32. 4.23 Qatar as sert^ that the signed minutes of 7 December 1988did not
record an agreement on the matters to be submitted to the Court. Nothing
could be furtherfrom thetmth. As the text of the signedminutes,in Qatar's
own translation, made quite plain, the two parties agreed on a list of five
subjects:
"There followed a discussion aimedat defininp,the subiects to be
subrnitted to the Court, which shall be confined to the following
subiects:
1, Hawar Islands, includingJanan Island
2. Dibal Shoal and Qit'atJaradah
3. Archipelago base lines
4. Zubarah
5. Fishing and Pearling areas and any other matters related to
maritime boundaries.
The two parties agreed on these s~biects."~"
4.24 To conclude, as Qatardoes,withtheassertionthat "Bahrainhas failed
to address the fact that thework of the Tripartite Committeehad terminated
in failure in December 1488"47 is so inaccuratethat it could only havebeen
written by someone who had forgotten paragraphs 5.37-5.42, pp.47-49, of
the Bahraini Counter-Mernorial. As has already been ~hown,~~the
45Q/Rep.,paras.3.46-3.47.FoQatar'stramlalionof theminutes,seeQ/M, Amx 11.31,Vol.III,
pp. 201-203.
46Translationhy Qatar,Q/TCMBundle, p. 282. Annex1.7,at p. 139.The underliningis not in
the original Arabicanhas been addedby Qatar.ForBahrain'stranslation, seeB/CM, Annex1.18,
Vol. IIp. 109.
47Q/Rep.,para. 3.51,p. 32.
48Seeahove,para. 1.14,pp. 5-6.Moreover,if UiePartieshad agreedthat the TripCommittee
had completed itstask and was not to rccorivcnc,would11otsuçh an important point have been
iticludedin signed minutes,of "whathbccn agrccdto"as opposedto the "wordfor wordminutes...
preparedto cover the details of thc discussionsand what ha3 heerisaid in the meeting"?It was the
praciice of the Parties thatthe former (but not tlie latter) type 01minutes was signed by al1three
ForeignMinisters. See Qatar'stranslationof the statementof theSaudiForeignMinistcrhc first presentationof a new draftSpecialAgreement to the two Partiesby Saudi
Arabiain September1991is incompatiblewithsuchaiassertion.
meeting oftheTripartite Cornmiltee,Annex1.4,at p125. CHAPTERV
THE 1990 MINUTES
SECTION1. Introduction
5.01 The central point in the argument regarding the jurisdiction of the
Court in this cases that of the nature andeffectof the 1990Minute- atext
which Qatar seeks to quicken into legal vitality by persistinrefemng to
it as the "DohaAgreement". Bahrainhasalreadymade clear its dissentfrom
this nomenclatureand willadheretothe objectivelycorrecttitle of th"1990
Minutes".
5.02 At a certainpoint, the Qatari ReplycriticizesBahrainfor dealingfirst
with the substantive content of the 1990 Minutes instead of grappling
initially with the legal nature of that te~t.~~Therewas and remains a good
reason for this approach to thematterBahraiilwishesto assistthe Courtby
focusing its argumenton thepoints towhiclithe Court seemslikely to direct
its principal attention. Though the Qatari argumentsregarding therm and
legal character of the Minutes are not convincing (as will be shown in
paragraphs 5.49-5.63 below), the Qatari case is at its most weak in its
attempt to constnie the wordsof the 1990 Minutes as authorising Qatar to
institute proceedings unilaterally against Bahrain. This is the area of
contention thatnecessariiy occupies the centre stage and which therefore
engages Bahrain's prirnaryattention.
5.03 A prelirninaryword is required also about the burden of proof. One
has only to read the Qatari argumentson burden of proof in the ~e~ly"
49
Q/Rcp.,para.1.11,pp4-5.
50
QIRep.,paras.4.1-4.15pp.47-50. together with the Bahraini argumentsin the Counter-~emorial~'to see that
the former in no wayrespond to the latter. Bahrain will notrepeat here the
argumentsit has already made. However, itfeels bound topoint to the fact
that, though theQatari Memorialquoted boththe Chorzow Factory case and
the Border and Trunshorder Armed Actions (Nicaragua v Hondu.rus)
(.lurisdictionand Admissibility)case in support of the requirement thatthe
force of the arguments in favour ofjurisdiction shouldbe "prep~nderant",~~
the Qatari Reply in no way responds to Bahrain's indication that this
requirement pertains not only to thelegalargumentsbut also to the proofof
pertinent factual a~le~ations.~B~ahrain adheres to its contention that the
Court has recognized that in a casesuchas thepresentthe burdenrests upon
the Party asserting that the Court has jurisdiction to prove that such
jurisdiction exists.Tliereis no presumptionofjurisdiction to be rebutted by
the Party opposingjurisdictioi~;quite the reverse.
SECTION2. The meaning of the 1990Minutes
5,04 In its Counter-Mernorial,Bahrain developed its interpretationof the
1990Minutes by reference to (A) the meaning of al-tarafün in Arabic, (13)
the consistency ofthat interpretationwith the rest of the document, (C) the
preparation of the 1990 Minutes, (D) the incompatibility of the Qatari
approach with the idea of a single case fully disposing of the dispute
between the Parties, (E) the failureof Qatar to insist on clear language
authorizing a unilateral application and (F) the general context of the
Minutes. Bahrainwill now examine themaniier in which these arguments
are treated (or not treated, as the casemay be) in the Qatari Reply.
51B/CM, paras.4.5-4. p9,23-27,
52Q/M, para.4.20,p.71.
53B/CM, paras.4.8-4.9, pp.26-27.
-24- A. The rneaninn of al-tarafün
5.05 Theinterpretationofal-tclraa sdus,d inthesecondparagraphof the
1990Minutes, mustnecessarilybethe startingpointof a considerationof the
effect of that document. Qatar, in its Reply, has criticized Balirain for
focusing on these words, stating that "in fact the real problem is a legal
problem, not a purely linguistic one".54 How this last remark contributes
to the solutionof the problem beforethe Courtcannot readilybe seen, The
real problem isone of deterrniningwkat the relevant paragraphof the 1990
Minutes means. Since the solequestion before the Court is whether those
Minutes accord Qatar a rightto institute these proceedings by a unilateral
application, it is on the words that are directly relevant to this question that
one must concentrate;and the relevant wordsare "al-tarufiin"because they
determine whether proceedings may be begun by "either"of the Parties or
only by "both" of them. Even Qatar adrnits that it is the paragraph
containing these words which "is obviously the cornerstone of the whole
Agreement'' .s5
5.06 Qatar's tactic, it seems, is to try to complicate the approach to the
interpretation of al-tarufun by observing that tlie expression "does not
necessarily implyjoint action" and that "the questionof whether the action
is joint or separatedepend[s] upon the context in which the word is to be
54QlRep.,para. 4.64, pp. 70-71.
55
Q/Rep.,para.4.69p. 73.
Nonethcless,thal Qatar is understandablyconcernedto divertthc Court'sattentiunfrom thc
dominantimportanceof "al-mfafdn"is shownby suchexpressionsas the foIIuwing:
"In çunccntratingils'attentiunontlicmeanin"al-taraf Bahr",inisjugglinaway other
partsof the teas itstands."(Q/Rep.,para4.65,P.71);
and
"While il[thesecondparagraphof th1990 Minutcs]is theprovisionenablingthe Particsto
instituteprocccdingsbeforethe InternationalCofrJuslice,mustbe undcrlinedthat the
threesentencescomprisingthe paragrapharc strictlyinierrelated."(Q/Rep.,parp.73.), f~und".'~ It even prays in aid the approach of Bahrain's own experts.57
But when itcornes to detailed examinationof the use of uZ-turuf iüiother
texts, the Qatari Reply is quite inadequate,as will now be shown.
1. The guidance to be derived from the Qatari and Bahraini draft joint
submissions of 1988
5.07 TheBahrainiCounter-Mernorialplacedintheforefrontofitsargument
the manner in which al-tarafanhad been used in the Qatari and Bahraini
draftjoint submissionsof 1988." As Bahrain there said:
"Perhapsthesimglest.and shortestway ofdisposingof this casein the
sense for which Baimaincontendsis to adopt the view of the matter
presented by one of Qatar's experts, ProfessorEl Koshe~-i."59
56Q/Rep.,para. 4.72, pp.74-75.
57Id.
58B/CM,paras. 6.10-6.14,pp.55-57.
" Id. As ProfessorElKoslicristatesiiipara.43 of hisoriginaiOpinion(Q/M,Vol. III,pp. 28-l),
whicliis citcd in thc BahrainiCounter-Mernorialat paras.6.11-12,pp. 55-6:
"There is noîhirigwrong iri ternis of Eriglishli~iguislicswhen using ihe word 'partnes'
expresswhat isknownin Arabicas 'Tarafan'or as 'Atruf. siriceLheEnglishlaquage dnes
not distinguishbetweenthe dualand the plural.T.herefore, therisprimafacie no issuein
objectingto Qatar's translatofthc word'Al-Tarafan'as meaning 'theparties' thcsecond
paragraphof thc signcd Minutcsdatcd 25 Dcccmbcr,1990. ..In fact the Statc of Bahrain
itsclfactcdin the samemanneras witnessedin Attachmcnt7 to thcAnncxsubmittedto the
InternationalCour1of Juslicewith the letter from theBahrainiMinisteOC ForeignArîairs
dated 18August 1991. The said Attachment7 comprised whatis refemd to as'Copy of
originaldraftBahrainiSpecialAgrccmcnt of 19thMarch,1988, asamenciedin October 1988
in English and Arabic'. Articl1 in lheE~iglishversionstartedwitli the referenceto 'Tlie
Parlies'... he same referenceto 'The Parties'is repealeas îollows: al the beginningOC
Article11.1...In all seventeen instances,theArabicversionuf the Bahrainidraft agreement
rcfcrredto as'AI-Tartrfan'.It is difficultto undcrstand whywhwas linguistically correct
for Bahrain in1988has bccomeincorrectfor Qatar in 1991." Startingfrom this expert's own appr~ach,~'Bahrain said that hehad "hitthe
nail on the head and made inunexceptionable terms the very point tliat
Bahrain seeks to make". What then was this point? Tt was that the
expression ul-taru had beenusedin the Bahrainidraft SpecialAgreement
in precisely thesense that Bahraincontends it was subsequentlyused in the
1990Minutes - as meaning "both Parties together".
How does theQatari Replydeal with this argument - so fundamelital
5.08
that itiscapable by itself of disposing of the whole issue? The answer:
Qatar entirely disregards it.here is not a word of express response in the
Reply - an omission thatspeakslouder than a thousandwords. The point is
unanswered because it is unanswerable.
5.09 Yet the extraordinary fact is that, while disregarding the item (the
1988draftjoint submission)which sostronglysupportstheBahrainiposition,
Qatar impliedlyconcedes the value of Bahrain's geiieralapproach,namely,
that of assessingthemeaning ofal-tara n tne 1490 Minutesbyreference
to itsuse in earlier documentsinparimateria. Qatar does this by referring
to the use of al-tarufan in the Framework which initiated the Mediation
process and in the 1987 ~greernent.~' While Bahrain certainly does not
concede that the useof al-tarafdnin these two documents couldmean "each
of the parties"P2Bahrainmakesthe obvious, but necessary, point thatthese
documents use the phrase in a very different contextand are not nearly so
directly relevantas the subsequentdraftjoint submissionof 1988. The latter
used al-tarufun in precisely the same context as it was used in the 1990
Minutes (i.e. inrelationto the submissionof thecase to the Court), while the
Frameworkof the Mediationusedthe word in relationto a joint undertaking
fi0
Sce,cspecially,B/CM,paras.6.12-6.13,56.
61
Q/Rcp.,para.4.73,p.75.
62
Except,ofcourse,in the senscof "bthepartiesSee theOpinionsofProfessorBadawiand
Dr. Holes, Annexes1.10 and 1.11al paras9-22, atpp. 169-174andpara. 9, atpp.192-193
respectively. to refrain from engaging in propaganda andthe 1987 Agreement usedit in
the framework of a joint undertakingto refrain from impeding negotiations
and from presentingthe disputeto anyinternational organization. Similarly,
paragraph (b) of the second item of the 1987 Agreement also contained a
joint undertakingto refrain from media activities.
2. The use of al-tarufun in the Bahraini Formula, 1988
5.10 Balirain added a further argumentto the one based on the draftjoint
submission of 1988. This pointed to the use of al-tarafan in the Bahraini
b or mu la. B"ahrain noted that as "this formula was proposedby Bahrain
as a contribution to the text of a joint submission to the Court and was
received and seen by Qatar as such. ...it]could only be taken to mean
conjunctively 'boththe Parties r.64
5.11 Again, Qatarhas avoided specificallyconfrontingthis argument. The
Qatari Reply contains not a word about the precedential significanceof the
use of al-tarafan in the BahrainiFormula as meaning "theparties together".
Instead, it contends that Bahrain's argument "takes no account of the
condition that the matter has to be submitted to the Court 'in accordance
ctr65
with the Bahraini formula . In itself this sentence is quite implausible
because, if one thing isclear from theBahrainiargument,it is preciselythat
the Bahraini Counter-Memorialis emphasizingthe relevanceof the Bahraini
Formula.
5.12 The sentence which follows and which, in substance, effectively
exhausts the Qatariargumenton the point isthe one to which Bahrain must
takeexception:
--
63B/CM, paras.6.15-6.17pp.57-58.
Ibid.para.6.16, p. 57.
65Q/Rep.,para.4.74,p. 76. "ln fact, the use of the word 'al-tarafiin', whether translated as 'the
parties' or 'thetwo parties',is perkectlyconsistei~twith the use of the
Bahrainiformula,as thisformulawas conceivedpreciselvin orderto
allow eacli Party to submitits own claims to the Co~rt."~~
Nothiiigcould be further fromthe truth than the gloss that Qatar thus seeks
to place upon the BahrainiFormula. As has been clearly stated by Bahrain
and as is, indeed, evident from the circumstances in which the Bahraini
Formula was presented to Qatar, the formula was conceived as a means of
enablinn each Party to formulate theprecise details of its clairns within the
frameworkof a single case submittedto the Court by thern jointlv under a
Special A~eernent.~~
5.13 Moreover, ifQatar believeskat it was linguisticallypossiblethat al-
turafüd nenoted one of the parties alone in the second of the three
paragraphs,it must be preparedta acceptthe possibility that thesame is true
in tl~ethird:
"Sfiould a brotherly solutionacceptable to al-turub fareached, the
case will be withdrawn from arbitration."
It wouldfollowfrom Qatar's interpretationof the meaningof al-turutf hatn
the case would be withdrawn from arbitration if the brotherly solutionwas
acceptable to one Party but not to the ~ther,~ Clearly ,this interpretation
66
Q/Rep.,para. 4.74,p. 76. Empha~isadded.
" SeeB/CM,paras.6.15-6.17,pp.57-58. Ttis idlcforQatarto quotecnmmentsof Dr Al-Bahama
made aithe mecting of 6 December 1988 taken out of contexl (mep.,para.4.74, p.76). The
discussioninwhichthosccommentsweremadewasentirclyabouttheconlentof a SpecialAgrcemcnt
to submittbe casejointlyto the Cnurt. Thewords"it isforcachPartyto suhmitwhatever clairns
itwants concerningthe disputematters"presupposedsuchajoint subiiiission.
68Qatar and its cxpcrtsalseem to think thatBahrainshouldhave askedîor expresswvrding
meaning "together" to be added toal-tarufàn in the secoiid of the ihree paragrap(For the
argurncntsofQatar'sexperts,seethe ~~inioiiofProfessorEl Koshen, Q/M, Vol. III, pp. 297-298;
and the Opinionof ProfessorAyyad,ibidp.p. 330-331cf.Q/Rep.,Vol.II,p. 92). Bahtainconsiders
the wordingentirelyclearwithout suchanaddition.(See the SuppïementaryOpinionof Dr.Holes,
B/CM, Annex 11.4,Vol. Ipara.S(iii) at p. 297 and para.atp. 300. See also para. 20 of his was never intended.
3. The linguistic approach
5.14 In thus laying emphasis upon the failure of Qatar to deal with al-
tarqfdnin both thejoint submissionof 1988 and in the BahrainiFormula,
1988,Bahrainwould notwish in any wayto give the impression thatit does
not seek to maintain the linguistic argumentsin support of the proposition
that al-tarizfanmustbe read in the conjunctivesense. Thesearguments have
been developed in detail by Bahrain's linguistic experts, Professor Badawi
and Dr. Holes,in theirOpinions attachedto the BahrainiCounter-Mernorial.
Qatar has madesome attemptto respond to theseargumentsin the Opinions
of Professor El Kosheri and Professor Ayyad attachedto the Qatari Reply.
These have now been examined by Professor Badawi and Dr. Holes in
further Opinions contained in Annexes 10and 1I to this Rejoinder. Ttwill
be noted that Bahrain'sexperts do not limit their linguistic examination to
the word al-turafün. They also examine it in its context and, therefore,
identifythe relevance to its interpretationof other expressionswhicll appear
in the same sentence and evidently contemplatefurtherjoint action by both
~arties.~'
Second SupplementaryOpinion,Annex1.11,at p.196beluw).Yetif theviewof Qatar'sexpertswere
right, wouldnotawordmeaning"together"havemosl deîinilelybeen neededaftcral-tarafaninthe
thirdparagraph?Thereis nolhingto suggestthateitherpartybelievedthibeoneccssaryatthe timc
whcn thc minutcswere finaiised.
" 90th experts show thatal-kzra fannot mean "eilher party"in lhe crucial sentence and
ProfessorBadawidernonstratcsin Particulhow lhe examplesin which "hoth parties"approximate
to "eachparty"contiainedinpara. 4.73of theQatari ReplyandcbyPmfessnr Ayyad (Q'Rep.,Vol.
Il, pp. 111-112) are of no hclp to Qatar (see paras. 8-22 of Pmfessnr Badawi's Supplementary
Opinion, Annex T.îO,at pp. 169-174bclow and paras. 3-11 of Dr. Holes' Second Supplementary
Opinion, Annex 1.11atpp. 189-193below). ProfessorBadawialsoshows thatQatar'sexpertshave
failedeithertu rebut thedetailedlinguisticanaiysisofthe crucial sentencewhioutinhisiirst
Opinion, or to suggcstany alternativanalysis(See bdow, Professor Badawi's Supplementq
Opinion,Anncx 1.10,paras. 29-30, pp. 176-177).He also shows how Qatar'sexpehave adopted
certainaspeclofhis analysis,whichindicütethatthe crucialscntcnccccintcmpprotractedaction,
cornmensuratewith Bahrain'svicw thatthe partiescnntemplatedtneed for îurther stebeforea
submissioncouldbe made to UieCourt.(See belowibid .aras.23-28,pp. 174-176andparas50-53, B. Consistency of the Bahraini intemretation with the rest of the 1990
Minutes
1. The sigiiificmce of re-affirmina "what was anreed ~reviously"
5.15 Bahraiii lias explained in its Counter-Memoria17" that the
reaffirmation in the first paragraph of the Minutes of "what was agreed
previously between thetwo parties" cannotbe limited to the 1987 Agreement
but must refer to:
"the various points upon which agreement had previously been
reached, including agreement that the approach would be by a joint
submission pursuant to a single special agreementaU7l
Qatar counters this explanation by the assertion thatit had demonstrated in
its Memorial that this referencecan apply "onlv" to the 1987 AgreementT2
and that "Bahrain proceeds on the false assumption that there were other
'agreements' that were reaffirmed in the first paragraph" of the 1990
in ut es.^^
pp. 185-186).Opinionson iegal questionkom ProfessorAboulmagd arld Mr. AdnanAmkhanarc
containedatAnnexes1.8and 1.9respectively.Thesedemonstrateinparticularhowin "Arabo-IsImic
tradition"evidenccof the inleiitioriof the parîiesto an agrccincntis relevantin interpretingit, with
theconsequencethat travaupréparatoireasreadmissibleincvidcnce. (Seebelow,theSupplementary
Opinion of ProfcssorAboulmagd A,nnex1.8,pp. 143-145and the Supplementa~ ypinionof Mr.
Adnan Amkhan, Annex 1.9,paras.6-10,pp. 154-157).The alleritionof the Cciutaisodrawn to
Professor Aboulmagd'sdiscussionof the wording "theprocetluresarisingthcrefrom" intsecond
opcrativcparagraphof the 1990Minutes(Aboulmagd'sSupplementaryOpinion, ibid.,pp. 147-148),
in which hc shows Lhat Qatar andits cxprts have failed 10produceany satisfactory,aitcrnativc
explanatioiiLoha1 of Dr. Al Bahanla.
'OB/CM, paras6.27-6.30,pp. 62-64.
71
Ibid.,para. 6.3p.64.
72
QRep., para.4.66,p. 72. Emphasis added.
73Ibid.,para. 4.67,p. 72.5.16 As to the first of thesepoints, Bahrainhas checkedcarefullythe three
references givenby Qatar infootnote204 on p. 72of its Reply andcan find
nothing in any of the threeparagraphs there cited which either asserts or
supports the contention thattheeference to "what was previously agreed"
can apply & to the 1Y87Agreement.
5.17 As to the secondpoint, therewas noelementof "falseassumption"by
Bahrain regardingthe "otheragreements"reaffirmedin thefjrst paragraphof
the 1990 Minutes. As the Court will appreciate, Bahrain is prepared to
acknowledae that minutesmay record "a~reements"or "understandinns"of
a aeneral nature reached in the course of discussions without those
agreements bein~legally binding. Were theposition otherwiseit would be
impossible forStateseven to enter into discussions which are recorded in
agreed minutes orinto negotiations witla view to moving gradually to a
conclusion through interim agreementon a number of points, conditional
upon achieving agreementon the packageas a whole. That is how Bahrain
understoodnotonlythe minutesofthe meetings precedingthe 1990Minutes,
but also the 1990 Minutes thetriselves. Bahrain thus approaches
characterizatioiiof the minutes froapoint of view entirely different from
that of Qatar.
5,18 Moreover, itis tobe recalled that"whatwas agreed previously" also
included the basisuponwhich thewholenegotiationshad proceeded,namely,
that the Parties werettemgtingto formulateajoint agreementto submitthe
dispute to the Court. There can be no doubt that the Parties had previously
agreed to proceed by way of a Special Agreement. Indeed, Qatar's own
memorandum, dated 27 March 1988, and placed before the Tripartite
Committee, stated:
"what was agreed between our three States was to prepare a joint Special Agreement. ...74
Thus, when the 1990Minutes re-affirmed whatwas agreed previously, that
re-affirmation mustbe deemed to cover this earlier agreementto prepare a
joint Special Agreement. Qatar's interpretation of the 1990Minutes isself-
contradictory. On tlie one hand, the Parties re-affirmed their earlier
agreementto proceedby wayof a SpecialAgreement;and on the other hand
(SO Qatar argues) they agreed to dispense with the need for a Special
Agreement and to allow either party to initiate proceedings by way of
unilateralapplication. Thecontradictionismanifest.If the wordsin question
had been intended to refer only to the 1987Agreement,it would have been
so much easier and more effective simplyto have said so. Qatar's assertion
that it was "a strange interpretation of the [1990Minutes] that leadsto the
concIusionthat [their]purposewaslimited toreaffirmingacourseofconduct
which had patently led to a deadlockW7f 'ails to recognise that it was
acceptanceby Qatarof the BahrainiFormula thatlargelybroke the particular
deadlock reaclied at the previous TripartiteMeetings.
2. The sianificance of the use ofthe singularnumberin the expression "the
matter" or "the case" as the obiectof the verb "submit"
5.19 In its Counter-Mernorial,Bahrain pointed out that tlie reference to
"matter" or "case" in the singular, as the object of the verb "submit" in
paragraph 2 of the 1990 Minutes, was manifestly incompatible with the
Qatari contentionthat the 1990Minutes foresaw the possibility that eachof
theParties might makeindividualapplicationsto theCourtand thusgiverise
to two separate "matters" or s case^".^ Q'atar has seen fit to disregardthis
- --
74Qatar's reproduction of the Qatarimemorandum of 27 March1988 is misleading and
incomplete,sinceitomitsthis phrase (Qatxi Mernorial,Annex11.24,Vol.Ip.,158).See,also,para.
4.16 hve, pp. 16-17 and note 36.The fulltranslatedtex1is reproducasAnnex1.2,p. 85 to this
Rejoinder,with the parts ornitleciby Qatar in italics.
75QRep. para.4.68, p. 73.
76B/CM, paras.6.31-6.32,pp.64-65. significant point entirely inits Reply.
3, The significanceof the words "and the urocedures arising therefrom"
5.20 Bahrainhasin itsCounter-Mernorialexplainedthatthewords "andthe
procedures arising therefrom" that appear in the second part of the 1990
Minutes were introduced in order to rnake it quik clear that proceedings
beforethe Courtcould be begunonlyby bothParties together and, therefore,
thatfurther steps would need to be taken by the two Partiesjointly to bring
the case to the
5.21 In response, the Qatari Reply maintains, first, that "itwas up to
Bahrain to propose precise wording to this effect when it drafted its
a~nendrnent".~~AS will be seen in the next sub-section,7'Bahain made
itspositionsuiteplainbv insistin~on wordswhichwouldnot havepermitted
the Parties to institutewroceedingsunilaterallv.
5.22 Secondly, in couilteringthe Bahrainiexplanationthat the words "and
the procedures relating thereto"related to the BahrainiFormula and that the
latternecessarily implies a joint submission under a Special Agreement,
Qatar maintains that:
"such a contention simply ignorestlie fact that the Bahraini formula
can stand on itsown, and that it was as such that it was accepted by
Qatar"
At the risk of repetition, Bahrain must once again iiisisthatit isnet a fact
that "theBahrainiformulacan standon its own". If referenceis made to the
77B/CM, paras.6.33-p 6p.65,-67.
78Q/Rep.,para.4.77,pp.77-78.
79See below, paras5.23-5.3pp. 35-42.
80
Q/Rep.,para.4.78 p.78. Bahraini Formula, such reference must be made both to its actual language
and to the circumstancesin which it was proposed. As to the language of
the formula, nothingcould beclearerthan the words "ThePartiesrequestthe
Court...".They are words appropriate to, and & appropriate to, a joint
request. Moreover, the Bahraini Formula was presented within the
frameworkofnegotiationstowards a SpecialAgreementprovidingfor a joint
submissionto the Court. Ttcannot be lifted out of that context. It does not
"stand on its own", The fact that Qatarmay have "acceptedit" on tlie basis
that Qatar thoughtit stood on its own, or wantedit to do so, can make no
difference. An offeree cannot accept an offer in terms other than those in
which the offer is presented.
