INTERNATIONALCOURTOFJUSTICE
CASECONCERNING MARITIMEDELIMITATION
AND TERRITORIALQUESTIONS
BETWEEN
QATARAND BAHRAIN
(QATAR vBAHRAIN)
COUNTER-MEMORIAL
SUBMITTEDBY
THE STATEOF BAHRAIN
(QUESTIONSOFJURISDICTIONANDADMISSIBILITY)
VOLUMEI
11Jun1992 TABLEOF CONTENTS
PART ONE
Page
CHAPTER1 INTRODUCTION ............................... 1 ....
SECTION 1.Summaryof Bahrain'sposition on jurisd............ 1
SECTION 2.The scherneof this Counter-Mer.................. 9
SECTION 3.Thequestion of admissibility................... 11
CHAPTERII THEHISTORICAL PERSPECTIVE CORRECTED .... 12
SECTION1 .The emergenceofthe tatof Qata.................. 12
SECTION 2.Thequestion of Zubara.......................... 15
PARTTWO
THE QUESTION OF JURISDICTION
THE PKINCIF'AL ISSUES RAISED RY THE
CHAPTERIII QATARI MEMORIAL .......................... 18
................
CHAPTERIV ONJURISDICTIONGENERALLY 21
SECTION 1.Consent as an essentialrequirementfor ju........on21
SECTION 2.Thedistinctionbetween"jurisdiction" and"seisin"
cannot affect the need to establishconsentto both 22
SECTION 3.The burden of pxoofand the need for "preponderantforce
of argument"............................. ..... 23
CHAPTER V THE 1987AGREEMENT ........................ 28
SECTION 1.TheBackground ................................ 28
SECTION 2. The Languageof the 1987Agreemen................. 30 SECTION 3 .The subsequentconduct of the Parties. 1987-90........ 37
A . The Bahraini and Qatari propasals. 19........... 37
B . First TripartiteCornmitteeMeeting. January 19..... 39
C . The Qataridraft agreement. 15Marçh 1988 ......... 40
D . The Bahrainidraft agreement.March 1988 .......... 41
E . Second Tripartite CornmitteeMeeting. April1988.... 41
F . Third Tripartite CornmitteeMeeting. Aptil 1988.... 42
G . Qatari Letter of 7 May 1988................... 42
H . Fourth Tripartite Cornmittee Meeting.June 1988.... 43
1. Qatari letter of 9 July. 1.................... 44
J. The Bahraini Formula. October1988 .............. 44
K . Fifth Tripartite Committee Meeting. November
1988 ..................................,. 45
1, SixthTripartiteCornmitteeMeeting. December
1988 .................................... 46
SlECTTON 4.The difficulty of concluding an agreementpursuant to
the 1987 Agreement ............................. 47
SECTION5 .Summaryand Conclusionof this Chapter .............. 49
CAAPTER VI THE 1990MINUTES ........................... 51
SECTION 1 .The Meaning ofthe 1990Minutes ................... 53
A . The relevant languageis Arabic................. 53
1. The meaning of al-taraf ü................ 54
(a) The use ofal-tarafain earlier texts..... 55
(i) Use in the Qatari and Bahraini draft
joint submissionsof 1988.......... 55 (ii) Use in the Bahraini Formula
1988 ........................ 57
(b) The translation of al-brtrfan as "the
two Parties" ....................... 58
(i) Elsewherein the Qatariversion of
the 1990Minutes ................ 58
(ii) In the transIationptepared by the
United Nations ................. 59
(iii)The opinions of the experts......... 60
B. Consistencyof the Bahaini interpretatiowith the
rest of the 1990Minutes ...................... 62
1. The significanceof reaffirrning "whawas
agreedpreviously" ....................... 62
2, The significanceof the use of the singuiar
number in the expression "thematter" or
"the case" as thebject of the verb
"submit". ............................. 64
3, The significanceof the words"and the
procedures arising therefrom"............... 65
C. The travau pxépumtoiresleading to the adoption
of the 1990Minutes supportthe Bahraini
interpretation.............................. 68
D. Incompatibilityof the Qatari approachwith the
idea of a single,fully dispositive,case........... 76
E. The fafiureof Qatar to insist on clear language
authorisinga unilateral application.............. 79
F. The general contextof the1990 Minutes ........... 82
SECTION 2. The 1990Minutes are not a bindiiigagreement .......... 84
A. The 1990 Minutes areno more than a diplomatic
document ................................. 85
B. The 1990Minutes were not regarded by the
Parties as constituting an international
agreement ................................. 89 C. Irrelevance of registration by the
United Nations ............................. 91
Il. Even if thetexof the 1990Minutes were to
be construed a treatythe requirements
necessary for its effective operationas a
treaty were not satisfied: the constitutional
point .................................... 92 <.,
1. The irrelevanceof the concept of an
agreementin simplifiedform ............... 93
2. The misapplicatioby Qatar of Article 46
of the Vienna Conventio.................. 96
3. The irrelevanceof the Egyptianpreceden...... 97
CHAPTERVII THERELATIONSHlPHETWEEN THE
AGREEMENTOF 1987AND THE 1990 MINUTES .... 99
SECTION1. The matters remaining outstanding after the
Agreementof 1987 .............................. 101
A. The formulationof "the Questio................ 101
B. Article V of Bahrain'sdraft: the obligation of
non-disclosureof the proposals for settlement
prior to the Speciat Agreem.................. 102
C. Entry into force and the method of "se......... 102
SECTION 2. The degree oresolution of these outstanding
matters achieved at Dohin December 1990 ........... 104
PAHT THKKE
CLOSINGCONSIDERATIONS
CHAPTER VIII DISADVANTAGES FOR BAHRAI ONF BEING
MADE I)EPKNUANrT ........................... 107
SECTION1. Evasion of Bahrain's constitutionalrequirem......... 107
'
SECTION 2. Disregard of Bahrain's wish tosecure the protection of a non-
disclosure undertaking (the "ArticleV" po........... 108 SECTION3. Considerationof the question of Zubarah is forec..... 108
SECTION 4.Bahrain is disadvantagedby being made Defend....... 113
SECTION5. Conclusion .................................... 113
CHAPTER IX CONCLUDING POINTS ......................... 115
CIHAPTEH X FORMAL SUBMISSION ......................... 118
LISTOFDOCUMENTARY ANNEXES ............................. 119
LIST OF ILLUSTRATIVEMAPS ................................. 126
ABBREVIATIONS ............................................. 127
NOTEREGARDINGTRANSLITERATION OF ARABICMATERIAL
The systemof transliterationfollowed in Volume1 of this Counter-Mernorialis that set out
atpage 7of the ConciEncyclopediofIslam,publishedby StaceyInternational,1989,save
for names which are in common use and quotationsfrom experts' reports andthe Qatari
Mernorial.
NOTE REGARDING TRANSLATIONS
lnthis Counter-Mernorial,Bahrainhasused, whereverpossible,translationswhicharealready
before the Court. Nevertheless, Bahrainnotwish to limit its right to raise questions
relating torticularpoints of translationshouldit at any stage becomenecessary to do so.
NOTE REGARDZNG ANNEXES
Material in support of statements made in this Counter-Mernorialwill be found in the
Annexes hereto. Materialthat:is alreadyin the Annexesto the Qatari Mernorialis generaiiy
notduplicatedunlessit is materialemanating frorn Bahrain,materialof which the translation
may be controversialmaterialtowhich the temakes frequentreference.CASE CONCERNINGMARITIMEDELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN
QATAR ANI) BAHRAIN
(QATAR v.BAHRAIN)
QUESTIONSOFJURISDICTIONANDADMTSSTHILITY
COUNTER-MEMORIAL OF BAHRAlN
PART ONE
CHAPTER 1
INTRODUCTION
1.1 This Counter-Mernorialof Bahrain is filed pursuant to the Order of
the Court of1 October 1991. It responds to the Mernorialof Qatar on
questions of jurisdictionrnissib.lity
SECTION 1. Summan,of Balmain'spositonniurisdiction
1.2 The present proceedings arise from a dispute between Qatar and
Bahrain about the maritimearythatdividestheir respective territories
in theGulf,includingquestionsconcerningthe baselinesof theParties; about
the claimf Qatatothe HawarIslands, which have for long been in the
possessionf Bahrainand haveneverbeen in the possessionof Qatar; about
Zubacah, on the west coast of the Qatar peninsula opposite Bahrain; and
about the status of the FashtandQit'atJaradah featuaswell as
fishing areas and banks.1.3 At various times in thepast, efforts have been made to resolve these
questions, In 1939,after seekingthe views of theParties, Britainconfirmed
Bahrain's sovereigntyover theHawarIslands (althoughthiswas notaccepted
by Qatar).' In 1947, Britain attempted to impose a seabed boundary
between the two States, and reconfirrned at the same time Bahrain's
sovereignty over the HawarIslands (except for the islandof Janan) and its
ownership of the features of Qit'at Jaradah and Fasht ad ~ibal.~ Bahrain
rejected the purported boundary (which would have deprived Bahrain of
substantial areas of seabed) andconfirmedits claim toJanan as pi of the
Hawar ~slands.~ Qatar would appear to have acceptedthe purported seabed
boundary, but stated that it had reservedits rights to the Hawar Islands, and
expressed the hope that Britain would reconsider this matter and the
ownership of Fasht ad DibaL4The position of Zubarah was dealt with in
two agreementsbetween Bahrainand Qatarin 1944and 1950, the contents
of which have been disregardedby Qatar.'
1,4 In 1978 therebegan whathassincebeencalled the MediationProcess.
Saudi Arabia offered to act as Mediator betwcen the two countries."
Duringthis process, the discussionswereinitiallyconductedonthe basisthat
if the dispute could not be settled by agreement it would be submitted to
arbitration. In more recent years the general allusion to arbitrationhas been
replaced by specific references to settlement by the International Court of
'QatariMemurialA , nncx1.38,Vol, II, p.226 andAnnex1.40Vol. TTp,235.
lbid., Annex1.53,Vol. II,p.311.
Annex111.24,Vol. III,p.117.
4QalariMernorial,Annex1.55,Vol. II,p.323.
'See below,para.2.10.
6An importantingredientin theprocewas the acceptancbybothpartiesoftheFive
Principles. hese were originallypropsed by Saudi Arabiain 1978. In 1981 Qatar
suggestedan amendment tutheFifthPnnciple,which was acceptedby Bahrain in1983.
Qatar'stranslatiooftheFivePrinciples{asamcndcd) is setout Annex 1.1,Vol.IIp.1.Justice. This stageof the discussionshasalwaysbeenconductedon the basis
that any such reference would be by way of a joint submission (an
expression which, when used in this Counter-Memorial, means a joint
submission in the form of a special agreement betweenboth Partiesjointly
to submit their differencesto the Court,as opposedto proceedingby way of
unilateral application).
1.5 No substantiveprogress was madein the MediationProcess between
1978 and 1986. In the latter year the Parties submitted to Saudi Arabia
detailed memorandasetting out their respectivepositions. Yet eventhis did
not lead to any substantive advance and, from the end of 1987 onwards,
discussion centred almostexclusively on the terrnsof thejoint agreementby
which the case was to be brought beforethe Court.
1.6 So it was in December 1987 that the Kingof SaudiArabiaproposed,
and Bahrain and Qatar accepted, thatthe dispute should be referred to the
International Courtof Justice and that a TripartiteCornmittee,consisting of
representativesof the Meàiator and of the two Parties, shouldmeet to settle
the appropriate te~t.~This agreement, though evidently contemplating the
eventual submissionof thedisputeto theCourt,wasclearlyconditionalupon
the successful negotiation of a special agreement which would state the
agreed questions to be put to the Court and would settle a number of
associated matters of procedure.
Noteon tenninology. Twotcxtsarcmuchdiscusscdinthc Qatari Mcmorialas wcll
as in the presentCounkr-Menioriai.The Cintheseidescrihedin the QatariMemorial
as "the1987Agreement". (SeeQata Mrernorial,par1.2.The texof theofficiUnited
Nations translationis setoutinx1.2,Vol.II,p.5).Bahraindocsnot findit nccessary
lo questionthis descriptionîhoughit differs significantlyIyomQIhersubstantive
contentthat it attributestuthetext. Bahrainwill therefureadheretu this description.
The secondof îhe documentsis Ihetext of the Minutesadopledon 25 December1990
(Amex 1.19,Vol.II,p.115). The QatariMemorialreferstotass"theDohaAgreement".
Aswillbe seen,Bahriin Qes not acceptthattheseMinutescunstitanagreementin the
legal sense of the wordand will no4 therefore,rhemrtas an "agreement"butonly
as "the1990 Minutes".1.7 In the course of 1988negotiationsto this end were activelypursued,
with each side presenting its own draft of a possible joint submission,No
mention was ever made of the possibility of either side unilaterally starting
proceedings againstthe other.Sucha step wouldhavebeenconsideredquite
incompatible with the Mediation Process as well as with the way in which
disputes areresolved betweenmembers of the Gulf Cooperation Council.It
may berecalled that the only other boundarydisputein the arealitigated in
this period was the Dubai/Sharjahdispute whichhad beenjointly submitted
to arbitration in1978. This was a prececlentof which al1concerned were
fully aware and which by means of the procedure of joint submission
avoided one party being plaintiff and the other being defendant.
1.8 At the Gulf Cooperation Council meetings held in late December
1988, it was agreed that the Mediator should attempt to find a solution
between the Parties by negotiation andamicable settlement. tnitially a six
month period was agreed for this, but in fact the process extended over the
next two years, during which time there were a number of meetings
involving the Mediator.
1.9 In December 1990,in the midstof the tension arising from the Iraqi
invasion of Kuwait and at the very beginningof the Summit Meetingof the
Gulf CooperationCouncilwhich,on that occasion,was beingheld in Dohah,
the capital of Qatar, Qatar raised without any warning whatsoever the
questionof thereferenceofthe disputeto the Court.Qatar beganby insisting
thatthe period forthe continuanceof the Saudi Arabianefforts toachieve an
amicable solution shouldterminate soon afterthe end of the next Ramadan
and that after May 1991the Parties should be free to take the matter to the
Court.
1.10 Evidently Qatarwished at that time to securefor each party the right
unilaterally to apply to the Court. During the drscussions a first draft ofpossible minute^,^yped on the notepaper of the Saudi ArabianMinistry of
Foreign Affairs,used the wordsW JS ,kullutzminhunzü",eachof them"
in introducing the right of the Parties to start proceedings. These words
seemed to Bahrain tobe opentothe interpretationthat eitherpartymigfile
a unilateral application, notwithstanthegfact that they recorded Qatar's
acceptance of theformula proposed by Bahrain in 1988 for the expression
of the question. Thisformula,as wilbeseen,spoke of a requesby theIWO
Parties and used languagewhichclearly contemplatedthat there wouldbea
single case, submittedby speciaiagreement,within the frameworkof which
each side woutd beabletopresent itsclaims.Accordingly,these words were
promptly and fimilyrejected by Bahrain.
1.I1 A seconddraftwas thenpresented bythe OmaniMinisterfor Foreign
~ffiairs~.The draft "Minutes" in his handwriting, whilst again referring to
Qatari acceptanceof the BahrainiFormula,also statedthat if the dispute had
not been solved byMay 1991, @& 1;r gi , uyyunmin al-rarafayn,
"eitherof the two Parties"might submitthe caseto the Court.Thisdraft was
also rejectedby Bahrain and the final version, asigned by the Foreign
Ministers of Saudi Arabia, Bahrain and Qatar,contained no such words as
"either"or "each"of thPartiesbut sirnplrefmd to"thetwoParties".The
language of the Minutes was, of course, Arabic and the words finaily used
to refer to "the two Parties" wer&i-AiI , al-taraf dwn,rds that had
been used by Qatar as well as Bahrain severaltimes before in the dandts
in the negotiations to refer to the two Parties together makinga joint
submission to theCourt.
1.12 Nothing having happened during the stated period ending in May
1991,Qatar unilaterallycomrnencedthe present proceedingsby Application
on 8July 1991withouthavinggivenBahrainanyadvancenotice whatsoever.
Paragraph 40 of the Applicationinvokedas the basis of the Court'salleged
Annex1.26,Vol. Iatp.183.
Ibidatp.187.cornpulsoryjurisdiction the 1987Agreement andthe 1990Minutes, which
were both describedas "internationalagreements".In theEnglish translation
of the 1990 Minutes presented with the Application, Qatar translated the
words ai-taraf asnused in the second operativeparagraph (though not as
used in thefirst and thirdparagraphswhere the same expression appeared), .,,,
as "the Parties". The evident intention was that these words shouldbe read
as supporting the idea that either party might apply unilaterally.
1,13 Bahrain entirely rejects this attempt by Qatar to change by itself the
whole basis upon whichthe Parties had previously been working towards a
reference to the Court, Bahraindoes not do this because it is unwillingthat
the dispute should come before the Court, but only because its willingness
to come to the Courtis conditionedupon all pertinent issue bseing brought
to the Court at the same time, by a joint submission by the Parties, in the
samecase and in a manner that does not place Bahrain in the position of
disadvantage that,in the circumstancesof thiscase, arises from the fact that
the initiativehasbeen taken by Qatar.As can be seen, the issue of Zubarah,
which to Bahrain is real and important, forms no part of the case as
presentedby Qatar.in addition,Qatarcasts doubtupon whethercertain other
issues are accepted by Qatar as admissable. Moreover, by starting
proceedings unilaterally Qatarhas entirely by-passed an importantquestion
relating to the admissibilityof certain evidenceupon whichthe Parties were
at thetimeof the applicationstill not agreed. Further, Qatar's actionseeks
to put Bahrain inthe position of having becomea party to a treaty without
satisfying its own constitutional requirements, Bahrain rernains willing to
corne before the Court butonly on the basis of a joint submission in terrns
acceptable to Bahrain. Bahrain's oppositionto the manner in whichQatar
has behaved shouid not be read asreflectingany negative attitude towards
the Court,
1+14 The reasons why, in the submissionof Bahrain, the Court does not
possess jurisdiction to proceed with the Qatari Application include the
following :1. The Qatari Applicationinvolvesreading the 1987 Agreementand the
1990Minutestogether.The 1987 Agreementdoes not, by itself, give
the Court jurisdiction unless completed by a joint submission.The
1990 Minutes (even assuming them to constitute a binding
international agreement,which Bahrain denies) do not change this
situation orentitle Qatar to commence proceedings by unilateral
application.
First, the 1990Minutesdo not amountto a legallybindingagreement.