C. The travaux pré~aratoiressl leading to tlie adoption of tlie 1990
Minutes supportthe Bahraini interpretation
5.23 Qatar has started its discussion of the 1990 Minutes with a
consideration of the background to their adoption and the manner of their
preparation. Bahrainwelcomesthis Qatariidentificationof aIeadingelement
in the debate. The value of this factor lies notin merestoricalinterest but
in the important role that review of the evolution of the text plays in
determining the tnie meaning of the relevant words.
5.24 A basicfact whichmust constantlyberecalledisthat, whateverdoubt
Qatar may seek to cast uponthe rneaningof the expressional-taraf iathe
secondparagraphof the Minutesas a matterof abstractterminologyor pure
linguistics, the approach of Bahrain in the course of the ~re~ârationof the
text was entirelv and unwaverin~lvpredicated upon the exclusion of any
suggestionthat uroceedingscould be startedbv unilateral application. This
approach was understood by the intermediary States, Saudi Arabia and
Oman; it was not opposedby them and this was, indeed, fully reflected in
''The expressio"lravauxyvkparatoireisusedmerely a5aconveriieritay ofxeferrigo the
evolutioof the 1990Minutesanddoesnot implyany acceptancby Bahrainthatthe 199Minutes
amountto a trcaty. changes made in the text. Regardlessof the view of the matter that Qatar
may have taken, it is clear beyond a shadow of a doubt that there was no
meeting of the mindsof the two sidesin the sensefor which Qatar contends;
and that, by itself,is sufficient to dispofethecase. In the absenceof clexr
evidence of agreement or consent by Bahrain that the Court should possess
jurisdiction on the basis of a unilateral auulication, the Court has no
jurisdiction on thatbasis,
5.25 That is the short point. It is relevant to recall in this connection the
approach of the Chamber of the Court in the recent El Salvador/Hunduras
case on the question of the extent of the competence conferred upon the
Chamberby the compromisestablishedbetweenthe Parties, especially on the
questionofwhether thatcompetenceextended tothedelimitationofmaritime
areas as well as that of the determination of their status. The Chamber,
presented witli direct evidence in the formof a statement by the Foreign
Minister of El Salvador, thatlie never had theintention of conferring upon
the Chamber a power to carry out a delimitation in thearea in controversy,
statedquiteclearlythat therewasno meetingofrnindsonthat issue and that,
therefore, the Chamber had not been given the power to carry out such a
delimitati~n.'~
5.26 Qatar's narrative of the events of December 1990is quite simplistic.
It disregards entirelythe extraordinaryhistoricalcircumstancesin which the
Heads of State of the Gulf Cooperation Councilwere meeting, namely,the
aftermath of the Traqi invasion of Kuwait and the preparation for the
collective responseto that event. When Bahraindescribedthe 1990 Minutes
as having been signed only to "avoid conveying the impressionto the other
Heads of State of the Gulf CooperationCouncil that the Amirof Qatar had
entiraly failed to secure his objectivettand to get Qatar "off the hook", that
was a description which accurately reflects the situation. Qatarcannot
See ICJ Reports1972,paras.377 and388. The Chamber iheresaid:"..itisonly from a
meeting of mindson that pointthatjurisdiction is crcated". change that by simply sayirig that Balirain's assertion is "~rong".~~ The
facts speak for themselves. If there is aiiy element of error in the Bahraini
description of the situation, it could lie only in not having sufficiently
emphasized the fact that the 1990 Minutes also record Qatar's unequivocal
acceptance of the Baliraiiii Formula - a fact which in itself has a material
bearing on the correct interpretation of those Miniltes.
5.27 As already briefly indicated at the beginiiiiig of this Rej~inder,~~
there is a striking dissimilarity between the approacli of the Parties to the
provision of evidence on the subject of what actually happened, and was in
the minds of the participants,at the exchanges Ieading up to tlie adoption of
the 1990Minutes. Bahrain submitted with its Counter-Mernorial staternents
by its Foreign Minister and its Minister of State for Legal Affairs which
provide clear first-hand evidence of the evolution of tfie1990 Minutes. The
Foreign Minister, as tlie principal participant oii tlie Bahraini side, expresses
hispersona1recollection of what happened and of wliat he understood by the
emerging texts and the changes that were made in them.&'The fact that he
did not correctly identify the precise document in which he inserted the
''Q/Rep.,para. 3.60,p. 36.
84See above,para. 1.05,pp. 2-3.
85
In iiotc96 on p. 34 of ils Reply,Qalarraisesqucslionsregarditigihe admissibilityand weight
of the statement madeby the BahrainiForeigiiMiiiister. Qalardrat alternpt,by argumentor with
the supportof aulliorily,to elaboralelhequestiorislhalil raBahrain submitsthat there can be
110doubtabout the admissibiliof the slalenieril.I~i,videnceof acomparable kindwasadmitted
-withvutevenking challenged,inthcEl Salvador./Honduracsase(seeICJ Reports 1992,para.377).
Qucstionsrcgxding tlicwcigliof suchevidencccm, of course,be raised,but theare for the Court
lo decideinthe lighl01al1Ihecircumsiancesof ihecase. The factlhatthe CourttreatedcurnparahIe
evidencein another case"with greatreserve"(seethpassagecitedby QatarfromthecascofMiliiary
and ParamilitaryActivitiesinand againstNicaragua{Nicaraguav USA),IC.1Reports 1986, p. 43)
can havc no bcaringupon thc inanncrin wiich the Court maytrcat suchevidencein this case.
The sanc question wasraisedby Qatarregarding tlicstatenientmadehy the Minislerof State
forLegalAffairs, but in additioil was saidlliatthis Miiiister,beirigthe Agen1of Bahrain,"cannol
be hcard asa witncss". Tlicrcis nothing in thoscprovisionsof the Statute and of the Rulesof the
Court dcaling with thpositio~iof Agenlslhat supportsthe Qatarinbjeclion,nor dnesthereappearto
be anythingin principleor inthe decisionsof theCourl lo give lhe sligfrtestsupporthe Qatari
contenlion. words"in accordance with the Bahraini formula" does not sliake thebasic
thrust of his evidence in any material respe~t.~Vhe evidence of the
Minister of State for Legal Affairs regardingthoseaspects of the discussion
which were within his direct knowledgeentirely confirmswhat the Foreign
Minister states.
5.28 ln contrast with this primary evidence produced by Bahrain, Qatar
produces nothing whatsoeverthat directly contradicts theBahrainievidence
regardingthe emergence of the text. Tnstead, Qatar &es refuge in
statements of kilowledge and belief attributed in a general manner to its
representatives. Witness thefollowingillustrations of this approach:
il87
"The sequenceof events ...s known to Qatar's representatives ...
"...Qatar was particularlygratified to see ...188
"The Foreign Minister of Oman then again visited the Qatari
delegation in the evening of 24 December and advised them ,..1189
"At about 11a.m.on25 December,the OmaniForeignMillistercame
'"cc Q/Rcp.,paras.3.61-3.64,pp.36-38. TheMinisler had actuallyniadea comparableinsertion
in the draftprescntedtohini earlieby Saudi Arabia atidinadverlentiyconfusedthe first draftwith
ihe second. The Minisieroî SlaleCorLegal Affairs,whohad notbeen presentat the meetings when
thc Foreign Ministcrhad madchis amendmailto Ihe Saudidraîland had secrionlythe Omani draft,
mcrcIyfollowed thc Ministcr'sstatement.
The pointliesal themarginsof the case. Substantively,it changesnothingsinceitmattersnut
whoinscrtcdthc words itithe Ontanidraft.Whatmatters -as willbe seenlater, seeparas5.31-5.36
below, pp. 40-42 - is that the changewasniade and agreed,lhusbringingthe inlerpretationof the
BahrainiFormulasquarelyintoconsiderationas an elemetitin the determinationof the propereffeçt
of UieMinutes. Moreover,Lhere ha$been no suggestion thalthe Foreign Ministerwas mistakenin
his recollectionthalhe hadmadethe amendmentwhichreplaced"eitherPrirtb yy""îhetwo Parties".
See belnw,para. 5.31-5.36, pp. 40-42.
87QIRep.,para. 3.61,p. 36.
Id.
Ibid., para3.65,p. 38. and showed the Qatari delegation what iie terrned the final version
..1190
"Qatar found the word 'al-tarafün' ...perfectiy acceptable because
1191
...
"Qatar therefore agreed .,.192
5-29 A comparably casual approach tornatters of proof is shown in the
final paragraph of the Qatari description of the sequence of events
concerning the drafting of the 1991)Minutes:
"The approach of Saudi Arabia and Oman duringthe negotiations
clearly reveals that theydid not think of die negotiations as merely
leading to an agreement to make a further effort to reach a special
agreementbutas expresslyallowingreferenceofthe case to the Court
if the Mediation liad not succeededby the time of the expiry of the
May 199 1 deadline.1193
Qatarmakesno attempttodemonstrate byreferenceto objectivelyverifiable
facts how the "approach" (unspecified) of Saudi Arabia and Oman can
"reveal" that those States "did not think" of the negotiations as merely
leading to an agreement to make a further effort to reach a Special
Agreement. The attribution toSaudi Arabiaand Omanof a particular state
of mind ispure invention.
5.30 Questions of evidence apart, however, the Qatari Reply makes
virtually no effort to deal substantively with the evolution of the 1990
Minutes - the relevance and course of which are set out in the Bahraini
Counter-Mernorial,paras 6.37-6.55,pp. 68-76. Inthatpleading Bahrain first
90
Ibid.para.3.66,p. 38.
Id.
93QRcp., para. 3.68,p39. disposed of the argument advancedin the Qatari Mernorialthat recourse to
preparatory work was not necessary and was not in conformity with the
Arabo-Islamic Iegaltradition. This treatmentappearsto have been effective
for no reference to thislleged feature of the Arabo-Islamiclegal tradition
appears in the Qatari Reply.
5.31 But the most important aspect of Bahain's exposition of the
development of the text of the 1990Minutes was the identification of two
specificand deliberatechangesin the draftswhich indicatequite clearlvthat
Bahrain was not greuared to anree to anv wordinn that would enable Oatar
to arnuethat wroceedinnsminht be instituted bv the awwlicationof one part?
alone.
Thus:
(i) Bahrainrejected thewords "by each ofthem" that appeared in
the Saudi Arabian draft presented on 24 December 1990;94 and this draft
was dropped; and
Bahrain insistedon the replacement in the subsequentOmani
(ii)
draft of the words "eitherof the two parties" by the words "al-taraf tün",
two parties.'"
5.32 Qatar must have understoodfrom Bahrain's insistence on replacing
"eitherof theparties"by"al-tarafan" ("thetwo parties") thatBalirainwas not
prepared to agree that "eitherof the parties may submit the matter to the
International CourtofJustice". Yet Qatarnow seekstointerpret"al-tarafan"
so as to mean that "eitherof the parties"could indeed submitthe dispute to
the Courtby unilateralapplication. Thisinterpretationdeprivesthe Bahraini
amendment of al1sense. What would have beeti the purpose of Bahrain
substituting"al-tarqfan", if the result was to be exactly the sarne as the
" EICM, para.6.49,p.73.
" B/CM.para. 6.51,p.74. phrase in the draft to which Bahrain objected?
5.33 As to the first of these changes, the Qatari Reply says no more than
that "Qatar confirms that it was unaware of the Saudi Arabian draft and
therefore of any changes proposed in that draft by Bahmin"?' Regardless
of what the correct position rnay be, and Bahrain does not admit the
correctness of the Qataristatement,the point to benoted is that Qatar thus
avoids any discussion of the fact that Bahrain's actionin relation to the
Saudidraft providesclearevidenceofthe unacceptabilityof any Qatariright
individuallyto file an application.
5.34 As to the second point, the Qatari Reply saysthat:
"Qatarfoundthe word 'al-tara( thne7arties)..perfectiyacceptable
becausebot11 Partieshad distinctclaimstomakebefore theCourt, and
because tliis language would enable each Party to present its own
claims to the
This represents a furtherttemptbyQatartoconfusetwodistinctrnatters:(a)
the possible presentation by the Parties of separate claims within the
frameworkof a "neutral"ArticleII -the BahrainiFormula -forming partof
a Special Agreement and (b) the filing of two separate Applications
independentlyof any SpecialAgreement. Thepossibilityof theformerdoes
ilot in any way imply any Bahraini willingnessto accept the latter.
5.35 Qatar's Reply also makes the comment that:
"There was no suggestionin the amendmentsproposed by Bahrain
either that Bahrain was thinkingof further negotiations or thatit was
considering aspecial agreement. Qatarthereforeagreedto Bahrain's
96Q/Rep.,para.3.67,p. 39.
97Q/Rep.,para.3.66,p.38. amendments ...i98
Bahrain finds this explanation virtually incomprehensible. After all,
Bahrain'sproposals wereno more thana continuationof the approach that
had been followed overa numberof years. Why, then, should Bahrain have
made amendmentswith no more purposethan to "suggest"that Bahrainwas
"thinkingof further negotiations" or "that it was considering a special
agreement" when the ameiidmentswereinfact proposed in the verytext that
itself already conkmplakd both further negotiations andthe conclusion of
a special agreement?
5.36 It is also important to observe that Qatardoes not pursue thelegal
discussionofthe inferencestobe drawnfrom tliechangesin the textadopted
at the insistence of Bahrain. In paragrapli4.81 of its Reply Qatar states:
"Aswillbe shownbelow, Qatar'sinterpretationofthe Agreementcm
also be supported, if necessary, by the 'preparatory works' andthe
circumstancesof the conclusion of the Agreement."w
But there is nothing in the followingpagesof the QatariReply "below"; and
if insteadof looking "below"we look "above",the little that is said "above"
has alreadybeenthe subjectofcomment. Inshort, Qatarhas offerednothing
to contradict the significancewhich Bahrain properly attaches to the facts
leading up to the adoptionof the 1990Minutes.
D. Incom~atibilitv ofthe Qatari ap~roaciiwith the idea of a single.fully
dispositive case
5.37 Bahrain setout in its Couilter-Mernorialin some detail why Qatar's
idea tifasingleuiiilateralapplication,orevenparallelor sequentialunilateral
applications, to the Court did not conform witti tlie basis oriwhich al1the
-
PBQ/Rep.,para.3.66,p.38.
99Q/Rep.,para.4.81, p. 79.Emphasisaddcd.
-42- negotiations relating to the submission of the case to the Court had been
conducted prior to the 1990 ~inutes.'" In particular, Bahrain explained
that an essential ingredient inthe negotiations,and one particularlyreflected
in the BahrainiFormula, was the abilityof Bahrain to present its clairns in
respect of Zubarah at the same time as the other aspects of the dispute
between the Parties were presented to the Court.The QatariReplymentions
the question of Zubarah in a different context,'" namely, the question of
the inequality of the Parties. Itwill, in this instance, be convenientto defer
to that part of tliis Rejoinder fullerconsiderationof this matter.'''
E. ThefailureofQatar to insistonclearlanguaae authorizin~a unilateral
application
5.38 The Bahraini Counter-Mernorialcontained a section developing the
theme that:
"If the Parties had agreed in the 1990Minutes to change the whole
basis onwhich theyhadpreviouslybeennegotiating,then theywould
not have failed to spell out that major transformation in their
ideas."lo3
Again, Qatar fails to respoxid to the argument. Instead, it turns the
proposition round and contendsthat if the Bahrainiamendmentsto the draft
minutes "werereallyintended togive the meaning [for]which Bahrainnow
contends, [they]could easily havebeen introduced inclear explicit wordsto
that effect".lo4The argument continues:
'O"B/CM, paras.6.56-6.61,pp. 76-79.
'O1Q/Rep.,paras.4.114-4.117, pp.90-1.
Io2See bclow,paras.7.12-7.17,pp.70-73.
'O3B/CM,paras.6.62-6.67, pp.79-82.
Q/RcP p,ra. 4.76, p. 76. "Whenit nowintevrets the word 'al-taraf admn'eaning 'theparties
jointly' or 'the two parties together',it is obvious tliat Bahrain is
trying to add somethingwhich it should haveinû-oducedinto the text
at that time, if that was really its intention, but which it did not
actually add."1°"
5.39 The answer to this argumentis plain. In the lightof the sequenceof
events on 23 and 24 December 1990which preceded the adoption of the
Minutes, howcould anyonewho had at thattimeobservedthe changes in the
drafts which Bahrain requestedand obtainedhave been left in anydoubt as
to the objectivewhich Bahrainsought?Even assuming(whicliBahrain does
not for a moment accept)that as a matter of the abstractuse of the language
the word 'al-tarafun' could be equivocalin its meaning, what matters is its
relationship to the words which it replaced. As already suggested, there
could have been no conceivable purpose in a Bahraini insistence upon the
removal of words whichexpresslvpermitted either of the Partiesto institute
proceedings onlyto replace it with a word which would(so Qatar contends)
have had the same effect. The Qatari argument makesno sense at a11.1°6
5,40 The Qatari Replydoes not in any wayrespoiid to the point as made
by Bahrain in its ~ounter-~ernorial.~~' It was not Bahrain that was
seeking to make a fundamentalchange in the approach previously adopted.
Ttwas Qatar. Bahrainhad no intimationwliatevertliat Qatar was seeking to
make such a fundamental change. Balirain was merely endeavouring to
maintain the previous approach. If Qatar insiststhat it was its own point of
view that prevailed, is it not extraordinary that it did not insist on the
inclusionof language that wouldmake thepositionplainbeyond doubt? The
closest, it may be noted, that Qatar gets to asserting that the 1990 Minutes
permitted "unilateral seisin" isthestatement that:
105
QJRep.,para.4.76,p. 77.
106
Note aisopara.5.13above,pp.29-30 andnote 68.
B/CM, paras. 6.62-6.65,pp.79-8alpara. 6.64.
-44- "[the 1 Y90Minutes] records the Parties'imulicitconsent to seisin of
the Courtin any manner allowedby thei108tuteandRules ..oncethe
May 1991deadline had expired ...
5.41 The case which should be recalled in this connection is the Asylum
Case. There theParties agreedbythe Act of Lima torefer the disputeto the
Court for decision.lo9They alsoprovided that,having beenunable to reach
an agreement on the terms in which they might refer the disputejoindy to
the International Court of Justice, "proceedings before the recognized
jurisdiction of the Courtmay beinstitutedon the applicationof either of the
Parties". This language shows what is missing in this case: the express
authorization given by a previous agreementto either Party ta define the
terms of the dispute by means of its unilakral application. Why was this
course not followedin this case?"'
F. The generalcontext of the 1940~iiiutes"'
5.42 Tlie essence of Bahrain's position is that the 1990 Minutes were
valuableas recordingQatar'sacceptanceof theBahrainiFormula but that in
substantiveterms theydid notgo beyondthis. Bahraintook, and still takes,
the viewthat the 1990Minutes,aseventuallyadopted,wereadiplomaticand
face-saving device for Qatar whicb, despite the rejection of the item when
OR
Q/Rep.,para.4.101, p. 86. Emphasisadded.
1C.iReports 1950,pp. 266-389.
Qatar arguedinnole 222 lo Q/Rep.,para.4.75, p. 76, tb"ithe language'eitheroflhe two
parties'had beenretained[in th1900 Minules],this wouldhaveentailean obligationfor oneParty
aloneto subrnitthc wholedisputeto the Court,&the otherParly's casein additionto its own,which
in thepresentcircumstrülccswouldbe both nonscnsicaland impossible". This hypotheticaldilemma
arises only because Qatar arguesthat the BahrainiFormulacan stand on its own outsidea special
agreement and its very nonsensicalitand impossibilitydcmonstratcthe falscness ofthe Qatari
approach 10îhe BahrainiForniula.
"'The Bahraini Counler-Mernoria1containsasub-sectionkaring this titlewhichdeals with the
Qatariargumentthat Bahrain'sinterpretationofparagrdph2 of the 1990Minulesdnesnotmakesemc
in Lhegeneralcontexlol the Minulesasa whole;B/CM,paras.6.68-6.74,pp. 82-84. proposed earlier in December 1990for inclusion in the Summit Meeting's
agenda, had insisted onbringingthe itemfonvard at a timewhen everyone's
attention was principally directed towards the much more urgent problems
in the Gulf arising from Iraq's invasionof Kuwait.
5.43 Qatar returns to this aspect of the matter in a section on "The
ri112
Circumstances surrounding the Agreement . It repeats, in paragraph
433, the assertion that"theMediatorhimselfthought thatthe timehadcome
for the dispute to besubmittedto the Court". Butthe onlyevidence for this
far-reaching assertion is a footnote which refers the reader to an earlier
paragraph, paragraph 3.57. The latter merely expresses the assertion in a
different form, mentioning that "King Fahd of Saudi Arabia stated at the
Meeting that the time had come for the dispute to be referred to the
International Court of Justice". Even assuming that this is an accurate
representaticinofwhatKing Fahd said,sucha statementis notthe samething
as saying that the time had come to permit one Party alone to commence
proceeding S.
5.44 The recollectionof the BahrainiForeignMinister,whowas present at
the SummitMeetingof the Gulf CooperationCouncilon 23December 1990,
is that, although there was discussion of the next steps to be taken and
repeated reference was made to the desirability of the continuance of the
rnediationfor aperiod, the mentionof recourseto theInternational Courtof
Justice was never in terms of one or the cither party having the right
unilaterallyto commenceproceedings.""
5.45 The Qatari Reply furthercontends that the 1990Minutes were aimed
at escaping from the deadlock confrontingthe two parties:l14
112
Q/Rep.,paras.4.824.84, pp.80-81.
11Sce paras7 and 12oftllstatcmentbytheBahrainiForeignMinisterB, /CM,Anncx 1.25,Vol.
II,pp.162 and 164.
114
Q/Rep,,paras.4-84,p. 80. "Inordertoescapefrornthedeadlock, anewapproachwas introduced
by [the 1990Minutes]whichconsisted in linkingQatar's acceptance
of the Bahraini formulation of the subject matter of the disputes
together with the determination of a deadline after which the Court
might be seised of the disputes. Thus, the Agreement reached at
Doha in 1990 emergedashavingthe functionof an ad hoc agreement
containinga compromissory clausemakingit possiblefor each Party
tû submit an applicationto the Court presenting its ownclaims."""
5.46 This lineof argumentis not persuasive. Lack ofagreement,it is true,
there was. But the means by which Qatarsuggests that the Parties agreed
to overcome this would, if accepted,have meant that Balvain pIaced itself
completely in Qatar's hands. Acceptanceby Qatar of the Bahrain iormula
did not put an end to al1the differences between the Parties regarding the
content of the SpecialAgreement. The admissibilityof the Bahrainiclaims
in respect of Zubarahcould still have been challengedby Qatar if the scope
of the dispute was to be defined by a unilateral applicationby Qatar - as
Qatar appears to believe to be possible even now.'16 Nor would the
confidentialityof the mediationproceedings, includingany proposals made
by either side, have been as protected as it would have beeri had Qatar
subscribedto ArticleV of theBahrainidraftandthuswithdrawn its assertion
that it was entitled to introduce into the case any materials that it
wi~hed."~
5.47 Nothing whatsoeverin the discussions leadingup to the adoption of
the 1990 Minutes warrants the suggestion that that text had:
"the function of an ad hoc agreement containing a compromissory
clause making it possible for each Party to subrnitan application to
the Court."
'1Id. pp. 80-1.
'1See below,paras.7.12-7.1pp. 70-73.
11See below,paras.7.01-7.11,pp.65-70. In so far as words appeared initiallyin the Saudidraft andlater in the Omani
draft that might havecreated that impression, Bahrainhad objectedto them
and secured their replacement by other words. It is absurd to suggest that
the replacement wordsmustcarryexactlythe samemeaningas thewords for
which they were substituted. And the acceptance by Qatar of the Bahraini
Fonnula, without seeking any modification of the opening words "The
Parties reyuest the Court"further confirmsthe continuingacceptancebyboth
sides that the submissionof the matterto Court wouldtake place only upon
a joint basis.
5.48 Finally,referenceshouldbemadeto thecornplaintmadeby Qatarthat
Bahrain has refrained in its Counter-Memonalfrom answeringthe question
asked by Qatar in its Memorial:
"whyprovide that ifthe Saudi good offices succeed,the case shallbe
'withdrawnfrom arbitration',if tliesolecommitmentof the Parties in
the Doha Agreement[the 1490 Minutes] is toresume negotiations to
make a special agreement?"'l8
Bahrain did, in fiact,answer the question at para. 6-72,page 83 of its
Counter-Mernorial. However,as Qatarnow presses the pointagain,Bahrain
is quite willingto respond to it. Theprovision inquestiondoes not support
theQatari interpretatioo rather the reverse. It recognisesthat withdrawalof
the case in the event of settlement would be a matter for joint action, the
more so if (as was expected) the submissionof the case was one for joint
action. It was appreciated that, whatever stage proceedings might have
reached, SaudiArabia'sgood offices could achieve a negotiated settlement,
This position was recognised by the Amir of Qatar in his letter of the 18th
June 1991to the King of Saudi Arabia (whichBahrain did not see until it
received Qatar's Mern~rial)"~when he said:
'lsQ/Rep.!para.4.80,p.79.
li9Sccabuvc, para.1.11p. 4and note 6.
-48- "This measure will not prevent the continuationof your honourable
efforts aimingat arrivingto the friendly settlementcontainedin your
last proposals, as the said agreement stipulatedto continue the good
endeavoursof the Kingdomof SaudiArabiaduringthe subrnissionof
the dispute to the InternationalCourtof Justice and to withdraw the
matterin case of the achievementof a brotherlysettlementacceptable
to both Parties."lZ0
SECTION3. The 1990Minutes are not a binding agreement
A, The 1990Minutes are no morethan a record of a staEein diplornatic
negotiations
5.49 Bahrain adheres to the argument that it developed in its Counter-
Mernorial, paragraphs 6.76-6.82,pp. 85-88. Qatar responds by asserting,
first, that:
"itis obvious that theDoha Agreement [the1990Minutes], although
entitled 'Minutes', [are] not the equivalent of minutes of a
meeting."lZ1
In approaching thematter in this way, Qatar is in effect attempting silently
to reversethe burden of proof. It isnot for Bahrain to show that the 1990
Minutes are the equivalentof the minutesof a meeting. lt is for Qatar to
show that the 1990Minutes, being described as "Minutes" and taking the
same form as a series of ealier documents so described, areproperly to be
regarded asfalling within an entirely differentlegal order, namely, that of a
binding treaty.