As appears from the statement of the Bahraini Minister for Foreign
Affairs," he did not intend to enter into a treaty on behalf of
Bahrain and would have been constrained from so doing by the
Bahraini Constitution. The ForeignMinister of Bahrain would not
constitutionally havead authorityby himself to sign a treaty taking
immediateeffect to give theInternational Courtof Justicejurisdiction
in a case conceming the temtory of Bahrain. He was aware of that
limitation at theime and, accordingly,had no intention to bind his
country in thatway.ll Qatar was equally aware that any agreement
giving the Court jurisdiction wouldrequire approvai in Bahrain. Nor
did Qatarregard the Minutes as constituting a treaty; its Government
did not take the steps required by its own Constitution to bring a
treaty into being. Moreover,despitethe requirementsof Article 17of
the Pact of the Arab League,Qatardid not file the "agreement" with
the SecretaryGeneral of the Arab League. That was the position
before the Applicationwas filed and remains the positionnow, The
attributiony Qatar ofthe qualityof a treaty tothe 1990Mïnuteswas
evidently an afterthoughtgenerated for the purpose of simulating a
jurisdictional basis for Qatar's unilateral application to the Court.
Even the registratian withthe UnitedNationsof this so-called "treaty
or international agreement"was not cmied out until a baretwelve
1Amex 1.25Vol. II,p.157.
'"Ibid., pa13,atp.164. days before the Application was filed on 8 July 1991 - a course
hardly consistent with a belief ab initic;,that the 1990 Minutes
amounted to a treaty. The correct view of the Minutes is that they
werepart of an ongoing politicalprocess and didno more thanrecord
the stage which the negotiationshad reached at the moment of their
adoption.
3. But even if the 1990 Minutes could be regarded as a treaty, their
words do not support the interpretationthat Qatar seeksto put upon
them. The relevant words are the Arabic words al-tarafan in the
secondsentenceofthe second operativeparagraph. Thoughtranslateci
in the English text presented by Qatar as "the Parties", their correct
rneaning is "the two Parties", in the conjunctive sense of the two
Parties together orjointly.
4. There are manyfully persuasiveconsiderationsthat support thisview
of thematter, including the following:
6) Evenbefore1987 and certainly during the period of active
negotiations in 1988, both Parties had acted on the basis that
proceedings would be startedonly by ajoint submission;
(ii) Draftsofthejoint agreement,emanatingfrom Qatar as well
as from Bahrain, used these same words al-turufan to describe the
Parties to a joint submission;
(iii) Qatar claims in paragraph 40 of its Application to have
accepted the Bahraini F~rrnula.'~However, this formula also used
the wordsal-tarut foànxpresstheidea that thePartiesjointly submit
the question to the Court;
lAnnex 1.14Vol. IIp.89. (iv) As a matter of the Arabic language generally, al-tarafdn
must in this context be translated as "the two Parties", i.e. in the
conjunctive selise. There is strong expert evidence to this effect.'"
Moreover, the officia1translation serviceof the United Nations has,
in connectionwith the Qatari atternptto register the 1987Agreement
>,,
and the 1990Minutesunder Article 102of the Charter,translatedal-
tarajanas "the two parties";14
(VI The travaux pi-iparutuires of the 1990 Minutes, as is
apparentfrom the narrativeportionofthis Counter-Memorial,entirely
support the Bahrainiinterpretation of the text. Moreover, these
Minutesdisclose no evidencethat the Parties agreedto abandontheir
earlier agreement to proceedto the Court by a joint submission;
(vi) Paragraph 1ofthe 1990Minutesreaffirms"what was agreed
previo~sl~".'~ The ideâ of a joint submission was one of the
principal points thus agreed. The preparation of the necessary
agreement was the main subjectof negotiation at al1material times.
SECTION 2. The scheme of this Counter-Memorial
1.15 The development of Bahrain'sarguments in this Counter-Mernorial
will be presentedin three Parts comprising nine Chapters.
-
l3See the OpillionsoîProfessorAhoulniagd,AnncxII.1, Vol. II, at pp.211-215;of Mr.
Amkhan,Amiex 11.2,Vol. Iat pp.251-252;ofProIessorBadawi,Anncx 11.3Vol.11,atpp.267-
270; and ofDr. Holes, Annex11.4,Vol. IIritpp.291-293.
14Annex 1.2,Vol. IIp.5,Anncx 1.15,Vol. IIp.93 and Annex 1.19,Vol. 11p.115.
l5A~CX1.20,Vol. II, at p.122.In the remainderof this Introduction,the Counter-Mernorialwilldeai briefly
with the question of admissibility.
Chapter II will seek brieflyto rectify in two basic aspects the unbalanced
presentation by Qatar of the historical backgroundto the case.
Part Two
Chapter III will identify the principal issuesraised by the Qatari Mernorial.
Chapters IV, V and VI will deal in detail with the principal aspectof the
jurisdictiond issues, including,inparticular,theeffectto be attributedto the
1987Agreement and the 1990Minutes.
Chapter VI1will restate in succinctform liow the 1987Agreement and the
1990Minutes cannot, eitherindividuallyor together, conferupon the Court
jurisdiction in respecof the present proceedings commenced by unilateral
application.
Part Three
Chapter VI11 will explain why, notwithstanding Bahrain's continuing
willingness to see the dispute between it and Qatar submitted to the
InternationalCourtof Justice, Bahriin considers itself asdisadvantaged by
the substitution by Qatar of a unilateral application to the Court for the
agreed method of a joint submission.
Chapter IX will contain someconcluding observations andwill be followed
by Bahrain's formal Submissions,SECTION3. The ciuestionof admissibility
1.16 The Court'sOrderof 11 October 1991requires the Parties to address
themselves to the question of adrnissibilityas wefl as of jurisdiction, Qatar
has done so in its Memorial, partly in paragraphs 1.8-1.12 and partly in
paragraphs 6.02-6.05,andhasfomally submittedthat Qatar's Application is
admissible (atp.139). Understandably, Qatarhas addressedthe question of
adrnissibilityonly in terms of the issues which ithas itself submittedto the
Court. As regards these, Bahrain is preparednot to questionthat the Qatari
clairn as at prexentfrarnedis admissible. CHAPTERII
THE HISTORICALPERSPECTIVE CORRECTICD
2.1 ln ChapterII of its Mernorial,Qatarhasenterediiitocertain historical
aspects of the relationshiptween the parties. The Court will, of course,
appreciate that Qatar has presented a historical narrativethat suits its case.
While Bahrain does not contest the accuracy of many of the individual
statements of fact contained in that account,it sees the Qatari presentation
as directed towardscertain broad conclusionsof ailerroneouskind. This is
not the proper placein which to state the wholeofBahrain's historicalcase
andBahrain will not attempt to do so. Instead, Bahrain will direct a few
paragraphs to correctingthe Qataristatementin respect of two main themes
of importance. The first concernsthe emergenceof the State of Qatar. The
second matterrelatesto Qatar'sseizureof Zubarah in 1937 -a seizurewhich
(although not so mentionedin the Qatari Memorial)has largely contributed
to the friction between the two States overhe last five decades.
SECTION 1. The emeraence of the State of Oatar
2.2 Qatar seeks, firstto paint a picture of itself as a real and separate
political andgeographicalentity thatcame intobeingin 1868and whichwas
separated from Bahrain by an expanse of open sea, acting as a buffer
between the two States.lGThispicture is farfrom accurate.
2.3 Tnthe first place, Qatar ignoresthe fact that it was from the Qatar
peninsula that the Al-KhalifaState of Balirain emerged. The Al-Khalifa
branch of the Al-Utub were,in fact, the most signifiant tribe in the Qatar
peninsula in the eighteenth century. The centre of theirctivities was their
town of Zubarah, where they built their fortress of Murair. It was from
lQatariMemorial,Paras.2.08-2.14.Zubarah that they conquered Bahrain in 1783.17 AIthough Zubarah was
destroyed by the forces of the Sultan of Muscat in 1811, it remained a
possession of the Al-Khalifa, and the town was rebuilt in the 1840'~.'~In
the 1870's (and subsequentiy),Britain wished to avoid complications with
the Turks, and accordingly prevented the Ruler of Bahrain from involving
himself in the affairs of the mainland. The Ruler respondedby confirming
his claim to Zubarah and reserving his rights.Ig The town was again
destroyedin 1878,but the inhabitantsofthe areaarounditrernainedBahraini
subjects and many of them migrated between Bahrain and Zubarah on an
annud basis."
2.4 It was not until the late 1930's that the presentruling family of
Qatar, the Al-Thani family, established de facto control over the Qatar
peninsula,the seizureof Zubarahin 1937being animportantelementin this.
Previously the pearl merchants of the Al-Thani familyhad emerged as one
of the leading families in the Dohahmidaa area on the east Coastof the
peninsula in the rnid-nineteenth century. From 1868 onwards, they
interrnittentldisplayed there a degree of localauthorityeither on their own
account or as delegates of Turkey during the period 1871-191 5. This
authority did not, however, extend to the administration or control of the
other areas of the peninsula. It was for this reason that a leading expert,
Lorimer, writing circa 1908,comrnonlyreferred to Shaikh Jasim Al-Thani
l7Lorimer,J.G. G,azette~of the PersiaGnulf, (1908-19151,PartIB, pp.839-40,
Annex111.8,Vol. III,pp.40-41.
laLorimcr,ibid.,p.868,Annex111.8, ol. III,p.42.
l9Translatcdpurportof ShaikhIraBin Khalccfa'ssratemenof 2 Septernbe1873,
L/P&S/9/23,Annex111.3,Vol. TII,p.11;ShaikhIsato Ross, 14June1875,Proceedings
oftheGovernment ofIndia,September1875,Pn76, Anncx111.5V , oliilp.23.
20Precisof ConversatiBetweenMajorGrant(AssistantResidenl)andShaikhEsau
hin Ali, 16August1873,IORL/P&S/Of23A , nncx111., of. III,p.5;Lnrimeri,bid., Part
IJB,p.1305, Anncx111.9,Vol.111p.45. Theinhabitantsof the areawerestill Bahraini
subjectsin 1937:see, Adviserlothe BahrainGovernment to PA, 20 June1937,IOR
R/15/2/2 02n,ex111.16,Vol. III,p.83.as the "Shaikh of D~hah",~lwhilst another authority, Saldanha,writing in
1904, referred to him as "the Shaikhof ~idaa"'~. Even the name Qatarwas
imprecise, being used to referto the DohahBidaa area on the east coast as
well as to the entire peninsulaZ3.
>I,
2.5 There wasindeed, amajorphysicalobstacletoanyspreadofAl-Thani
power to the west. Until the different parts of the Qatar peninsula were
joined together by a network of tarmac roads from the 1950's ~nwards~~,
the harsh desert at the centrof the Qatar peninsula wasin many ways more
of a barrier between the Al-Thaniand the areas of Al Khalifa control than
was the sea. Al-Thani activity, centred on Dohah, was directedsouth and
eastwards to Khor al Udayd and Abu Dhabi, as much as towards Zubarah
and Bahrain, as the repeated attempts to gain control over Udayd clearly
The shallow seas of the Bahrain archipelagomade communication
easy between the main islands and the Hawar group, and with the Zubarah
area and the pearling banks to the northand north east of Bahrain. Thus,
part of the Bahraini section of the Dawasli:tribe (who were subjects of the
Rulerof Bahrain)migratedannuallywithits flocksfrom ZellaqandBudeyah
on the main island of Bahrain to their villages on ~awar,'~ whilst the
Bahraini section of the Naimtribe migratedto and from the Zubarah area."
21Lorimer,ibid.Far t3,eg.p.910, Amcx 111.8,Vul111,p.43.
" Saldanha ,recisofBahruinAfair sart1(1857-1870)eg.p.64,Annex111.6,Vol.
III,p.27.
23Seefor example,Proceedingsqfthe Goverment ofIndia,P/438/3,October1868,
No. 277, Annex111.1,Vol.III,p.1. "Gwutturs avariantofthename "Qatar".
24ElMallakh , :Qatar:DevelopmcnsofanOilEconomy,(1979),p.96,Amm 111.25,
Vol. 111,.141.
25Saldanha, Precjs of Katar Affuirs(1873-1904).pp.29, Anncx111.7,Vol. III,
p.31.
26PridcauxtoCox,20 March1909IOR R/15/2/A 25n,ex11I.10,Vol.ILIp.49.
27Lorimer,ibid PartIIB,p.1305,Amex 111.9V, ol. III, p.45.2.6 Qatari authority did not extend to the west coast of the Qatar
peninsula until the late 1930's. Untilthen the Rulers of Qatar had little, if
any, control over the interior, the north and the west of the peninsula. In
1873, the peninsula had been described by a British Political Residentas a
"debatable land",28and so it remainedZ9until the grant of an oil concession
by the Al-Thaniin 1935,followjngwhich they were ableto extend their de
facto conîrol over most of the peninsula. Ttwas as part of this process that
they seized Zubarah in 1937. Before that date, at the earliest, it could not
be said in any real sense that there was a State of Qatar geographically
coterminous with the peninsulaof that name.
SECTION 2. The question of Zubarah
2.7 The Mernorial of Qatar is guilty of a further serious deflection of
historicalfocus in its tota(andcertiainlynot accidental)failure eventorefer
to the problem that developed in relation toZubarah. This is a regionon the
west coast of the Qatar Peninsula (see location map) that is now a barren
area of sand.
2.8 It was not always so. Pnor to 1783Zubarah was a prosperous town
and the principal seat of the Al-Khalifa. From 1783, however, the Al-
Khaiifamoved their principal seats to Muharraq and Manama, though
without in any way abandoning their authority, property and interests in
Zubarah and its environs, They retained the allegiance of the Naim
tribesmen inthearea, maintainedhomesthere,preservedthemosques,grazed
their cattle and regularly visited the area in connection with these interests
and for the purposes of hunting. Considerable trade continued between
Bahrain and Zubarah. Though inevitably the intensitywith which these
28ROSS tOSccretaryto the Goverment of India,4 September 1873,L/P&S/9/23,
Annex 111.4,ol. IIp.15.
29PRto Secretaryof Stale, 10January1934IORR/15/1/627 ,nnex 1111, Vol. III,
p.57;"Noteson Qatar"by A.F. Williamson, 14Janua1934F0/371/17799,
Anncx 111.12,ol. IIp.61.activities were carried on waned with time, there was never any forma1
abandonment of rights in this area by the Al-Khalifa family and their
activities there werecanried un, and their interests were representedby, the
family directly,by other nationalsof Bahrainand by the Bahraini sectionof
the Naim tribe,right throughuntil the late 1930's.
2.9 Tndeed,this Bahraini section of the Naim tribe were the principal
inhabitants of the ma. They were Bahraini subjects30whose Chief
confirmed that the Zubarah area was under the control of Bal~rain.~'In
1937 Qatar attacked and seized the Zubarah area, in the process killing a
number of people, injuring many others and causing much terr~r.~~Many
of the inhabitants (aswellas inhabitantsof otherparts ofthe northern section
of the Qatar peninsula over which Qatar gained control at the same time)
fled to Bahrain as ref~gees.~"ahrain did not attemptto meet violence with
violence, but made it clear that it maintained its claim to the area.34
Gradually, the buildingsof Zubarah - fort, mosques and homes - fell into
ruin and in recent times al1relics of Bahrainipresence have been bulldozed
into the sand.
30Adviserto thc BahrainGovemmenttuPA,20 June 1937,IORR/15/2/202,Annex
III.16,Vol.IIIp.83.
31Translatiouf a letkcrfroRashidbin MohomedalJahor to H.H.Shaikh Hamad
binIsaalKhalifa,3rdSafar1356(equivalenlto 16thApril1937),IORR/15/2/202,Annex
111.14,Vol. III,p.75.
32PA to PR, 4July1937, TOR R/15/2/203,Annex111.17V, ol. III,p.87
33AdvisertotheBahrainGovernent toPA, 5 August 1937,IORR/15/2/204,Annex
111.20,Vol. III,p.99.
34Rulerof Bahrain to PA, 14 April1937, Anncx 111.13,Vol. III,p.71; Ruleof
Bahrainto PA, 29 April 1937, IORR/15/2/202,Annex111.15,Vol. Ill, p.79;Rulerof
Bahrain toPA, 6 July1937,Annex 111.19, al. III,p.97.2.10 Qatar's seizureof the Zubaraharea in 1937souredrelations between
the two states. Bahrain respondedwith a trade boy~ott,~'and made many
efforts over the years to regain its rights. Intensive British diplornatic
activity managed to persuade the Rulers of the two States to sign an
agreement in 1944 36which should have led to a restoration of the status
quo before 1937. Unfortunately,it soonappearedthattheinterpretationsput
upon the agreement by the two Rulers were sofundamentallydifferentthat
it proved ~nworkable.~~ Persistent Bahraini protests led to a further,
unsuccessful, Britishnegotiationtowdrdsa modus vivendiat the beginning
of the ~YSO'S,b ~~t the dispute was not satisfactorily settled and still
smoulders.
2.11 The dispute over Zubarah thus forms an integral part of the
background to the differencesbetween Bahrajn and Qatar, and has been
entirely overlookedby Qatar in its excursion intothe historyof the disputes.
Evidence that it is still aatter of concern to Bahrain is to be found in a
Memorandum filed by Bahrainwith SaudiArabiain 1986. Sincethepresent
proceedings arenot concernedwith the substanceofthe disputebetweenthe
Parties,itis not appropriatetoenter further intodetailsof the Zubarah issue.
Bahrain is merely concernedat this stageto ensure that the Courtis not left
under any rnisapprehensionregarding the existenceand reality of Bahrain's
interest in the area.
3Rulerof BahraintoPA, 6 July1937,IORR/15/2/203,Annex III.18,Vol. Ip.91.
36AgreementbetweenBahrain and Qatarsigned on 17 and 23 Junc 1944, IOR
R/15/2/2 05n,ex111.2V,ol. III,p.101.
3FortheRulerofBahrain's inkrpretatio,ecRulcrofBahraintoPA, 14Seplember
1944, Annex111.22, ol. III,p.109;fortheinterpretnflheRulerof Qatar,sceRulcr
of Qatarlo Rulerof Bahrain,30 Janua1945,IOR R/15/2/205, Anncx 111.23, ol. III,
p.113.
38Pellyto PR,23 Apri1950,F0/371/82W, Anncx 111.25, ol.IIIp.123. PARTTWO
THE QUESTIONOF JURISDICTION
CHAPTERIII
THE PRINCIPAL ISSUES RAISEDBY THE
QATARIMEMORIAL
3.1 This section seeks to identify theprincipalquestionswhichthe Court
willno doubt wish to bearin mind whenconsideringthesubstantivechapters
that follow.
3+2 Qatar has assertedthat theCourt now hasjunsdiction on the basis of
an argument which rests on tlireeessential propositions:
(a) Both parties acceptedthe obligationto submittheir dispute to the
Court by accepting the Saudi proposais of 19 December 1987.3"atar
states in this respect that:
"It will beseen from the terms of the Agreement set out in King
Fahd's letter of 19 December 1987 ...that the first item of the
Agreement,i.e., tha'Al1 the disputedmatters shall be referredto the
InternationalCourtofJustice, at The Hague,for afinalrulingbinding
upon both parties, who shall havetoexecute its terms' is clear and
unqualified. Both Qatar and Bahrain gave their unqualified consent
to thisr~~osal".~~
39Qatari Mernorilaras3.26-3.3and4.50-4.A 51.notethatQatarinvukesArticle
36(1) of thc Statuteof theCourt.
Ibid., para.3.29. (b) The meansof "seisin" - adifferentmatterfromjurisdiction -were
leftopen in 1987.~' Qatar's Memorial states in paragraph 3.32, referring
to paragraph 3 of the 1990 Minutes, that:
"It will be noted that the terms of this item are 'enabling' and
...,
proceduralin natureanddo not in anysense detractfrom the consent
and codtment of the Parties under the first item to refer their
disputesto the Court. Thereis no implicationherethat anyparticular
methodor procedureis to be followedto invokethejurisdictionof the
Court as agreed under the first item."
(c) The Minutes of the meeting at Dohah on 25 December 1990
confirmed the 1987 Agreement on jurisdiction and,in addition, settled the
outstanding questionof the methad of seisin,by allowingeitherparty to file
an Application ~nilaterally.~~In paragraph 4.64 of its Memorial, Qatar
statesthat "the manner of institutingproceedingswas agreed in the Minutes
signed on 25 December 1990."
3.3 A full analysis of the 1987Agreement will be presented in Chapter
IV below. However,it is apparent that Qatar's first proposition, which is
based on the 1987 Agreement,raises a fundamental question; and it is this
question which the Courtwill wish to keep in mind in analysing the terms
of the 1987 Agreement and the subsequent conduct of the Parties in
interpreting that Agreement. That question can be posed in the following
terms:
"Didthe Parties to the 1987Agreementacceptjurisdiction soas tu be
buundby virtue of that Agreementalone?"
41
Ibid.,paras.3.32and4.57-4.64 (especiallypara.4.64). Qatar seesasbei~ig
govcrnedby Article 40 (1) of the Statute.
42
Ibid pa,ras.4.57-4.6The referenceapara.4.6110the institutionof proceedüigs
intheLibya/Chad caseis mistaken. BothLibyaand Chadagreedthat they notifiedto the
Courta Special Agreemen(the"FramcworkAgreement")under Article 40. "Did they merely agree in principle to submit their disputes to the
Court, but subject to a Special Agreement to be negotiated
subsequently?"
3.4 As Chapter 1Vof this Counter-Memorialwill presently demonstrate,
al1the evidence is in favour of this second alternative, For, within the
TripartiteCommittee established pursuant to the 1987 Agreement, both
Parties submitteddrafts ofa Special Agreement.
3.5 From this it follows that Qatar's second proposition, although
technically correct,poses a non-existentproblem. For "seisin" wouldfollow
with the notification of the Special Agreementto the Court.
3.6 As to Qatar's third proposition, the leffectof the Minutes of the
meeting of 25 December 1990 will be examined in detail in Chapter V
below. It is, however, self-evident thatQatar's proposition based on these
Minutes raises equally fundamental questionswhich the Court will wish to
expiore in analysing those Minutes. These questions, briefly stated, are the
following:
"Were the Minutes of 25 Decernber 1990 intended to embody a
binding agreement?
And, if so,
Was this an agreement to dispense with the need for a Special
Agreement, and for notification of that Special Agreement to the
Court, and to replace this with an agreement that eitherty could
procecd by way of a unilateral applicationto the Court?" CHAPTERIV
SECTION1. Consent as an essentid rcquircmeiitfor jurisdiction
4.1 Despitethe elaborationand prolixityof theMernoriaiof Qatar on the
questionsof jurisdiction andadmissibility,theissueinthiscase is simpleand
straightfonvard. 1s it possible to identify a text which clearly and
compellingly constitutes a sufficientand effective basis for the jurisdiction
of the Court? Bahrain submits that the answer is No.
4.2 It is not necessary for Bahrain to follow Qatar into the latter's
extended discussion of the theoretical aspects of the Court's jurisdiction.
Bahrain sees no particular value in the Qatari expositionof the law relating
to theCourt's jurisdictionbased upondecisionsinvolving elementswhichdo
not exist in the present case. Qatar has, for example, quoted dicta of the
Court in the Nicaragua v. Honduras case (1988).~~ However, this was a
case involvingthe effect of declarationsmade under paragraph 2 of Article
36 of the Statuteof the Court,aparagraphwhichis not invokedin this case.
Nor can assertions of the pertinence of a multilateral treaty, the Pact of
Bogota, contributemuch, if anything,to the questionin the present case of
whether there has corne into being a bilateral agreement establishing
jurisdiction within the sense of Article36(1)of the Statuteand enablingone
of the Parties unilaterallyto commence proceedings against the ~ther.'~
43
QatariMernorial,paras.4.01-4.03.
44It isnot ncccssary eirherto examiiiethe Qatan discussionof irrevocabilityof
conscritIt assumesanswersfavourableto Qataron a questionwhich is of thc csscncoî
lhis case, namely, whether the texts arnountto an agrccmcnt giving Qatar a right
unilaterallyto institutethe present procccdings.Since,in Bahrain'sconlenlnot,only
is the mswer to this questionNo,but alsoeven ifit were Yes,the interpretationof the
tcxts wouldiiot eslablishthe Qataricase, there isno point in enteringiatdiscussion
which, at best, is nnlyof marginalimportance. So no more willbc said rcgardingthc
conccptof the irrevocabilityof consentin so fasitisdevelopedin theoreticaltermsin4.3 In one major respect, however, the Parties are in accord. Bahrain
shares to the full Qatar's identifi~ation~~of consent as the basis of the
Court's jurisdiction. There can be no doubting the proposition that
jurisdictiondepends absolutelyupon the will of the parties.
SECTION 2, The distinction between "iurisdiction"and "seisin" cannot
affect the need to establish consent to both
4.4 The Qatari Mernorial places much ernphasis upon the distinction
between "jurisdiction" and "~eisin"~~O . nce again, it is not necessary for
Bahrain to admit or deny either the distinctionas formulatedby Qatar or its
relevance in the present proceedings, for one thing is in any event quite
plain, It is that the existence of a concept of "seisin", in the sense of the
stepsbywhichprocedurebeforetheCourtiscommenced,cannotreplace the
need for the applicant State to show thatthe respondent has consented both
to thejurisdiction of the Courtand to the modeof seisin actuallyusedin the
particular case. The question of seisin in the present case is the Iess
important by reason of the fact that, as will be presently shown, theris no
operative consent ofthe respondent Stat te the invocation ofjurisdiction in
the manner adoptedby the applicant State; and the case will be stripped of
an unnecessary element of cornplexity if Bahrain accordingly limits its
argument to the basic question of the scope of the consent given by the
Parties to the exercise of jurisdiction by the Court.
the QatariMemonal, pari. 4.44-4.46. Thmanner inwhich, on the factsothepresent
case,referencismadein thoscparagraph totheeffectofthetextsof 1987and1990will,
of course,be considercpresently.
45QatariMernorialp,aras.4.04-4.05.
46Ibid.paras.4.57-4.64.SECTION3. The burden of proof and the needfor "preponderantforce of
argument"
4.5 lt is noteworthy that, with one slight excepti~n?~nowhere in the
Qatari Memorial is there any express referenceto the question of the burden
of proof. Yet there can be no doubt that the onus rests upon Qatar of
establishing that the Court has jurisdiction. The p'artiesare in this respect,
not in equal positions. Whether as amattexof general principle, or of the
precedents in theCourt's jurisprudence,it is clearthat if Qataris to establish
its assertion thatthe Courthasjurisdiction, somethingmoreiscalled forfrom
Qatar by way of proving its positive assertion than is required of Bahrain in
establishing its denial that the Courthas jurisdiction. The general principle
is encapsulated in the Latin maxim ci incumbitprobutio qui dicit non qui
negat. Bahrainhasnoreasontodoubt thepertinencein thisconnectionof the
precedents which the Qatar Memorial itself cites the staternent in the
Chorzow Factory case that:
"the Court will, in the event of an objection ... only affirm its
jurisdiction provided that the force of the arguments militating in
favour of it ispreponderant"48
and the staternentin the Border andTransborder Arme$Actions (Nicarugua
v Honduras)JurisdictionandAdmissihility case that:
"theCourtwill ..haveto considerwhethertheforce of the arguments
militating in favour of jurisdiction is preponderant,and to 'ascertain
whetlier an intention on the part of the Parties exists to confer
jurisdiction upon it9.i49
d7Seepara. 4.9below.
48
Qatari Memurial,para.4.20Judgmen tu.8, PCIJ,SeriesA, No. 9, p.32.
49
ICJReports 1988,p.76, quotedatpara.4.20of the Qatari Mernonal.
- 23 -The relative positionsof the plaintiffand the defendantStates as regards the
establishment of the Court's jurisdiction is well brought out by Sir Gerald
Fitzrnauricein a passage which Qatar,despitethe frequencyof its references
to his writings, has not brought to the attention of the Court:
" ...the outcome of anyjurisdictiond objection,dependsnot so much
on the applicationof definiteniles of law concerning the cornpetence
of the tribunal,but rather ondeciding(as a mixedquestionof fact and
interpretation, and on a basis that may involve a considerable
subjectiveelement)whether a valid consent has beengiven or not. ...
JT]heonus of establishing consent, ifits existence or vulidity is
denied, rests in the last resort on theplaintl$Stube, and the consent
has to be establishedbeyond reasonabledoubt ...1150
Sir Gerald himself, in a footnote to the passagejust quoted, adverts to the
fact that Professor Rosenne expressesthe standardof proof required "even
higher". The latter distinguished authority had said:
".,.,. ,.e Court is the only organ operatingwithin the texture of the
UnitedNationswhich shieldsitself from thedeleteriousconsequences
...+which corne from making decisions on matters of great delicacy,
when one of the parties has not consented thatit sho~ld."~~
The same author subsequentlysaid:
"In the Nottebohm case (secund phase) where the respondent
challenged the admissibility of the clairn, the Court apparently
regarded the applicant as being under the duty of proving that it had
a title to seise the ~ourt."~~
SirG. FiîzmauriceT, heLawandProcedureof the InternationalCourtofJustice,
Vol. 11,(1986).p.437.Ernphasissupplied.
S.Rosenne , heInternationalCourtofJustice(19571,p.260.
52S.Roscnne,TheLawandPractiçeoftheïntermtianal Court,Vol. II,(1965),p.581.Similarly, in a passage from another authority mucl-icited in the Qatari
Memorial, the position is stated in these terrns:
"Whatis true is that that undertaking[of commitmentsof obligatory
judicial settlement] must be the result of the intention - express or
implied -of the parties and that such intention must, and can, be
proved inthe sameway as anyother obligationundertakenin a treaty
or an instrument equivalent thereto. The practice of the Courit51
supplies, on the whole, uniform authorityfor tliat proposition....
4+6 The Qatari Mernorialapproaches the question of the burden of proof
in an oblique manner in a sub-sectionon "TheInteqretatioii of
This invokes three considerations: the relevanceof peaceful settiernent of
disputes in present day international law; tlieposition of the Court as the
principaljudicial organ of the UnitedNations;and thefact that al1Members
of the United Nations are il~so facto parties to the Statuteof the Court. In a
passage noticeably thin in the citation of positive judicial authority
(especially when contrastedwith the liberal sprinklingof case references in
other, less significant,portions ofthe argument),theQatariMemorialasserts:
"Inview of tliese commitments,the balanceof interests shifts in favour of
the applicant State"." The only reference given in support of so
far-reaching a proposition is to an article by an Americanprofessor writing
in 1987. No disrespectis meant to that writer in pointing out that it hardly
seems likely that such a proposition, being founded on such elementary
considerations, should - if valid- not have been noted in the previous thirty
years either in the decisions of the Court or in the writings of distinguished
publicists. Even the passages quotedby Qatar from the wxitings of Sir
53Sir HcrscliLautcrl~aclit,evelopmcntof InternationalLaw by shr International
Court(1958). pp.338-339.
54Qatari McmoriaI,paras. 4.13-4.30.Scc inparticulapara.4.17 andseepxa. 4.9
below.
55Ibid,. pard.4.18.Hersch Lauterpachtand Sir GeraldFitzmauricedo not approachtheextreme
for which Qatar now, so understandably,finds itself obliged to contend.
4.7 Indeed, the inexorable forceof the authorities eventuallyleads Qatar
to the admission,expressedin the passagesin the ChorzowFactorycase and
.~,
the Nicaragua Y.Hondura sase just ~ited,'~that the argumentsin favour
of jurisdiction must be 'Ipreponderant".
However,Qatarappearsthento drawadistinctionbetween"facts"and
4.8
"legalreasoning". It asserts,in its conclusionon this section,that "the Court
will affirmits jurisdiction only if the force of the legalreasons rnilitatingin
favour of it is preponderant."57This distinction is advanced without any
citation of authority. It seems, moreover, to be entirely misplaced.If Qatar
is prepared to acknowledge that the burden rests on it to establish "a
preponderance of legalreasons"for the existenceof the Court'sjhsdiction,
what possible reason can there be for it not also to accept that its case as a
whole, including factual as well as legal elements, must be preponderant?
There seems to be no basis whatsoever for seeking to distinguish in this
manner between "legai" and "factual" elements.
4.9 At one point only in the Qatari Memorialis there a fleeting allusion
to the burden of proof as such. It states that"on the other hand reference to
'arguments' does not imply any particular onusprobandi lying upon the
applicant State, since, as indicated above, the question of the Court's
jurisdiction is 'nota question of fact, buta questionof law to be resolvedin
>I58
the light of the relevant facts . Yet, though, these words of the Court
quoted by Qatar were, of course, actually used by the Court, the Qatari
Memorial, by overlooking one central problem, significantly distorts the
5hQatariMernorial,para.4.20.
57Jbid.,para.4.22Emphasis supplied.
Ibid., para.4.21 quotingBorderand TransborderArmedActions{Nicaragua Y.
Honduras),JurisdicdionandAdrnissibility.,Tudgment,CJReports1988,p.76.nature of the issue now beforethe Court.Theproblem is thatthiscase is not
solely about the legal effect of an agreement. lt is one about the very
existence of the agreement itself as well as about the interpretation of that
agreement. The primaryrole of the Court in this case is to determinefacts,
namely, whether an agreementfor the submissionof the case to the Court's
jurisdictionhas corne into king and whether theArabic words used in the
pertinent text havebeen properly renderedinto English. CHAPTER V
THE 1987AGREEMENT
5.1 The first element invoked by Qatar as the basis of the Court's
jurisdiction is the 1987 ~greement.'~ However, before exarnining the
substance of this text,and the Announcementassociatedwith it, a brief look
at its background will be helpful as showinghow great was the importance
attached by the Parties to the basic idea that, whatever path of peaceful
settlement might be pursued, it would be pursued by them jointly.
SECTION 1. The Background
5.2 Qatar begins, quite correctly,with the Mediationby Saudi Arabia as
the "relevant circumstan~e".~~ Bahrain does not in any way deny that.
Indeed, it isquite clear that the two texts6'invoked by Qatar must be seen
in their proper perspectiveas part of the Saudi Arabian Mediation Process.
That perspective,however,involvestakinginto accountthe fact that the two
texts invoked by Qatar are no more thanepisodes in a diplornatic exercise
stretchingover an extended period.That exercisedidnot at any timeinvolve
the idea that either Party might unilaterallystart proceedings in the
International Courtof Justice.
5.3 Although itis probablysufficientto gono furtherbackthanthe Saudi
Arabian draft principles of Mediation of 13 March 1978,h2 it is just worth
recalling that even as early as 1966Qatar was emphatic in its insistence on
-.
s9QatariMernorial,paras.3.26-3.33and4.50-4.51.
Ibid.para.4.47.
''I.e., the 19Agreemen tndthc 1990Minutes.
G2Annex 1.1,Vol. II,1..
-28 -the submission of the dispute to arbitration - a process that necessarily
involves a joint submissionby both sidesSb3
5.4 The Saul draft principles of Mediation of 13 March 197P
themselves contained certain legally pertinent "considerations" or
"undertakings"of which the most important was that "al1issues of dispute
between the two countries" (andsovereignty over the islands, maritime
boundaries and territorial waters werethen indicated) "areto be cansidered
ascomplementary,indivisibleissues,tobesolvedcomprehensivelytogether".
Attention is drawn to the last phrase,followingthe parenthesis:the issues in
the dispute were to be considered indivisible and were to be solved
comprehensively together. To the issues identified inthis paragraph that of
Zubarah was later adde~A.'T ~he Parties also agreed to the formation of a
cornmittee from both sides with the aim of reacliingsolutions acceptable to
63See,forcxmple, the statenienlmadeirithe Qatariletterof 13April1956addressed
to theBritishPoliticalAgentat.Dohain which DrHassanKamel,ü-~L ccgalAdviserof the
Qatar Governelit, said,intearlia,
"There is no doubt thatthcsc dctails dcinoiistratcthe incotilmvertkt,e as
iritiniatedbyusat thattime,thatal1the interestcdparticshad reachedexpress final
agreement tu refemng the existing disputc bctwccn Qatar and Bahrairi lo
iliteniaiiond arbitratition.["Qatari Mcmorial A1.63,Vol. II, p.396).
M Anncx1.1, Vol. IIp.1.