5.50 Whan Bahrain equated the 1990 Minutes with the earlier signed
Minutes of theTripartiteCornnittee it didso becauseeâch of the documents
12For theAmirof Qatar'letterseeQfM, Amex 11.35, Vol. IIp.220.
121
QiRep., para4.46,p. 63.
-49- so described shared the cornmoncharacteristicsthat: (a) they reflected the
course and outcome of the meeting thatpreceded them; (b) they related to
the same subject matter; (c) they took the same form as the 1990 Minutes;
(d) they were signedinthe sameway bythe Foreign Minisiersof each of the
countries concerned; and (e) they were each called "Minutes 7.122 *
document which shares al1 these features with a series of preceding
documents may propedy be assumedto share their legal quality unless and
until it is unequivocally established thatl1those concerned in signing it
intended to accord to it some different quality.
5.51 Qatar next attemptsto deal with the Bahrainireferenceto the Aegean
Sea Case.'23 Qatar suggests tliat Bahrain is "really trying...to draw a
parallei between [the 1990Minutes] and the Brussels Communiqué ...and
then seeks to distinguish the two situations by clairning that because the
conduct prescribed by the 1990 Minutes was of a "legal", not a political,
nature, the intention to pursue such conduct was "therefore legally
bindir~g".''~As to this, the premiss is questionable. Ttassumes what has
to be proved, namely, that the "provisions are of a legal, not a political
nature". Moreover, the conclusion does not follow from the premiss. The
fact that a provisionrnaybe "legal"(whatever thatmay mean)does not mean
that it is, "therefore, legally binding". Apart from these weak theoretical
coiitentions, the Qatari Reply contains nothing to shake tlie clear and
compelling conigarison that is drawn in the Bahraini Couoter-Memorial
between the iiisufficiency of the Brussels Communiqué to found the
jurisdiction of the Courtin theAegeanSeaCase and the insufficiencyof the
1990Minutes in the present case.
L2B/CM, para6.29-30,pp. 63-4.
12B/CM, paras.7.2 - 7.49100.
Q/Rep.,para.4.51,p.65. 5.52 The third point madein this connection by the Qatari Reply isthat:
"the wording of [the 19% Minutes] indicates that an agreement has
already been reached and is not merely a declimationof intention
either to reach an agreement in the future or ~therwise."'~~
Bahrain is notinclinedtodisputethecontentionthat the1990Minutesrecord
an agreement. But thatdoes not mean that the agreementso recorded was
an agreement in law or was legally binding. The Qatari Reply appears to
consider that becausea text may "enunciatelegal rights"it mustnecessarily
"produce legal effects" . The proposition is self-serving. The premiss
"enunciate legal rights" itself assumeswhat has to be proved, namely, that
the rights are "legal"n character. The correctnessof theuse of the adjective
"legal" depends upon whether the Parties intended legal consequences to
flow. The mere fact that the conduct in question is conductwhich could
have legal consequences if such consequences were intended does not
automatically leadto the existenceof such consequences -particularlywhen
there is evidence (as there is in this case) that such consequences were not
in theminds of the relevant responsiblerepreseiitatives,
5.53 The Qatari Reply goes on to say that "the intentionof the Parties to
be bound appears from the text it~e1P.l~~Bahrain says otherwise. The
textin question has to be seeti in its proper context, as one in a series of
Minutes reflectingan evolving and as yet uncrystallizedlegal process.Tt is
in the nature of negotiations for a Special Agreement that points of
agreement are recorded as the negotiations tdckle successive parts of the
draft. Yet neither Party is legally "bound" by such agreements in any
definitivesense. Each point "agreed" is agreed only provisionally, in the
sense that each Party rernains free, at the end of the whole negotiating
process, to review the text as a whole and to decide whether it will put its
signature to the package as a whole. This is the normal nature of agreed
125Q/Rep.,para.4.52,p.65.
126Q/Rcp.,para.4.56, p. 66. minutes in a negotiationof this sort, and it had been the nature of al1the
signed minutes of the meetings of the Tripartite Committee theretofore. If
Qatar intended to depart from the established pattern of the Minutes, it
should have made its intention so plain that no doubt on that score could
have existed in the minds of the representativesof Bahrain. But Qatar did
not make its intentions plain;and, if it had, that revelation would have been
quite sufficient to occasion further objection on thepart of the Foreign
Minister of Bahrain and arefusa1to signthe Minutes.The Court will recall
in this connection the manner in which the Chamber in the recent El
Salvador/Honduras case accepted the statement of the El Salvadorean
Minister of Foreign Affairs as evidenceof the intention of El Salvador not
to extend the jurisdiction conferredon the Court to cover delimitation of the
127
maritime areas.
B. The 1990Minutes were notreaarded bv the Parties asconstitutingan
international apreement
5.54 In the Bahraini Counter-Mern~rial,'~~ Bahrain indicated that until
Qatardecided totrytomakecapitalout of the 1990 Minutesit had notgiven
any indication thatit regarded them as constituting a binding international
agreement. In particular, Qatar had not taken the steps required of it by its
own Constitutionin relation to the conclusion of treaties.
5.55 Qatar seeks to answer this point,first, by saying that:
"Bahrain was clearly put on notice of Qatar's view that [the 1990
Minutes werel a bindrnginternational agreementby virtue of steps
undertaken by Qatar to implementthat
12ICJReports 1992,paras.377-378.See abuve,para.5.25, p. 36.
128
B/CM,paras. 6.83-6.89,pp. 89-91.
129
Q/Rep.,para.4.21,p. 52. 5.56 The only indicationprovidedby Qatarofthe "notice"thusgiventakes
the form of afootnote cross-referenceto paragraph 3.70 of its Reply. This
turns out to be the paragrapllin which Qatar mentions thaton 6 May and 18
June 199 1the Amirof Qataraddressedletters ta King Fahd of Saudi Arabia
indicating Qatar's intentionto startproceedings aiidthat the sarneintention
was conveyed by the Amir to the King at a meeting on 5 June 1991,
Clearly, a "notice" conveyed to the King of SaudiArabia is not a notice
given to Bahrain. Qatar recognises this and is thereforeobliged to speculate
that "it is most unlikelythat this intentionwasnot communicatedto Bahrain
by Saudi Arabia"."' Bahrain denies that it ever received such
information. '"
5.57 There is a further objectionto theQatari contention. Suppose(which
Bahrain denies) thatthe notice given inMay/June 1991by Qatarto the King
of Saudi Arabia had actually reached Bahrain, What legal effect could be
attached to it? Qatar is, in effect, arguingthat the noticethen given showed
that Qatar regarded the 1990Minutesas being a treaty, despite the fact that
the Minutes had not been dealtwith in the mannerprescribedfor treaties in
the Qatari Constitution. ThusQatar appears to be arguing that a notice is
sufficientand effective if it is given not only six months afterthe event (i.e.
the signatureof the Minutes)but also even after the expirationof the period
laid down in the self-same text forthe action to be taken under it!
5.58 Thereis herea strikinginconsistencybetweenwhat Qatar demandsof
Bahrain andwhat it regards as appropriatetoitself. Afew p-es later Qatar
asserts that:
"when the two States were engaged in the drafting of the 11990
Minutes]...Q atarheard nothing about any resewation which Bahrain
130
Q/Rep.,para.3.70,p.40. Sec above,para.1.09pp. 3-4.
111
Seestatcmcnt of the BahrainiForeignMirister,B/CM,Annex1.25,Vol.TI ,ara.15,p. 165.
His recollectiotconsistenwith SaudiArübia'practicthrvughoutthemediation.Sceabovc, para.
1.11,p.4 and note 6 andAnncx1.5,at p. 129. might have had concerning the binding character of the
instrument.
As Bahrain has already pointed out, there was no reason why it should, in
the circumstances, have declared that it did not regard the latest in a series
of legally non-binding Minutes asitself being non-binding. But that is less
the point herethan thefact that Qatarrecognises thatthe appropriate moment
for giving notice of one's view regarding a change in the legal status of a
series of instrumeiitsis at the momentof the conclusionof the relevant text,
not at some subsequent date so long afterwardsthat action pursuant to the
alleged legal obligation is no longer p0ssib1e.l~~
5.59 Qatar also contends that "Bahrainis wrong ..n law" in arguingthat
the Qatari Constitutionmust be read as layii~gdown the way in which
treaties are concluded,as opposedtoproviding for the applicationof treaties
134
in municipal law. Well, if Bahrain is wrong as a matter of Qatari law,
it is wrong only because the wording of the relevant Qatari constitutional
provision does not mean what it says. The first sentenceof Article 24 - as
presented by Qatar itself - statesclearly and unequivocally:
"The Amirconcludestreatiesby a decree andcommunicatessame to
the Advisory Councilattachedwith appropriate e~planation."'~~
This sentenceis self-evidentlynot concemed with incorporationof treaties,
a matter whicliis covered separatelyby the next sentence:
"Suchtreatiesshallhavethepower oflaw followingtheir conclusion,
'32QiRep.,para.4.57,p. 67.
'33See above, paras.5.53-5.55,pp.51-52.
134Q/Rep.,para.4.20, p.52.
135Id. ratificationand publishing in the Official Gazette."'36
5.60 For Qatar to contendthat theapplicationofits Constitutionis "in any
event ...a pureIy intemal matter"137 is entirely beside the point. Bahrain is
not seekingrelief underany provisionof Qatari constitutionallaw. Bahrriin
is oniy saying tliat, as a foreign Stateconductingrelations with Qatar, it is
entitled to look to Qatar's Constitution for guidance as to what, in Qatari
eyes, is or is not a treaty; and when, in relationto a given document, Qatar
acts as if it were not a treaty, by not following the constitutional
requirements for a treaty, Bahrain should be able safely to rely on that
behaviour as indicativeof Qatar's view that the document is not a treaty.
5.61
The extentto which Qataris obligedto scrape thebottom of its barre1
of argumentsrelating to the relevance of constitutional factorsis illustrated
by the extraordinaryproposition that:
"interpretation of another State's Constitution may easily be
considered as an interference in tl~atState'sinterna1affairs."'38
If tiiat shouldix the case, why does the Vienna Conventionon the Law of
Treaties (1969) presuppose, in Article46, a knowledge by co-contracting
States of one another's "interna1law"? Why has the United Nations
published a containing the relevant constitutional provisions of
its member States which is prefaced by a quotation from a Report of the
International Law Commission that "precise knowledge of constitutional
provisions of other countries is essential to those wl1oin any country are
13Id.
13Q/Rep., para. 4.23, no146, p.53.
13Q/Rep.,para. 4.29, p. 57.
'3Lnws and Practicesconcerningthe CancEu.sionofTreabies(1952) (UN Legislative Series,
ST/LEG/SER.B/3). engaged in negotiating treaties"?I4' Were both these items an inciternent
to one State to interîere in the internal affairs of another?
C. Even if the text of the1990 Minutes wereto be construedas a treatv,
the requirements necessary for its effective operation as a treatv were not
satisfied: theBahraini constitutional point
1. The Qatari alle~ation that the 1990 Minutes are an ameement in
sim~lifiedform
5.62 In dealing with this section of Bahrain's Counter-Mern~rial'~~ the
Qatari Reply insists again that the 1990Minutes are a treaty in simplified
form. Qatarmakesnoresponse to theBahrainiobservationthatbydeliberate
omission the Vienna Conventionon the Law of Treatiesmakesno provision
for the special If-eatmentof treaties in simplifiedf~rrn.'~~Nor does Qatar
deal with the careful analysis in the Bahraini Counter-Mern~rial,'~~ of the
limited circumstances in which consent to be bound by a treaty can be
expressed by signature alone. Qatar evidentlybelievesthatit can dispose of
the difficulty simply by disregarding it and restating its own original
position:
"Bahraincm surely not deny theexistence of a weil recognised rule
of internationallaw (reflectedin Article 7 of the Vienna Convention)
according to which a Minister of Foreign Affairs is able to bind his
country by an agreement iiisimplifiedformand is presumed to have
the power to do ~0."'~~
140Ibid., p. iii.
14'B/CM,paras.6.91-6.104,pp.92-98.
14'Ibid., par6.92,note 183,p. 93.
143Ibid.paras.6.93-6.95,pp. 94-96.
'" QJRep.,para.4.26,p.55.
-56- The answerthat Bahrain givesto this assertionhas been clearly stated inthe
Bahraini Counter-Mernorial:
"...eventhough the Ministers may have possessed fullpowers, Qatar
would stillhave toprove thatit was agreedthat signature would have
had the effect of binding the parties irnmediakly. And no such
agreement isrevealed anywhere in the 1990
There is no needto saymore.146
2. The Qatari allegation that Article 37 of Batirain's Constitution is
irrelevant
5.63 The Qatari Reply again insists that:
"prima facie Article 37 [of the Bahraini Constitution] spells out
conditions for the introductionof treaties into municipal law"
and complains tliat "Bahrain has been careful not to answer this
argument I.47 The fact is that the argument is as little valid here as it is
in relation to the same point that Qatar makes regarding its own
~onstitution.~~~ On their faces, the constitutional provisions of both
countries deal in their first sentenceswith the process of concluding treaties
I4%/c~ p,ara. 6.95, p95-96.
14%tkle 7 of the Viemia Conventiorion the Law of Treaties providcs that: "a person is
consideredas representinga Stat..Iorthepurposeofexpressing fie consentof the Statcto bc bound
by a treatyil..it appearsfromthe practiceof the Statesconccrncdor fromolhercircumstancesthat
their intentionas to considcrtliatpersonas representingtheSiatefor such purpos...".In Article
7(2), the Conventionprovides specifically that a Minister of Foreign Affairs is considcrcd as
representinghisState"for thepurposeofperformingal1actsrclatingto thc conclusiarioa lrealy"by
virtueof his funetionsand withouthavingto pmduce full powers. Yet, as Bahrainalsopointedout
in para. 6.9of its Counter-Mernorial,tlieisnothingin the lems of Arlicle7(2){a)thaaccordsto
a Foreign Ministcrfull powers lo give immediate effectto hissignatureto a trcaty if hc does not
intendto do so orisprohibiteriby his Constitutionfrom so doing".
147
Q/Rep.,para. 4.30, p. 57.
149ee abovc,para 5.59, pp. 54-55. and only secondarilywith their implementationin domestic law.
5.64 A further point made by Qatar is this: ifBahrain concedes that the
1987 Agreement is a treaty and tliat the procedures of Article 37 of the
Bahrain Constitution were not followedin respect ofit, why should therebe
a need for such procedures in relation to the 1990 Minutes?149The answer
is simple: the 1987 Agreement wasimperfectand conditional. By its terms,
it would only becorne fully operative when completed by an agreement
resultingfrom the negotiations tobe conductedin the TripartiteCornmittee.
Such an agreementhas nat yet been reached.
'49Q/Rep.,paras.4.31-4.32,pp. 57-58.
-58- CHAPTERVI
THE RE1,ATIONSHIP BETWEENTHE
1987AGREEMENrI 'NI)THE 1990 MINUTES
6.01 In the light of what has already been said in this Rejoinder, it is
hardly necessary to repeat in the presentchapter the arguments that have
been developed under this title in the Bahraini Counter-~ernorial.'~~
However, inview ofthe pointsmadeby Qatar in itsReplyunder theheading
of "Consent in the Doha Agreement"lsl a few additional words on the
subject of consent may be desirable.
6.02 First, the termsofpara. 3.11 of the Qatari Reply,quoted below,now
create some measure of uncertaintyaboutthe relationshipbetweenthe 1987
Agreement and the 1990Minutes:
"Frornthe above, it is clear that Bahrain's contention tliat under the
1987Agreement 'theeventualsubmissionof the dispute tothe Court,
was clearly conditional upon the successful negotiation of a special
agreement' is wholly unfounded."
What exactly is Qatar saying?1sit that the 1987 Agreement was by itself
sufficient to foundhejurisdictioof the Court? If so, one is bound to ask
such questions athese: why didQatar wait for four years before filing its
Application; how could the 1987Agreementbe sufficient if, as the record
clearlyshows, the Parties were not agreed upon the subject-matteof the
dispute; and why was so much time spent in the Tripartite Cornmitteein
trying to agree the terms of a Special Agreement?
15B/CM, paras7.1-7.23pp.99-1U6.
15Q/Rep.,paras4.85-4.103pp.81-84.
-59- 6.03 If,on theotherhand, Qataris not sayingthat the1987Agreement was
by itself sufficient to found the jurisdiction of the Court, what is its
contention? In particular, how does it progress from the bare terms of the
1987 Agreement to the claimed entitlement, subsequently established,
unilaterally to start the proceedingsby an Application?
6.04 Qatar also presents the 1990Minutes as confirming the existence of
an exchango ef consents between theParties bothas to the submission of
their disputes to the Court andwith respect to the definition of the subject-
matter of those disputes.'52 Qatar then alleges that "the Bahraini Counter-
Memorial has not discussed these questions ..to any extent I.153 Bahrain
must admit to being baffled as to why Qatar should wish to make an
allegation which is so obviously contradicted by the Bahraini Counter-
Memorial, both in its generallines and in detail.
152
Q/Rcp.,para.4.86, p.81.Qatargives no detailedrefercnccfor the asserlionthatit has"shown
that the 1990Minutesconfïnnedthe existenccof ancxchangeof consentsas to the submissionofthe
disputesto the Courtandthe definitionof their subjectmatleNok 235 to para.4.86 of the Qatari
RepIymerelyStates "E, in gcncral,Qatari Memorial,chapter4." Tistnie thatthis chaptercontains
an extended discussioof thctheoretical aspectsof the Court'sjurisdiction,in whichBahrainsaw no
need totake part (see B/CM,para.4.2,p.21). It is in vainthat Bahrainhas searchedthat chapterfur
evidence that it "shows"that in Dvhahin 1990 the parties exchangedlheir consents to submit thc
disputestothe Courtanddefinedthe subjectmattcrof thoscdisputes.TheBahrainiCounter-Mernorial
has, however, discussedl lengththe absenceof consentby tlicpartiesto a unilateralsubmission. In
fact,over athirdof its text (ChapVIrthereof)is devotcdto dcmonslratingpreciselybis point. As
regardsthe question ol the BahrainiFormuladefiningthc subjcctmatter of disputes,Bahrain has
likewise shown thathisFormulawasonly eversuggcstcd asthc questionîor ArticleIIof the Special
Agreement, and wâs not intended(nor, indeed,was it appropriate)for a unilateralsubmission. The
inconsistcncyofQatar's applicatiwiththeideaof a singlefullydisposilivecasewasshownatpara.
6.56-6.61,pp. 76-79, of the BahrainiCountcr-Mernorial.Notealso, in particular,ibid., paras. 6.31-
6.32, pp. 64-65.
15id. SECTION1. The consent of the Parties to refer the "disputes"to the
CourtlS4
6.05 Qatarthen goes on toassert,yet again,that the consentofboth States
dealt not only with the reference of the disputes to the Court but also with
the moment from wliich the Court could be seised.'" There is nothing
new in this assertion. It proceeds,asdoesthewhole of the Qataricase,upon
the mistaken view tliat the words "the partiesmay submit the matter to the
International Court of Justice" means iither of the Parties. In fact the
reference in the 1990Minutesto the period of six months was an indication
that at the end of that period,notwithstandingthe continuanceof the Saudi
Arabian mediation, Saudi Arabiawould regard the Parties as freejointlv to
submit the case tothe Court.
SECTION2. The consent of the Parties to the subiect-matter of the
"disputes"to be subrnittedto the Cod6
6.06 Qatar is also anxious to presentthe 1990 Minutes as containing an
agreement in whichthere was an exchangeof considerationbetween thetwo
sides, Qatar argues that in return for Qatar accepting the BahrainiFormula
for the definition of the question, Bahrain agreed that Qatar rnight
unilaterally submit the dispute'57to the Court after May 1991.'" This
proposition, of much importance to Qatar, founders upon contradictory
statements of fact made by Qatar within the space of two paragraphs. In
15The titie of bis sub-seclioriis takenfromQ/Rep.81.
15QIRep., para.4.87, p81.
15The title of this sub-sectionis tfrom Q/Rep.,p.82.
15Tlic QatariRcplywritesof "disputes"nthc plural(para.4.91, p. 83).shouldbeobserved,
however,thal thisis departurefrom thesenseof tlielanguagein th1990 Minuteswhich spcaksof
submitting"thematter"i,n thesingular,0thc Court.See above,para.5.19, pp. 33-34.
158
Q/Rep.,para. 4.91,pp. 82-83. paragraph 4.90, Qatar states that:
"atthe opening session of the GCC Summit Meeting in Doha in
December 1990, the Amir of Qatar declared that he accepted the
proposa1previouslymade by Bahrain concerning the definitionof the
subject matter of the disputes so that the matter could be referred to
the Court without delay."'5g
This isan accuratereflectionof what transpiredat the meeting onlyin so far
as it can properly be read as a declarationby Qatar that was net at that time
made conditional upon a reciprocal undertaking by Bahrain entitling Qatar
to start proceedingsunilaterally.
6.07 Thus what Qatar saysin paragraph4.90 of itsReply contradicts what
it says in the next paragraph:
"...in the Agreement [the 1990 Minutes] this acceptance of the
Bahrain formula was a quid pro quo for Bahrain's undertaking to
allow submissionof the disputes to the Court after May 1991."160
The latter is not an accuraterepresentationof the understandingin the 1990
Minutes because the Amir of Qatar had made his declarationof acceptance
of the Bahraini Formula at the opening of the Dohah session,'" prior to,
and independently of, the formulationof the 1990Minutes. There is not an
iotaof evidence to support theidea that there was an exchange of promises
in the manner now put forward by Qatar.
6+08 In paragraph 4.92 on page 83 of the Reply Qatar asks:
"how can it be asserted that rthe 1990 Minutes] did no more than
record Qatar's acceptanceof the Bahraini formula, when the first
159Q/Rep.,para.4.90,p. 82.
160Q/Rcp.,para.4.91,p.83.
161See para. 6.06 abovcand Q/Rep.,para.4.90,p82.
-62- Omani draft shownto Qatardid noteven include the referenceto the
Bahraini formula, which was subsequentlyadded by Qatar itself?"
The answer lies in the facts set out above, coupled with the fact - which
Qatarpersistsin disregarding -that the Saudidraftof the Minutesset out the
formula in full, The inescapable fict is that Qatar made its declaration
accepting the Bahraini Formula but was not successful in its attempt, as
reflecied in the original forms of the Saudi and Omani drafts, to persuade
Bahrainto acceptQatar's right unilakrally toplace thecase kieforethe Court.
SECTION 3. Seisin of the Court
6.09 Qatar appears to be convinced that Bahrain does not appreciate the
distinction between "jurisdiction"and "seisin".'" Nothing could be further
from the tsuth.
Bahrain understandsthe distinction full well. It understands
that there can be no effective seisin without a prior effective basisof
jurisdiction, Savein the case of .forumprorugaturn(which is not pleaded
here); it understands too that where the jurisdiction of the Court is
unilaterally invoked on the basis of some prior existing ground of
compulsoryjurisdiction, the applicationis the act of seisin; anditrecognizes
too that when there is an agreement between twoParties that an existing
dispute will be submitted by them to the Court, the seisinof the Court is
effectedby the notification to the Courtof the joint agreement. But inevery
such case there is a validand effectiveground ofjurisdiction. Here there is
no such ground. An act of seisin cannot replace a basis of jurisdiction,
6.10 Finally, it shouldbe noted that Qatar asserts: "Even whenthe idea of
a special agreementwas beingcontemplated, the questionof seisin was not
II163
discussed . That is precisely the point that needs to be made. The idea
of individual seisin,though theoretically possible, is so out of accord with
. ... -- -.
lG2See Qlep., paras.4.96-4.103,pp.84-86.
163
Q/Rep.,para.4.102,p. 86.the practice of States in submitting cases to the Court following the
conclusion of a compromis, thatit can be effective only when most clearly
authorized;and that is certainly not the case here. PARTTHREE
CLOSING CONSIDERATIONS
CHAPTERVI1
IIISADVANTAGES FOR BAHRAIN
OF BEINGMADEDEFENDANT
SECTION1. The question of Article V
7.01 It is not necessaryfor Bahrain in this concludingPart to review the
Qatari treatment of al1 points made by Bahrain in Chapter VI11of the
Bahraini Counter-Mernorial. There is, however, one point on which the
positionmaynot yet havebeenpresented tothe Court sufficiently fullyand
clearly. That is the issue of "Article V". This, it will be recalled, is the
Article in theBahrainidraft Special Agreement of 19 March 1988 which
provided as follows:
"Neitherparty shall introduce into evidence or argument, or publicly
disclosein anymanner, the nature or content of proposalsdirected to
a settlement ofthe issues referredto Article II of this Agreement,
or responses thereto, in the course of negotiations or discussions
between the parties undertakenprior to the date of this Agreement,
whether directlyor through any rnediati~n."'~~
7.02 Bahrainmentioned thisproposa1 inthe Annex toitsletter to theCourt
of 18 August 1991. There, atpp.18-19,it stated that this Articlehad been
made one of the points of disagreement between the Parties asaidthat:
"although this proposa1 is essentially declaratory of customary
international la..the Governmentof Qatar has not acceptedit."
'"B/CM,Annex 1.9vol. Ip.49, ap. 51.
-65- 7.03 It may no doubtbe arguedthat if the proposa1made by Bahrain were
simply a reflection of customary international law it would not, strictly
speaking, require restatement in the Compromis and its inclusion ornon-
inclusion should not be a stumbling block to securing agreement.
Unfortunately,however, themattercannotbe resolved as simply as that. In
the main text of the Annexto the above-mentionedletter of 18 August 1991
to the Court, Bahrain also said:
"the position of the Government of Qatar on the original Bahraini
proposa1 is set out in relevant detail in an exbact from a
Memorandumof Comment by Qatar dated 27 Mach 1988,"'65
relevantextractsfromwhich were appendedasAttachment9. Therelegation
to an Attachment of the pertinent parts of Qatar's reaction appearsto have
led Qatar to rnistake the nature of Bahrain's concern. It is, therefore,
necessary to recall the content of that Attachment.
7.04 The Governmentof Qatarreactedto theoriginalBahrcliniproposa1in
two memoranda dated 25 and 27 March 1988. A translation of the former
is annexed to the Qatari Memorial in its entirety, a translation of the latter
only partially.lGGBahrain was given a copy of the memorandum of 27
March 1988 before the second meeting of the Tripartite Cornmittee, but
never saw the memorandum of 25 March 1988until it received the Qatari
Mernorial. The relevant part of the comment from the memorandum of 27
March 1988was annexed to the BahrainiLetter to the Court of 18 August
1991.