65Thc qucstionof Zubarahwas raised by Bahrainwiththe Mediatorin 1986 as is
mcntioncdat para. 2.11ahove. In the 1987 Agreement,Bahrainrequcstedthc insertion
of areferenceto i~iclude"anyothermatters"withinthetermsut refercncc,aswcll as the
HawarIslandsandthe mxitimc boundary, soasto cnsurc thatZubarahwas included. So
far as Bahtain is awarc, Qatar raised no objection to these words. Although Qatar
subsequentlyobjcctcdwhenBahraiiiraisedZubarahi~ithequesliotiin ArticlIIofthefirst
draft of its special agreeminMarch1988,Qatarsubsequentiywithdrewitsrescrvation
at theSixthTripartiteCornmitteemeetingon6 December1988,saveto theexlenllhatany
Bahrainiclaim wac;for sovereignty(see Annex 1.18,Vol. II al p.112). Seetheagreed
questionknown as "lhe BahrainiFormula" referredtoin the 1990Minutes (secAnncx
1.14, Vol. II, p.89). Bahrain will argue that Qatar has dso acceptedBahrain's rightto
bring my or al1claitrisitirespectof Zubarah, includingotiefor sovereignty. However,as
is shownal paras.9.6-9.7below,Qatarhas indicakd that ireservesthe righttu vppose
Bahrain'sclaimun the groundsof admissibility.themboth and undertookto settleaUdisputed mattersby agreement through
negotiations.
5.5 At a meeting heldat the timeof the GulfCooperationCouncilsession
in May 1983, the Principles for the Mediation proposed by Saudi Arabia
were accepted, togetherwith theaddition proposedby Qatar.66For the next
three years, however,the mediation appears to haveprogressed slowly. In
1986further differences developedbetweenthe Parties in relationto the use
being made by Bahrain of Fasht ad Dibal and Qatar's actionin landing
troops on the Fasht and attacking and seizing workmen eniployed by
Bahrain's contractors.
5.6 A letter from the King of Saudi Arabia of 14 May 1986 contained
certain proposais forthe settlementof the Fasht adDibal question, affirmed
the continuance of Saudi Arabia'smediation and concluded:
"In case Sau& Arabia is unableto find a solutionacceptableto both
Parties, the matter will be submitted to an arbitrationcommission to
be sanction& by both Parties and whose rulings shallbe final and
binding upon the two
The Ruler of Qatar expressly confirmedthis point in his reply of 17 May
1986.~~
SECTION 2. The language of the 1987Agreement
5.7 Against this background of a general approach that contained no
element whatever of unilateral initiative in relation to the institution of
66See note 6 to para 1.4 above.
67
QatarMemonal,Annex11.12,Vol. III, p.79.
68Ibid., p.85.
- 30 -proceedings, one may turn to the 1987Agreement it~elf.~~Qatar presents
it as consistingof two documents - an identicalletterfrom theKing of Saudi
Arabia to the Amirsof Balirainand Qatar respectivelyof 19December 1987
and a public announcement made by the King of Saudi Arabia on 21
December 1987.The two Amirs indicatedtheir adherencelo the proposals:
on 26 Decernber 1987 the Amir of Bahrain replied affirmatively7';on 21
Decernber 1987 the Amir of Qatar expressed his full agreement to the
proposals;7' and later in the sarne month Bahrain proposed a draft
agreement to implementthe agreement.Accordingly,Bahrain willnot make
an issue of the existence ofan agreementin the terms of the Saudi Arabian
proposals.
5.8 The Qatari description of the contentof the 1987Agreementfocuses
on two "items".72
5.9 The first element consists of the first operative paragraph of the
proposals:
69Therearcnow beforeiheCourttwoEnglish-languagc versinrisoftheoriginalArabic
text. Oneis thctranslationincludedin Anncx4 tthe QatariApplicatiunof 8 July1991.
The otheris the translationsubsequenllypreparedby the officialtranslation serviceof ihe
UnitedNationsSecrctariat.AllhoughBahriiinconsidcrsthc UnitcdNalionstranslativto
be the more accurateiwill quotebothversionsbccauscthe QatariMernoria lasesmany
of its argumenlson theQataritranslationannexedto theApplicatiun.Theyarcshow side
by side in Annex1.3.Vol. II, p.13.
70Annex1.4,Vol. II, p.23.
QatariMemorial,Auiex 11.16,Vol.111 ,.lW.
72QatariMemorial, paras.3.29-3.33and 4.48-4.49. (UN translation):
"The issues subject to dispute shall be referred to the International
Court of Justice at The Hague for theissuance of a finai and binding
judgement whose provisionsmust be applied by the two parties."
(Qatari translation):
"Al1the disputed matters shall be referred to the InternationalCourt
of Justice, at The Hague,for a final rulingbinding upon bothparties,
who shall have to execute its terms."
5.10 The second relevantelementconsists of the third operativeparagraph
of the Agreement:
(UN transhtion):
"A cornmitteeshall be formed, comprisingtwo representativesof the
Stateof Qatarand the Stateof Bahrainand tworepresentativesof the
Kingdomof Saudi Arabia, forthepurpose of communicatingwiththe
International CourtofJustice andcompleting the requirementsfor the
referral of the dispute thereto in accordance with the Court's
regulations and instructions,in preparationfor the issuance of a final
judgement which shall be binding on both parties."
(Qatari translation):
"Thirdly: Formationof a cornmitteecomprisingrepresentatives ofthe
States of Qatar and Bahrainand of the Kingdomof Saudi Arabia for
the purpose of approaching the International Courtof Justice, and
satisfyingthe necessaryrequirements tohavethe dispute subrnitted to
the Court in accordance with its regulations and instructions so that
a finalruling, binding uponthe parties, be issued. "5.11 As regards the first operative element, Qatar contends:
"that by the acceptance of this first item, both Qatar and Bahrain
unequivocally and unconditionally accepted the reference of their
existing disputesto the InternationalCourt of Ju~tice".~"
5.32 Bahrainis not ableto sliarethe opinionthus expressed. The provision
is certainly not an unconditional undertaking to go to the Court. Quite
self-evidently, the commitmentwas vitallyqualifiedby theprovision forthe
formationof a cornmitteeconsistingofrepresentativesof the Partiesand the
Mediator :
(UN translatio~):
"for the purpose of communicatingwith the International Courtof
Justice and completingthe requirementsfor thereferral of the dispute
theretoin accordancewiththe Court'sregulationsand instruction^."^^
5.13 Tnotl~erwordsthe agreementtorefer the disputeto the Courtwas not
seen as being immediak in its effect. The two paragraphs must be read
together. The implementationof the first paragraph wasexpressed to be
dependent upon the subsequentactivityof the Tripartite Committeereferred
to in the thirdparagraph. Moreover,aswillpresentlybe shownindetail,the
framework within which theTripartite Committeeoperated was tliatof the
preparation ofan agreement for a joint submissionto the Court. If that had
not been the intention and, instead, the objectivehad been to permit a
unilateral applicationto the Court then, of course,there wouldhave been no
need for recourse to that Committee.
73QatariMernorialpari.6.08.See alsoibid pari. 5.40.
74Qalaritranslation:
"forthe purposeof approachingthe IrilenialioCourlo.f Justicaridsatisfying
the necessaryrcquircmcnts tohave tlic disputesubmittcd to thc Court in
accordancc withitsregulalionaiidiiistrucli...(Anncx 1.3,Vol. II, at p.18).5.14 Accordingly, there isa significantmeasureof inaccuracyin the Qatari
tat te men that^the terms of the provision for theformation and operation
of the Cornmittee "xreprocedural innature and do not in any sense detract
from the consent andcomrnitmentof the Parties to refertheir disputesto the
International Court of Justice in accordance with the first item". The
provision may be "procedural"in thesensethatit laysdown a procedure,but
it is not correct tsay that the provisiondoes "notin anysensedetract£rom
the consent and commitment of the Parties to refer their disputes to the
International Courtof Justice". For Qatar so to suggest is, in tmth, mere
assertion.The words of the text as a whoie, as indeed of the provision read
by itself, clearlymake the operationof the generalprovisionconditionaland
dependent upon the implementationof the stakd proceduralrequirement.
5.15 Furthermore, the Qatari Mernorial misrepresentsthe words actually
used when it says in the same paragraph that:
"the only objectof the work of the Tripartite Committee, asforeseen
in the 1987Agreement, was toascertaintheproceduresnecessaryto
abtuinfrom the InternationalCourt of Justice afinal ruling binding
upon both
There is a manifest and vast difference between, on the one hand,
"ascertainmentofprocedures" (beingthewordsusedintheQatariMernorial)
and, on the other, "an approach tothe InternationalCourtof Justice1'(Qatari
translatic~n)~to satisfy "the necessliry requirements to have the dispute
submittedto the Court"(Qatari tran~lation)~('being the words actuallyused
in the 1987Agreement). The former may not, butthe latter certainly do,
75QatariMernorialp,ara.6.09. See alsaibid.,para.3.32.
76
Ibid.,para.6.09. Emphasissupplied.
77Or"communicating withtheInternationCourtoîJuslice"(UN tran.slatin)nnex
1.3,Vol. IIatp.18.
78
Or "cornpletingthe requirernentur the referraof the disputc thcrcto" (UN
translation).Ibid.involvethe preparationof ajoint submission.It would be difficult to treat as
credible any suggestion that the three States involved could have been
unaware of the procedures availableforinstitutingproceedingsin the Court.
The records of the meetings of the Tripartite Cornmittee show a
sophisticationof procedural knowledgeon thepart of Dr Hassan Kamel, the
representativeofQatar untilhismuch-regretteddeath,quite inconsistentwith
a need "to ascertainprocedures".The task of the Committee wasseen to be,
and in practice was pursued by the Parties as being, that of drafting an
agreement for a joint submission to the Court.
5.16 There is,therefore,nowarrantfor the statementatanotherpoint in the
Qatari ~ernorial~~ that the provision in the 1987 Agreement for the
establishment ofthe Tripartite Committeeleft "to the Parties the choice of
rneansto achieve the commitmentset out in the first item of the proposal".
Even if in theory such a choice had been left open, it is undeniablethat the
Parties irnrnediatelyinterpreted their task tobe one of drawing up a joint
subrnission. By referenceto the same considerations,it isequallyimpossible
to accept the Qatari assertions0that:
"Bahrain'scontention thatthe Parties only committed themselvesto
negotiatea specialagreementis thereforea misrepresentationof what
had been agreed.The choiceof methodto seisethe Courtwasentirely
open."
5.17 Given that the provision for reference to the International Court of
Justice was so closely linkedto, and dependentfor its fulfilment upon, the
outcome of the activity of theTripartite Committee,one cannot Saythat the
initial item can be treated as having had any effect that was "unconditional"
or ,r'unequivocal"or otherwise independentof the second item.
79QatarMernorialp,ara.5.41.
'Ibid., par5.42.
- 35 -5.18 Indeed, the conditional character of the undertaking in the first
operative item is even recognizedby Qatar itself when it states8'that:
"TheParties werethus onlysubmittingthemselvesto an obligationto
negotiate in good faith in order to acl~ievethe seisin of the Court."
Of an obligationto negotiate ingoodfaith one thingis certainlyself-evident,
narnely, that the objective of the negotiation cannot be said to have been
"unequivocally" and "unconditionally" achieved if it still remains to be
negotiated.
5.19 It is alsoimportant,in interpretingthe1987Agreement,topay regard
to the termsof the Announcementmadeby Saudi Arabiain connectionwith
itsacceptance by the ~arties.'~'TheAnnouncementplaced a very different
ernphasisupon the two items whichQatar has invokedin its Memorial.The
generd undertakingto go to the Court inthe first operativeparagraph of the
Agreement is only reflected in the Announcementin the statement that:
(UN translation):
"The contacts ..,have yielded a proposal ...whereby thecase should
bereferredtoarbitrationin accordancewiththe principlesconstituting
the framework solution ..."
(Qataritrunslufion):
"The contacts ...have resulted in a proposa1 ...that the matter be
subrnitted for arbitration, in pursuance of the principles of the
framework for settlement ..."
Qatan Memonai,para.5.41.
As crinbe sccn from para.33 of ihe Applicationfiledby Qatar8 July 1991 in
the presencase,Qatar apparentlyseesthis Announcementasan integrapartof the 1987
Agreement.The textoftheQatariandUnitcdNations translationof thc 1987Agreement
is scout in parallelcolumnsin Annex1.3,Vol.1, p.13.The substantive contentof the agreementis then conveyed in the following
words:
(UN translation):
"Accordingly, agreementhas been reached between the two parties,
in accordance withthe five principles to establish a committee ..for
the purpose of communicating with the TnternationalCourt of Justice
...I
(Qatari translation):
"Accordingly, it has been agreed by the two parties, under the five
principles,to setup acommittee ..for thepurposeof approachingthe
International Courtof Justice .."
Again, it is difficult to understand how an agreement described in these
words cm be seenas anythingotherthan anagreementto negotiatethe terms
of a joint submissionto the Court.
SECTION 3. The subsequent conductof the Parties, 1987-1990
5.20 This view of the matter is cogently supportedby the conduct of the
Parties in the period following theacceptanceof the Agreement.This shows
that theyirnrnediatelyandcontinuouslyrecognizedthatthey hadto negotiate
an agreement for ajoint subrnission totheInternational Court of Justice.The
evidence is to be found in the Minutes ofthe meetings of the Consultative
committeeg3and in the drafts presentedby the Parties.
A. The Bahraini and Oatari~ro~osals.1987
5.21 Even at the Gulf Cooperation CouncilSummit meeting atwhich the
1987 Agreement was accepted Bahrain had, in implementation of its
understandingof the Agreement, put forward a drift agreement concerning
83Sometimescalled"theJointCommitlee"or,mostoften,"theTapartite Cornmittee".the formation of the Joint Cornmittee. This was, in material respects,
expressed in the languageof the 1987AgreementwhichBahrain believedto
refïectthe aim of achievingajoint submissions4.The idea of "a Cornmittee"
contactingthe Courtnecessarilyimpliescollective,as opposedto individual,
recourse to the Court. NOless was this the view of Qatar, as can be seen
from the draft letter of 27 Ilecember 1987 to the International Court of
Justice, which Qatar put forward at the Summit ~eetin~.~~This draft was
expressed to ernanatefrom the Foreign Ministers of the two Parties and, in
its operative parts, spokeof hem as having agreed:
"1. To submit their aforesaid differences, to the International
Court of Justice (or aChambercomposedof fivejudges thereof), for
settIernentin accordancewith InternationalLaw.
2. To opennegotiationsbetweenthemwith aview topreparing
the necessary Special Agreementin this respect ..."
5.22 The words of the secondof these two points arecIear beyond doubt:
"with a view to preparing the necessary Special Agreement". Though in
theory it would be possible for a Special Agreement to provide that one
Party would commence the proceedings and the other would respond, that
was not what the Parties had in mind, as is shownby the drafts that each of
them proposed.
5.23 The expectationthatthe submissionwouldbe ajoint one is confirrned
by the reference to "(or aChambercomposedof fivejudges thereof)".Such
a reference can take place only withthe agreementof both parties. While it
is me that, according to Article 17(1) of the Rules of the Court, an
applicationfor the formationof a Cliambermaybe made by one partyalone,
itis absolutelyclear from that and the followingparagraph of the Rule that
the agreementofthe otherparty is requiredbeforethePresidentcanproceed.
Annex1.5,Vol. IIp.29.
85QatarMernoria l,mex 11.18Vul.III,p.122.
- 38 -Indeed al1"Chambers"casesup to that ljme had ken constitutedby ajoint
submission to the Court by both
B. First Tripartite CommitteeMeeting,January 1988
5.24 Onemayturn now to the meetingsof the TripartiteCommittee.There
is nothing in the Minutes of the First Meeting of the Committeeto suggest
that any of those involved was thinking in terms of anything other than a
joint submission.Indeed, the manner in which theQatari Mernorialreports
the outcomeof this meeting isquitemisleading.The Memorial merely notes
the paragraph inthe final Minutes which stated:
"The Committee met to consider measures through which the
cornmitmentof tlie State of Bahrain and the Stateof Qatar to submit
thedispute existingbetweenthemto the InternationalCourt ofJustice
will be carriedout. "87
The QatariMemorialornitted,withouteven apassingallusion,the agreement
"that each side will submit the draftagreement it proposes for
refemng the dispute to the International Court of Justice to the
Foreign Ministry of Saudi Arabia on 19March 1988. ..""
RhThcEIettronicaSicula case1C.IKeports 1989,p.15, wasbroughtbcforethe Court
aîter ihe 1987 Agreement.This caTewas comnienced hy a unilateralapplicationunder
ArticleXXVI of lhe Treatof Friendship,CommerceandNavigalinnhelweenlhe USA
and Italy,1948. Italydidnot contestthe Court'sjurisdiction, aithoughit raiissue
of drnissibility.
R7QatariMcmorial,para. 3.35.
Anncx 1.7, Vol. II, p.39.See also tfitcxt of the Minutes, Qatari Memonal,
Annex 11.20,Vol. III,p.131.Nor did the Memorialmake anyreference -understandably,becauseit was
contrary to Qatar's interest- to the views of Dr Hassan Karnel,the legal
adviser of the Qataridelegationat themeeting,who repeatedly observed that
at that stage the obligation to submit thecase to the Court was of a mord,
not a legal, nature. For exarnple,he is recorded as having said:
"..Cornmitmentto submitthecase to theCourtis a moral rather than
a legal commitment, There will be a legd cornmitment when T
registeratthe Court to submit the disputeto the Court. So 1want to
find out ameans for thatana9
C. The Qatari draft agreement,15 March 1988
5.25 Passing to the draft agreements submitted by each of the Parties
following this meeting,Qatar's first draft Special Agreementof 15 Mach
198gW is itself expressed as a joint submission.The ''joint" qualityof this
draft whilenot actually suppressed in therepresentation of it in the Qatari
Memorial, paragraph3.36, is passed overin silence infavour of anextended
qüotation of the provision dealing with the description of the dispute. In
proposing this draft, Qatar apparently didnot feel that the requirementsof
the existing arrangementsbetween the Parties contemplated anything other
than ajoint submission.As the Amirof Qatar statedin his letter to the King
of Saudi Arabia dated 25 March 1988:
"Youshouldhave, my dearbrother theKing,noticed that itisdrafted
inaccordancewithwhat hclsbeen required and agreed upon as well
as withthetraditionalwayofdraftingsimilarSpecialAgreements for
89Annex 1.6Vol.II,at p.35. Laterin the same meeting, he said:"We may agree to
certaitextct:hen differ. In the pastit wasagreedto take the caseto arbitrationthen it was
given up. What I want to say is to differentiate between legai commitment and mord
commitmenl." Annex 1.6Vol. II, at p.36.
90Annex 1.8Vol. II,p.41. the submission of such internalionaldisputes tu the international
CourtofJ~stice".~'
The Amir reiterated hiswish to:
"reach a sound, joint form to be agreed upon to achievethe true
purpose of drawing a 'SpecialAgreement' on the basis ofwhich the
dispute would be submitted to the International Courtof Justice",92
D. The Bahraini draft apreement,March 1988
5.26 The Bahraini first draft Special Agreement, also submittedin Mach
198893i ,s likewise expressed in the form of a joint submission. Ascan be
seen from the letter of the Amirof Qatarjust cited, no objection wasraised
by Qatar to this drafton the groundof its form but onlyon groundsrelated
to suchmatters asthe descriptionof thedispute and the so-called "ArticleV
point" dealingwith the exclusion ofcertain categories of evidence.
E. Second TripartiteCornmitteeMeeting. April1988
5.27 Continuing on this theme of the acceptance by the Parties that the
submissionto the Court wasto be joint not unilateral,it may once more be
noted that the Minutes of the second meetingof the Tripartite Cornmittee
reveal no doubt at al1that the objective was the preparation of a joint
subrnis~ion.~A~s was pointedout by H.R,H.Prince Saud, Foreign Minister
of SaudiArabia, in opening the proceedings, "closescmtiny" of the drafts
presented by the Parties "reveals that most of the remarks concern formal
9QatariMernorialA, nnex11.23,Vol.III,p.148.Emphasissupplicd.
Ibid .,p149.
9Annex 1.9,Vol. II,p.47.
9Amex 1.10,Vol. Ip.53.issues such as language, ratification and similar questions".g5 The
representativesof the Parties did not dissent from thisassessment.Certainly
the Qatari representative, Dr Hassan Kamel, must have been thinking in
terms of a joint submission becauseat one point he says:
"Theabove [definitionof the dispute]is importantas article40 of the
Court's statutes attachesgreat importanceon thenecessity to include
in a special agreementthe subject matter of the dispute."96
As is evident on the face of Article40 of the Statute, "aspecial agreement"
is tobe colitrastedwith "a written application"as away of bringing a case
before the Court.
F, Third Tripartite Committee me et in^Anri1 1988
5.28 Likewise, at the ThirdMeeting of the TripartiteCommitteeheld later
in April1988,Qatar'sunderstandingofthe 1987Agreementwas againmade
quite plain by Dr HassanKamel:
"Weare meeting today for the third time to pursue our task. That is
to come to an agreementon the format of the special agreement by
which the substantive aspects of the dispute between Our two
countries can be referred to the International Court of Justice ...
Previously, 1 said that it was agreed between us that by special
agreement we refer Our dispute to the International Court of
Justi~e.'"~
5.29 Again,on 7 May1988,the Amirof Qatarwrotein a letterto the King
of Saudi Arabia:
''Ibid.alp.56.
9Ibid..,atp.61.
Amex 1.11,Vol. IIalpp.77-78.
- 42 - "...it has been agreedthatthe Cornmittee'stask is to fornulate adraft
special agreement by which ho th parties will submit tl~eirdisputed
subject-mattersto the Court ..."
and again:
> ? ,
"Performanceof the Committee'stask requires it to heed the Statute
and Rules of the Court, and prepare a draft special agreement
acceptable to both parties ..."98
H. Fourth Tripartite Cornmittee me et in^,June 1988
5.30 The basicappsoachwasmaintained,oncemore,at the Fourth Meeting
held on 28 June 1988.As on previous occasions,H.R.H.Prince Saud said:
"1 would like to stress that the main aim of this Cornmittee is the
preparation of a Draft Agreement to refer the dispute to the
International Courtof Justice. ""
5.31 Ori this occasion, and evidently in the context of a continuing
consideration of the text of ajoint submission,Bahrainput forward another
formula, also wordedon the assumptionthat thewhole dispute,as seenfrorn
the points of view of both Parties, would be dealt with in a single set of
proceedings initiated by a joint submission.Tliisis plain on the face of the
text.lw On what buis would Bahrain have formulated a setof questions
that included a challengeto its owntitle to possessthe Hawar Islands unless
it believedthat there was going to be a singlecase subrnittedto the Courtby
a joint agreement and thatit was necessary toincorporate a question that
would enable each sideto raise before the Court the issues tliat concerned it
particularly?
98QatariMernorialA, nnex11.26,Vol. III,atp.176. Ernphassupplicd.
99Annex 1.13,Vol. II,at p.87.
O0
Annex1.12,Vol. II,p.81.1. Oatari letter of 9 July 1988
5.32 Following this,on 9 July 1988,the Amir of Qatar again wrote to the
King of Saudi ~rabia"' complaining about the Bahraini draft agreement
and saying that Article II in both the Bahraini and the Qatari draft
agreements (setting out the question to be referred to the Court) was "the
basic article in both drafts", He continued:
"Thus the new Bahrainidraft is utterly unrelatedto the draft Special
Agreement which is required of Bahrain in order b propose for
referenceof the disputebetweenthe two countsiesto theInternational
Court of Justice for its decision in accordance with International
Law."
In a further significant passagein the same letter the Amir said:
"Thecauses leading to the present situation,which cannot be further
endured, have become very clear.To get out of this situation,thereis
no other course than that Bahrainabides -as did Qatar - by what has
been agreed upon under the mediation, and by the rufes of the
procedural regulations of the International Court of Justice which
stipulate that the two sides submit their agreed upon disputes to the
Court and request its decision in accordancewith International Law
...102
J. The Bahraini Formula, October 1988
5.33 On 26 October 1988 an amended and shortened version of the
Bahraini Formula was sent to Qatar, This was in a generaiized form to
IDQatariMernorial,Annex 11.28Vol. III,p.187.
'O2QatariMemarial,Annex 11.28,Vol. IIpp.188and 190respectively. Emphasis
supplied.Qatar'scorrespondenceat this tiralsoshows Qatar'sresistanceto ArticleV
of thc Bahrainidraft. Seeletterta the King,25 Mach 1988(ibidAnnex 11.23,Vol.III,
p.147) andrnemorandum of 27 March1988, (ibid.,Annex11.24,Vol. IIIp.157).enable the Parties to present to the Court, within the framework of a joint
submission, the issues which really mattered to each of them. It read as
follows:
"TheParties requestthe Court to decide any matterof territorialright
or other titleor interestwhich may be a matter of difference between
them; and to draw a single maritime boundary between their
respective maritime areas of seabed, subsoil and superjacent
waters."lO"
As can immediakly be seen,the formulabeginswiththe words "TheParties
request ...",a form of words that clearly indicates that the formulawas
designed to fit into joint, nota unilateral,subrnission tothe Court.Bahrain
will return to the significanceof the Arabic textof this draft when it cornes,
in Chapter VI, Section 1 below, to consider the proper translation of the
Arabie:text of the 1990Minutes.
K. Fifth Tripartite CommitteeMeeting, Novernber 1988
5.34 The formula was discussedthree weeks later on 15November 1988
when the Tripartite Committeeheld its fifth meeting,The Foreign Minister
of Qatar, Shaikh AlimadBin Saif, said:
"1am happy to Saythat the Stateof Qatar welcomes discussing this
proposa1 as a basis for formulating Article Two in the Special
Agreement, to which we hope to reach very soon a cornrnon text
acceptable to both ofus.11104
'OAnnex 1.14,Vol.II ,t p.91. The originallanguageof this text as submittedby
Bahrainwas English.The UnitedNationstext(Annex1.15Vol.II. p.93)iatranslation
backintuEnglishfromthe Arabictranslationof theoriginal.
'OAmex 1.16,Vol. II, at p.99.He wasnot alonein his approach.DrHassanKamel,alsospeakingon behalf
of Qatar, expressed his views "... regardingArticle II of the special
agreement under which thedisputewillbe referred to the InternationalCourt
of Justice,.,". He welcomed the draft as "a good step fonvard" because "it
II105
leaves to the Court ...to decide on the claims of both parties ...
L, Sixth Triuartite CommitteeMeeting,December 1988
5.35 The Sixth Meeting of the Tripartite Committee was held on 6
Decernber 1988. Once more the discussion took place by reference
exclusively to the preparationof a joint submission.Dr Hassan Kamel said,
for example, that:
"we have to do two things ...secondly, to agree precisely on the
subjects that we will submit to the Court in two appendices to the
agreement il.O6
In a later session he said:
"Generally speaking,eachparty mayclaim whateverit wants, but we
should agree before going to the Courton the subjects which will be
submitted by the two c~untries."'~~
5.36 The Min~tes'~'were to the same general effect, in the sense of
contemplating a joint subrnission,and contained a listof the subjectsto be
submittedto the Court.
'O5Ibid.atpp.100-101.
'O6Annex1.17,Vol. II,atp.105.
'O7Ibid.,atp.108.
'O8Annex 1.18,Vol. II, p.109.For Qatar'stranslatiosec QatariMernorial,Annex
11-31,Vol. III,p.201.SECTION 4. The difficultv of concludin~an agreement pursuant to the
1987 Ameement
5.37 The Sixth Tripartite Committee meetingwas the last before the Gulf
Cooperation CouncilSummitmeetingof December1990. Althoughitis not
strictlyrelevantto the questionof theinterpretationof the 1987Agreement,
it rnay nonetheless be helpful to the Court to know why it was that the
Parties couldnotreach agreementon thecontentofajoint submission during
the period between December 1987 and December 1990.
5.38 (1)Despite the fact that the Tripartite Committee held six meetings
in the course of1988, no meetingsof that body were held in the course of
1989 and 1990.It was left that the points rnentionedin the signed Minutes
of the 7 December 1988 meeting would be studied, which shows that the
Tripartite Committee negotiations had not been concl~ded.'~~ As is stated
in the Qatari Memonal, paragraph 3.52, the dispute was adverted to at the
Gulf CooperationCouncil SummitConferencein Decernber1988and again
at the corresponding meeting in December1989.On each occasion it was
agreedthat the Saudi Arabian mediation should continue - on the first
occasion for six months and on the second for two months; but no positive
action developed. Moreover, there were a number of intervening meetings
between representativesof thePartiesdirectlyas well as betweentheParties
individuallyandSaudiArabia, al1directedtoachievingarnediatedsettiement
of the matters in dispute.'''
5.39 (2) The second reasonfor the failureof the Parties to concludeajoint
submissionwas thedifferencebetween themregardingtheformulationofthe
"OAt thc end of February 1989 the CrownPrincc of Bahrainvisitcd Qatar and
discussionsthentooplace. TheAniiroîBahrainvisitcdSaudiArabiain July1989and
a furlher meelingbetween the Amirof BahrainandKingFahdtookplacein December
1989. In February1990 the Saudi Foreign Ministerinîomd Bahrain that the Saudi
mediationeffortwerecontinuing.question. Initially Bahrainwasnot inclinedtopermitits sovereigntyover the
Hawar Islands to be made an issue. Eventually,however, it was persuaded
to changeits position onthe understandingthat it would be able to assert its
claim in respect of Zubarah.While it appears from the Minutesof the Sixth
Meeting of the Tripartite Comrnittee that Qatar was willing to include
Zubarah in the list of subjects to be subrnitted to the Court, it seems that
later in the meeting Qatar qualified its consentby rejecting the possibility
that Bahrain might daim sovereign rights in the area - a possibility that
Bahrain was not prepared to renounce.lll
5.40 (3) A further and substantial point of disagreement was over the
Bahrainiproposa1of the so-calledArticleV -a provisionintendedtoexclude
evidence of substantive proposals madeby either side in the course of the
negotiations conductedbetweenthem directlyor throughthirdparties andnot
finalisedinto an agreement.The extentof Qatar'sconcernin thisconnection
is shown by the length at which it treated the subject in theAmir's letter to
the King of Saudi Arabiaof 25 March 1988."2
5.41 (4) Finally, there was a differencebetween the two sides as to the
rnanner in which the Joint Submissionwas to be braught before the Court.
The Bahraini draft containedno provision in this connection.'13 The Qatari
draft, on the otherhand,contained (in itsArticleV) specificprovisionfor the
Parties by a joint letter to notify the Agreement to the Court and, if such
notification was not effectedwithin one monthof the entry into force of the
Agreement, for either party to be permitted so to notify it.'14 Such
notification was not, however,expressedto alter the character or contentof
the agreementfor joint submission.
ltAmx 1.18,Vol. II,p.109.
QatariMernorial ,nncx11.23,Vol. III,p.147.
IlAnnex1.9.Vol.II,p.47.
IlAnnex1.8, Vol. 13atp.45.
- 48 -5.42 When these differences are reviewed closelyit is difficult to detect in
them anyinsuperablebarrier to the conclusionof a special agreement.If in
the years 1989 and 1990 Qatar had manifested any active interest in
promotinganagreementwhich tookintoaccount Bahrain'sconcerns,Bahrain
would have been willing, as it is now, tojoin in makinan agreement for a
joint submission. Thereasons why Bahrain insists on a joint submission,
ratherthan acquiescingin a unilateralone,areset outin Chapter VI11below.
In conclusion, however, it may be said that there was nothing in these
differences between theParties, orin the statedpositionof Qatar, thatcould
have led Bahrain to expect that at the end of 1990Qatar would attempt to
secure a right to submit the case to the Court unilaterally.
SECTION 5. Summq and conclusion of this Chai~ter
5.43 By way of recapitulationof the arguments developedin this Chapter,
Bahrain submits thatthe 1987Agreementwas not intended to pavethe way
to a unilateral approachto the Court by either side. Rather, every element
pertinent to its interpretation, and in particular the background to the
agreement, the ordinary meaning of the words used and the subsequent
practice ofthe Parties,indicatesthat theAgreementforesawthe presentation
of the dispute to the Court only by means of an agreement for a joint
submission. Thus:
(i) The Agreement emerged from themediation process undertaken by
Saudi Arabia during which no suggestion wasever made that Qatar might
unilaterallystart proceedings against Bahrain. Even the initial idea of
submitting the disputeto arbitrationnecessarilyimplied ajoint submission.
The languageof theAgreement - inusing the words that "thedisputed
(ii)
matters shall be referred to the InternationaiCwrt of Justice" coupled with
the immediately following provision that a cornmittee shàll be formed
consisting of representatives of Bahrain, Qatar and Saudi Arabia, for the
purposes of approaching the Court - clearlyforesees furtherjoint action forthe purpose of placing the matter before the Court. Whatever generality
there may have been inthe first operativeparagraph of the Agreement was
immediately and totally qualified by the provision in the third operative
paragraph for the formationof theCornmitteeforthepurposeof approaching
the Court. The words used excluded the seisin of the Court by any other
method than one adopted by the Committee or pursuant to its collective
decision.
(iii) This interpretation of the 1987 Agreement is borne out by the
subsequent conductof the Parties and is the only one thatis consistent with
it. Each side, by its actions in putting fonvard draft agreements and by its
staternentsmadein meetingsof the TripartiteCommittee,clearlyrepresented
its belief that thebject of their discussions was the elaboration of a joint
submission to the Court. The BahrainiFormula is particularlyimportant in
this connection king, bothin its expression("The [twol parties request ...")
and in its substance, clearly indicativeof the submission of the casejointly
by the Parties andon a footingof equality. Qatarhas subsequentlyaccepted
this formula.
(iv) This unity of approachof the Partiesto ajoint submission was totally
vndisturbeduntil,quite withoutwming, Qatarin December 1990 attempted
to impose a radical change of direction. CHAPTERVI
THE 1990MINUTES
6.1 Ashasalreadybeenemphasized intheprecedingchapter,Qatar'scase
on jurisdiction rests on two totallyinterdependentl-gthe 1987Agreement
and the 1990 Minutes. Without the 1990 Minutes, the 1987 Agreement
achievesnothing.Conversely,withoutthe 1987Agreement,the1990Minutes
can achieve nothing. Qatar has not attemptedto raise any doubt about this
interdependence.
6.2 Bahrain hopes that in the previousChapter it will sufficiently have
demonstrated that the 1987 Agreement did not by itself establish the
jurisdiction of the Court. The Agreementid no more than open the way to
the nextstep, whichwas intendedto be thenegotiationof ajoint submission
to the Court.Its nownecessaryto examine the 1990Minutesto seewhether
they serve to convert the fact that the Parties did not complete the
negotiation of ajoint submissionn the period 1987-1990into aright for one
of them to commence proceedingson its own.In the submissionof Bahrain,
the answer to this question must alsobe an emphatic No.
6.3 At the outset, however, Bahrain should indicate thatit does not take
issue with Qatar regarding any question of the form of the claimed
agreement. There is so much of a substanta nvdesubstantialkind that is
wrong with the Qataricase regardingthe 1940Minutes that there isno point
in spending time denying the possibility thatagreementcan take the form
of minutes of meetings. Ultimately, it is a question in each case of
scrutinizing the documents in question to see whether they sufficiently
evidence a common will of the participantsto be legally bound to pursue a
particular course of conductInthepresent case the sole question iswhether
the 1990 Minutes rise to the status, and have the effect, which Qatar has
atbibuted to them. Accordingly, thereis no need for Bahrain to deal furtherwith the abstract questionof form to whichparas. 4.31-4.39inclusive of the
Qatari Mernorialare directed.
6.4 Nonetheless, the forrn of the 1990 Minutes calls for note in one
respect, These Minutes were in much the sarneforrn as the Minutes of the
meeting on 6 December 1988"" a document which Qatar does not invoke
as constituting alegallybindinginternationaltreaty.Just asthe 1990Minutes
use the expression "the following was agreed", so the December 1988
Minutes statethat "Thetwopartiesagreedto thesematte~s".Just as the 1990
Minutes were signed by the representativesof al1three participants (Saudi
Arabia, Bahrain and Qatar), so were the 1988 Minutes. It is, therefore,
difficult to see why one setof Minutes shouldbe a treaty and the other not.
And if they are both treaties, is it not a little strange that the second treaty
shouldhavebeen concludedwithoutanyconsiderationof how itstermswere
to be reconciled withthose of the first treat- particularlyin the lighof the
provision in the 1990 Minutes "to reaffirm what was agreed previously
between the two parties"?
6.5 There are twoprincipalpointsto be developed in connection with the
1990 Minutes. The first in logical order is Bahrain's contention that tlie
Minutesdo not have the statusof a bindingagreement and cannot, therefore,
serve as a basis for the Court'sjurisdiction. The secondis that, even if they
possess such a status, their contentdoes not support the Qatari submission
that the text accords each Party the right unilaterally to commence
proceedings. It will be convenient to begin this consideration of the 1990
Minuteswith the secondofthesearguments,namely,that the Minutesdo iiot
have the meaning that Qatar seeks to put on them.