7.05 Because the essentialsof Qatar's 1988cornrnentsdifferin significant
respects from the comments which are made in Qatar's Memorial,'" it is
Annex to Bahrainilettto theCourtof 18August1991, p. 18.
16'Q/M, Annex 11.23Vol. 111,p. 14andAnnex 11.24,p. 158. Sealsonote74 to para5.18
aboveon p. 33.
lb7See Q/M, paras.5.83-5.89pp. 130-132.necessaryto recallin pertinentdetailthe natureof Qatar'soriginal objection.
Oatar did not obiect because the ~ro~osedArticle V was a restatement of
existing customw international law,but because Qatar considered that the
effect of the Article would be to prevent the introduction by Qatar of
evidence of the proposaisand counter-proposais made durinn the Mediation
Rocess. In other words, Qatar made it clear that no considerations of
existing law would inhibit it from producing evidence of the Mediation
negotiations. It was with a view to restrainingthis cavalier unconcernwith
the requirementsofthe law of evidencethat Bahraininsistedon theretention
of Article V.
7.06 Qatar was not originallyprimarilyconcernedwith the possibility that
Article V might excludeevidenceof mattersoccumng before the Mediation
Process. Thiswas anelaboration subsequentlydevelopedin paragraph 5.86
of the Qatari Mernorial. The original Qatari reaction focused on the
Mediation Process:
"..The meaning of this is that the Saudimediation is taken entirely
out of account and is considered as though it had never occurred.
Itis ciearthat the gistof this provisi...is to veil from the Court the
position by which theParties may have boundthemselvesduring the
Saudi mediation,..,
...A11the positions, undertakings and procedures which the two
Parties have adopted and continue to adopt with regard to their
difference arernerelythe fruits of the Processof Saudimediation,and
it isotallyunacceptablethatBahrainshouldseek,by virtue of Article
5 ...to cut the link betweenthe process of mediation andthejudicial
process which iscontainedinthe presentation of thedifferenceto the
InternationalCourtof Justice. ..
...In the principles of internationallaw there is nothing that permits
one of the parties to an international dispute to prohibit the other
parties frornofferingto the comptent judicial authonty the exhibits,
memoranda and papers in general which were exchanged between
thembothduringnegotiations,or contactswhich hadpreviouslytaken place to refer the dispute to this judicial body, and which are
connected with the dispute ...
...Qatar ..does not consent at al1to the exclusion of considerations
of this nature, There is no doubt that they have the greatest
importancebecausethey arnplifythe essenceof the difference and its
developments, as well as the various stages and the contacts and
proposals and positions which occurred during these stages, and in
particular in connectionwith the stage of the Saudi rnediation..1160
7.07 In contrast with Qatar's 1988 Memorandum, the Qatari Memorial,
however, expresses Qatar'sdissatisfaction with Article V in much wider
terms, saying that it:
"was not limited only to proposals made during the Mediation with
Saiidi Arabia. Nor was it limited only to proposals to settle the
substance of the disputes made by the Mediator, but it could have
coveredanyproposal, evenonproceduralmatters.In thiscontext,this
textcould have appliedto any proposa1 and response thereto (which
therefore could even include agreements)made between the Parties
before the date of the finalization of the special agreement, under
discussionatthat time. The dies ad quem is indicatedbut not thedies
a
7.08 By thus drawing attentionto aspectsof Article V that spread beyond
those which had been criticized and re-jectedby Qatar in 1988, the Qatari
Memorial drew attention awayfrom the feature of Qatar's original reaction
which was most objectionableandwhichcould not be acceptedby Bahrain.
This was that Qatar was claiming thatas a matterof internationallaw it was
entitled toreveal detailsofthe MediationProcessand that it proposed to do
so, It isthis featureof Qatar's position that bas led Bahrain to insist so
muchupon Article V. It is not that Bahrain is seeking merely to restatea
rule of customaryinternationallaw, Bahrainis seekingtopersuade Qatar to
BahrainiLetterto the Court of 18Augusl1991,Attachrnenl9tbFor Qatar'translatiosee
Annex 1.2,p. 85. See also Q/M,Anne11-24vol. III,pp. 161-165.
'"QM, para. 5.86,p. 131. undertake that it will not break a rule of international law by violating a
basic elementin tlie negotiating process.
7.09 Evidently it is not enough that Bahrain should have merely given
refereilces to the pertinent precedents. It is necessary to remind Qatar of
theirsignificancebyactuallyquotingthe texts. Inthe Chnrzo~~ Factorycase
the Permanent Courtof International Justice said:
"..the Court cannot take into account declarations, admissions or
proposals whichthePartiesmayhave madeduringdirect negotiations
between themselves, when such negotiatioiis have not led to a
complete agreement. "17'
The same point was madein a slightlydifferelitway in theNottebohrnCase:
"It would constitutean obstacleto the openingof negotiations for the
purpose of reaching a settiement of an international dispute or of
concluding a special agreement for arbitrationand would hamper the
use of the means of settlement recommended by Article 33 of the
Charter of the United Natioiis,to interpret an offer to have recourse
to such negotiations orto such means, consent to participatein them
or actual participation,as implyingthe abandonmentof any defence
which a party may consider it is entitled to raise or as implying
acceptance of any claim by the other party, when no such
abandonmentor acceptancehasbeenexpressedand wliereit does not
indisputably follow from the attitude adopted."l7'
Ili a similar vein, the distinguished Frenchjurist, the late Professor Reuter
has observed:
"si la négociation échoue les partiens'ont pas à craindre de se voir
opposer dans une discussion de droit les projets d'accommodements
qu'elles aumielit co~isentiaux ititérêtsdverses dans utle phase des
17PCIJ,Senes A,No. 17, atp. 51.Scc aisoid.SerieA, No. 9, p. 19.
17ICJ Reports 1955,pp.19-20.
-69- négociations."172
7.10 Faced thus by Qatar's clear declaration in 1988 of its intention to
violate the privacy of the negotiations, it was and remains impossible for
Bahrain toagree to cornebefore theCourtSaveon the basis of the inclusion
of Article V.
7.1 1 The persistent di~agreement'~b ~etween Bahrain and Qatar regarding
Article V is in itself the most cogent item of evldence contradicting the
Qatari suggestion that,since Qatar has agreed to the Bahraini Formula, the
1990 Minutes recorded an agreement that proceedings could henceforth be
institutednilaterally by either Party. Bahrain wouldnever have accepted
inDecember 1990that QatarandBahraincouldstartproceedings without the
constraintof Article V, any more than Qatar did in fact accept that the
proceedings could be commenced subject to Article V. Indeed, the Qatari
Application speaksfor itself, containingno referenceto Article V.
SECTION 2. The question of Zubarah
7.12 The other important substantive item adversely affected by the
unilateralquality of Qatar's applicationis Bahrain's concern that the
proceedings before the COUI- mt ust cover dl the issues outstanding between
the Parties.These include Bahrain's clairnsrelating to Zubarah -an issue
which is effectively excluded by the form of Qatar's action.'74 Qatar
responds to this by insisting that Bahrainhas aright to file a separateclaim
before the
17Recueildes Cours,1961,Vol. 103,p. 632.
173Q/Rep.,para4.113,p.90.
174
SeeB/CM,paras.8.4-8.14,pp. 108-113.
17'Q/Rep.,paras4.114-4.117,pp.90-91.
-70- 7.13 WhatevermaynowbeQatar'swillingnessto submit to thejurisdiction
of the Court in respect of any separateproceedings that Bahrainmay wish
to commence in respect of Zubarah (and this is a matter of considerable
doubt), that fact cannot in any way cure the defect in Qatar's present
Application. The validityof this Application must be determined solelyby
reference to the facts as they stand at the moment of the Application.
Indeed, Qatar has accepted the correctness of this statement of law in
observing that:
"Qatar understands that the Court considers that the date of an
applicationis the date atwhichthe Courthas todeterminewhetherit
has jurisdiction...1176
Ttwent 01.1to Say (albeit in relation to another matter, namely, Bahrain's
further offer of a Special Agreement):
"Consequently, thisstep, takenafter the filing of Qatar'sApplication
on 8 July 1991, can have no relevance to the present case." '77
7.14 This position has not been chaiiged by Qatar's insistence thatthe
BahrainiFormula "giveseach Party an equalnght to present its own clajrns
to the Court ....78It isnot correct to say that:
"it was acknowledged by Bahrain - and in fact advocated by Dr.
Husain Al-Baharnahimself in the Tripartite Cornmittee - that one of
the reasons for proposingthe Bahrainiformulawas preciselyto allow
each State to bring its own claims, and Bahrain's desire to include
Zubarah as one of these daims."17'
176
Q/Rep.,para.1.10,p. 4.
17Id.
17A
Q/M,para. 5.80,p. 129,rcpcatcdin Q/Rep.,para.4.116,p. 91.
179Q/Rep.,para.4.116,p. 91.
-71- This assertion takes Dr. Al-Bahma's words entireiy out of context. His
remarks were made during a discussion of the manner of formulating the
question to be put to the Court -(Article II) -in a "neutral" manner, but
within the frarneworkof a joint subrnissi~n.'~~
7.15 The question of Zubarahappearsto be one of the reasons why Qatar
has attempted to base the Court's jurisdiction on a claimed right to file a
unilateral application,nstead of reachinga special agreementwith Bahrain.
Tt is necessary in this respect to recall the position taken by the
representatives of the Parties atthesixth and final meetingof the Tripartite
Cornmittee. There, the following exchange took place. Qatar's
representative stated:
"if the nature of the difference concerning Zubarah was connected
with sovereignty overit, it would not be acceptable that this should
be listed with the matters to be raised to theICJ. If, however, the
content was connectedwith private (or: 'special' ) rights in Zubarah,
then the Stateof Qatar would have no objection to this."lsl
The delegation of Bahrain replied:
"that their claim connectedwith Zubarahwhich would be referred to
the ICJ wouldbe the strongestpossible clairn withoutany limitation.
The matter of deciding it would be left to the Court."'82
In short, Qatar wanted to control and limit the claims tl~atBahrain was
allowedto invokeinrespectof Zubarah. Ttwas thispretensionwhichcaused
a two year deadlock.
7.16 Qatar believes it has now found a way of achieving its design,
namely, by submitting its own claims and reserving the power to object to
''OSee para.4.18 abovepp. 18-19.
18'B/CM, Annex 1.18,Vol.II, p. 112.
lB2Ibid., p. 113. the adrnissibilityof Bahrain's claim ofsovereigntyover Zubarah, oncethat
claim is submitted to the Court.lS3Such a plan is, however, incompatible
with Qatar'sprofessed acceptanceof the BahrainiFormula. The essence of
that formula is that each partyis free to frame its own claims, without
interferencefrom the other side,and thus giving upin advanceany possible
objections to the admissibilityof eachclaim.
7.17 It is not ananswer to Bahrain's complaint, thatZubaralihas been left
out of the case as brought by Qatar, to say that Bahrain is free to bring a
counter-claim to cover that subject. The concept of counter-claimis related
essentially tociaims for damages;it does not seem appropriateto boundary
disputes or claimsrelatingto temtory. Moreover,therecould be difficulties
regarding the satisfactionof the condition that the counter-claimbe directly
connected with the principal claim.lR4In short, the use of counter-claim
isanindirect anduncertainway of dealingwith an issue thatis a part of the
dispute between the Parties and thus shouid be dealt with in the same way
as the otherparts ofthe sarne dispute.
SECTION 3. General considerations
7.18 The Court will certainly appreciate by now that the unilateral
institution of proceedings by Qatar in 1991 was quite contrary to what
Bahrain expected, namely, a resumption of negotiations towards the
conclusionof the SpecialAgreement. Atthe momentoftheinstitutionof the
said proceedings Bahrain and Qatar had beeneiigagedfor a period of some
thirteen years in a process of mediation being conducted by the King of
Saudi Arabia. There had been extended exchanges between thetwo sides
directed towards the substantive settlementof the dispute and, in the
Tripartite Comrnittee,specifically directedat one objectand one alone -the
'"See paras. 2.02-2.03 above, p. 7.
Ig~ee Articlc 80 of thc Rulcs of the Court.
-73- conclusion, in implementation of the 1987 Agreement, of a Special
Agreement between the two sides with a view to submittingtheir dispute
jointly tothe Court. Agreement could notbereached ontwomain points: the
formulation of the question to be put to the Court, particularly in sfar as
Bahrain's claims to Zubarah were concerned,and the means of ensuring
respectfortheconfidentialityofthemediationproceedingsbyanundertaking
to refrainfrom introducing evidenceof proposalsmadeduringtheMediation
process (Le. "Article V").
7.19 In December 1990 Bahrain wasadamant in refusing to establish a
basis on which Qatar could unilateraIly commence proceedings against
Bahrain after the lapse of a furtlier period of six months. Bahrain twice
rejected expressions in thedraft Minuteswhich,if accepted,couldhavebeen
read as opening the way for one Party alone to commence proceedings.""
With theParties having starteddownthe trackof preparing an agreement for
ajoint submissionto the Court, Bahrainsaw no reason for abaiidoningthat
course,especialfyhaving regard to thefact that the issue of Zubarah and the
question of "ArticleV" had not beenresolved. That remains the positionof
Bahrain today.
7.20 Qatarpretends thatthe scopeof its offertorefrainfromcontestingthe
Court's jurisdictioifBahrainwishesunilaterallytostartparallel proceedings
against it is a satisfactory alternative to the achievement of a properly
negotiated agreement.'R"t is not. So far as the issue of Zubarah is
concerned, Qatar, thoughwilling to see itfa11withinthe scopeof application
of the Bahraini Formula, has not shown itself prepared to concede its
adrnissibilityin thesame way as Bahrain has conceded the adrnissibilityof
the issues raised by ~atar."~ So far as the question of hcle V is
lasB/CM, paras.6.49-6.55pp. 73-76.
186QIRep.,para4.108,p. 88.
Is7See above,para. 2.03,7.. concerned, Qatarhas not shownitself willingto subscribeto an undertaking
not to produceevidenceofproposals made in the course of negotiationsand
the mediation. Though Qatar contends that Bahrain's "proposed draft
appeared excessive and ~nreasonable"'~~t,he fact is that Qatar rejects the
proposed ArticleV because Qatar wishes to retain anunrestricted freedom
to introduce cvidenceof the proposalsmade in the course of the mediation,
even ifthe introductionof such evidence will violate internationallaw.lS9
7.22 By themselves,thesereasons are quite sufficienttojustify Bahrain in
its opposition tothe Qatari Application. But there is afurtherconsideration
which the Court,in its appreciationof suchconsiderationsas the dignity and
sensitivityof States, will readily understand. It does not seem right that
Qatar shouldbe pemitted at its ownchoiceto repudiate the whole courseof
negotiatioiibetweenthe two sides. No suchprospectwas opened upby the
1987 Agreement or the 1990Minutes and Bahrain declines to subscribe to
any device which willpermit Qatar to abandon the ideaof an agreed joint
submission as the proper means of approachingthe Court.
7.22 It matters to Bahrain that neither Party should beseen to be either
plaintiff or defendant; that pleadings shouldbe filed simultai~eouslyin an
orderlyrnanner;thattheunpredictable complicationsofseparateapplications,
followed by the exercise of a discretion by the Court as to whether and in
what mannerthecases shouldbe joined, shouldbe avoided; that there should
be agreement that the issueof Zubarah is as much admissible as any other
aspect of the dispute; and that there shouId be a specific renewal by the
Parties oftheircornmitmenttomaintainingtheconfidentialityof negotiations
and the mediation process. These are geouine concerns and cannot be
188
QiRep.,para.4.113,p. 90.
la9Sec abovc,para.7.08, pp.68-69.
-75- Nor can the basic point be brushed aside that the focus of a
7.23
contentious case cornrnenced by applicationis largely set by the applicant,
Bahrain's point is not thatthe Court will be unable to maintain the forma1
equality of the Parties - of course it will - but rather that there remains a
substantial differenceof tone betweena case startedby unilateralapplication
and one begun by notificationof ajoint agreement. This differencemay be
eliminated if the Parties maketheir individualsubmissionson the basis of a
clear agreement, as in theSouth-EasternGreenlandandAsylurncases, But
no such agreement was reached here. The absence of such agreement is
emphasised by the absencefrom the Qatari Applicationof a key substantive
element, namely the Zubarah question, and of a key procedural element,
namely Article V, both of whichelements would havehad to be present if
anysubstantial equalityof the Parties (as in these two precedents) wasto be
achieved.
7.24 Bahrain's willingness tojoin in a submissioii to the Court on an
agreed basis is evidenced by the renewed presentation of a draft joint
agreementfor consideration by Qatar. Bahrain invitesthe Courtto note that,
notwithstandingthe availabilityof ampletime in whichto discuss thisdraft,
Qatar has given no indication whatsoeverof willingnessto enter into further
negotiations. Qatar evidently wishes to have things al1its own way. That
iscontraryto the whole spiritof theMediationProcessandis somethingthat
Bahrain cannot accept.
lY0Qatarhas quoted aprovisionin the ManilaDeclaralion10 the effectlhat "recourtojudicial
seulementof legd disputes ..should not be considerean unffiendlyactbetweenStates". (Q/Rcp.,
para. 4.110,p.89. The referencegiven in the Q/Rep.,para. 1.08, no4eon p. 3 should beGeneral
AssemblyResolution37/10).Thatmaybe so in somecircurnstanccs,but itisunlikelythat those who
subscribedto thatDcclarationhadin mindrecourseunilaterallycommencedin circumstancessuch as
thoseprevailingin îhepresenlcase.In the sub-paragraphdmost irnmediütelypreceding theone cited
by Qatar(Part II,para. 5(b))the Resolutionafinns that:
"it is rlesirablethat [Sta...(ii) Studythc possibilityof chooshg, in tfreeexerciseof
their sovereignty,to recognisas compulsorythe jurisdictionof thc International Courtof
Justicein accordancewith Article 36of its Statute..." CHAPTERVIII
FORMALSUBMISSIONS
The State of Bahrainrespectfullyrequests the Court to adjudgeanddeclare,
rejecting al1contrary clairnsand submissions, that the Court is without
jurisdiction over the dispute brought befitby the Applicatioii filed by
Qatar on 8 July1991.
(Signed)
HusainM. Al Balima
Milisterof Statefor Legal Affairs
and Agent of the State of Bahrain LISTOFDOCUMENTARY ANNEXES
Annexes 2.1 - 1.11
Page
1.1 Agreed Minutes signedat the end of the
first meeting of the Tripartiteommittee,
held in Riyadh, 17 January 1988;
translation into Englishby Bahrain. ... . .,. .
1.2 Qatar's translationof the Qatari Memorandum
of 27 March1988commenting on Bahrain's
draft Special Agreementand the original
Arabic text.Paragraphs omittedfrom Qatar's
translation havebeen inserted by Bahrain
initalics. The ornitted passageshave
been indicatedin the margin of the
Arabic text. ..... . .. ...... ..... .. .. .. ..,. ,. 85
1.3 Bahraini Note Verbale of 20 June 1992
and translation into Englishby Bahrain,
together with thedraft Special Agreement
in English and Arabic attachedthereto . . . . . . . . .107.
1.4 Qatari translationof an extract from
the minutes of the first meetingof the
Tripartite Cornmittee.
Q/TCM Bundle, p.20. ..... . . . . . . . . . ..... . 1231.5 Qatari translatioof anextractfrom
theminutesof the second meeting of the
Triparttie Committee.
QtTCM Bundle,p. 83. ...................... 127
1.6 Qatari translatioof an extractfrom
theminutesof thefifthmeetingof the
TripartiteCommittee.
QjTCM Bundle,pp. 204-206. ................. 131
1.7 Qataritranslationof anextractfrom
tlicsigned minutesof 7 December1988.
Q/TCMBundle,p, 282 ........ !............. 137
1.8 Supplementary OpillionbyProfessor
A.K, Aboulmagd. .......................... 141
1.9 Suppiementary Opinionby Mr.AdnanAmkhan. .... 149
1.10 Supplementary OpinionbyProfessor
E. Badawi. .............................. 165
1.11 Supplementary OpinionbyDr. CliveHoles. ....... 187 Annex1.1
Agreed Minutes signedattheendofthefirstmeeting oftheTripartitCornmitteeh,eld
inRiyadh,17January 1988;translatiointoEnglishby Bahrâin.
See textabove,note35to para.4.15. [LETTERHEADOF THE MINISTRY OFFOREIGNAFFAIRS
OF THE KINGDOMOF SAUDIARABIA]
MINUTES OF =TING
Within the framework of the good offices of the
Custodian of Two Holy Mosques,King Fahd bin AbdulAziz,
which led to an agreementbetween the State of Bahrain
and the State of Qatar to form a committee composed of
representatives from each of them and from the Kingdom
of Saudi Arabia, thecommittee met in Riyadh on
28.5.1408 correspondingto 17.1.1988, composedof:
1. The delegation ofthe State of Bahrain:
HE Shaikh ~ohammed bin Mubarak al Khalifa,
Mlnisterof Foreign Affairs (Chairman)
HE Dr Husain Mohammed Al Baharna, Minister of
State for LegalAffairs (mernber)
2. The delegationof the State of Qatar:
HE Shaikh Ahmed bin Çaif al Thani,Minister of
State for ForeignAffairs (Chairman)
HE Dr HassanKamil, the Advisorto HH the Amir
of the State of Qatar (member)
3. The delegationof theKingdomof Saudi Arabia:
HRW Prince Saud al Paisal,Minister of Foreign
Affairs of the Kingdom of Saudi Arabia
(Chairman)
HE Shaikh Abdul Rahman Mansouri, Under-
Secretary in the Ministry of Foreign Affairs
for Political Matters (member)
This was in order to considerthe proceduresby which
the commitmentof the Stateof Bahrain and the State of
Qatar to refer the differencebetween them both tù the
InternationalCourt of Justicewould be implemented.would take place in the City of Riyadh on Saturdayttee
15.8.1408 AH coxxesponding to 2.4.1988 AD provided that
each party will submit the draft which it proposes for
the formulation of the special agreement to refer the
difference to the ICJ to the Foreign Ministry of the
Kingdom of Saudi Arabia On 19.3.88 ,providedthat the
Ministry in its turn will refer the draftof each state
to the other at once for consideration and the
expressionof commentsthereon beforethe decided upon
meeting.
(signed)
Ahmed bin Saif al Thani
Minister of State for Foreign Affairs for the State of
Qatar
Mohammed bin Mubarakal Xhalifa
Ministerof Foreign Affairs of the State of Bahrain
Saud al Faisal
Minister of Foreign Affairs ofthe Xingdom of Saudi
Arabia
Done in Riyadh on 28.5.1408 correspondingto 17.1.1988 Annex 1.2
Qatar'stranslatioof theQatari Memorandum of 27 March1988 comrnenting on
Bahrain'sdraftSpecialAgreement andtheoriginalArabictext.
Paragraphsomittedfrom Qatar'stranslatihave beeninsertedby Bahraininitalics.
The ornittepassageshave beenindicatedinthemarginof theArabictext.
See textabove,note36 topara.4.16note74 topara.5.18andnote 168topara.7.06: TRANSLATION
HEMORANDUH
Doha: 9th Sha'aban, 1408 H.,
27 March 1988
Cormentsof the Governmentof the State of Qatar
on the Draft SpecialAgreementpresented
by the Governmentof the State of Bahrainfor
submittingthe Disputebetween tbem to
the International Court of Justice
The Government ofthe State of Qatar received thesaid Draft on the
afternoon ofWednesday 23 March 1988,and studiedit very carefullyin
view of the cruciality and significanceof its subject-matter.
Accordingly,and as provided by the agreement reached by the Tripartite
meeting heldin Riyadh on 28/5/1408 A.H. (Corr. 17/1/1988) that each of
the two Governments should give its commentson the otherGovernment's
draft prior to the meetingof the TripartiteCornmittee on 2 April 1988 as
agreed upon, the Government of the State o Qatar would like to give
herebelowsome commentson the said BahrainiDraft.
However,before givingany comments,the Governmentof the Stateof Qatar
would liketo indicatethe following:
1. Comments for the time being will be restricted tothe important
substantiveprovisionsof the Draft as stipulatedin Articles II
and V, ratherthan to procedural matters.
2. The substantive ArticlesII and V of the Draft are clearly
contrary to what Our three States have agreeu dpon, and to the
common practice of drafting similar specialagreements for
submitting internationaldisputes to the International Court of
Justice.
This is set out in detafl below:
Pirst: With reqard to Article Il:
(1) What was agreed between Our three States was to
prepare a joint Special Agreement to refer the matters of the
difference existing between us to the ICJ for a decisioa in
accordance with international law. It is quite clear - and
this is the formulation used for special agreements in
similar circumstances - that this necessi ta tes tha t the
special agreement should contain a submissfon of the matters
of difference and the request that it be decided. But instead of this, the Bahraini draft, at
ArticleII (item 11, readsas follows:
"1. The parties requestthe Court
(a) to draw a single maritime boundary between the
respectivemaritimeareasof Bahrainand Qatar;such
boundaryto passbetween the easternmost features of
the Bahrainarchipelagoincludingmost pertinently
the Hawar Islands,Fasht ad Dibal and other
adjacent orneighbouring featuresand the coast of
Qatar, and to preserve Bahrain's rights in the
pearling bankwshich lieto the north east of Fasht
ad Dibal,and in the fisheriesbetween the ~ahrain
archipelagoandQatar.
(b) to detemine the rights of the State of Bahrainin
and around Zubara."
It is quite clear £rom this text that the draftof the GovernmentO£
Bahrainstipulates, in Para(a),Item 1 of Article II,the following:
(1) The Bahrainidraft - insteadof presenting theispute actually
existing between tt heo Stateswith regard tosovereignty over
Hawar Islandsand Dibal and JaradahShoals,and over the legal
status of these two Shoals as regards their beiislands or
shoals, and consequently whethet rhey have or not territorial
waters,as shouldbe and as the Qataridraft did and as is the
practice in al1 similar agreements - it decides on the said
dispute determifihgthat Hawar Islands,Dibal Shoal and other
adjôcentor neighbouringareasexistingbetween the coastsof the
two countriesbelong to the Bahraa inchipelago.Not onLy this,
but the Bahrain draft does Isic] to the extent of expressly
stating that the State of Qatar joins the Stat of Bahrainin
requesting the Court dtoaw a single maritime boundary line
between therespectivemaritime areasof the two countries on the
groundsthatthe said locations belontgo Bahrain.