'1Annex 1.18,Vol. II, p.109. Sce alsoQatarMcmorial,Ann11-31Vol. III,p.201.
See alsoparas.5.35and 5.36 above. The same commcnt may also bc madc aboutlhe
minutcsofthe earliermeetingheld on 17January 1988(Armex1.7Vol.II,p.371,thnugh
therewasless substancein theircontent,king limitedturecordinganagreementthiiteach
side wouldsubmitto SaudiArabiaadraftof thcagreementthatitproposed forreferring
thc disputcto die International Court of Justipara5.24 above.SECTION1. The Meaninnof the 1990 Minutes
A. The relevant lan~zuane is Arabic
6.6 It is not disputedby the Parties that the 1990Minutes weredrafted
,.:,
and signedin the Arabic language.The English languageplayed no role in
the formationof the text. Accordingly, thetask of the Court is basically the
determination of the meaningof the relevant Arabic words.This is not as
daunting a task as it may at first sight appear.ll6 Major disagreement
between the Parties is limited to the meaning of two phrases whichappear
in italicsinthe text that follows.
The Arabic words represented by the two phrases may be û-ansliteratedas
follows:
- "the two parties" (UN translation) or "the parties" (Qataritranslation) =
;,Li& Ial-tarafan
- "and the arrangements relating thereto" (UN translation) or "and the
proceedings arisirigtherefrom"(Qatari translation) = i+& %$ I&Ir l*Y l
'al-'ijr al'rniitaratfibu'alayhü
Of these two phrases al-tarafan is the one of principal importance and itis
to this that Bahrain now turns.
IlQatarpresentedanEnglishtranslationofthetex1initsApplication.Bahrainha5
presented atranslatiby its expert,Dr. Holes,in an attachmeto tiie Jetter fromthe
Ministerof ForeignAffairsto theRegistrarof theCourtof 18 August1991. Thisalso
includedasAttachrnent"Cuto Annex1.25.Vol.IIatp.176,and,againas AttachrnentCu
tuAnnex1.26,Vol.II,atp.193.AndtheUnitedNationstranslationserviceshaveproduced
a furlhetranslatiof the1987Agreement (Annex 1.2Vol.II,p.5a)ndthe1990Minutes
(seeAnnex 1.19,Vol. II,p.115)to whichfuflreferencis madebelow. para6.21. The
threetranslationof the 1990Minutesareset out side by sidin Amex 1.20,Vol. II,
p.119.1. The meaning of al-taï-afân
6.7 The issue to which the wordsal-tarafanare relevant is the controlling
one of "who may submit the matter to the Court?" May this be done by one
party alone (as Qatar contends) or only by both parties acting togetlier (as
Bahrain contends)?
6.8 The issue has hitherto been presented to the Court partly in the form
of a dispute between the Qatari translation "the parties" and the Bahraini
translation "the two But now that Bahrain has the opportunity
to present an extended statementof itsposition, it is bound to ernphasizethat
the task of the Court is not to choose one or the other of these English
expressions but instead to identify a form of words that best reflects in
~n~lish'l' the true sense of the Arabic w~rds."~Bahrain submits that the
sense of the Arabic wordsis conjunctive.Al-turufanmeans "boththe Parties"
or "the Parties together". The Arabie expression is not open, in the context
in whichit is used in this case, to the disjunctiveor distributiveinterpretrttion
put upon it by Qatar ta the effect that either Party may proceed alone. In
proof of this, itis necessary to look at the way in which thewords al-tarafan
have been used not only in the text in question but also in oiher texts of a
similar nature previously prepared or adoptedbyeither or both of the parties.
117See the Annexto the letterfrom the Ministerof ForeignAWdirs,Bührdin tu the
Registrarof the Court,18thAugusu1 s991.
118And, of course,French.However,both Partics arcpresentingtheir pleadingsin
English so il is in tems of that languagethat Bahrain willexpressitself.
'" 11t1isparticularreqecl theParliesappeartobc largclyin agrccmcntIn para.5.48
of ilsMernoria1Qalar says:
"Accordingly,there is no real diîîerericeiî thc second paragraphof thc Doha
Agreementis translatedto read 'Afier the end ofthis period theparries may
submitthe mattcrto thc International Courtuf Justice''..theniloparties may
submit...(emphases addcd).From a substantive poiof viewthedifferenceinthe
translationis immalerîal." (a) The use of al-tut-afünin earlier texts
6.9 Upon exarniningearlier pertinent textsgenerated by the Parties it is
quite clear that the words al-taraf hareabeen used by both Parties to
express the conjunctive idea of "both parties together" and not any
distributive idea of "either" orach"of the Parties.
(i) Use in the Oatariand Bahraini draft ioint submissions of 1988
6.10 Perhaps the simplestand shortestway of disposing of this casein the
sense for which Bahrain contends is to adopt the view of the matter
presented by one of Qatar's experts, Professor EI ~osheri.'~~Part II of his
Opinion is entitled "Response to the Questions which raisecl Linguistic
Problerns ....In Section 1 lie deals with "The significance of the Arabic
Language with regard to the usage of the dual as distinguished from tlie
singular and theplural."
6.11 There, in paragraph 43, ProfessorEl Kosheri statesthat:
"thereis nothingwrongin terms ofEnglish linguisticswhenusing the
word 'parties'to express what is knownin Arabic as 'Tarafan'or as
'Atraf, since the English language does not distinguish between the
dual and the plural."
He goes on to say:
"Therefore, there isprima facie no issue in objecting to Qatar's
translation of the word 'Al-Tarufun'as meaning 'the parties' in the
second paragraph of the sigiiedMinutes dated 25 December, 1990."
12PmfcssorEl Kosheri'sopinian is containcdin thc QatariMeniAnnex 111.1,
VoI.IIIp.251.6.12 Then cornesthe most crucial passage:
"ln fact the State of Bahrain itself acted in the same manner as
witnessed by Attachrnent 7 to the Annex submitted to the
International Court of Justice with the letter from the Bahraini
Minister of Foreign Affairs dated 18 August 1991. The said
Attachment 7comprisedwhatis referred toas 'Copyof originaldraft
Bahraini Special Agreementof 19th March, 1988,121 as amended in
October 1988 in English and Arabic'.Article1in the English version
started with the reference to 'TheParties'."
"The same reference to 'The Parties' is repeated as follows: at the
beginning of Article 11.1....In al1seventeen instances, the Arabic
version of the Bahraini draft agreement referredto 'Al-Turufun'."
"It is difficult to understand why whatwas linguisticallycorrect for
Bahrain in 1Y88 has become incorrectfor Qatar in 1991 ."
6.13 Professor El Kosheri has hit the nail on the head and has made in
unexceptionable ternisthe verypoint thatBahrain seeksto make.The words
al-turufd wnhich are used in paragraph 2 of the 1990 Minutes and which
Bahrain maintains means"the twoparties" in the sense of "both the parties
together", were also used in the Bahraini Draft Special Agreement of 19
March 1988. There they were used in exactly the same sense as meaning
"both the Parties" or "the Parties together". They wereso understood by
Bahrain and by Qatar, and by Saudi Arabia as well, because at that time
there was no thought in anyone'smind of the case going before the Court
other than by a joint submission.Indeed, Qataritself used the same Arabic
words al-tarafun to describe a joint submission in its own Draft Special
Agreement of 15 March 1988.122
12Atmex1.9,Vol. II,p.47.
'2Qatari Memonal, Annex11.21,Vol.III,p.135. For the Arabtextsee p.135 of
Qatar's "List of the Arabic Venions of the DocumenAnnexes deposited with the
Court".6.14 Thus, Professor El Kosheri, in his anxiety to prove that Qatar was
correctto translateal-taruif nütne 1990Minutesbythe words"TheParties"
has in fact proved beyondany possibility of contradiction that al-tarafan,
whether translated as "The Parties" or "The two Parties", must mean both
Parties together.Qatar has adopted Professor El Kosheri's Opinion as an
integralpart of its case and1lasnot entereany reservationin respect of this
aspect of it.l2qY itself, this should be sufficient to dispose, without
further argument, of Qatar'sclaim to be entitled unilaterdly to institute the
present proceedings.
(ii) Use iii the BahrainiFormula 1988
6.15 This use of the words al-tarafanwas not isolatedor exceptional. In
its Applicationin the present case, Qatar referred to the so-called Bahraini
Fomula as an integral part of its contention that the Court hasjurisdiction
in this case. The Bahraini Formula for the question to be put to the Court
was put forward in its present fom in English, with an Arabic translation,
on 26October 1988for inclusionin the evolviiigdraftjoint subrnission.The
text is set outin paragraph5.33aboveandin Annex1-14hereto. Qatarstated
in paragraph 37 of itsApplicationthat:
"during the 11th Gulf Co-operation Council summit meeting ...[it]
declared that, in order to arrive at an agreement for submitting the
disputes to the Court, it accepted theahrainiFomula."
Jt has adhered to that position in its Memorial.
6.16 As has already been stated, this formula wasproposed by Bahrain as
a contribution to the text of a joint submission to the Court and was
received andseeriby Qataras such.The openingwordsof the fomula, "The
Parties",thus could onlybe takento meanconjunctively"both the Parties".
The words used to render this idea into Arabic were al-turuf Iuthose
12See QatariMemorial,para5.46.
- 57 -Arabic words meant "the Parties together"or "both the Parties" then they
could only mean the same thing where used again in the 1990Minutes.It is
elementary logic that ifA equals B and A equals C, then C must equal B.
If in the Bahraini Formula al-taraf (ü)nequals "both the parties"(B) and
in the 1990Minutesal-turafün(A) equalsthe expressiontranslatedby Qatar
as "the partiesW(C)t,hen the words "theparlies" (C) must equal the words
"both the parties" (B).
6.17 This cogent evidenceof the manner in whichthe Parties themselves
accepted the words ai-taraf iatheirpreviousdiscussionseffectivelyserves
to estop either of them (though, effectively, in this case, Qatar)from now
asserting that the wordsdo not cary a conjunctivemeaning.It is, therefore,
hardly necessary for Bahrainto carrythe matter further. However, as the
point is central to the present proceedings, Bahrain will now refer to a
number of additional considerations that support theBahraini interpretation,
(b) The translationof al--arufdnas "the two Parties"
(i) Elsewhere in the Qatari versionof the 1990Minutes
6.38 Even if there could be any real doubt aboutthe conjunctiveeffect of
the English words "theparties"inrelation to the secondoperativeparagraph
of the 1990 Minutes, there can be even less doubt about the conjunctive
effect of the words "the two parties" which is tlie manner in which the
Arabic words al-larafün.(though in a different grammatical case) are
translated in the first and third operative paragraphs of the 1990Minutes.
Thisapplies equallyto the Bahraini,the Qatari and the UN translations.
61 The expression first appears in paragraph 1 of the operative part as
part of the phrase "to reaffirmwhat was agreed previously betweenthe two
parties". This is the translation givenin the English version of the 1990Minutes annexed to the Qatari ~pplication.'~~The words are clearly used
in the conjunctive sense.
6.20 The expression also appears in the third operative paragraph of the
1990Minutes:
"should a brotherly solution acceptable to the two partiesbe reached,
the case will be withdrawnfrom arbitration".
Here, if anything, the wordsconvey evenmore clearlytlieconjunctivesense
since, within the framework of the Court's procedure, even if a case is
commenced by one Statealone,its discontinuancecanbe achievedonlywith
the consent of the other.lZ5
(ii) In the translationprepared by the United Nations
6.21 Bahrain has obtained from the Treaty Registration Section of the
United Nations a translationofthe 1987Agreement,the1987Announcement
and the 1990Minutespreparedrecently following the steps taken by Qatar
in lune 1991 to procure registrationof those texts under Article 102 of the
Charter as international agreements.'2vhis translation is of particular
importance and value, havingbeen made independentlyby experts in the
Secretariat of the Organizationof which the Court is one of the principal
organs, and not in responseto any request from Bahrain,The translation of
'"Qatari ApplicationAnnex 6.
12See Rules of the Court,Article88. The only cxccptionis underArticle89, which
permitsunilatcralwilhdrawalby iheapplicantonlyif therespotil asnot yet takeany
stcpin thc proceedings.
126On 9 Augusl 1991 Bahrain prutestedt.othe United Nations Secretary Generil
againstthe regislrationof these texts,Annex1.21,Vol. II,p.125. See Attachment8 to
Bahraili'sletler of 18 August 1991to the Rcgistrar of the Court.The translationsby the
Secretariat appear to have been made subsequenttothi sate. The texts of the new
translationareappendedin Annexes 1.2,Vol.11,p.5;1.15,Vol.11,p.93and1.19,Vol.II,
p.115.the 1990Minutes uses thewords "thetwo parties" to represental-taraa fsün
itappears in the secondsentence of the secondoperative paragraph.
(iii) The opinions of the experts
6.22 The opinions of the experts have hitherto been directed exclusively
towards the translation of al-turuj as a matter of linguistics and, in
particular, to thequestionof whether it shouldbe properlytranslatedas "the
parties" or as "the two parties".
6.23 In the light, however, of the connection which even the Qatari
Mernorialrecognizesbetweenthe use of al-taraif nütne 3Y90Minutesand
its use inprevious textspreparedby thepartieswhenits functionwasclearly
to convey the idea of both "the parties" or "the parties together",it is now
evident that the principal questionon which it is desirable to secure expert
guidance is whether the useof al-taraif nahese earlier texts can properly
be identified with its use in tlie 1990 Minutes. Bahrain has,therefore, put
precisely that question to four experts: Professor A.K. Aboulmagd; Mr.
Adnan Amkhan;Professor Badawi andDr. HoIes. Each has confirrnedthat
the use made of the expression al-turaif nütne earlier texts,in particularin
the Qatari and Bahraini draftjoint agreementsand in the Bahraini Formula,
is identical with the use made of it in the second sentence of the second
operative paragraph of the 1990Minutes.As therecan be no doubt that each
of these earlier texts was intended to convey the idea of the two parties
acting together,it followsthatthat is also the sensein whichit is usedinthe
1990Minutes. 127
12Scc Annex II, Vol. II, for Ihe opinions of Professor Aboulmagd,Mr. Amkhan,
PmfessnrBadawiand Dr. Holcsrcspcctivciy. Seeinparticular,the opinionoî Prolessor
Aboulmagd,Annex 11.1,para.3.9, at p.215, the section of the opinion of Professor
Badawi,Annex 11.entitled"(bThe togethcrncssof thedualnouad-tarafinat pp.267-
270, and the opinionof Dr. Holcs,Aiinex1aip.292,bottomparag;aphN. ote alsoMr.
Amkhan'scornparisonwith the useof ul-tara ittne sigiiedMinutesof7 Decernbcr
1988 atparas.36 and37 of his opinion,Ahex 11.atpp.251-2. Sec alsobclow,paras.6-24 Thus Professor Badawi states in his Opinion:128
"Now we turn to the use of the dual al-tarafàn in al1 the Arabic
documentsrelated to the period of mediation betweenthe two States,
.,,.,
in particular the minutes of Dec. 25, 1990.
1. More than 50 Arabicdocuments (totalling245 pages) were
included in the Memonal submitted to the Court by the State of
Qatar,..
2. The word al-tarafhn occursin the above Arabic documents
145 times (some of which are quotes fromprevious documents). In
al1these occurrencesthe word al-tarafanis used inthe basic senseof
the dual and wheneverthere is a question of actionit always applies
jointly and uniforrnlyto the two parties. Not even once does there
occur a single qualificationto alter this uniform use of the word al-
tarafan..,
4. Of particular significance here is the use of the dual al-
tarafdn by the Qatari side, cspecially in their first draft Special
Àgreement dated 15March, 1988129 and in their Note Verbale dated
27 March, 1988 commenting on the Bahraini's draft Special
Agreement of March 1488:
Notwithstandingthe Qatari translationof al-tarafan as 'theparties' ...
al-tarufün is clearly used in these two dociments in the context of
joint submission to the Court ......
7. The use of al-tarafan in the Minutesof Dec. 25, 1990is in
no way different from its use anywhere else in the 142 other places
in the set of documents. It signifies the two parties acting togethcr
in their preparation for the approachto the Court ..."
6.33 and 6.49-6.53,for Iliesigtiiîicanceof the chanmadein the two draftsof the
December1990Minutesbefore they were finallyadopted.
12See Annex11.3,Vol. II,atpp.268-270.
12'Annex 1.8, Vol. II, p.41. For the Arabic text see the Arabic version of the
documcntary annexesdeposited with the Registryby Qatar, p.137.6.25 The experts have also cornrnented on the other more technical
linguistic points made in the expert opinions attached to the Qatari
Mern~rial.'~~
B. Consistencv of tlie Bahraini interpretation with the rest of the 1990
.,,,,
Minutes
6.26 Bahrain's interpretationof the words uE-turuf inüthe 1990 Minutes
issupported by the consistencyof thisinterpretationwith other aspectsofthe
rest of the text.
1. The sianificance of reaffirmina "what was agreed rireviously"
6.27 The firstoperativeparagraphofthe 1990Minutesprovidesthat it was
agreed "to reaffirm what was agreed previously between the two parties".
Referencehas alreadybeenmadeto the correspondenceof the Arabicwords
al-turafan in this provision with the words al-turajZnin the second and
central operative paragraph.It is not the object of this sub-sectionto repeat
that argument, Rather,it is necessaryto point out that in re-affirmingwhat
had previously been agreed, the partieswere intending to reaffirm acourse
of conduct pursued exclusively on the basis that the Parties would jointiy
submit the entirety of their dispute tothe Court by a special agreement.
6.28 It is to be notedthat the Qatari Memorial proceedson the assumption
that the previaus agreement "reaffirmed"in the first operative paragraphof
the 1490 Minutes is the 1987 Agreement and nothing else. The Qatari
Memorial Statesat paragraph4.49:
"It may be concluded,first, that acccording to the terms of the Doha
Agreement [the 1990Minutes], reference must be made, on the one
130
SeeAnnex II,Vol.11.Seei~parlicularProfessorBadawi'smalysisofthesemantic
stmcîuringof thecrucialsentenceithe s~GoIIoperalivparagrap hf the 1990Minutes
conlainedin SectionIIofhisopinion,Annex11.3,Vol. II,atpp.264-266. hand, to the previous December 1987 Agreement where the Parties
committed themselvesto refer al1matters in dispute to the Court."