Thus, the questionis not, for thetwo Partiesof the disputed
issue actually existing betweethem over the said locations,to
submit this dispute to the Court for adecision,but it is,
rather,an admissionby the Stateof Qatar that thedisputedoes
not exist,and that it itselfrequeststhe Court - in supportof
Bahrain- to agreeto Bahrain claimsto theselocations.
(2) In the sameparagraph(a),the draftof the Governmentof Bahrain
determinesthat - in additionto the rights ictlaimswith regard
to the fishingin the areas betweenthe Bahrainarchipelagoand
Qatar- Bahrainhas rights in the pearling bankwshich lie to the
northeastof Dibal Shoal. The drafteven stipulatet shat the two
parties, Bahrain andQatar, request the Court to preservefor
Bahrainal1 thoseallegedrights.
(3) Paragraph(b) of ArticleII of the Bahraindraft statesthat the
Stateof Qatarconfirms,togetherwith the Stateof Bahrain,that
the latter has righi ts and aroundZubara,withouteven spelling
out themeaningof the phrase"aroundZubara".What makes this statement more astoundini gs that, in addition to the
fact that al1 legal and historicaflacts establishdecisive and cleacrut
evidenceof the invalidityof Bahrain claims to rights in Zubara,this
claim has never been raised by Bahrain at any stage of the Saudi
mediationto resolve disagreement betweenthe two countries. Moreover,
the memorandumof the Governmentof Bahrainof 27.8.1986 - in reply to
the memorandwnof the Government of Qatar submittedto the Ministerial
Council of the CooperationCouncil for the Arab States of the Gulfon
6.7.1986 - on Bahrain's memo submitted to the MinisterialCouncil on
29.6.1986 - listsin the firstpage Item (2) the subjectsit considersas
disputedbetweenthe two countriesand identifiesthem as "theirmaritime,,
boundaries,and sovereignty over Hawar Islands and othi esrlands and
locationslying within the maritime territoryand the maritime area of
the State of Bahrain." There is no mention of aBahraini claim to
Zubara.
This is what concerns Articl IeIof the Bahrainidraft. However,before
giving any commentson Article V of this draft, the Governmentof the
State of Qatar would like to make clear that theQatari draft, in
accordance withwhat was agreed uponbetween ourthree Statesand in
accordance withthe conventional procedur for draftingsimilar special
agreements,ensured the presentationof the disputed mattersto the Court
and requested it to makea decisionvis-a-visthesematters in accordance
with international law. Forexample,concerning the issuo ef sovereignty
over Hawar islands, which is one of the fundamentaldisputed matters
betweenthe twoStates, Qatarand Bahrain,the Qataridraft stated in the
first paragraphof its Article II that theParties askthe Court to
determine according to internationallaw, "To which of the two States'
does sovereignty over Hawar islandsbelong?" It did the same concerning
the other disputed matters betwee the twoStates, mainly those relating
to their maritime boundarie as well as to the two issues of the Dibal
and Jaradahshoalsand the issue of the mediumline,as clearlypresented
in paragraphs2 and 3 of the above-mentioned secondarticle. The Qatari
drafthas, in settingforththe disputedmatters includedin it, depended
on the officialhistoricaldocumentsand correspondencerelatingto this
dispute aswell as on the correspondence exchanged amongOur three States
within the framework of the Saudi mediation,and in particular the
lettersof the Custodianof the Two Holy Mosques, King Fahd, exchanged
between him and the Partieson the occasionof the incidentof Fashtad-
Dibal. These lettersdealtwith a plan to settlethis incident whichthe
two Partiesacceptedand are still implementing. This pla nncludes the
procedureswhichwe shouldfollowconcerning al1 disputedmatters.
In paragraph 4 of the sameArticleII, the Qataridraft providesthat the
Partiesask the Courtto decide,in the lightof its decisionon the said
disputedmatters,what should be the courseof theboundaryor boundaries
between the maritime areas appertaining respectively to tS heate of
Qatar and the State of Bahrain.It is known to al1 that the agreement
between Qatarand Bahrainto resolvethe existingdisputebetweenthem by
submittingit to the ICJ was the result of the brotherlyand diligent
efforts madeby the Kingdomof SaudiArabiawithin its kind mediation.In
fact,we fullyappreciateand are deeplygratefulfor such effortswhich,
we are sure,are also appreciated by other interested parties throughout
the world. Therefore, we felt that the preambleof the Qatari draft
should contain clear referenceto that particularlybecause the
principles of that Mediation which the Parties undertook to abide by
includemany very importantissues, amongst which is the firstprinciplerelatingto thedetermination of the disputed matters and thn eirure
and to considering such matters as an integralwhole which should be
resolved completelyand together.This is in additionto the important
obligations and commitmentscontainedin the-other principlesand which
will be consideredas important throughout therationof the case
before theCourt.
Secondl Y: with reuard toArticle V of the Bahraf ni draff
ThisArticlereadsas follows:
"Neitherparty shallintroduceinto evidence or argument,or
publicly disclose in any manner, the natureor content of
proposals directed to a settlementof the issuesreferred to in
ArticleII of thisAgreement,or responsesthereto, in the course
of negotiationsor discussionsbetween the parties undertaken
prior to the dateof this Agreement,whether directlo yr through
any mediation."
It is quite clear from this text that the Bahrain draft prohibits
referencein front of the court - in the course of submittingany
evidenceor arguments - to any negotiations,discussions, proposalsor
answers arisinfrom them which could have taken place between "the
parties", prior to the date of the SpecialAgreementon solvingthe
subjectsstatedin ArticleTwo of the agreement alread commentedupon.
The prohibition covers thenegotiations,discussions,proposals or
answers arising fromhem through the Saudidiation. This means
completely excluding thSeaudi mediation froconsideratioannd regarding
it as non-existent.
It is obviousthat this provisio of the Bahrainidraft,in additionto
its implied contradictionto al1 the publicappreciationvoiced by
Bahrainof the Saudi mediatioannd its results,leadsto dissimulate from
the Court positiontso which the two parties could havcommitted
themselves duringthe Saudi mediation and whi could revealestablished
factsof greatimportance ie nnlighteninthe Court.whileconsideringthe
dispute. Othesepositions, for instanci e,the agreementby the two
countrieson the subjectsof dispute,which, as already stated, is
includedin the frameworkof the mediation.
The Governmentof the State of Qatar finds the textof the aforesaid
Article Five totally unacceptab for many reasons, mos importantof
which arethe following:
(1) Al1 the positions,undertakings anmeasureswhich the two Parties
have adopted,and are stilladopting,regardingtheirdisputeare
but the outcomeof the Saudi mediation. It is utterly
unacceptable that~ahrain,underArticleFiveof its draft,should
demand that themediation process be disconnected fromthe
judicialprocess,in spiteof the fact that the second proce ss
but an outcomeof the firstone.
(2) It cannotbe said thatthe role of the Saudimediationcomesto an
end with the submissionof the disputebetweenthe twocountries
to the Court. This role requiresthat Saudi Arabia folloup
measuresof the implementation ot fheprinciplesof its mediation
and work accordingto its recommendationsacceptedby the two Parties,until these measureslead, legallyand practically, to
settlingthat dispute.
(3) There is nothing more supportive of v taheidity ofthe soundness
of the aboveview thanthe following:
(a) In his messageof 28th Rabi Aakher, 1408 H, corresponding
to 19thDecember, 1987, to theAmir of the Stateof Qatar,
King Fahd,the Custodianof the Two Holy Mosquesaskedfor
views on his proposalswhich he considersas the basis for
resolving the dispute.
The fourthand lastof theseproposals statea ss follows:
"Pourthly,:The Kingdom of Saudi Arabia will continui ets good
officesto guaranteethe implementatioonf theseterms".
The Amir of the State of Qatar replied on 1st Jwnada Al Oula,
corresponding to 2Ist December,1987,expressingfull agreementof the
State of Qatarto thesepropasals.
Naturally,the Custodianof theTwo Holy Mosques mus have senta similar
message includingthe same proposals to the Stao te Bahrainwhich must
have agreed totheseproposals.
(b) A draft agreemenhtad beenproposedfor the settingup of a
joint committeecomprisingrepresentatives of our three
countriesto approachthe ICJ and finalisethe requirements
necessary, forsubmittingthe dispute to the Court
accordancewith itsprocedures and instructions,ts hat a
final and bindingdecisionto both Partiesbe given. The
agreementshouldhave been signedat the meetingof the
delegationsof the three countrieisn Riyadhon 17.1.1988,
to discussthe measures throug hhichthe cornmitmenof the
State ofBahrainand the State of Qatar to submittheir
disputeto the ICJ shallbe put intoeffect. However,he
signingdid not take place, becauseBahraindemandedthe
deletionof the provision in the 1stArticleof thatdraft
which states that thpurpose of setting up the said
committeeis to "approachthe ICJ". Qataropposeddeletion
of thatbasic provision from th draft,and confirmedits
consent to sign the agreement,provided that its text
remains as already agxeed upon.It is clear from the
minutes of thatmeeting with Bahrain, while insistingon
the abovementioneddeletion,had stressedthe necessityof
signingthe agreementwith its provisions. These included
the provision of the third paraof Article One which
states:"The Kingdom ofSaudiArabiawill continue its good
offices to guarante the implementationf theseterms".
As can be seen,thisArticlein the said agreementmerelyreiterates the
text of the fourth proposa1 of the proposals includedn the
aforementioned messagef King Fahd, the Custodian ofthe Two Holy
Mosques.
(c) There is nothing in the principlesof internationallaw
that warrants oneof the Parties to an international dispute to prohibit the other partyto submit to the
Competent Courtthe documents,memos and papersin general
which wereexchanged between them duringthe negotiations
or contacts that too place before submittin tghe dispute
to the court,and which are relevantto the dispute. The
only exceptioanre unsignedpaperswhichare, consequently,
not bindingto anyone.
(d) Naturally, it is possible for two parties to an
internationaldisputereferred to arbitrationto agreeon
excluding,when the dispute is under consideration, some
documentsrelating to th negotiations,contacts,proposals
and repliesto them, whichtook place prior to submitting
the dispute toarbitration. But this can only be by
agreement.
The Stateof Qatar,for thereasans already shown,does not atal1 agree
to excludingsuch referenceswhichare undoubtedlh yighlyimportantsince
they clarify the origin of the dispute,its developments, the stages
through which it passed,and the contacts,proposalsand positions that
took place duringthose stages,particularly those related tothe stage
of the Saudimediation.
(e) And last butnot least,it is worth pointingout that the
textof ArticleFiveof Bahrain'sdraft 'Special Agreement'
is clearlycopied,word for word, fromArticleFive of the
'SpecialAgreement' signed on March 29th, 1979 between
Canadaand UnitedStates,concerningdetermination of the'
maritime boundarie betweenthe two countriesin the region
. of MaineGulf (I.C.J. Recueilof 1984,p 254).
The Government of the State of Qatar neednot rernindthat the
circumstances of the disputebetween Canada an the U.S.A. are totally
different £rom those of the dispute betweenthe States of Qatar and
Bahrain. One of the most important aspecto sf such differenceis that
the Qatari-Bahraini dispua teosefrom decisionsissuedby a third State.
namely the UnitedKingdom. In addition tothe fact that thCeourthas to
evaluatethese decisionsas to thecircumstances underwhich they were
taken,the authority of the powers that issuethem,the actual reactions
and legalconsequences resulting ft romm,it is necessarythat this 50
year old disputemust be pxesentedin its correct context.This can only
be done throughthe comprehensive presenta,ti woithoutany reservaiton,
of the detailsof the oldand new historyof the dispute,and al1 the
negotiations,contacts, agreementsactions, proposals and reactions
relating to the dispute fromitsbeginning until it was submittedto the
Court.
These are the comments of the Governmentof the State of Qatar on the
draft 'SpecialAgreement' submittby the Governmentof the State of
Bahrain.
It is clearfrom them that thm eain articlesof substance(Two andFive)
in the Bahrain drafatre basedon extremely strange provisiow ns,ch,in
brief, mean the impositioonn the Stateof Qatarof expressadmission of
the non-existenco f the dispute whichactuallyexistsbetweenit and the
State ofBahrainover the areas effectively dispute between the two
countries sincea long time ago, and of concedingal1 Bahraintsclaimsas well as abstaininfgrom includingin the evidenceand arguments
preçentedby it any documentswhose datesprecede thedateof the Special
Agreement.
In the face of al1 this,the Governmentof the Stateof Qatar cannotbut
totallyreject the Bahrainidraft, and couplethis rejectionwith the
strongest possibleprotest.
Beforeconcluding thiM semo, the Governmentof the State of Qatarwould
like to state that, followingits agreementwith the Government of the
Stateof Bahrain,thanksto the Saudimediation,to committhemselves to,
submit their dispute to the I.C.J. for settlementin accordancewith
InternationalLaw, both sidesare requiredto theirutmostto facilitate
measuresto putthat commitmentinto effectso that the desiredpurpose
be achieved. Thatpurpose is to put an end to their long standing
disputeby the best possiblemeans in order that a sereneatmosphereof
amityand cooperation prevailtheir closefraternalrelations. Thiss a
mattez that the State of Qatar is very keenabout,becauseit is being
necessitated by the higher interestosf not only Our two countriesbut
also of themember Statesof the Cooperation Council and Our entire
Nation.
This is the understandingof the Government ofthe Stateof Qataron the
said final agreement betweeonur three countries. On the basisof that
understanding,it was concernetdo preparethe draft Special Agreeme innt
the right way, consistentwith the traditional practicein formulating
such agreementsand in such a manner as to preservethe full rightsof
bothparties.
The Governmentof the g tat ofe Qatar, insubmittingits draft Special
Agreement stands prepart eddiscuss any commentson it, so that a joint
formula be agreedupon whichwouldmeet the appropriate purposeintended
by the 'SpeciaAlgreement' and the submissioon its basisof the dispute
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TRANSLATIONJ1 JI L. 4;i +-Y ,hi si,,LA
,p iis! &- &>!il +GS,,JdYJ=JdJ$ Annex 1.3
Bahraini Note Verbaleof 20 June 1992 andtranslation intoEnglishby Bahrain,
togetherwiththedraftSpecid Agreemen nEnglish and Arabicattachedthereto.
See text above,note8to para.1.13. NOTE VERBALE
[LETTERHEAD OF THE MINIsTRY OF FOREIGN AFFAIRS OF THE STATE
QF BAHRAINl
No. 9437-115/10/1
The Ministry of Foreign Affairs of the State of Bahrain
presents its compliments to the Ministry of Foreign Affairs
of the State of Qatar and would refer to the unilateral
application which the State of Qatar has submitted to the
International Court of Justice on 8 July 1991, to the Order
of the Court dated 11 October 1991 and the Bahrain Counter-
Memorial which was presented to the Court on 11 June 1992.
As the State of Qatar will be aware, the State of Bahrain
denies absolutely that, at the present time, the Court has
jurisdiction to decide al1 or any of the matters which
Qatar has referred to it, for the reasons set out ln the
Counter-Memorlal.
Nevertheless, the State of Bahrain, as it has repeatedly
and publicly made clear, believes strongly that the Court
should consider al1 the matters of difference between the
two states, which wexe set out in particular in the signed
Minutes of the sixth meeting of the Tripartite Cornmittee
which took place in Jiddah on 6-7 December 1988, in the
event of failure to reach a negotiated settlement either
directly or through the mediation of the Custodian of the
Two Holy Mosques, King Fahd bin Abdul Aziz al Saud - and
this would be by virtue of a joint submission presented by
the two parties through an agreed and signed special
agreement.
To this end, the State of Bahrain is pleased to enclose a
draft special agreement to refer the matter of the
differences between the State of Bahrain and the State of
Qatar to the International Court of Justice in a joint
manner. The draft of the agreement has been prepared in
the English Language and is accompani'ed also by a
translation into the Arabic language. The State of Bahrain
considers that the form of special agreement covers al1 the
matters of difference between the two states completely,
and in an appropriate, custornary and comprehensive manner.
The State of Bahrain expresses its wish to sign the
agreement on condition that the State of Qatar ceases its
judicial action which it commenced with the submission of a
unilateral application to the International Court of
Justice on 8th July 1991, and invites the State of Qatar to
accept and sign the agreement in the form attached. The
State of Bahrain expresses the hope that the response of '
the State of Qatar to this offer will not be long delayed.
This offer will accordingly be deemed to have lapsed if it
has not been accepted within the period ending sixweeks before the date to be fixed for the commencementof
the oral proceedings concerning the questions of
jurisdiction and admissibility, taking into account the
practical considerations concerning the current judicial
proceedings. Nevertheless, the State of Bahrain is
prepared to discuss thequestion of the above offer, if the
State of Qatar believes this to be necessary,in a meeting
of the Tripartite Cornmitteeunder the auspices of the
Kingdom of Saudi Arabia in its capacityas mediator.
The Ministry of Foreign AffairsOf the State of Bahrain has
sent a copy of this note andof the draft specialagreement
to the Kingdom of Saudi Arabia. The Ministry of Foreign
Affairs of the State of Bahrain takes this opportunity to
Qatar its assurancesof its highest consideration. State of STATEOFBAHRAIN
~~rrisnOFFOREIGAFFAIRS l?An OFBAHRAlN
MlNlSTRYFFOREIGAFFAIRSSPECIALAGREEMENT BETWEET NHEGOVERNMENT OFTHESTATE
OF BAHRAIN AND THE GOVERNMENT OFTHESTATEOFQATAR TO
SUBMIT TO THEINTERNATIONAL COURT OFJUSTICE
The Governmentof the State of Bahrainand the Government ofthe of Qatar
I,'
Recognising thatthey have been unable to resolve by mdiation or negotiation the
differencesbetweenthemconcerningtheelimitationoftheirrespectivemaritimeareas
and other matters
Desiring to reach earlysettiementothesedifferences,
Have agreed as follows:
Articl1
The Parties shall submitthe questionposed in ArticleII to the International Courtof
Justice
ArticleII
1. The Parties requestthe Courtto decide any rnatterof territorialright or other
title or interest which bea matter of differencebetween them;ato drawa
single maritime boundarybetweentheif respectivemaritimeareas of seabed, subsoil
and superjacent waters.The above request refers to the following mattofs
differenceThe Hawar Islands (including Janan); Zubarah; Pasht ad Dibal; Qit'at
Jaradah; archipelagicbaselines; andfishing and pearling areas.
2. The Courtisrequestedto describethecourseofthe maritimeboundary inkms
of geodeticlines connectinggeograpfiicco-ordinatesof points on RevisedNahrwan
Datum. The Courtis alsorequested,for illustrativepurposesonly,todepictthecourse
of the boundaryon a chart.
3. ThePartiesrequest the Courtto appatechnicaexpertnominatedjointly by
the Partiesto assistit inrespectoftechnicalmattersand,in particulari,n preparingthe
descriptionothe maritimeboundaryand the chart referred to in par2.rTheRegistrarisrequestedtoprovidethe expertwithcopiesofeachParty'spleadingswhen
suchpleadingsarecommunicatedtothe other Party.The expert shallbepresentat the
oralproceedingsand shallbe availablefor suchconsultatiowith theCourt asit may
dmm necessaryforthepurposesof thisArticle. If thePartiesshallfatoagree upon
the technicalexpertto be nominated by them, such expert shall be nominatedand
appointedby the Court in consultationwith the Parties,on the applicationof either
Party. ,,,
4. The Parties shallacceptas finaland bindingupon them thejudgment of the
Courtrenderedpursuantto this Articleand theParties shalltakeal1appropriatesteps
to implementthe judgmentof the Courtforthwith,
ArticleIII
1, Withoutprejudiceto anyquestionastoburden ofproof,thePartiesshallrequest
the Courtto authorisethe followingprocedurewith regard tothe writtenpleadings:
(a) A Memorialto be subrnittedbyeachof BahrainandQatar notlaterthantwelve
months after the dateof notificationof thisSpecialAgreement tothe Court;
A Counter-Mernoriat lobesubmittedbyeach Part yotlaterthantwelve rnonths
(b)
afterthe exchange ofMemorials;and
(c) anyfurtherpleadingsfoundby the Courtto be necessary.
2. Thewrittenpleadings submitted totheRegistrarbyBahrainand Qatarshallnot
be communicatedto the otherPart until thecorrespondingpleadingofthatotherParty
has been receivedby the Registrar.
ArticleIV
1. Betweenthedateofthis agreementand thedeliveryofthe finaljudgmentofthe
Court thePartiesundertaketorefrainfromany activity likely toexacerbatethe dispute
in the areas subjectto disputIn particular,achPartywill:
(a) refrainfrom thearrestor seizureof vesselsor aircrtegisteredin theterritory
of the otherParty;(b) refrain from practisinanymediaactivityagainstthe other eitherin relation to
the disputedissuesor to anyother matterfromthe date hereofand untia final
solution is achieved;
(c) refrain frompractisinganyactthathinderstheproceduresorspoilsthe brotherly
atmospherewhichis neededto achievethe requiredgoals,
2. In the eventofanydifficultyin the applicationof thepreviousparagraph,either
Part rnayapply to theCourt. Withoutprejudiceto itspowersunderArticle41 of the
Statute the Court, after having requested the Parties to provide any necessary
clarification,y orderanymeasuresofprotectionwhichitdeemsnecessary ts protect
the interestsof thePartiesas reflectedin theprovisionsof paragraph1of this Arhcle,
and the Parties agree to acceand carry out suchmeasures.
ArticleV
Neither Partyshall introduceinto evidenceorargument, or publiclydisclose in any
manner, the nature or contentof proposals directed toa settlement of the issqes
referred to in ArticlII of this Agreement, or responses thereto,in the course of
negotiations or discussionsbetweenthe Parties undertakenprior to the date of this
Agreement,whetherdirectly orthroughany mediation.
ArticleVI
The Parties agreethattheEnglishlanguageshaIlbeemployedfor a11writtenpleadings.
ArticleVI1
This SpecialAgreementshallenterinto forceon the dateof exchangeof instruments
of ratification in accordance with the respective constitutional requirementsof the
Parties. Article VI11
(1) The Parties shall notifythe Registrarof theCourtof this Agreementby ajoint
letterin accordancewit he provisionsof Article40 of theStatuteof theCourt.
If such notification is not made in accordance with the previous paragraph
(2)
withinone month from thedateon which this Agreement cornesinto effect,
eitherof the Partiemay inforrn the Registrarofthe Court thereof.
Article M
This Special Agreement shallbemade intwo originalcopies in the English Ianguage
together with anArabictranslation. Inthe eventof anydifference,the originalEnglish
text shall prevail. Each Party shall retain one original copy.
This Special Agreement was madein the this ....d.ay of....................
corresponding to the ...,.,..day of ,.+.,,,,., Annex 1.4
Qataritranslatioof anextractfromtheminutesof thefirst meetingof theTripartite
Cornmittee.QFCMBundle, p.20.
See textabove,note48 topara.4.24.Word for word minutes will bs prcpucd to covcr the detailsof the
dissusrions and wbntha bec. rdd in tbemeeting. Othcr miniterwillbe
prepared but wil1 onlyincludcwhat has bccn rpced to. 1 wouldYC to
conclude by saying thatWC arc aot dcPüng withan cary problem;border
problcrnsare always difficult. Buwe rhodd be guided by the spintof
our suptriors.1 would liktto add that discassing matters not covered by
the Fivc Points or in the exchangtd leuers would be something the
Kingdom daes not wanrIO 'bcinvolvedin. Annex1.5
Qataritranslatiofanextractfromtheminutes of thesecondmeetingoftheTripartite
Comrnittee.QRCMBundle, p. 83.
See textabove,note6 to para.1.11 andnote131 topara.5.56.agreement between the two parties is requirtd. It wouid be unwise to
mention the rolc played by a third party.
Pr. Hassan Kamel;
If agreement has bcen reached on certain topics, then nothing tlse
could be deducted or addcd.
Dr. Wussain Baharnx
With rcference to article5 of the Bahraini proposal, the Qatari
Govtrnmenr claimed that this article implics nullifying Saudi mediation.
This is not truc. The object of article5 was to indicate the concessions
made by the two parties with a view to achieving an agreement, whether
such concessions werc made before, or during, the Saudi mediatioa,
unless proposals lead to an agreement. Commitments made by Qatar
indicate that this deprivcs Qatar of its righto present its arguments and
historical documents.
Pr. Hassan Kamel;
We had agreed on certain matters without which the Court could
not settlc the dispute. Things change if we inform the Court about a
certain materiai fact.
Pnnce Saud;
I hope we shall not enter into a vicious circle.If we achieve an
agreement on questions to be put before the court. and if such an
agreement includes al1 points at issue. thcn thereremains no problem. I
should likc to confirm that, throughout the period of Saudi mediation,
Saudi Arabia did not delivcr to either Bahrain or Qatar documents
belonging to the oiher Party. Itr role war lirnited to proposing certain
ideas, with the express purpose of avoiding any exploitation of Saudi
mediation to strcngthen either party's position at the expense of the
cther pariy. Let us, now, nm to the points to bc put before the Court as
such is Our subjtct matter. 1 am sure that we could achieve an agreement
if thispoint issettied. Annex1.6
Qataritranslatioof anextractfromtheminutesof thefifthmeeting oftheTripartite
Cornmittee. QRCM Bundle,pp.204-206.
See text above,note 40to para.4.18,Thereforc, Our acceptance of mentiming the names of some svbjects and
leaving the othcrs isa concession on ourpart.
This is not the firstime 1 say this and 1 am still saying rhat this is
Bahrain's third proposa1 and this is rtgardeda concession on its part.The
environment in which Bahrain dcalt with the matter is a brotherly one,
while Qatar wants to draft the texts that ialont wants.
Prince S&
WC havc agreed not to mention the past, and wc must discuss the
new proposal. The work of this Cornmittee is not of a lcgal nature bat
sceks to favour the opinion of one party at the txpensc of the othtr
party. We now have one formula which wc want to discuss. 1 hopt that
afttr the timc that wc havc spent wc will acccpt this formula and
consider comments and inquincs by the two parties.
Br. HassanKamel ;
To bt accurate I prcferrcd to prcparea papcr, which was distributed
at the end of the moming session, for consideratioby our brethrcn in
Bahrain. It contains our commcnts and inquiries about the new ptoposd.
Afttr obtaining clarifications for rhat, wewiIibe ready to express .views
on thisproposai. The paper rtads as follows:
We are all aware that theduty of OUT Triparrite Committte is to draft
a mutudly acceptable ttxtfor the special agreement under which we wiIl
refer the marttrs of dispute bctwecn our two States to the I.C.J T.hese
matttrs wcre agreed by us by accepting the first principlc of the
framework for mtdiation which States that:
AI1 issues of dispute bctwctn the two countries. relating to
sovereignty over the islands, maritime boundaries and tcmtorial waters,
are to be eonsidered as complcmentary, indivisible issues, to bc solved
comprehensivdy togcther.
11 is wcl1 known that the gcneral traditiona1 rule which has becn
followcd by States in submitring their disputes to the 1.C.J. - in ail but
two cases - isthat the specid agreement should includt a clcar definition
of the matters'of rhosc disputes. It was, thcrcfore. natural ihat the spccial
agreement undtr which we will refer our dispute to the Court should
inc1ude a eIear complete prtsentation of the mattcrsof ourdispute which
were agreed under the first principleof the framework for mcdiation.in the framcwcrk for mcdiation, this naturally rcquircs a new Spccial
agreement.
It is clear fromtheforegoing thatthe said tcxt is too broad to bc
acccpted in its prtsent fcrm, and it is neccssary toclari fhat is mtan:
by it.
(2) The draft statcs the following"to draw a single maritime boundary
bctween thcir respective maritime arcas of seabed, subsoil and
supcrjacent waters".
It is nottd tharthe tcxt:
a) Imposes on the Court to dtcideby "a single maritimeboundaryw, that
is a single lint, the continental shclf, theeconomic zone and the
temtorial waters.Itis well knownthat the main duty of the Corn is
to define rhc right course of the maritime boundarics of the two
Statesin the light of its decisioon the other mattersand not simply
to draw ir. Accordingly, the Courmay find itneccssvy to draw mort
than one lint.
b) The draft refers to "maritime areas of the seabed, subsoil and
superjacent watersm. It isnot clear what is meant by such a detail,
and itmay be rezsonable to consider whether it would not' be
adequate to substitute the above phrase by the phrase 'maritime
delimitation' which covers al1 aspects of the maritime clairns of
both parties.
These are the main inquiries which we would like toaddress 10 the
gbvernment of the State of Bahrain, hcping to receive answers that
would clarify the meaning of the provisions of the new Bahraini draft.
This would enable us to startirnmediately our discussions on the said
draft.
1w~uldlike to express my thanksto H.E. Sh. Ahmadand to H.E. Dr.
Hassan Kamel foraccepting to discuss Bahrain'spaper. As said at the
beginning, our objectiveis to reach the envisagedoutcorne, thanksto the
goodwill and sincere efforts of our brothers, as well as to the
initiatives and meetings of the Heir Apparents of the two countries. Al1
of these ejements have contributed ta reaching a cornmon understanding.
This question hos been drafted and communicated to H.H, The Amir of Annex1.7
Qataritranslatiof anextractfromthesignedminutesof7 December1988. Q/TCM
Bundle,p. 282
See textabove,note46 to para4.23. "The Parties request theCourt to dccidc anymatter of tcmtorial
right or other title or interest whimay be 8 mrtterof difference between
thcm; and to draw a single maritime boundarybetween their respective
maritime arcas of seabed, subsoil and superjacent waters."
And aftcr listening to Bihrain'rcplyio the queries rlised by the
QatM dclcgadon, and exchangingviews. the Qatari dtlegation proposedan
amendment of the ahr rai nraftsa rharitwould read as folIowr:
The Governments of the State of ~riu and the State of Bahrzin
submit to theInterktional Court ofJustice,underits Statute and the Rules
of Court, for decision in accordance with internationaiIaw, the existing
dispute bctwetn rhtm concerning sovercignty,. territorial righu or orhcr
titleor interestand maritim eelimitation.
re fnllowcd a d scu-cd a? thefJ,Lhje ctbgq
(1) gubmitted to the rnwt. which shallbe confincd to thr f~ll~winp
ukimz
1- Hawar Islands,including Jananfaland
2- Dibd shoal and Qit'atJaridah
5- Fishing and PearIing areas and any othcr matteri rtlared ta
maritime boundanes,
e two aanies aftrcd Qn thcao suhieck Qatar's delegatiopropased
that the agreement which would be submitted to the Court should
have two annexes. one Qatari and the othcr Bahraini. Each Siatc
would define in iisanncxihe subjec tsdispute it wuits to rcfcr (0
the Court. the Bahrainidclcgationsrated that theQatui proposil
iherebc two separate annexes would be studied ilonl witk the Qatk
amendment of the gencral formula of the proposedBahraini que~ùon
mercforc. the Bahnini dclegation askcd forcnough tirnoto S~U~Y the
proposed amendment. Annex1.8
SupplementarOypinion byProfessorA.K.Aboulmagd.
See textabove,note69 topara.5.14. 'I'lUfl'iccol'
Dr. A, Kama1 Aboulrnagd
AiioraLaw
Dnic:
SECONDSUPPLEMENTARY OPINION
On May 18, 1992 1 submitted to the Agent of the Government of
Bahrain, His Excellency Dr. Hussein El Baharna, a first
supplementary opinion on the interpretationof certain documents
relating to the dispute between the State of Qatar and the State of
replyin.on Squestions ofthe jurisprudence thand admissibility dated
September 28, 1992, 1 was requested to comment on the Supplementary
Opinion of my colleague and friend Professor Ahmed Sadek El Kosheri,
attached to the ~atari reply.
Since most of the argumentsadvanced by Professor El Kosheri have
already beendiscussed and answered inmy previous opinions,1 will
confine my answer inthis second supplementary opinion to those
arguments that are advanced for the first time and to Dr. El
Kosheri's direct commentson my last opinion.
...
For the record, I would like to confirm at the outset that 1 remain
firmly convinced that what 1 said in my first opinion, and
reconfirmed in paragraph 1.3 of my first SupplementaryOpinion, is
true. The proper interpretationof paragraph No. 2 of the Minutes
(of December 25, 19901, the one that conformsboth to the rules of
the Arabic language and to the eçtablishedrules of interpretation
of legal texts and provisions is that the consent and agreement of
the two parties continue to be required, and that no waiver of such
requirement was given by consent recorded inthe said minutes. The
word "al tarafan" in the Arabic document means "the two parties
together" and cannot be correctly construed as meaning "either
partyI i
A. THE I4RABO-ISLAMIC TRADITION AND THE EMERGENCE OF THE 1990
MINUTES
1. In his Supplementary OpinionDr. El Kosheri makes a sharp
retreat from his previous position with regard to what he calls
uArabo-Islamic tradition". He now seems to reduce his
reference to that tradition to a mere indication Vhat the
mode1 provided by the Quran constitutesthe ultimate criterion
to determine the truemeaning of a particular linguisticusageu
(paragraph 14 D of his SupplementaryOpinion). 1 cannot agree
more, but 1 fail to see how either ProfessorEl Kosheri or
Professor Ayyad have, in either their original or their
supplementary opinions, been able to show how Quranic usage
favors the interpretation ofthe December 25, 1990 Minutes
which they advocate. 1 continue to disagree completelywith Dr. ~l ~osheri's
contention that the Arabo-Islarnic canons of interpretation do
not alluw reference to the lttravauxpreparatoires", a
contention that Dr. El Kosheri does not substantiate by
reference to any authority. Dr. El Kosheri, at paragraphs 19
and 20 of his supplementaryopinion, continues to support what ,
he calls the basicallyobjective approachprevailing in the
Arabo-Islamic tradition. He dismissesthe relevance of the
p.90)tion the basis that the famous Hanbali Scholarwas talking,
about exceptional cases in which the parties wantedto hide the
true nature of their transactionor because there was no real
consent (paragraph 20 of his second opinion).
3. A careful reading of Ibn Al Qayem, however,shows that this was
not the case. The whole chapter of 32 pages is entitled "What
counts in contractçiç the intentionsand objects"
Ibn Al Qayem then presents in full detail the arguments of two
different schoolsof interpretation, the one relying completely
on the words and the other relying on the subjectiveintention
of the speaker (or drafter). He defines the problern as
follows:
l1 Should we rely on the apparentmeanings of
words and contracts evenif it is shown that
the intentionsand objectives are different
therefrom or should we consider and
accommodatethe intentionsand objecti~es?~
He then giveç a categoricanswer stating that:
"The rules and principlesof the $haria al1
lead to the conclusionthat the intentions
are to be taken into consideration."
On page 119 Ibn Al Qayem applies the above general principle to
the interpretation ofcontractsunder the title "What counts in
contracts is the intentionrather than the mere ~ording'~ He engages himselfin a most detailed discussionof the various
hypothetical situationswhere there is discrepancy betweenthe
intention of the party in a contract and the wording recording
the contract. He specificallydiscusses the case of a party
who claims to have meant somethingdifferent from the wording
(siuha) he used andpoints out that, if the context or the
presumption substantiatehis contention,then he should not be
bound by the wording.
In the present case, both the context and the presumption
support Bahrain's interpretation of theword "al-tarafan" in
the Minutes of Deeember 25, 1990. Bahrainls resort to the
preparatory works which show how the final wording emerged is
but one way of implementingthe method of interpretation
suggested by the Hanbali author, Ibn Al Qayem. The non-
substantiated çweeping statement madbey Dr. El Kosheri does
not help at al1 in this respect.
B. NO STATEMENT MAY BE ATTRIBUTED TO A SILENT PARTY
4. In paragraphs 23 and 24 of his supplementaryopinion, Dr. El
Kosheri relies heavily on the word Hvasouz18 (whichmeans "it is
permissible ...") in the secondparagraphof the document of
December 25, in order to reach the unjustified and
unsubstantiatedconclusionthat this word authorizeseither party
to refer the dispute unilaterallyto the Court. 1 see nothing in
the text (or the context)to suggest thatthe permissionapplies
to either of the parties on its own, as opposed to both parties
acting together. But hethen contends in paragraph 24 that the
absence of specific referenceto further negotiation of the
special agreement afterthe five month period had elapsed would
be construed as excluding anyneed to undertake any such action.
To support this contention,he uses the maxim Ilnostatement may
of therirule, namely that if a party is expected to express hist
opinion or position, his silence is in itself an opinion or
position. If, therefore, it is the case that up to the time of
the meeting of December 25, 1990, the parties considered their
submission to the Court would be by means of a joint special
agreement, then one would expect any change to that position to
be reflected in the minutes. There is no such change, and
therefore the expression l1nostatementmay be attributableto a
silent partyu rebounds againstDr. El Kosheri, as I showed in my
first opinion. If it was the understandingof the parties at
that tirnethat a joint action was required in order to engage the
Court, it is the deviation from that course of action which w~uld
require specificmention.C. THE THREE SETS OF MINUTES IN SIMILAR FORMAT
5. In paragraph 11 C of Dr. El KosheriJsSupplementaryOpinion, he
reiterates (but does not substantiate)the argumentsthat the use
the tdocument of Decembere25, 1992hgave it foreannArab lawyerthef
character of a forma1 agreement andnot a mere declaration of
intent. This argument is unacceptableboth linguistically and
legally.
(a) Linguistically, the words "it was agreedv refer to the
occurrence of an agreement without anyspecific reference
to the nature of the agreement. In the context of minutes
of a meeting, whichis the context at hand, the use of the
past tense is simply meantto record what waç agreed at the
meeting. By itself, the past tense tells the reader
nothing about the legal status of either the minutes in
question or any agreement recorded therein.
(b) Legally,the use of the past tense *litwas agreedN does nat
by itself determine the subject of the agreement or the
extent of its binding nature. Boththe subject and the
extent of the binding force are to be determined in the
light of the provisions thatfollow the words 'it was
agreedw and the context of the whole provision. If Dr. El
Koçheri were correct,it would be virtually impossible to
record in a documentwritten in Arabic any purely political
or social agreement whichwas of non-legalnature. This is
because whatever is recordedmuçt normally be in the past
tense: "it was agreed .. .Il"it was said ...I, *lit was
paragraphs..2.15 1- w2.16 aof my Opinionwhaattached tod thet
Bahriani Counter-Mernorial. 1 see na need to revise my view
in any way.
(c)The same verb "agreeWwas used in the signed minutes of
January 17, 1988 and December 7, 1988. As 1 stated in my
first opinion at paragraph 2.16:
"The format and general layout of al1
three sets of minutes are broadly similar,
and I can see nothing on the face of any
of the three to indicate that it was
intendedto be an agreementof a different
nature from the othertwo.I1
Again, nothing in the Qatari Reply or the opinions of its
experts leadsme to revise my view in any way.D. THE VIEWS OF THE EXPERTSOF BOTH SIDES ON @'THE PROCEDURES
ARISING THEREFROM"
6. A thorough examinationof the opinions of the experts lends
Supplementary to Opinion,ew 1namelythatat theagronly4.2 possible
interpretation is that these words refer to the procedures
arising from or resulting from the Bahraini Formula, i.e., to
the further steps to be taken to implementand finalize the
special agreement ofthe parties and submit the case jointly to
the court. ProfessorEl Koçheri takes the view that commas
would need to have separated @@the several antecedentsIl
(whatever that might mean) and points out that there are no
commas in the Arabic original (Qatari Reply, Vol. II, p. 96
at para. 41). No such rule covering commas exists in Arabic.
Although it is not strictly relevant, he states that
punctuation ''playç a vital role1*in the Quran; but in fact
there is no punctuationin the Quran, and he is thus completely
mistaken on this point.
7. Even if we were to assume, for the sake of argument,that Ilthe
procedures arising therefrom"could referback to the Court,
this interpretation is faced with two major objections:
(a)'~he wording would be meaninglessand lack useful effect.
As Mr. Amkhan, an expert forBahrain, has rightly pointed
out in his opinion (BCM,Vol. 1 p. 253-4) the 1987
agreement contained a provision that the two parties would
"have the disputesubmittsdto the Court in accordancewith
its regulationsand instructionsw. 1 understandthat both
Bahrain and Qatar are in agreementthat the 1987 agreement
was one of the agreements reconfirmedin the first
operative paragraph of the 1990 minutes. 1 also noticed
that Professor El Kosheri does not comment on this argument
in his SupplementaryOpinion.
(b) If the interpretation by Qatar's experts were correct,
would the minutes notsimply have said in a plain language:
"the parties may ... submit the matter to the 1 in
accordance with ... the court's procedures" ? It is
obvious that the proceedings/procedures cannot arise from
the act of submissionitself. See Professor Badawifs
comments at pages 280-2 of Vol. II of the Bahraini
Counter-Memorial.
8. Most unacceptable is Dr, El Kosheri's interpretationof the
words Iland the procedures or proceedings relating thereof or
therefromw 'Iwa al ijraat al rnutaratibatialayhav. He bypasses
the argument deriving from the fact that the word "tarh" (= subrnit) is masculine in the Arabic lanquage, whereas the word
"therefromW is feminine in the Arabic language, which makes
referenceto the only feminine antecedent which is the Bahraini
formula the only correct interpretationof the text. His
argument is that the word 18tarh11mplies necessarily acertain
action in view of submission to the court!! The fact,however, ,,
is that the text does not include a word referring to any such
means,dbecreferringto a fnonnexistingword of the text., by any
9, At paragraph 8 of his statement (page 81 of Vol. If of the
Bahraini Counter-Mernorial)D ,r. Al Baharna confirmedthat he
inserted the wording in order to refer to the further
procedures (or steps/arrangements) which were necessary to
implement the Bahraini Formula. Dr. Al Baharna has made it
clear that he was referringto further consultations aimed at
concluding the special agreement. Tt is thus to these
consultations, as the steps/arrangements/procedures which were
to follow, that the Arabic words refer. Qatar's experts have
failed to supply any convincing alternative explanation.
w
Dr. Kamal Aboulmagd Annex 1.9
SupplementarOypinioby Mr.Adnan Amkhan.
Seetextabove,note69topara.5.14. RESPONSETU PROFESSOR EL-KOSHERI'S
SCPPLEMENTARY OPINION OF 16SEPTEMBER 1992
BY
ADNAKAMKHAN 1.
The Agentof Bahrainin theCase Concerning MaritimeDelimitarioand
TerritoriaQuestiunsbetweenQatarand Bahrain, isExcellencyDrHusain
M. Al-Baharna, has invited me to respond to Rofessor El-Koshen's
SupplementarOypinioof 16Septcmber1992,'in whichcertaiobservauons
aremadeon my reviewof hisfirstOpinion.'
WithaiiduerespecttoRofessor El-Koshe tn,responsewhich hasbeen
kept as shonas possible,wiU show that his SupplementaryOpinionis
inconsistenwithhifus Otpinionandthaitcontainsanumberofunsupponed
andhighlydebatableassertions.
2. Hon'everb, eforturningto Professol-Kosheri'Supplementaq Opinion.1
would like to confm thatit is my fm opiniot harthe only plausible
consuuctionof the secondparagapof theMinutesof 25December1990is
thatitenvisagedapossiblejoinsubmissionto theCoun by thet~lopmies
actingtogether.
-- - --
'ProfessoEl-Koshe Suippsemenq Opinion isattacheto Vol.IIasAnnex
111.to theReplysubmittedby Qataron28 September1992,pp.77-99.
SeeBahrain i ounter-blemorilf11 June 1992,Vol.ilpp.217-256.B. GENERAL OBSERVATIONS
3. At the outset it shouldbenoted that Qatarand ProfessorEl-Kosheri havenow
acceptai the argument in my fist ûpinion to the effect that the legal nature
of the25DecemberMinutes and the interpretationthereofis to be determined
aclusively accordingto the principlesand rulesof contemporaryinternational
law. There is no attempt to rely on any "Arabo-Islamiclegal tradition" in the
Qatari Reply of 28 September 1992.
4. Inhis SupplementaryOpinion,ProfessorEl-Kosherihas changed his view. He
now arguesthat the expression "Arabo-lslamictradition" wasnot used by him
in his first Opinion in terms of an applicablelegal system,buta'recourse
to the relevant linguistictraditions in a certain socio-culturalcommunity for
guidance in the proper construction of a text draftedthereunder' (para. 15 of
the SupplementaryOpinion, pp. 86-87).
This is a major shift since his first Opinion, in which he uses the phrase
"Arabo-Islarniclegaltradition"whendealingwithlegalpropositions. Professor
El-Koshei's shift of view has two notable effects.
5. Fust, it renders superfiuousandirrelevaPartIof ProfessorEl-Kosheri'sfirst
Opinion (pp. 255-278),which formed the majorpart of his argument. In this
part,whichProfessorEl-Kosherihimselfchose toentirle"Responseta theFirst
Group of Purely Legal ~uestions"~ h,e dealt with topics sucasthe binding
Emphasis added. force ofcontractsundcr "Arabe-Islamilegal traditionthe assimilationof
treaties to contractsder naditional Islamic law, the simplifid form of
agreementsand the analysisof a purelytraditionIslamiclegal conceptof
sighu. Onecannotdiscussthcse "putelylegalquestions"in avacuum. This
can onlybe done in the cantext oa particularlegal systcm,and the only
referencemadebyProfessorEl-Kosberiinthisconncctionis t"Arabo-Islamic
tradition"or "Arab-lslamiclcgaltraditions".
6. To takeone importantexample. AofessorEl-Kosheri,inhisattemptgenerally
to deny any relevance to earlieàraftswhich show the evolution of the
Minutesof 25 December 1990, reachedthe followingconclusioin hisfmt
Opinion,whichfoms the mx ofhis argument onthe rravrrprkpararoires:
"As previouslystatedon variousoccasions(supra., paras.19-30,and para 61)
the Arabo-Isla lmgictraditions(whicharedeeplymted in both Bahrain
and Qatar)do not conferany legal weighton the intention ofthe panias .
manifestedbythepreparatoryworkscovennga pnor negoriationphase,since
the interpretationof anagreementhasto bebased exclusivonythefinal text
whichembodies theconcordantdeclarationothe pmies.Accordinglythetwo
drafts[the SaudiandOrnanidrafts)inquesuonshouldbeconsideredashaving
no legal significancewhatsoeverandno bearingon the interpretationof the
finaiagreementasexpressedinthe signedMinutesdated25 December,1990"
(Para. 71 of ProfessorEl-Kosheri'sfirstOpinion,QatariMemorial,Vol. II, p.
296).
Aswas shown in my first Opinioof 20May, theabovcstatementStates
inaccuratelytherulesoflegalintcrpretationin bothtraditionalIslawand
modem Arab legal systcms, The argument in my fmt Opinion that
coniemporary ArabinternationallawyersIslarniiaw andthe lawof modem
Arab States al1dlow rccourseto navaux prt?pararoireas tvidcnce ofthe
* Emphasisadded. cornmon intention of the partieswas set out in pdcular at paras. 13-31
thereof. ProfessorEl-Koshcri makes no comment at dl on my statements
concerningArabpublic internationallawyersor the law of the modemhab
States;and with regard tothe aaditional Muslim scholarshe anly seeksto
questionrhe vicws of 'Ib nl-Qaiyyem. Itthereforreailyis not possiblefor' I I ,
ProfessorEl- Koshed to assertinpara.17 of his SupplernentaryOpinion that
" ..in thiscase,where the text appearson its face toallow separateaction,
underArabo-Islamiccanonsofinterpretationonewould nottakeinto account
earlierdrafts of tsame text".
7. Furthemore, one canonlyask, inthe light owhat ProfessorEl-Koshen says
in his Supplementary Opinion,bow the statement atpara. 71 of his fmt
Opinionquoted above can be consideredto be amatter of purely linguistic
interpretation. Theanswleris quitesimplythat itcannot, sincitis directly
related tmattersof legalinterpretation,whichcm only be putfornard when
one in tnlkingin the contexof aparticularlegal system.
8. The second effect of ProfessorEl-Koshen'sstatementthat he is only ever
concemed with linguisticinterpretationisthe inconsistencyit discloses in
relationto theQatari Reply of 28 September. There Qatar argues that in
establishingtheeaningof al-zara ftenrealproblemis alegalproblem, nor
a purelyIinguistione' (para.4.64, p.71)' Morwver, Qatarobservesthat
'thepurelylinguistiargumentscannotbedecisive' (para4 . .72,p. 74).
'Emphasisadded. lt difficulttknowhowto commentupon sucha manifestinconsistency
betweenthe QatariReplyandthe approachof Qatar'stminent Expen to this
centralproblemof legalintcrprctation,other thansimplyto pointit out.
9. The main prerniseupon whichProfessorEl-Koshenbuildsdl his arguments
andconcIusionsin the SupplcmentaryOpinionhas beensetoutas follows:
"Whatprovidesthe word inthe textwithits me meaningorvalue according
to widelyacceptedruleson interpretationis its "connotation".i.c., its normal
socio-culturalcontext, which was referredto in fmt Opinion as "the
Arabo-lslamictradition1'(para.14 of the SupplementaqOpinion).
The fust pointtobe noted in this regard is that the expresosnocio-
cultural nadition" wanot mentionedat al1in ProfessorEl-Kosheri'sf'ust
Opinion, neithewasit mentionedin the Qatari Mernorial. Nevertheless,
Rofessor EI-KoshericriticizesBahrain'sConsultantsfor notcornmentingon
the so-cailed 'socio-cbil~clontext'allegedlyevoked in his fust Opinion
(para.34of the SupplernentaqOpinion).
Thesecondpointin thisregard is thatideassuas"connotarionsof a word
andits wider"socio-culturalcontext"necessarilyentailsubjective eofments
interpretation.
In advocatingthis new approachto interpretation, ProfessorEl-Kosheri
seernstobc movinginto mas of vaguenesrand subjectivity? This is in
Jacksonexplains thedistinctionbetweenthe denotationof a word and its
connotationsbysayingthat:"connotationarefar oreindeteminatethandenotations
..connotationsmay be subjectto considerablevariatifromone generationto the
next ..connotationsmaybe rathersubjectiveand nosharcdin thesame wayby al1
speakersof a languageour individualexpericnceof languageand its relatitheto
world is ro somc cxtentuniqueand idiosyncratic".JacksonH.,U'ordsand Their
Meoning (,988),p. 59,Longman: London. marked conuastto hisfmt Opinion,whereProfessorEl-Kosheriwasadamant
that interpretationitccordingto the SO-caI"Arabo-lslamiclegd uaditions"
'shouldnot go beyondthe text itself takenas a whole or its necessaryand
objectivelyassessedimplications.,.'(para.26 of ProfessorEl-Kosheri'fmt
Opinion).Hereiteratedthat '...interpretatiof an agreementhas tobe based
.,,
exclusivelyon the fmaltext whichembodiestheconcordantdeclarationof the
parties'(Ibid.,para. 71 o1.'
10. ProfessorEl-Koshen suggeststhat 1havesaidthingsthat 1did notin fact say
concemingsubjectiveinterpretation. For example,he saysin para. 18 of his
Supplernentary Opinion thai I favoureù the adoption of a subjective
interpretation, 'thus giving weight to whaone pmy alieges was its real
understanding ofa document', and that1havedonethisin orderto disregard
the objectiveapproachwhich he allegedlyfavours. The fact isthat1 did no
such thing. AI11was concernedwithwasto showthatProfessorEi-Kosheri's
treatrnenrof rules of interpretatioin the so-called "Arabo-Islamiclegal
traditions"was flawed,and that whatis imponant in Iegalinterpretationis to
ascenainand accurate tlidentifythecommonintentionof theparties.'
s
See paras.20-31 of myfust Opinion. As 1poiniedout, in IsIamicand Arab
laws,"interpretationhasken definedas the procedurefor identifyingthe cornrnon
Cjoint)intentionofthe two conuacting parties...Furthemore, what is clear is that
nowhere is it to be found that reference tonavauxpréparafoires in interpreting
contractsis notadmissibleThe common intentioof thepames canbededuced from
dl material evidence available CO the court,including in particular thetravaux .
préparatoires"(paras.25 Bi 31 ofmy f~st Opinion).C. SPEClFICCOMMEKTS
1. Turning to more spccificpointsof Professor El-Kosheri'sSupplementq
Opinion,it shouldberecalledthat heobservesthat 'inorderto understandthe
meaning of the DohaAgreement as an Arabic document' itis nccessary to
have 'recourseto the relevant linguisticiraditions&nn a mio-cultural
community'. And this, he cmphasises, 'rcpresents the comct linguistic
approach'(para. 15of the Supplementary Opinion).