A similar point is made later in the Qatari Memorial when dealing
specifically with tlie pointinBahrain's initial objectionto the jurisdiction
of the Court. The Qatari Memorial states,in para. 5.40:
"Bahrainfails to mention a basic element of the Mediation, that is-
to use the wording of the Doha Agreement - the reaffirmation of
'whatwas agreedpreviouslybetween thetwoparties'.lt is necessary,
therefore, to repeat theproposals set ouintlie identical letters dated
19December 1987from KingFahd whichwere acceptedby Bahrain
and Qatar."
6.29 Thus, on no less than two occasionsthe Qatari Memorial equatesthe
first point in the 1990 Minutes ("to reaffirm what was agreed previousiy
between the two parties") with the 1987Agreement. However, the Qatari
Memorial makesno attempttoestablish that the wordsin the firstparagraph
of the 1990 Minutes actually do refer to the 1987 Agreement and not to
some other agreement. Nor are there any words in the Minutes that
necessarily connect them exclusively or, indeed, primarily with the 1987
Agreement. As has been pointed out in the review in Chapter V, Section
313'aboveof the conduct of the Parties subsequentto the 1987Agreement,
there were other "agreements"betweenthePartieswhich couldhave been the
subject of "reaffirmation",notablytlie "agreement"containedin the minutes
of the Sixth Meeting of the Tripartite Cornmitteeof 6 December 1988.'32
This records the agreementof the parties on the subjects to be submittedto
the Court within the frameworkof a joint submission and is no less an
agreement pertinent to the content of the 1990 Minutes than is the 1987
Agreement, Qatar appearsentirelytohaveoverloakedthis point.These 1988
Minutes may as much be seen as "an agreemerit"as may the 1990Minutes
themselves. Ifthe 1990Minutesconstituteanagreementbecausetheycontain
See pwagraph5.20 andfollowing.
13Amex 1.18,Vol. IIp.109.
- 63 -the words "the following was agreed,133then the presence of comparable
words in the 1988 Minutes, namely, "the two parties agreed on these
subjects" must likewisebe read as constitutingan agreementbetweenthem
- an agreement concluded previouslyto the 1990Minutes and thus falling
within the scopeof its first operativeparagrapli.And what was it that was
thus agred in December 1988?The answer is very clear- a list of subjects
which were "to be submitted to the Court" quite evidently in a special
agreement to be concludedbetweenthe Parties.Othenvise,what wouldhave
been the purpose and sense of the proposal by the Qatari delegation
"that there should be two annexesto the agreement whichwould be
referred to the Court, one of which would be Qatari and the other
ah rai ni"?'^"
6.30 Thus the reaffirmation in the first operative paragraphof the 1990
Minutes of "what had previously been agreed" meant quite simply the
reaffirmation of 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 agreement.It is with this approach
that theBahrainiinterpretationof al-tarafinas used in the second operative
paragraph of the 1990Minutes is fully consistent.
2. The sinniticance ofthe use of tlie sin~ularnumberin the expression "the
matter", or "the case" as the obiect of the verb "submit"
6.31 An additional factormilitatingin favourof the Bahrainiinterpretation
of "the parties"lies in the fact that paragrap2 of the Minutes describes the
object of the litigationas "thematter" (in the singular) not as "the matters"
'3See the opinivnof ProfessorEl-Kosheri,QataMemorial, Annex111.1V, ol. III,
p.266.
'3Annex 1.18Vol.II,atp.112.in the plural. The translationpreparedby the UnitedNations Secretariatuses
the word "case" instead of "matter". The argument which follows applies,
whether "matter" or "case" isused, though its force is even stronger ifthe
word "case" is used.
6.32 The Qatari interpretation of "the parties" is that itmeans "each or
either of the parties"and claimsthat the expressionforeseesthat eachof the
parties may independentlyand unilaterallystart anyproceedingsagaiilstthe
otherthat fa11within theframeworkofthe BahrainiFormula.If this approach
is correct,itmeans that - ifthere is tobe more than one application -there
must be more than one matter or case. In technical terms it is difficult to
conceive of two separateapplications in respect of the same matter or case.
This being so, one would have expected that, if separate applications were
foreseen, then thepluralnumberwould havebeenusedtodescribethe object
of such applications; the text would thus have referred to "the matterx"or
"the cases" not "the matter" or "the case". The fact that it did not is an
indication that only one step commencing proceedings was contemplated.
That means that the commencement could have been only by joint
submission.
3. The si~nificanceof the words "and theproceduresarising therefrom"
6.33 The Bahraini interpretationof al-tarafan is further supported by the
meaning to be given to the words (as translated by Qatar) "and the
proceedings arising therefrom" that also appearin the same sentence. In the
opinion of Bahrain these words should moreaccuratelybe translatedas "the
procedures arising therefr~rn"'~~T . hey were introduced into the 1990
Minutes at the proposa1 of Bahrain, as part of the revision of the Saudi
Arabian and Ornani proposals, in order to make it quite clear that Court
proceedings couldonlybe begunby both Partiestogetherand,therefore,that
'35The translationpreparedby the UnitedNalionsreads:"and the arrangements
relatingthereto".Annex1.19,Vol. JI,at p.118.
- 65 -further steps would need to be taken by the two partiesjointly to bring the
case to the Court. The point was originally made in paragraph 15 of the
Bahraini letter to the Courtof 18 August 1991.
6.34 The Qatari responseto this point argues that "the procedures arising
therefrorn" were "those relating to andarising from the seisin of the Court
in accordance with its Statute and Rules". In effect, Qatar thus attempts to
attach the phrase to the idea of submission to the Court, whereas Bahrain
relates the phrase back to the Bahraini formula and the procedures or
arrangements ensuing upon its app1i~ation.l~~ Thus on Balirain's
interpretation (and this phrase was supplied by Bahrain) the procedures
would arise from the Special Agreement.
6.35 The correctness of the Bahraini interpretation of these words is
attested by three considerations.The first is that H.E. Dr. Al Bahama, who
formulated the phrase, declares in his ~taternentl~~ that his intention in
using the wordswas toemphasize that the Parties wouldneedto take further
steps jointly to bring thecase to the Court. The second is that the United
Nations Secretariattranslates the lineas follows:
".,the two partiesmdy submit the case to the International Courtof
Justice,inaccordancewiththeBahrainiformulaacceptedby the State
of Qatar and the arrangements relating thereto 1.38
This translationconfirmsthe directlinkagebetweenthe Bahrain formula and
"the arrangements relating thereto", inthe sense that the Bahraini formula
was seen as requiring further arrangementsto bring itinto effect as part of
a jurisdictional clause. The thirdis the strengthand clarity of the linguistic
136QatariMernorial ,ara.5.60.
'" Annex 1.26,Vol. TT,ara.8atp.18 1.
13'Annex1.19,Vol. II, atp.118.
- 66 -support provided for this interpretationby both linguistic experts, Professor
BadawiandDr. Woles, as wellasthelegalexperts, ProfessorAboulmagd and
Mr. Amkhan(al1on behalf of Bahrain). '39Professor Ayyad, thelinguistic
expert on behalfof Qatar, is clearlyof the same view -as Professor Badawi
points out in his comments on the former's opini~n.'~"Only Professor El-
Kosheri supports Qatar'scontention,but even headmits tliat:
"Froma purely linguistic pointof view, it has to be assumed that the
reference goes prima facie to the closest antecedent which is 'the
fi141
Bahrainiformula as acceptedby Qatar .
6.36 The final Qatari observationon this point is as f01lows:'~~
"Should the Parties have agreedto have recourse to a further round
of negotiations in order to arrive at a special agreement, the Doha
Agreement would not have failed to spell out such a major
requirement. "
That observation assumes what has to be proved, namely, that the 1990
Minutes did not spell out this major requirement.In truth,as Bahrain sees
the matter, that is precisely what the 1990Minutes did do in re-using the
words al-tarafan against a backgroundof its constant use in the past as a
description of joint action by both Parties.
139See, respectivcly,in Vol.Annex 11.1para.4.2 at p.215Amcx 11.2,paras. 38-
39, at pp.253-254; Annex 11.3the Section entitled:"The antcccdcnt of the pronominal
suffixha" atp.266 andAnnex 11.4para. 6, atp.297.
14'Atmex11.3,Vol. 11,al p.281, bolom paragraph.For Professor Ayyad'sview, see
Qatari Memorial, Annex 111.11,ol. 111,p. 322.
'" QatariMernoriai,Amex III,Vol. 111,p.275 at para. 35.
'42Ibid.,para5.60.C. The travaux~ré~aratoir-e lsading to the adoptionof the 1990Minutes
support the Bahraini interpretation
6.37 The circumstances in which resort to travaux pr4puratoires is
permissible are laid down in Article 32 of the Vienna Convention on the
Law of Treaties:
"Recourse may be had to supplementary means of intergretation,
including thepreparatorywork of the treaty and tliecircumstancesof
its conclusion, in order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the
interpretation accordingto Artide 3 1
(a) leaves the meaningambiguousor obscure; or
[b) leads to a result which is manifestly absurd or
unreasonable."
6.38 The main text of the Qatari Memorial accepts the relevanceof this
provision. In paragraph4.28 of its Memorial,Qatar says:
"In fact, treaties and conventions in force within the meaning of
Article 36, paragraph 1,of the Statuteare agreementsbetween States
govenied by international law, and tliey must be interpreted in
accordance with the general rules on interpretation now embodiedin
Articles 31and32 of theVienna Convention on the Law of Treaties."
6.39 The Qatari Mernorial later143quotes from the Advisory Opinionof
the Courton the questionof the Cornpetence of theGeneral Assembly for the
Admissionof a Stateto the United ~ations'~~ to the following effect:
"1fthe relevant words in their natural and ordinary meaning make
sense in their context, that is tlie end of the matter. If, on the other
14QatariMcniorialpara.5.57.
ICJKepurts 19.50p.8.
-68 - haiid,the words in their naturaland ordinary meaning are ambiguous
or lead to an unreasonableresult,then,and then only,must the Court,
by resort to othermethodsof interpretation, seekto ascertainwhatthe
parties really didmean when lhey used these words."
6.40 Bahrain, with the greatest respect, fully accepts the validity of these
words of the Court. What Rahrain cannot accept is the baid assertion,
unsupporkd by any reasoning, nextmade by Qatar:
"therefore ...it is not necessary to have recourse to such
supplementarymeansof interpretation,as the conditionslaiddown by
Article 32 ofthe ViennaConventionandbythe Court are notfulfilled
in the presentcase.TheArabo-Islamiclegal traditionis in conformity
with this approach."
6.41 Ttis, of course, a fact that both the Parties in this case consider that
the words in dispute are neither ambiguous nor obscure nor lead to an
unreasonable result. The difficulty is that each Party puts a different
interpretation on these supposedly clear and unarnbiguousexpressions. In
these circumstances,it is as difficult for Qatar as it would be for Rahrain to
pretend that Article 32 of the Vienna Convention is inapplicable.
6-42 Moreover, the contentiontliat "tlieArabo-Islamiclegal traditionis in
conformity witll this approach1'14 does not assist tlie Qatari case in any
way. This "tradition" is not adducedto support the assertion that thetext is
clear and unambiguous (wliich thus reniains totally unsustained)but rather
to challenge the permissibility of use bythe Courtof travauxprbpuratoires.
As such, thecontentionis unsound.Forone tliing,thereis no Arabo-Islamic
legal traditionwhichexcludesrecoursetopreparatorywork,even inthefield
of the interpretation of agreements within the domestic law of the various
Arab countries. This is a point more fully developed in the opiiiioiis of
'45SeeQatari Mernorialpara.5.57.
- 69 -Professor A.K. Aboulmagd andMrAdtianAmkhan 14hnnexed hereto. For
another, even if it should be assumed that therewere such a concept within
the Arabo-Islamiclegal tradition,it could not overridethe termsand binding
effect of Article32 of the Vienna Convention on the Law of Treaties as
declaratory of universally accepted customary international law operative
between the parties.So far as Balirainis awarefrom its examinationof the
evolution of the Vienna Convention, at no point during that process did
anyone, Arab, Islamic or othenvise, suggest that there was a relevant
lxdditionin the sensenow advancedby Qatar. Evenif such an assertionhad
been made, itcould notaffectthe universallybindingquaIityof thenile now
stated in Article 32.
6.43 Indeed, such evidence as there is shows quite strikingly that the
position taken, for example, by the members of the International Law
Commission of, respectively, Iraqi and Egyptian nationality, was
unreservedlysupportiveof theprincipleofrecoursetotravauxpréparatoires
in proper circumstances.ThusMr MustafaKamilYasseensaid,in thecourse
of the Commission's consideration of the draft article dealinwith use of
preparatory work that:
"...the clearness or arnbiguityof a provision was a relativematter;
sometimes one had to refer to the preparatory work or look at tlie
circumstances surrounding the conclusion of the treaty in order to
determine whether the textwas really clearaiidwhether the seeming
claritywas notsimplya deceptiveappearance.He could not acceptan
article which would impose a chronological order and wliichwould
permit reference to preparatory work only after it had been decided
that the text was not clear, thatcisionitself being often influenced
by the consultation of the same sources."
'"See Annex11.1, VoI. II, paras.2.7-2.14 at pp.20anc0Afnnex11.2,Vol. II,
paras.13-31atpp.234-247. "...a text could not be deemedclear until its entire dossier had been
t147
studied, ...
Mr. Yasseen reiteratedthat view two years later and stated that:
"The rule laid down for recourse to preparatory work was a
reasonable one: reference wasto be made to it iii order to verify or
confirm the apparentmeaningof the text, so as to make sure that that
meaning was in fact what the partieshad intended. In sub-parigriiph
(b),the Comniissionhadevengonea littlefurther -a courseofwhicli
he approved -by providiiigthatif textualinterpretationled to aresult
whichwas absurdor unreasonableit wasjustifiable to assumethatthe
wordingwas defectiveand torely on the statementsof those whohad
formulated the text. Sucha case was very similar to that of material
error, and no one denied that an error could be corrected.There was
no reason tobelieve that anexamilrationof the preparatorywork and
of the circumstancesin which thetext had been drawn up would not
make it possible to arrive at a reasonablemeaning."'4x
6.44 Similarviews wereexpressedin the samedebate by Mr El-Erian,the
distinguishedEgyptian professor who later became a Judge of the Court:
"... he would first deal with the general question of the place of
subsidiarymeans - especiallythepreparatorywork - in the process of
interpretation,aquestion which some writersconsideredto be one of
the admissibilityof certain evidence ratherthan of substantive law.
He congratulatedthe Special Rapporteuron not showing the bias of
most English lawyersagainstpreparatorywork.As Lord McNairhad
said, an English lawyer approachcdthe question
14Ycarbook ($the InternutionalLawCommission, 1964,vol.1, pp.313and 314.
14Ibid., 1966,vol.1,part IIpp.203-4. 'witha bias against resort to preparatorywork, as that is, in general,
contrary to his legal traditionand instinct in dealingwith legislation
and contracts'.I4"
In 1964,the Commissionhad wisely adopteda balanced formulation
with regard to the place of subsidiary means in the process of
iiiterpretation. That remark applied in particular to preparatory
w~rk."~~~
6.45 In like vein, the late Judge Badawiobserved, in his joint dissenting
opinion in the CaseConcerningthe Rights ofNutionals ofthe UnitedStates
of America in Muruccu that:"... ssuming that the text is ambiguous, the
examination of the travaux préparatoiresmight throw some light on its
interpretation"."' Indeed, as the opinion of Mr. Amkhan also notes, "it is
nowhere to be found that any Arab internationallawyer advocatesrules of
interpretationdifferentfrom thosewhichexistin articles31,32 and33 of the
1969 Vienna Convention an the Law of Treatie~".'~'
6.46 With the point of principle thus establishcd, it isnow possible to
consider the substanceof the argumentadvancedby Bahrain on the basis of
the travau pxéparatoires.
6.47 At the outset, it should be recalled that Qatar gave no notice to
Bahrain or to Saudi Arabia, the Mediator, of its intention to propose in
Decernber 1990 so basic a change in the approach which had previously
characterizedthe discussionsinthe TripartiteCommittee. In Qatar's ownlist
of documentspertinenttodevelopments,thereis acornpletegap betweenthe
14See MçNair,TheLaw of Treatie1961,p.411.
I5Yearbookofthe InternationalLawCommission,1966, vol1,partII,p.204.
15ICJReports 1952, p.22This opinionwaswrittenjointly with JudgesHackworth,
Levi Cameiroand Sir BenegalRau.
15Annex 11.2Vol. IIatp.234.Minutes of the Sixth Meeting of 6 December 1988 and the so-called
Agreementof 25 December 1990. Nonetheless, the QatariMernorial(atpara.
5.42) states that
"..in view of the deadlock which was reached fin 19881,Qatar was .,,,
entitled to expect that Bahrain would complywith its undertakingto
go to the Court, by meins other thana specid agreement. That was
tobe achievedbythe DohaAgreement,in whichnoreferenceismade
to the conclusion of a special agreement..."
6+48 If the passagejust quoted is intended by Qatar to describeits state of
rnind in the mn-up to the Doha meeting, then one can only Saythat it is
extraordinary that Qatar did not think fit to giva Bahrain some prior
indication of this new line of thought. And this absenceof prior notice has
animportant bearing upon the substanceof what was determined at Dohah
in that Bahrain, not having been previously made aware of the change in
Qatar'sposition, was notable toexpress its reactionstohe proposedchange
in reasoned and written forrn, ln the press of the moment, Bahrain's sole
objective was, while eventually sharing the view that some form of words
was necessary in order to enable Qatar to emerge without undue loss of
dignity from the difficulty which its precipitate action had occasioned, to
ensure the maintenanceof theprocessof preparingajoint subrnissionto the
Court.
6.49 The most relevant travaux prÉparatoires consist of two drafts
presented to Bahrainin the courseof the discussionson 24 December 1990.
The first was put to it throughthe SaudiArabiandelegationand was written
on the headed notepaper of the Saudi ArabiaiiMinistry of Foreign Affairs.
This contained in its first operative paragraph the words, referring to the
discussions at the Gulf Cooperation CouncilSummit Meeting: "These consultations have concludedwith the agreementof the two
parties on the formulationof the questionwhich will be presented to
the International CourtofJusticeby eachofthem whichis asfollows:
as specified in the Bahraini Memorandum."