In the light of this linguistic 'socio-cultural'appmach to interpretation,
ProfessorEl-Kosheriembarksagainuponthe interpretationof one singleword
in the 25December Minutes. The wordwhichriehoIds,in hisSuppfementary
Opinion,to 'bethe key word as comparedto the other words' inthesecond
paragraphof the Minutes is '>agouzW (hereinafter yojûz).He adds that
0,ahrain'sConsultantswere silenton this important issue. But the facris thar
the purely linguisticinrerpretaand examinationof ProfessorEl-Kosheri's
statements,including that of the word "yajilz", M'ascovered in Professor
Badawi's linguisticndysis of the crucial sentence and was also
comprehensivelydealt withby Baiirain'slinguisticConsultanDr.H01es.~
12. In pmgaphs 25-30 of his Supplementary Opinion Professor El-Koshen
attemptsto consme the "keyword" "yajiizin th25 DcccmberMinutes. As
mentioned earIierfiewould have us inrerpretthi"keyword" in the lightof
the "socio-culturatraditionevidentally the Islamicand Arabsocial and
SeeBahrainiCounter-MernoriaV l,ol.II, p264-6, 293,295-6. culturaltraditionstwhich Bahrainand Qataradhere. Instead,heproceedsby
positing that theArabic word "yajür",which he translatesinto English as
"may" h,as 'thesame connotation'(para.26). Then he interpretsthe word
"yajüz"in the lightoa broaddefinitionof the Englishword "may" from an
AmericanRofessor who was, presumably,winng abut legaidefinitionsin
the Englishlanguage.
Onewonders whathappencdtothe"Arabo-Islamic socio-culd traditions"
and the connotationsof the "key word" thereunder. ProfessorEl-Kosheri's
argumenton the basis of the above definitionofthe word "may"is neither
persuasivenorconsistentwithhis basic premise.
13. As regardsthe interpretationof al-Tarafa Pnr,fessorEl-Koshen is again
speculativeandindeedinconsistentwithhisbasicprernib eecauseheanempts
to denp the conjunctivenatureof the actioncontemplatedby resortingto a
traditionalIslamiclaw conceptof "Al-Ibahu"(para.32 of his Supplementary
Opinion),\inhichhasno relevance tolegalor linguisticniles of inrerpretation
of contracts. "Al-Ibaha"is a conceptusedin traditionalIslamicjurisprudence
in thecontextof whatis lawfulandunlawful. In otherwords,Al-Ibaizuis the
name givento theprinciplewhichasscns thathumanconductis lawfulbefore
God unless specificallyproscribed:it operaiesin the behaviouraland moral
sphere. Not surprisingly,therefore,Rofessor El-Kosheriis not able to give
any authorityin supportof his assertionithicontext.
14. In para.34 ofhis SupplementaryOpinion, ProfessorEl-Kosher statesthathe plural camean the singularin Koranicusage, because'thepluflrm' is
used 'to expresan action that coulbe taken byonly one personacting
disjunctive'. He goeson to suitethat Elahrain'sexpens'havtakeninto
accountthesupportinglegalliteratucnthispoint,whichIrefend toinmy
fustOpinionof January1992, panicularlthe long quotatiohm Sawas
Pacha'. 1cannot speakfor Bahrain'other cxpcrts,bthe mason1didnot
rcferto hfessor El-Kosheri'squotati hon Sawas Pacha in my fmt
Opinio nthatitis completelyirrelevanttothe maatissue.The quotation
is a reflection themeaningof the verse "Ohye whobelieve! Fulfilyour
un der ta kingi!the Koran,whichhavebeentakenas a maxim by Muslim
scholars,andwhichhas much in comrnonwith the Westernlegalconceptof
pacrasurzrservanda.
15. Sawas Pachaappearsto besayingsomethingwith whichfewwouiddisagree:
the obligationtofulfil contractual undertakingsapplies no1 only to the
cornrnunitof believerasawhole,butto everyindividualbeliever;likewise,
itappliesto eachandevery contractual undenakwhicha believer assumes.
The quotationfromAbouAl-Wafa in para40of Rofessor El-Kosheri'sfrrst
ûpinion would appcar to bc making the same point. 1 cannot see what
possible lightcitherquotation shedseinterpretationthe1990 Minutes.
16. In his SupplementaryOpinion aswas thecasein hisfirstOpinion,hofessor
El-Kosheriseems to confusetwo separate, althoughnot unrelate., issues,
'OKoran V:l (Pickthalltranslation). namely,the rules of Arabiegrarmu andthe questionof kgd andlinguistic
interpretation. Forxample, after explainingwhat he considers 'the latest
scientificmethodsof interpretation,ProfessorEl-Kosheripoints out thatthe
Koran 'remainsalways thecentral authoritativepivot and the final point of
referenceasto whatisgrammatically rightorwrongin Arabic'(para.42 (3)
of his SupplementaryOpinion).
17. As to the Koran being the authoritative reference for testing Arabic
grammaticalmodelsand constructions, thisis undisputedBut the disputing
parties in theresent case are not in disagreementasto the grammatical
correctnessof th25 December 1990 Minutes. Theirdisagreementis cen~ed
on the me legal interpretationoa comctly consmictedsentence,i.e., the
secondparagaphof the 1990Minutes.
18. It is axiomatic,however,that interpretation,whetherlinguisticor legai,is
systemof thoughtuniqueto thedisciplinewithinwhichit is applied,and even
within thesamediscipline,approachesto questionsof interpretationof ideas,
languageand wordscanVarywidely. The interpretationof Arabic language
andwords isnodifferentinthisrespect. Thus,differenceand disagreements
between Muslim scholars and jurists are wellknown. Moreover, these
controversieswere notpeculiarto jurists, but were known toexist arnong
Koranicexegetes as well."
" See,e.g., al-'Ak(KUid'AM al-Rahman) 'Usü al-Tafsiwu Qowd'iduh,2nd ,
ed. 1987,Da al-Kafa's:Beirut.19. Oneofthefundamentalreasonsfortheabove-mentioncd disagrtementsccntred
on the interpretauonof languageIbnKhaldün,for example,in his famous
and authoritativeworkal-Muqdimah, rcferreùto oneof the rtasons for the
disagreement which existed arnongsttarly jurists.He atuibuttd their
differcncestodisagrecmentsoninterprctitheauthoritativcrexts(notablythe
Koran). He continucd:'[tlhe tcxtare inArabic. In many instances,and
tspeciallywithregartolegalconceptsthcr arecelebrateddifferencamone
thcm asto the meaningimplicitin thewords'.12
Morerecentl~', ral-TurkiD, irectofthelslamicUniversityof Muhammad
20.
binSa'üd in SaudiArabia,observcdthat thereasonfordisagreementamong
Muslimjuristsarenumerous:"Islamwas revealcdin Arabic. Andmanyof the
differencesin adducingnilesandintcrpretingthemwereduetothdifferences
in lunguageand ifinterprétation."'"
21. Therefore, Professor El-Koshen's proposition that Arabic laquage is
understood in thesame manncr by al1Arabspeakers and that its rules of
inrerpretatiareuniformand linear,becausethe Koranprovidesthe correct
gammatical refcrence,is highlydebatable. Inany event, neither henor
Rofessor Ayyadhas produccdany tvidcncc based on the Koran which
-
l2IbnKhaldûn, TheMuqaddimah: AnInaoduczionto Hisrov,p.3, vol.3,1958,
(uanslatedfrom the ArabicbyFranz Rosenthal),Routlcdge& Kegm Paul:London.
" al-Turki('Abdullahbin 'Abdal-Muhsin),DirecloofthelslamjcUniversityof
'ImamMuhammadbin Su'tid,'Asbdb'Ikhiilhfal-Fuqahd'pp. 2-3, 1977Maktabat
al-Riyyadal- haditha:Riyyad. indicatesthatthe sentencein the secparaprapohfthe25 Dectmhr 1990
Minutes allowedcithePartyto proceedwitha unilattrapplication.
D. CONCLUSIOS
22. In conclusion,1remain convincedthatmy fust Opinion of 20May 1993
representthe correcview onal1the leplissuescxaminedtherein.
AdnanAmkhan
OldCollege.
UniversityofEdinburgh,
7 December1992. Annex 1.10
SupplementarO ypinionbyProfessorE.Badawi.
See textabove,note62 topara.5.09and note69 topara.5.14, SUPPLEMENTARY LINGUISTIC OPINION
by Dr El Said M. Badawi,
Professor of Arabic Language and Linguistics
and Director of the Arabic Language Institute,
The American University in Cairo, Egypt
On 22 May 1992 1 submitted an Opinion on
interpreting the minutes of a meeting held between
the Ministers of Foreign Affairs of the State of
Bahrain and the State of Qatar and the Kingdom of
Saudi Arabia, dated 25 December 1990. This Opinion
was included in Volume II, Annex II, pp.257-284 of
the Counter-Memorial submitted to the International
Court of Justice by the State of Bahrain on 11 June
1992.
This Opinion of mine was responded to by Professor
A. El Kosheri and Professor Shukry Ayyad, experts
for the State of Qatar, in their Supplementary
Opinions dated 16 September 1992 and 17 September
1992 respectively and annexed to Volume II of the
Reply submitted by the State of Qatar on 28
September 1992 to the International Court of Justice
and appearing on pp.77-115 of that volume.
In their Supplementary Opinions the two eminent
professors not only made certain assertions with
which 1 do not agree but, peshaps more
significantly, declined to respond to important
arguments advanced in my previous Opinion.The following is in answer to these two
Supplementary Opinions, in this order: first
Professor Ayyad's, and seeondly Professor El
Kosheri's. I also deal, at paragraphs21-22, with
certain linguistic argument containedat paragraph
4.73 of the Qatari Reply.
Page referencesin this present Opinion are to the
respectivevolume of the pleadingsbefore the Court
in which the earlier Opinions occur. The first
Opinlons of Professors El Kosher~ and Ayyad are in
Volume III of the Qatari Memorial,and their second
(or supplementary}Opinionsare ln Volume II of the
Qatari Rep1.y. My first Opinion and the
Supplementary Opinion of Dr Holes are in Volume If
of the BahrainiCounter-Mernorial.
Çoilrnenton Professor Shukrv Avvad's Sua~lementary
A large sectionof Professor Ayyad's Supplementary
Opinion is devoted to grammatical discussions ,ome
of which are the repetitionof argumentsadvancedin
his previousOpinion (andsubsequentlyanswered)and
some are self-justifyingin the fgce of criticism
levelled against him by the Bahraini experts, but
none of this grammaticaldiscussion has a direct
bearing on the interpretationof the minutesunder
discussion.I will, therefore, deal onlywith three pointswhich
1 believe address real issues in the wordingsand
interpretation of the Minutes. Theseare:
The meaningof a1 tarafan ("the two parties")
(1)
in the various Arabie documents.
(ii) The role of the verb yatauam ("move
forward/move towardsw) in the crucial
sentence
{iii) The absence ofresponseto certain key issues
in my previous Opinion.
Treatmentof these is as follows:
-
The use of the word al tarafan ("the two warties"l
throuahout the documents attached to the Oatarl
Mernorial
In my previously submitte dpinion 1 presented the
results of a survey 1 carriedout on the use of the
word a1 1arafan throughout over fifty Arabic
documentsgenerated by the two States during their
negotiationand which wereattached to the Qatari
Mernorial with an English translation complet ed
the Qatari side. The result of that survey as
presentedin my Opinion was as follows: "In al1 these occurrences the word 31 tarafan
is used in the basic sense of the du'al and
whenever there is a question of action it
always applies jointly end uniformly to the
two parties. Not even once does there occur
a single qualification t$ alter this uniform
use of the word al._'arafanW . pp. 268-9.
10. In his S~ppleinentary Opinion Professor Ayyad
ehallenged this conclusion of miné by describing it
as "simply not true". (p.111).
11. In support of this view, Professor Ayyad cited first
an example from the above-mentioned documents
(pp.111-2) and rendered it into English using his
own translation, thus:
"The 'two' parties pledge to abstain from al1
information activities dir'ected against the
other party ..."
12. With no further argument or additional evidence,
other than his own translation, he concluded that:
"These clauses used the plain dual form where
what is intended is "each party". p.112.
to Professor evidBadawi'sld allegation,e dnorimtotahis
supposition (p. 11) that if unilateral
action had been intended, the crucial
sentence in the 1990 agreement should
'inevitably' have used an explicit expression
such as =un min al tarafav~ (either of the
two parties. ) " .
14. Professor Ayyad used two more examples from the
above documents (see below) but was content with a mere translation of his own. He made no attempt to
analyse them in any way.
15. In fact, Professor Ayyadis own translation of the
three exarnples offers no support for his clairn, .,,,
16. We can, with justification, turn Prof essor Ayyad' s
argumentsround by simply saying: what was in fact
"intended" by the wosding of the first example was
to pledge joint action uniformly and jointly by the
"two parties''. But there is more to the sentence
.than just that. The act of pledging in the sentence
has to be jolntly concluded by the two ~artiw, not
rnerely by each one on its own. There was no
suggestion that one party might pledge and the other
might not. In fact the tosetherness 1s of the
essence if such a pledge, to be undertaken by the
two parties to refrain from al1 propaganda
activities against one another, could be worth
anything. The fact that such a pledge could also be
described by using an alternative forrn of words
which might incorporate the words "each one" is
immaterial here. Whatever form of words 1s used
must make it clear that the pledge epplies to bath
parties, or it would change the meaning. 1 note,
however, that Professor Ayyad makes no suggestion
that the words "either party" {or "each one" used in
the sense of "either party") might have a role to
play in any such wording.17. The same idea of togetherness and uniformity of
treatment is at the heast of the other two sentences
cited by Professor Ayyad. The first is:
.,.,
" ... especially those [letters] which were
exchanged between Your Majesty and the 'two'
parties", (p.112) (Professor Ayyad's
translation] [Emphasis suppliedl
18. This referred to correspondence not just between the
King and 9ne nartv, but between the King and hoth
parties. There was no suggestion that the King
might have exehanged letters with one party and not
with the other.
19. In the third example,
"... by which the rights of the 'two' parties
are held intact" (p.112)
20. it is clear that whatever holds the rights of the
two parties intact should act uniformly for both,
not just for one or the other. A similar idea could
also be phrased differently, by using the expression
"each party" sa long as the meaning "both" was
safeguarded, but not by using the words "either
party" (or "each party" in a situation where they
would be taken to carry the sense of "either
PartyN).
21. ft would not be necessary to say more, but for the
fact that paragraph 4.73 of the Qatari Replyattempts to make the same point on the basis of
undertakings contained in the Mediation Principles
of 1978 and the letter from King Fahd to the Amir of
Qatar of 19 December 1987. These examples are (in
Qatar's translation):
(1) "The Parties shall undertake to refrain ...
from engaging in any propaganda activity
against each other ..." (paragraph 3(a) of
the Mediation Principles).
(ii) "The Parties shall undertake to refrain from
carrying out any act that would impede the
course of negotiations ... " (ibid, paragraph
3 (b) - this is referred to, but not quoted in
paragraph 4.73 of the Qatari Reply).
Liii) "The Parties shall undertake not to present
the dispute to any international
organisation" (ibid, paragraph 3(c)).
(iv) "The Parties undertake to refrain from to
date from any media activities against each
other" (paragraph (b) of the second item of
the letter from King Fahd of 19th December
1987).
In al1 the above examples, the Arabic for "the
Parties" is gl-tarafan, and therefore both parties
are intended. 1 would have thought it crystal clear that in each case the undertaking is by both ~uties
foue-, and that by no stretch of the imagination
could it be argued that the text only eontains an
undertaking by one party and not by the other as
well. ft may well be possible to express a similsr
meaning in a form of words which uses the expression
"each partyu - but the form of words chosen would
need to make it clear that the undertaking was by
both parties together, otherwise it would change the
sense. 1 note that there is no suggestion that a
similar rneaningcould be conveyed using a form of
words including "either party". I do not think that
these examples or the views of Professor Ayyad
dsscussed above help Qatar in its argument that
paragraph 2 ,of the Minutés of 2Sth December 1990
allowed either party to submit the case to the Court
on its own.
(ii) rok of the verb ~ataam l"move towau
Fove forward") in the crucial sentence
23. In his first Opinion, Professor Ayyad described the
verb wddam as both the "main verbn within the
verbal group -Ux (("move towards
rubmitting") and stated that it "has not lost its
initial meaning by being used idlomatically in the
phrase: yataqaddam al tgsafan- bitnrh al mawdu(;*
b . m
(p.321-322) ("the two parties move towards
subrnitting the matter").Subsequently, in my fir6t Opinion, 1 objected to his
editing out the value of the verb yataaaw ("move
towards/move forward") from the English tzanslation,
basing my objection on the fact that such an
omission is not cornmensurate wi th his own analysis .,,
of the sentence. 1 also objected in particular to
his describing the verb as the main one (my first
Opinion p.279). Professor Ayyad justified his
action in his opinion by stating that the verb
vataaaddam "vanish[ed]" !) from the translation
p.114. He went further to restate his position as
follows:
"In my original opinion 1 have just hinted at
the presence of this word 'y&aaaddam',
because 1 could get along with my argument
without its support". p.114.
Having descrlbed the verb vataaaddam ("move
forward/move towards") as the main one within the
verbal phrase, it is not justifiable to ignore its
value when making an argument based upon that
particular verbal phrase.
"To submit", therefore, remains an insufficient
translation for the verbal group yatauaddarn ..
batarh. Professor Ayyad, after some protests, ends
this time by offering "move forward" as a
translation for the verb vata- but Uenies that
such an expression implies a protracted action,
basing his denial on the claim that "there is no
clue either in the text or in the situation to this connotation", pl14 Having come thus far it
cannot be denied that there is a difference on the
tirne axis between just "to submit" and "to move
f orward to submit" .
27. As for the "temporal connotation ... irnplyling] a
protracted span of time" (ibid), in the words of
Professor Ayyad, it is definitely there in the
crucial sentence. The sentence points to the
Bahraini Formula and the steps/procedures
cornensurate with it as the basis according to which
the two sides will jointly move forward to submit
the case to the ICJ, if, after May 15, 1990, they
decide to turn to it (see my first Opinion, pp. 264-
272).
28. The choice of the verbal group in "the two parties
may move fomard to submit the case to the ICJ"
instead of the simple verb "the two parties may
submit the case to the ICJ" heralds and harrnoniously
moulds in with the suggestion that further action
was envisaged before submission.
(iii) The absence of res~onse to certain key issues in mv
. .
Previous Oalnlon
29. Professor Ayyad, unlike Professor El Kosheri,
recognised the existence in my Opinion of "a
splendid graphie description of the sentence under
discussion" pp. 113-4. But instead of refuting thebasis upon which the schematic diagramwas built or
challenging the reasonin that led to its ultimate
conclusions, he evoided the whole issueby simply
accusing me of failing to put my own descrfption to
,,
use, (p114).
A simple review of rny Opinion would show that,
contrary to what Professor Ayyad has claimed,
extensive use had been made of that schematic
analysis ofthe crucial sentence al1 through the
Opinion (BahrainiCounter-Mernorial,Volume II,
pp.264-272). Significance,therefore,will have to
be attachedto the failure of both ProfessorsAyyaa
and El Kosheri to challenge thatanalysis or
seriouslyquery it. Indeed,they seemto have been
unable to produceany competinganalysis.
Professor Ayyad has never claimed, as Professor El
Kosheri did, that theferninine pronominal suffix
refers to the masculine . I or that a dual
inflectionmay be added to the verb yataaaddamwhich
-
precedes its dual subject, U tarafan. Yet his
silence on these issues and his denial of
assistance, being the language expert, to Professor
El Kosheri,in the latter'sdefence of an untenable
position, must surely suggest that he agrees with
Bahrain's experts on these elementary but crucial
points. Professor El Kosheri's insistence on
holding his positionon these issues in the face of overwhelrning evidence to the contrary cannot be
accepted.
MY comments addressthe following issues:
(i) . Misrepresentation of Bahrain's experts'
views, mine included.
(ii) Taking e liberty with grammatical rules and
alleging the significance of punctuation in
the Koran and Modern Arabic.
(iii) The "key word" in the crucial sentence.
(iv) The lack of response to certain key issues.
Treatment of these is as follows:
(i) xDerts' views
33. 1 noted with surprise that Professor El Kosheri
attributes to Bahrain's experts, includingmyself,
views which were never expressed by them. 1 wfsh
here to speak only for myself and so will give two
examples of the more serious rnisrepresentations of
my own views:ProfessorEl Koshericla'ims that thevariousexperts
now accept that it does not matter in English
whether al is translatedas "the parties"or
*
"thetwo parties" (p.82,para 5 and p.83, para BI.
He also claimsthat "it appears no longer disputed
that al tarafan in the Arabic language does not
imply per se eonjunctive action" (p.93,para 31 and
p.84, para 1l.B).
Al1 throughmy Opinion 1 made it absolutelyclear
that it is absolutely necessar yhen translatinga
dual noun into English that thw eord should be
used before the Englishplural (see,for example, my
example of the "two tanks" on p.275). The .only
xnstanee in which "two" would not necessarilybe
used beforethe Englishplural,when an Arabic dual
is translated into English, would be when the
context is indisputablyclear that only"two" are
intended (such as in a referenceto "my parents").
Nowhere inmy opinion did 1 give the slightest
suggestion that "itdoes not matter [sic)in English
whether 'al tarefan'Is translated as 'the parties'
or 'thetwo parties' ."
Sirnilarly1 have maintainedthroughout rny Opinion
thatwheneverthereis action attributable to a dual
noun the action applies, in the absence of any
qualification to thecontrary,jointlyand uniformly
to the two parties (eg.ibid, pp.268/9).36. What makes statements by Professor El Kosheri such
as those quoted above more disturbing is the fact
that he uses them as steppfng stones to reach some
of his unacceptable conclusions, viz. that the two
states are free to spply separately to the XCJ.
(iil esard for ~rnat$cal rules and tk
aiieoeasianiricanreti~unçtuati~n in the
Roran and Modern Arabiç
37. The use Professor El Xosheri makes of Arabic grammar
is rather innovative:
(a1 In his Supplernentary Opinion he calls for
adhering religiously to the rules of the
Arabic grammar because, as he puts it:
"Al1 rules of Arabic grammar were
established two centuries after the
revelation of the Koran, ... as the
main reference and ultimate test for
the correctness of a given linguistic
formulation in Arabic and to indicate
what should be understood by the
wording used in a certain document in
Arabic" (p.86).
(b) He furthernarrows his terms of reference to
the mode1 provided by the Xoran as, in his
words :
"the mode1 provided by the Koran
constitutes the ultimate criterion to determine' the true rneaning of a
particularlinguisticusage". (ibid)
(C) However, in praetice Professor El Kosheri
shows very little respect for the rules of
the very grammarto which he attachessa much
importance. fn this respect he notonly
keeps disregardingthe establishedrules of
grammar (eg. hi6 insisting, among other
things, on having the feminine pronominal
suffix hg referring to the masculine noun
in violationof the grammaticalrules of
the language of both the Koran and Modern
Arabic) but he also, with some originality,
rnakesup his own grammaticalrulesas he goes
a1ong..
The latest example of this type of grammatical
inventionrule is his claim that:
"The best antecedentrule does not apply asa
rule of grammatical construction in the
present context (le. the rule on which
Bahrainasconsultantsrely to show that the
phrase "proceedings arising therefrom"
relates to the Bahraini Formula), since the
said rule requiresfor its operation that the
severalantecedents are separatedby commas,
and in the Arabic original text of the Doha
Agreement there are no such commasM. (ibid,
p.96.)
Surprisingly, Professor El Xosheri cites as
authorityfor this so-calledrule an English text on
legal drafting in the English language. He
surprisesus further by trying to apply that rule of English not merely to the language of, Bay, Arabic
newspapers but to nothing les6 than the language of
the Koran itself. He says, "the rule applies a
priori with regard to the language of the Koran
where punctuation plays a vital role" (p.96, note
5)
40. The Koran was revealed to the Prophet Mohammed and
recorded in the Arabic writing system of his time.
The writing of the Koranic text has since passed
through various stages but not at any stage,
including the present time, have gommas. cuesta
"
~liarks. be-5- semi calons. =x'=lamatl~n
parks or any similar signs ever been used anywhere
in the Koran. To insert such punctation marks would
involve interference with the text.
41. As for Modern Arabic. "the use of punctuation is
attributed to Ahmed Zaki Pasha (1867-1934)", (states
Said A. Nagy on page 52 of his MA tbesis "The role
. .
gf mnctuation ln -", Arnerican
University in Caito, 1990) "who, in 1912 or 1913,
was the first one to introduce punctuation marks
into Arabic according to the syetem practised in
European languages". The results of the empirical
reoearch which Mr Nagy cerried out for his thesis
clearly show that the punctuation marks (including
commas), when they are used at 1 are often
haphazardly applied. The rule suggested by
Professor El Kosheri just does not exist. (iii) The kev word in the crucial sentence
42. Contradiction is noted in Professor El Kosheri's
choice, at two different times, of what he considers
as the key word in the crucial sentence.
43. In his Opinion submitted on 26 January 1992,
Professor El Kosheri norninated the word "AaIvha"
(his own spelling) as the most important one in the
sentence. On page 274 he says:
"However, for the correct understanding of
the entire text , the focus should be more
preclsely on the final word: 'Alayha' in
order to determine what should be construed
as being referred to in 'therefrom ... etc.'"
Professor El Kosheri moved from there to argue that
the referecce of the feminine pronominal suffix
in the "focus word "hlayh$"" is to the masculine
noun tarh ("submission") . If correct, such linkage
* 1
may then be used to suggest that gl'ilra'at- ("the
procedures/steps") in the crucial sentence are meant
to be those of the Court (as Qatar claims) and not
those resulting from adhering to the Bahraini
Formula.
When this attempt by Professor El Kosheri to refer
to a masculine noun as feminine was destroyed by the
Bahraini consultants (eg. my first Opinion, pp.266-
267 and 280-282) and the house of cards built upon that linkage crurnbled, Professor El Kosheri, in his
Supplementary Opinion dated 16 September 1992,
removed the word 'alavh; from centre stage in favour
of vauouz, a word receiving hardly any attention
from Professor El Kosheri in hi6 first Opinion, In
his Supplementary Opinion he wrote a section on the
word yasou itself. On page 91 he declared that:
."This emphasis could only mean that the word
yaeour was considered as the key word as
compared to the other words included in that
sentence".
46. Professor El Kosheri even accuses the Bahraini
consultants of ignoring the "koy word" -:
" ...' in spite of the fact that a substantial
part of the analysis in (his] first Op~nion
foeused thereon". (p.89)
47. X went through Prof essor El Kosheri 's f irst Opinion
several tirnes looking for this "substantial part" of
his analysis but 1 could only find two minor
references to yaaouz on pages 286 and 298. In
neither of the places was vaaouz described as a key
word or even assigned a key role.
48. On the other hand, Dr Hales in his Opinion (pp.295-
6), contrary to what Professor El Kasheri has
asserted, devoted more space to yaaouz than that
assignedto it by Professor El Koçheri. For myself,
1 included it into my sentence schemeon pp.264-5.49. c ut what I consider to be of great sfgnificance is
Professor El Kosheri' B effort to downgrade the role
of 'u in his Supplementary Opinion after having,
in his first Opinion, accorded it a decisive role
not only in the crucial sentence but the decisive
role "for the correct understanding of the entire
textm . (Professor El Kosheri's first Opinion,
p.274.)
(iv) The lack of remonse bv Professor El Koshefi
to certa$n kev iwes in mv O~inio~
At the heart of my Opinion was the conclusion that:
"Joint application indicated by the crucial
sentence is a function of several of its
cornponents balanced together in a state of
interdependence in spite of the fact that the
notion of "togetherness_" is inherently
associated with 1 t a in particular.
Any atternpt at alter'ing or misinterpreting
one component is bound to render the entire
sentence meaningless". p.272.
This conclusion was the function of a contextual
analysis of the semantic-grammatical components of
the crucial sentence as constituting a single unit
of meaning, which analysis was followed by
supporting linguistic reasoning stretching from page
264 to page 272,52. Professor El Kosheri never challenged this analysis
of the crucial sentence. In fact, he went along
with some of its conclusions. For example, be
changed, without saying why, his translation for the
verb group vatacraddamda ffrom just 'to
. a
submit"as he regulaxlyrendered it fnto Eaglish in
his Opinion (eg. pp.274, 277, 266) to %ove foward
to submit" in his Supplementar y pinion (eg. pp.94,
95).
53. The latter translationof the verb group is
important for the comprehensive analysis of the
crucial sentence in which the element of time
protraction is present. This suggests to me that
the parties acknowledged that there were further
steps to be taken by the parties after May 1991
before submission to the Court.
El Said Badawi
Professor
The American University in Cairo
Cairo c Annex 1.1
SupplementarOypinionbyDr.CliveHoles.
See textabove,note62to para.5.09andnotes68 and69 to para.5.14. Second Su~~lementarvOpinion
by Dr. C.D.Holes
Facultvof OrientalStudies & TrinitvHall
Universityof Cambridge
UnitedKingdam
1. On 7 August 1991 1 gave an opinionon the meaningof the Minutes of a
Meetingbetweenthe ForeignMinistersof the StatofBahrain,theStateofQatar and
the Kingdomof SaudiArabia,signed and dated8.6. 1411A.H.,correspondingto 25
December 1990, Thiswas attached asan annex toa letterfiotheForeignMinister
of Bahrainto the Registrarof theInternationalCouofJusticeof18 August 1991.
This firstopinionwas transmitteto the Govemment of the State of Qatarand
commented on by two expertsappointedby that Government,ProfessorsEl-Kosheri
and Ayyad in îhcir opinionscontainediAnnex III to the Memonai of tStateof
Qatarof 10 Febniary1992. in asupplernentaryopiniondated 12 May 2992, and
containedin Volume LI,Annex ilof Bahrain'sCounteMernorial,1set outmy views
on theircomments. In tm, the Qatariexpertsrepliedto this supplementopinion
in Volume II ofQatar's Reply,dated 28 Septernber 1992. The presentsecond
supplementaryopinion is areply ttheQata rxpertsreply of28 Septernber. In it,
1shallattemptto elucidateinassuccinctandnon-technicaa manneraspossible,the
linguisticpointatissue.
2. The cmx of thematteristhe interpretationofthemeanigfthesentencein the
Minuteswhich Statethat the 'twoparties',BahrainandQatar,may'subrthematter'
to theICJ intheevent oftheir not beingable to reaasatisfactorysolution.he
linguistidisputebetweentheBahrain ind Qatarexpertsrevolvesaroundwhetherthe
origind Arabicof the sentencewhichlicensesthe 'twopartito''submitthe matter'
to the ICJmcansthat eitherof them mayduso independentlyof the oîher (theQatari
view),or whether itmeans theymay only do sojointl(theBahrainiview).
(1) THE CORRECT INTERPRETATIOO NF THE DISPUTED SENTENCE
IN ITS CONTEXT
3. 1 tum first to the quesofowhetherconjunctiveor disjunctiveaction by 'the
twoparties'isenvisagedbytheMinutes.Therearetwomainpoints to be madehere: The distinction between Lconjunctive' (or 'joint')and Ldisjunctive'(or
(a)
5ndependent') action
4. Out ofcontext, somedual expressions,whether inArabicor anyotherlanguage,
can often supporta conjunctive ora disjunctive interpretation. The sentence 'Both
men went to London' avers only thatbath men went: wedo not know, in the absence
of a context, whether they went together ('conjunctively') or separately
('disjunctively'). Yeteven when a disjunctive use occuitis importantto remember
that thedual applies tm. 'Bothmen wentto London'cannotbe held to mean 'one
of the two men went to London'. To say 'one of thetwo men went to London' isnot
a disjunctive use of the dual: it is a sentence with a singular, not a dual subject.
Bhrain and its experts have always been consistent aboutthese aspects of the dual,
but theQatari expertsseemto think(Prof.El-Kosheri'sSupplementaryOpinion,para.
11B) that the onus is on the Bahraini side to 'prove' conjunctivity which PEl-.
Kosheri believes mustbe speciallyindicatedlinguistically. He appears to stretchthis
to the point where,unlessconjunctivity hasbeen proved(ibid.paras.32-51?the dual
can effectively mean oneorother ofthe pair of tokenswhichmake up the dual noun.
This is an unsupportable assertion.In practiceitistheconjunctiveinterpretationwhich
is the normal interpretationin legal Arabical-tara ftürtwo parties', asI made
clear inmy OriginalOpinion and its Appendices,and a1shallfurtherelucidate below.
(b) Contextual and other factors whichclarifythe meaning ofthe word.
5. The interpretation of the meaning of the dual expression depends on four
(sometimes overlapping)factors:
(1) Factorsoutside the text in whichthe word occurs.
(1.1) 'Knowledgeof the world'
6. The sentence 'The two princes Charles and Edward attended Cambridge
University' illustrates that itis perfectly possibdualrnoun and its verb to have
a disjunctive interpretation. Some ous may know that the two princes did NOT
attend at the same time, although thereis nothing about the grammof the English
sentence (or its Arabic translation)which indicates this, asnted out in my first *
opinion. Imagine now an English-speaking Martian visiting the earth 1992. He
would not know, unlesswe told him, thatthe eventdescribed in the 'royal princes'sentencewas disjunctive, ratherthan conjunctive. But whatthe sentenceWOWD tell
theEnglish-speakingMartian,without any shadowof adoubt,is thattheTWOofthem
attended theuniversity;the sentencecould never be interpretedby an EngIishspeaker
(or by an Arabic speaker reading an Arabic translatioof it) as rneaning that one
attended and theother didnot. Likewise,the sentence 'thetwo partiesaysubmit ...'
in the disputed sentence,whether we read it in English orArabic,can only mean that
it is thTWO parties, and not just the ONE, which 'may subrnt..'Thus, the two
parties are both necessarilyinvolved in the action.
(1.2) Logic
7. On grounds of logic, an action like 'agree' is necessarilv interpreted as
conjunctivein ANYcontextwhenpredicatedof 'two(ormore)parties', whereassome
other kinds of actions like 'attendCambridge Universitymav be conjunctive ina
given context but cannot be assurned tobe aIways necessarilv so. In the disputed
sentence in the Minutes of 25 December 1990, the 'two parties'areenvisaged as
subrnitting 'the matter' (in the singular, signifying thereionen'matter'),NOT
'the matters' in the plural. Giventhat the text specificallygrants permission to the
TWOdisputants (and NOT to 'eitherof the two') to submit a SINGLEtmatter' (not
more than one) of joint concern, it is difficuIt to see how the intention behind the
wording can be interpreteas having been fulfillif,in the event,just ONE of them
goes ahead and INDIVIDUALLYsubrnitsthis single'matter'without any reference
to the other. Thisis a point whichconcerns what is logically enmiled by the words
used inthe text.e now turn to what is normalin the text of ArabiclegaIdocuments.
(2) Textualfactors
(2.1) Consistentusagein differenttexts
8. Any individual example of a specialisedtext (legal, scientific, medical, etc.)
does not exist in a vacuum:it exhibitspatteoflinguistic usage whichare typical of
itsgenre,and which willbe found inother texts of the same typeA legal document
of a paticular kind, for example, is normally written in conformity with a set of
accepted linguisticsagesandassociated meanings which areparticulartothat typeof
document, and which have gainedgeneral acceptanceamong lawyers. The meaning
of the words of whichan individualdocument is composed, in other words,must be
interpreted in the same waas the same words inother documents ofthe same genre areinterpreted, unlessthere isany specialorcompellingevidencetothe contrary. One
ofthese linguistic conventions in thc Arabic of legal documents, as I attempted to
show by reference to two international bilateral agreementsin Appendix D to my
original opinion (whichwas submitted to theCourtsAttachrnent5 of the letterof the
Bahraini Minister of Foreign Affairs of 18 August 1991),is that, where independent
actionby one orather of two partiesisking licensed,the useotheordinarydud 'the
two parties' (as in asentencecontaining a verb like 'submit': (1.2)irnrnediately
above) isroutinely avoidedby using a phrase meaning 'either of the two parties';
othenvise, 'two parties' acting means exactly what it says - BOTH acting, not
unilaterallyand independently ofach other, but together. The wordingof the text of
theMinutes of the Meetingof 25 December1990must thereforebe interpretedin the
way that thesame wordingin other documentsof the same type would beinterpreted:
it licensethe TWOparties to(jointly)seek a solutionto theirproblem attheICJ. In
his first opinion,Prof.El-Kosheriqueriedonly one of the exarnpleswhichI had cited
from the bilateral agreementsin AppendixD to my opinion(see the Qatari Mernorial,
Vol. III,pp. 290fl). Jrefuted his argument in my second opinion(see the Bahraini
Counter-Mernorial,Vol. II, pp. 294-5). Prof. EI-Kosherihas not made any further
comment on this point in his SupplementaryOpinion.
9. On p. 111-2of Volume 11of the Qatari Reply,Prof. Ayyad attemptsto rebut
Prof. Badawi's, and my, grammatical analysis by showing (correctly) that the
straightforwarddual al-tarafün'the two parties'and the expressionkullillar-ajn'each
party' are often used interchangeably with no discerniblerfference in meaning in
certain sentencesin legal documentswhere the action predicatedofhem is 'pledge(s)
not to...Ergn, ProfessorAyyad argues,since kullu!arafin 'eachparty' can mean the
same as al-turufan'the twoparties', in certain circumstances, itis not necessaq for
the phrase 'ayyuitnziita1-~trraf 'aihnriof the two parties' (whichin Professor
Ayyad's view isidentical in meaning tokullutarafin) to be used in the disputed
sentence in order for a disjunctive interpretationto be sustainable. In short, he is
arguing that in many cases 'the two parties' equds 'each of the two parties'.In
sentences like 'thetwo partiesundertak...Ido not disagree. But he thengoeson to
imply that 'eitherofhe twoparties'equals 'eachparty'. Thisis selfcvidentlnotthe
case. The phrase 'uyyun nlina1-furajüyn('eitherof the two partiesDISTRIBUES
permissiontoactto EITHER ONEOFTHEPARTESWITHOUT REGARD TO THE
OTHER; but kitllpraJn ('eachparty')doesnot -it says that 'each'(or 'both')will
have permission,i.e.itdoesnotseparatelydistributepermission,but ratherCONJOINS
permission so that it relatosboth partieat once. The reason, in other words, whyin Prof. Ayyad's examples given atpp. 111-2of Volume IIof the Qatari Reply(and
the examples referred toin the text of the Reply itselfat Volume1,pa4.7.3,pp.75-
6) al-taraf 'theztwo parties' and kullu larufin 'eachiboth party(ies)' can be
interchangedis that bothexpressionsenvisageBOTH entitiesasacting,whereas'ayyun
min al-!arafayni' ('either of the two parties') specificdly indicates the possofility
one actingbut not the other. Prof. Ayyad'sexamplesare hence irrevelantto the issue:
to prove his point, what he would need to provide are exmples where al-tarafGn
('both parties' or 'the two partiesand 'ayyun mina 1-iarafayni'('either of the two
parties') are interchanged in thearne sentence without anychange in meaning. He
cannot of course do this,ecause they do NOT mean the same thing, in legal, or, for
thatmatter, any other typesof document.
(2.2) Consistent usageinside agiven text
10. Any text must be internally coherent if it to be meaningful. This is an
assumption which al1 readers bringto any kxt they read. One aspect of intemal
coherence is lexical: if, in a text, there are repeated referencesto 'John',to 'Arsenal
Football Club',or to King Fahad as the guardian of the 'the TwoHoly Places', the
reader assumes that it is the same 'John', thsame 'Arsenal', the same 'Two Holy
Places' which are beingreferred to oneach occasion theword or phrase is used, and
not some other 'John', some other 'Arsenal'or some other 'Two Holy Places'; and,
more specificaIlyin the last case, 'TwoHoly Places' alwaysrneans 'two'and not
'one' in some cases and'two'in others. As a rule, in other words,if the samelexical
item, or thesarnephrase is used repeatedly in the same text it is assumed to have the
same referent in the real worldIf the phrase 'thetwo parties' is used three times in
the same document, as it is in the Minutes o25 December, it must be assumed that
the referenceis to the same two entities in al1three cases, and means the same in al1
three cases.By the same token, if only 'oneparty' or'eithparty'was theintended
meaning in any of the threecases,then a different form of words would havebeen
used to signifythat.
11, The disputed sentencein the Minutesof theMeetingof 25 December 1990,has
a quite unambiguous meaning in context, because of the Arabic legal-linguistic
intertextual factors(2.1) and document-specific intratextual factors(2.2) 1 have
mentioned above. This meaning is that thetwopartiesare licensed by the wording to
approach the ICJ jointly to settle their dispute, and they are not licensed sdoto
individually.(II) OTHER POINTS ARISING OUT OF THE SUPPLEMENTARY
OPINIONS OF QATAR'S EXPERTS
12. The disputed sentence runs in Arabic:
'wuyaiüzz~babda ntiha'iI-fatrati1-madhkürati'anvatuaaddama1-ta,.af&ibi
jarhi 1-nloii~a'i'du m6kanlati 1-*adlid-dawliyBtibini3'nr'al=~-;Tghoti 1-
bahl-ay~zijutlilariqabiIathadawlatqu;ar...'
13. This canbe translatedidiomaticallyas follows:
'After the said period, the two parties may submit the matter to the ICJin
accordance with the BahrainiFormula, whichthe Stateof Qatarhasaccepted.'
14. However, because of certain pointsraised by Qatar'sexperts concerning the
verb yajüzrr("yagoitz"),it is imporrantto redise that thepermission containedin the
verb 'rnay'of the idiomatic Englishtranslationis carriedby an impersonal verbin the
Arabictext, and therefore a moreliterai (if dightly less elegant) translation is as
follows:
'Afterthe said period, it may be that two partiessubmit the matter to the
lCJ in accordance with the Bahraini Formula which the State of Qatar has
accepted.'
15. It is my view, spelt outat length inmy first supplementaryopinionof 12 May
1992, that the Qatari experts' grammaticalanalysisof this sentence in the Memorial
of 10February1992,and in particular of the underlinedexpressionsyaju'...'art'(it)
may be..that' andyataqoddan?~ 1-laraf bàinorlzi-ntowdiid'ithetwo parties submit
the matter' is cumpletely erroneous. SinceProfessor El-Kosheri mereIy repeats the
same grammaticalerrors in his opinion of 28 Septemkr as he made in his previous
opinion, perhaps 1 may be perrnitted to oncemore restate some basic facts about
Modern Standard Arabic grammar and correct some of Professor El-Kosheri's
inaccuracies:
16. (i) (Prof.El-Kosheri'para.30)Syntacticaliyspeaking,theimpersonalverbal
expression which beginsthe sentence yojEru..att'(it)rnaybe ..that' govems the
whole of the resofthe sentence:thatisit has theeffect of puttingWHOLE,NOTPART of the subsequent proposition,'the two parties subrnitthe ma...into the
realm of'whatmay be/ what is peimissible'(or, to adopt ProfessorAyyad'spreferred
and felicitous formula, 'whatislicensed'). Grammaticyajüzu...an inthissentence
cannot arbitrarilybe said to have theeffect of 'licensing'just one side to 'subrnit the
matter,..' independentlyof the other, in violation of the normal niles of grarnmar:it
licenses just that, and onlythat, whichin the subordinate clausewhich follows it,
viz,that 'thetwo parties'may 'subrnitthe matter...'.If the subordinateclause were to
have themeaningwhich Prof.El-Kosheriwouldliketo atû-ibuteto it,thenthe formula
'ayyunmina1-prafayni 'eitherof the twoparties', cornrnonlyused thismeaning
in legal documents, as1 exemplified in the Appendix to my original opinion of 7
August 1991,would havebeenused in the subordinateclause afteyajüzu...'an, rather
than al-tai.af&i 'the two parties'.
17. (ii) Prof. El-Kosheri,in his fist opinion,and again in that of 28 September
(para.38.ff)makes great playof the fact that the verb whichis predicatedof 'thetwo
parties'in thedisputed sentenceisin the singular,simplying",he says,"thateither
Bahrain or Qatar maymove fonvard to submitits cIairnsto the Court". He then goes
un to further claim (para.40)that,inorderfor aconjunctiveinterpretationof the action
of the two partiesto be entertained,a verbal phrasedifferentyajiîz..an would
have had to be used to begin the sentence. By simply repeating these fallacious
linguistic claimsoftenenough,Prof,l-Kosheriseernstothingfiecanrnakethemseem
more credible. Letus bringsome grammatical&& to bear on the issue:
18. Firstly, singularnumber in the verbyataqaddanzain the phrase yaiaqaddanza
bi tarti I-mawdEfi 'subrnit the matter' in the disputed sentence is required by a
grammatical rule of al1written Arabic,viz. that a verb whichprecedes its subject,as
it duesin this sentenceMUSTbe in the singulaWGARDLESS OF WHETHER
THATSUBJECT BE SINGULAR,DUALOR PLURAL. Where, therefore, the
subject is dual, as here, the use of a singular vhas no bearing whatsoever on
whether conjunctive or disjunctiveaction by the entities which makup this dual
subject is envisaged: singularnumberisprammaticallvoblinatorvin the sentencetype
of whichthe disputed sentenceis an example. In fact, as the first half of this present
opinion hasagain made clear, there is every reason, linguandilogical, to believe
that the intendeand only correct interpretationof the action in the disputedsentence
is conjunctive-but THIS IN NO WAY DEPENDSUPON THE GRAMMATICAL
NUMBEROF THEVERB PREDICATED OFTHE DUAL SUBJECT 'THETWO
PARTES'.19. Secondly, it is quite incorrect to submit that for conjunctive actionbe
envisaged, the phraseyakUnu'ala(= Prof.El Kosheri'yakoun Ala) wouldhave to be
used. Far from entailing a conjunctiveinterpretationof the verb 'submit', thechange
toyakiïnir'alawould merely alter the senseof the sentence (as ProfessorEl-Kosheri
concedes) to'the two parties have to subm...'But this unnecessarychange would
again makeno differencewhatever to whetherconjunctiveor independentactionwas
being envisaged. Contrary to Prof. El-Kosheri'sclaim, the reason for his (correct)
observation that the verb 'submitthe subordinateclause afterkiini'al0'haveto'
would be in the dual is purely grammatical: in the different grammatical structure
whichwouldresult fromthechangeto yakünu %la,the Arabic verbfor 'submit'would
come AFTERits subject 'the two parties', andwouldtherefore agreewititin (dual)
number. The reason for this is that verbs which come BEFOREtheir subjects DO
NOTagreewith themin number,butverbswhichcomeAFTERthemDO. Again,the
grammatically compulsoryuse of a dual verb form in the subordinate clause after
yakü~~' ah would no more imply that conjunctiveactiowas predicated of 'thtwo
parties', thanthe grammatically compulsoryuse of a singular verbform in the yajüzil
structure irnplies independent action: thesingularfdualnumber of the verb is simply
irrelevant to the interpretation in eilher case.canesurmise,however, why it is
convenient for Prof. El-Kosheri's argumentto suggest thatyakünu'alu 'must' is
necessary fora conjunctiveinterpretationof the verb 'submit':to a non-Arabist, there
is a superficialplausibility in the simple equation dual verb = conjunctive action,
singularverb = individual action. But this deduction, which the reader is possibly
encouraged to make, istotally false.
20. (iii) Prof. El-Koshen's further contention (par40) that the word
nzaban 'together' would have to be added for conjunctivity to be indicated is also
wrong; if it were added, it would add the extra element of 'simultaneity'. This is
superfluous-ifalthatis intended imere conjunctivityin the sense of BOTHparties
submitting the case to theIC(asis indicatedby the wordingof the agreed 'Bahraini
Formula' ('thetwo sides request the ICJ ...')).
21. (iv) 1 would like to comment once again on Prof. El-Kosheri's
interpretationofthe phraswa 1-ijra I'mütrarattiba'ilayhü'andtheprocedures (or
UN translation 'arrangements')arising therefrom'hislatest opinion (par41):
22. Inrny supplernentaryopinionof12 May 1992,Icommentedthat,grammatically
speaking,theonIypossibleArabicnounwhichthe'procedures' couldbe 'arisingfrom'was 'the Bahraini Formula'. This is because inArabic sentence structurea suffixed
pronoun (here the feminine singula-ha in the word 'olayh2)is construedas refening
to the nearestantecedentnounwhich agreeswithit in numberand gender and to which
it could by the normal standardsof logic bereferring. Here, the nearestgrammatically
feminine singular antecedentwhichfulfils these criteriaas-s@ha l-ba~ra~~nïj'the
Bahraini Formula'. Nonetheless,in his latest opinion,at para.41 (QatariReply,Vol.
II, pp. 96-7),Prof. El-Kosheri goes to alrnost any Iength to avoid accepting the
Iinguistically correct andomrnon-senseinterpretation. He gives four reasons for
rejecting the Bahraini side's constmal of this sentence:
23. -His first reason is that -ha'(fernininepronoun) cannot be referring;%lia
'forrnuIa'(femininenoun)becausethereareno 'zjra'at'procedures/arrangernents/steps'
envisaged in that Formula. Thisis an argument based on logic (although T do not
accept his reasoning), ratheran ongrammar. Yet if the Formula was intendedasjust
one Article in a draft Special Agreement,wouldnot further steps need to be taken in
order forthe other Articlestobe finaliseci?
24. -Asfor his second reasonfor rejection, whichis based ona "rule"thatrequires
that al1the antecedentsbe separatedby commasin order for the nearestantecedentto
bereferred to by -ha,herewe are in a worlof Prof.EI-Kosheri'sowninvention:there
isno rule of Arabic punctuation whichhas thiseffect, theabsenceof commasin the
sentence has ni1significance.Even Prof. El-Kosheri adrnits inhisfootnote 5, p. 96
that the sourcehe is quotingto support hisclaimisconcerned withEnglish,not Arabic
legal drafting. The furtherdaim in the footnote, designed to bohis argument, that
"punctuation plays a vitalrole" in the Korissheerfantasy -thereis NOpunctuation
in the text of the Koran!1am mystified athow someonewho claimsto beversed in
the "Arabo-Islamic"tradition,andappealsto itfor support, coulmake such a baseless
claim. For the record, the Koranis divided intsuras ('chapters')which are divided
into '@a ?'verses'). Althoughsome verses are long-mnning to ten or morelines of
Arabic text-there are nocommas,full-stops,semi-colons, question-marksoranyother
punctuatjon marks of any kindwhatever whichbreak upthe text of a verse. The only
written marks other than the words themselves are signs which mark the places for
obligatory and optional pauses in oral recitation, but these are unique to the Koran,
appearing in no otherwrittendocument,and by no stretchof theimaginationcan these
be called "punctuation"if these are what Prof. EI-Kosheisrefemng to. Perhaps he
has been misled by the punctuation conventions adoptedin translationsof the Koraq
into other languages, in which the longer verses are broken uwhen translated intofive,sixor moresentences,eachwith commas,questionmarks,and otherpunctuation.
But these punctuation marksdo not appearin the Arabicof the sacrtextitself.
25. - His thirdreason ibid., p97, also involves invoking the Koran or, to be
precise,amedievalwork in which,he States"ample reference ismade to passagesof
theKoranitselfwhere suffixesexpressed inthe femininegenderareusedin reference
towordsof the masculine genderand viceversa." Nevertbeless,ProfessorEl-Kosheri
doesnot citeany instancein supporofhis view. Evenassurningthatwe were togive
him the benefit of the doubt, and accept that such instances"couldperfectly refer"
(notethe lessthanunequivocalassertion)toa masculinenounin thedisputed sentence
of the Minutes of25 December 1990, this wouldbe rather like appealingtosome
arcane usagein the Englishgrammar ofShakespeare,or theKing James'stranslation
of the Bible, inrder to explainthe meaningof a perfectly normal sentence in an
agreementbetweentwoEnglish-speakinggovernments concludedin the presentday.
The Minutesof 25 December 1990 werewrittenby Arabswritingin the latetwentieth
century, to be read by other Arabsliving in the same era. There is no reasto
believethat whoeverdraftedthemdid so accordingtoanythi nher thantheniles of
Arabic as it is written in the 20thcentany,more than there is to believethat the
drafterintendedhis readersto disregathos rulesin favourofrare instancesonon-
concordant grammaticalstructureswhich occurin sacred scripturewritten down 14
centuries ago.
26. - Prof. El-Kosheri'sfourthreasoforrejectionis afdl-backposition:if, after
all, -hais notreferringto a masculinenoun,thenperhapsit cobedreferringtoeither
of two other femininenouns in thevicinity.Apartfrom the ungrarnmaticalityof
having -harefertoanythingotherthanitsnearestacceptablefeminineantecedent%lia
'formula',the logicofhaving'proceduresor 'steps''aise' fromotherfemininenouns
suchas a 'court(rnahkam) or fromthevery'procedures'themseIves('ijr.Z'Zt)(which
would then make the phrase alsomean 'the procedures arising from themselves?,
escapes me. I also notethat he has systematically disregaDr. Badawi'sanalysis
of this phrase, which refuted his asserton this point in hisFist Opinion (see
Bahraini Counter-MernorialVol.II,pp. 266-7).
Dr. C.D. Holes
Universityof Cambridge
Rejoinder of the Government of the State of Bahrain