These words,particularlythe words "by each ofthern",were readat thelime
by the Bahraini Ministerof Statefor Legal Affairs,H.E. Dr. Al Baharna, as
opening up the possibility that each State might unilaterally institute
proceedings before the Court. He, therefore, advised the Bahraini
Governrnentnot to accept this proposal. '53
6.50 Following this objection,the fixst draft was then replaced by one
prepared by the Foreign Minister of Oman. The second paragraphof this
originally provided:
"The good offices of the Custodian of the two Holy Mosques will
continue betweenthe twocountriesuntil nextMay. Either of the two
parties may, at the end of this period, submit the matter to the
International Court of JusticesThegood offices of the Kingdom of
SaudiArabiawillcontinueduringtheperiodwhenthe matteris under
arbitration.'54
6.51 The appearancein this draft of the words "eitherof the two parties"
and the absence of any reference to the question made it unacceptable to
Bahrain.In consequence, thewords"eitherof the twoparties" were replaced
by the words "al-trsr~ffin"("the two parties") and after the words "the
International Court of Justice" there wereinserted thewords "in accordance
with the Bahraini formula which Qatar has accepted". These changes are
15See Dr. Al Bahama'sStatement,Annex1.26,Vol.II, paras.4 and5 atp.180.Thc
translatioofthe draftis attachedatp.186.
15Ibid.,atp.189.fully reflected in the final text of the Minutes signed on 25 December
1990.'~~
6.52 TheQatari Memorialdealswitbthesedevelopmentsatparagraph5.58.
It observes, first, thatthe first draft was never shown to Qatar. As regards
this point,the fact that one ofwopartiesto a negotiationrnaynot have seen
a draft presented by an intermediarydoes not mean that the text is thereby
excluded from the travaux pripurutoires or becomes inadmissible. The
existence of the third-partydraftand considerationof it by one party remains
a relevant fact that may have influencedthe intention of the latter party.
6.53 Tming to theseconddraft,it rnay be observed that Qatar,in contrast
with its denial that it sawthe Saudidraft,doesnot deny thatit sawthis draft.
The draft is important becauseit evidences the major changein words from
"eitherof the two parties"to sirnply"the two parties".Sucha change,made
as it was uponthe initiutiveof Bahrainand reflectingBahruin'sdeclared
unwillingnessthut procredings Oefort he Court should be uniluterally
initiated by one purty alone, gives rise to an inescapable inference:the
pruposal that "eitherparty" mighrstart theproceedings was quite sirnply
abandnned.
6.54 Paragraph 5-58 of the Qatari Memorial does not grapple with this
relevantaspect of thematterat all, It merelyrestates,withoutany supporting
analysisof the facts, the conclusion thatit wishes toreach. To say, as does
the Qatari Memoriai, that the text "clearlyenvisaged seisin of the Court"is
'55Authoritativanalyseof these changesarecotilainedin theexpertopinionsof
ProfcssorAboulmagd,Atinex 11.1,Vol.II,paras.3.7-3.10, app. 214-215, Professor
Badawi,Annex 11.3,Vol.TT ,tp.272, andDrHolcs,Annex11.4,Vol. II,para.1, at pp.
291-293 andpara.4, atp.295. As DrHolesstatesatp.295:
"Thepointatissueisiiomerequibbleorqueslioliof slyle,butrarhera substantive
diffcrenccn nieaningbelweentherejectedfornioî wordsmeaning'eitherof the
two parties'andtheîorm of words'thetwoparlies'whichwas accepted".to say nothing, for the question is not whether thewords envisaged seisin
but by whom and how such seisin was tobe effected. And to continue by
saying that "the amendments ultimately adopted neither modified thataim
nor introduced any hint of the necessity of a special agreement" is
particularly far-fetched. Evenif one accepts that the subjectof the sentence
was seisin of the Court, what possible significancecan attach to the
abandonmentof the words "eitherofthe twoparties" otherthan that the idea
of "eitherof the two parties"waspecificallydroppedinfavour of thewords
"the two parties" so that theo parties would haveto act together, that is
to Say,on the basis of a special agreement?
6.55 In conclusion on this point, it need onlybe said that the Qatari
treatment of tmvaux prkpuratoires in this case is marked by an evident
inability,ndcorrespondingreluctance,tomeetthe Bahrainiargumentbased
on the evolutionof the final text the 1990Minutes.Thefact ofthe matter
isthat Qatar'sattemptcompbtely to change thebasio n whichthecase was
tn he presentêd to the Court waxnot accepted by Bahruinand found no
place in the 1990Minutes.
D. Incompatibilityof the Qatari approach with the idea of a single, fullv
dispositive, case
6.56 As has already been stated, by the date of the unilateral
commencement of these proceedings by Qatar, it was fully apparent that
Bahrain attached greatimportanceto the consideration,as partof the dispute
betweenit and Qatar, of itslaim to Zubarah.lndeed, at the Sixth Tripartite
Cornmittee Meeting Qatar had agreed (albeit with some eventud
reservations) that Zubarah was one of the issues to be resolved in the
contemplatedjudicial proceedings.It willbe recalled,too, thatthe first of the
principles of the Saudi Arabian mediation was that: "ail issues of dispute between the two countries ...are to be
considered as complementary, indivisible issues, to be solved
comprehensivelytogether." 156
If not at the tirnewhen this principlewasformulated,at any rate by thedate
of the 1990 Minutes, Zubarah was one of these issues, to be solved
"comprehensively"and undividedfrom the rest. It is, therefore, difficult to
conceive that so fundamental an element in the approach of al1 three
interested States should have been totally jettisoned in the spaceof a few
hours of forced negotiation.
6.57 It is important in this connection to bear in mind the clear
jurisprudence of the Court to the effect that the adequacy of an application
must be tested as at the momentthat it is made. In both the NottebohmIs7
and the Right of ~assage~~~ases the Court took the view that the
sufficiencyof thejurisdictional linkbetween the claimantandtherespondent
States should be determined only by reference to the state of affairs at the
moment of the filing of the application. It is at the date of the application
that theremustbe presentandoperativeal1theingredientsrequiredtoperfect
the Court's jurisdiction. In the present case this requirement has not been
met.
6.58 An essential elementin the Qataricase -whichis fully acknowledged
in the QatariMemorial -is the acceptanceby Qatar of the BahrainiFormula
for the question to be put to the Court. As has been stated in the Bahraini
letter to the Courtof 18August 1991,this question was frarned by Bahrain
on the basis thatit would beincorporatedin ajoint submission to the Court
in a manner that would enable Bahrain, on a footing of perfect equality, to
raise beforethe Court the questionamongstothers,of 3tsclaims to Zubarah,
15%~ex 1.1,Vol.11,atp.3.
151CJ Reports1953,p.1Il,atp.123.
ICJ Reports1957,p.125,at p.142.the fishing areas and the pearl banks. In other words, it was foreseen that
at the moment at which the case wasput to the Courtin accordance withthe
procedures contemplatedin Article 40 of the Statute, the foundation would
be laid for ail the issues outstandingbetween the Parties tobe presented to
the Court as part of a single, integrated case. Qatar is thus in a position of
clear inconsistency. If, having purportedto accept theBahrainiFormula on
Bahrain's terms, Qatar then in its Applicationdid not include al1the items
which the Parties agreed would be referred to the Court,'59 it failed to
match itsconduct to its acceptance; and the acceptancebecomes ineffective.
If, on the otherhand,Qatar arguesthat theBahrainiformuladoesnot include
dl these items, then this amounts to an admission that the Parties were not
ad idem and no consensual arrangement could havebeen reached.16'
6.59 The essence of the differencebetween Bahrain and Qataras regards
the interpretation of the 1990Minutes lies in the Qatari insistence that the
Minutes complekly abandoned the ''joint submission" approach previously
operative between the Parties and, instead, authorized each of them to
commence proceedings separately. Qatar contends that by "accepting" the
Bahraini Formula it satisfied an essential condition precedent to its
invocation of the Court'sjurisdiction and that it also therebyleft it open to
Bahrain to start its own independent proceedingsfor the purpose of raising
the Zubarah issue.
The signed Minutesof the Sixth Meetingoî the TripartiteCommittcc,7 Deccmbcr
1988,recordth&the Parties,indiscussingthe BahrainiFormula,agrccd thcovercd the
folIowingmatters:
" 1. The HawarIslands,includingthe islandof Janan.
2. Fasht ad Dibaland Qit'atJaradah.
3. The archipelagicbaselines.
4. Zubarah.
5. The areasfor fishing for pearlsand for fishingfor swimmingfishanyd
othcr rnattcrscomected witmaritimeboundaries."Annex1.18,Vol. II,at
p.112.
160
For the contradictions in Qatar's posicompare its Memuriai,para3.48 and
para 4.56.6.60 It is this assertion that Bahrain can put itself in a position of
procedural equalitywith Qatar byraisingthe Zubarahissueina separatecase
that constitutes a fundamental defect in the Qatari case. It means that,
regardless of such procedural steps as the Courtmay, but not necessarily
will, take to join the two sets of proceedings thatwould thus arise, Bahrain
is involved in the Qataricase in an unequal and imperfect position in that
scope was not provided at the moment of the Qatari application for the
Zubarah issue to be considered on a footing of procedural parity with the
issues raised by Qatar.
6.61 To put the point anotherway, Qatarwas not entitledon the date of its
Application, 8July 1991,toassume îhattheconditionsfor the applicationof
the BahrainiFormula(namely,Bahrain'sequalright to be ableto present the
Zubarah claim as part of the case) would be met by any subsequent
independent initiationof proceedingsby Babrain coupled with the possible
exercise by the Court of its discretion tojoin twoseparatecases. Unless al1
the conditions for the complete applicationof the Bahraini Formula were
present at the moment of the Qatar application, Qatar'suse of the Bahraini
Formula was imperfect.TtsApplicationwas in that major respect defective
and, therefore, as a whole invalid.
E. The failure of Qatar to insiston clear language authorizing a unilateral
application
6.62 As is alreadyovenvhelminglyobvious -and,indeed, is notdenied by
Qaîar - the interpretiition placed by Qatar upon the second operative
paragraph of the 1490Minutes involves a total and fundamental changeof
position by both the Parties. From their previous position of negotiating
towards the conclusionof a joint submission the Parties are said to have
suddenly moved to agreement that each of them might unilaterdy start
proceedings in the Court by application.6.63 Bahrainhasalready submittedthatthe burdenofprooflies uponQatar
to show that it was the intention not only of Qatarand Bahxain, butalso of
Saudi Arabia, to make this change. Yet Qatar advances nothing to support
its argument except thevery wordsofwhichthe meaning is in dispute, Qatar
presents no evidence of conversations or documentsbetweenthe parties that
could presage the sudden change of approach. Qatar launched its initiative
with na warning.16' It presented no draft. It left it, first to Saudi Arabia and
then to Oman, to present texts which, as ultimately amended and
incorporated in "Minutes", are said to represent the agreementso strkingly
to change direction. Qatar isentirely silent upon its rolein the negotiations
and offers no explanation of why, if its contentionsare correct, it failed to
insist uponthe use ofwordsthatcould haveput its claimsbeyonddoubt, e.g.
"each of the parties" or "eitherof the parties". Reference has already been
made to the significanceof the travauxpréparatoires .ere it is enough to
point to the total failure of Qatar to take any positive step towards tlie
elimination of doubt regardingits position.
6.64 Bahrainmayindeedechothe thought underlying the suggestion made
by Qatarin its paragraph dealing withthe interpretationof the words whicli
it translates as "and the proceedingsarising therefrom: tt162
"Should the Parties have agreed tohave recourse to afurther round
of negotiations in order to arrive at a special agreement, theDoha
Agreement [the1990Minutes]wouldnot havefailedto spellout such
a major requirement."'63
16See above, para.1.9andthe statemcnotfH.E. Shaikh MohammedBin Mubarak
Al-KhalifüatAnnex1.25,Vol. II,paras.1-3,at pp.159-160.
lGSeeabovc, para.6.36.
16QatariMernorial,para. 5.60.Could it not equally, if not more compellingly, be said:
"Ifthe Parties had agreedinthe 1990 Minutes to change the whoIe
basis on which theyhad previouslybeennegotiating,then theywould
not have failed to spellout that major transformationin their ideas."?
As is pointed out in the opinion of Professor Badawi:
"There is no wây that al-taraf ..can denote 'either of the two
parties' as is clairned by the Qatari sidc. If this were intended then
something like@JJ 1+ ui ? ayyun mina al-tarafa 'yither of
thetwo parties', 1~li ? ahudu al-tarafayn,'one of the two
parties',
ui ?ayyu taraf ',nyparty',or one of many similar
expressions,shoild havebeenused. In fact,expressionssuchasthese
were quite frequently used elsewhere in the rest of the Arabic
documentswhere the purposewas deliberatelyeihet to singleout one
or the other of the two parties or to caution against unilateral action
by one of the two partie^..."'^^
6.65 It is not as if there wasa total absenceofany international practice
relating to the wording of compromissory clauses in bilateral treaties. If
States wish topermit recourseto the Court at the instance of either of them,
they Sayso specifically,just as in a few cases when they wish the reference
to be a joint one, they Sayso specifically.Bahraincontends, of course, that
in the present case, the use of the words al-turuf isithe equivalent of
saying expressly "both the parties" and it certainly is not the equivalent of
"eitherof the parties". Moreover,having regardto the questionwhich arose
in the Case concerning Unite dtates Diplumatic andConsulaS rtafSin
~eheran'~a ~s to the effect of a provision in a bilateraljurisdictional clause
that "any dispute between the ...Parties ...shall be submitted to the
InternationalCourtof Justice",itmight have kn expected that prudence
16Annex 11.3,Vol. at(b),p.272.
16iCJReports1980,p.4,cspccialatpp.26-2761 ILR,p.530,atpp.552-3.
- 81 -would have led Qatar to insist upon an explicit provision entitlingit to
instiute proceedings unilaterallyif that was whatit wished to achieve.
F. The general context of the 1990Minutes
6.68 The Qatari Mernorial, in paragraph 5.49, argues that Bahrain's
interpretation of paragraph 2 of the 1990Minutes "does not make sense at
ail" in the context of the Agreementas awliole.
6.69 Qatar asks:
"what would be the point of proclaiming that if after a furtherfive
months the Mediation failed to reach a settlementof the disputes on
the merits the Partiesmay seise the Courtjointly after negotiating a
special agreement?"
6.70 The answer is basically that Qatar's ill-conceived and precipitate
action in placingan obstacle in the way of the conduct of Gulf Cooperation
Council's discussions at a time of grave crisis gave rise to a situation in
which somethinghad to be done, not by way of concessionto Qatar, but in
order to get it off the hook and enable it to allow the work of the Summit
Meeting to proceed. Tliere was a general feeling that,as host State, Qatar
had abused its position and was delaying the Council indealing with these
veryurgent issuesarising fromthe invasionof Kuwait. It was not expected
that Bahrain should makeconcessionsto Qatarin orderthat Qatar shouldbe
able to withdrawits unwelcomeinitiative over its dispute with Bahrain and
allow tlieCouncilto get on withthe real businessatliand.There was no way
in which Bahrain would at that stage have givenin to Qatar's pressure; nor
was Saudi Arabia, as the Mediator, itself prepared to go any further on
behalf of Qatarthanits one attemptatputting Qatar'sideas to Bahrain.Once
Bahriin made it cleir that it was not willing to accept the possibility oa
unilateral submission, that was accepted as the end of the matter. In otlier
words, the purpose of the Minutes as finally adopted was not primarily toachieve a major alterationin approach,but, by any appropriatemeans short
of major change, to put a diplornaticend to an untirnelyand iil-conceived
Qatari initiative.
6.71 Nonetheless,it shouldberecalled thattherewas onepositive element
in the situation which needed to be placed on record, namely, Qatari
acceptanceof theBahrainiFormula. Thiswasa major stepfonvard by Qatar
and, if negotiations had been pursued, would clearly have been of great
importance in reaching a solution. Had Qatar not made its Application, the
way would have been open after the end of May 1991for settlementin the
Special Agreementof the points still outstanding.
6.72 Qatar also asks:
"Whyprovidethat if the Saudigood offices succeed, thecase shall be
'withdrawnfrorn arbitrafion', if the solecornmitmentof the Parties
...is toresume negotiationsto make a special agreement?'f1GG
Theanswerliesin the Minutes themselves. SaudiArabia's good officeswere
to continue even if the Parties put the case to the Court. The possibility
existed, therefore, that a settlement might be reachedafter the Parties had
agreed to go to the CourtandbeforetheCourt'sfinaldecision. In that event,
the Court proceedings wereto be brought to anend.
6.73 Qatar repeats its contention thatif the Bahraini interpretation were
right "it is certain that the Minutes would have been phrased totally
differently". This argument of Qatar has alreddybeen at~swered'" and
Bahrain need now Sayno more than, reciprocally, that if Qatar's view of
what the Minutes were intendedto achieve werecorrect,it is to be expected,
16Qatari Mernorialpara.5.49.
'"See above,para.6.64.
-83 -in the light of the previous use of al-tarufiin to descrajoint subrnission,
that the Minutes wouldhave been phrased entirely differently.
6.74 The Qatari contention that "the general interpretation proposed by
Bahrain effectively renders meaningless three-quarters of the Doha
~greement"'" me 1990Minutes] involves as a necessary premise that the
Minutes were intended to do more than record Qatar's acceptance of the
BahrainiFormula. Thereis, however,no basis on whichsuch an assumption
can rest.
SECTION2. The 1990Minutes are not abinding agreemeiit
6.75 Bahrain has, for convenienceof exposition,lefttothe lasta point that,
logically, should have been taken first as a threshold objection to Qatar's
reliance on the 1990 Minutes. The point is that the 1990Minutes do not
constitute an agreement in the sense of a binding legal undertaking.
At the outset,themost important pointto makeis that the questionof
whether a particular instrument to which two States have subscribed their
signatures isto beregardedas abinding internationalagreementisdependent
upon theirintentions. In the absence of requisite intention on the part of
either or both of the States concerned, the document cannot constitute a
binding agreement.
The determinationof the intentionof the parties can be controlled by
subjective orobjectiveconsiderations. If the subjectiveconsiderationsdone
are sufficient for this purpose then the declarationby one of the Statesthat
ithad not intended to concludea binding agreement would be sufficient to
dispose of the matter. Bahrain submits that that is an acceptable approach
to the problem and its declarationsto that effectincorporatedin its letter to
the Secretary-Generalof the United Nations of 9August 1991, in its letter
'"Qatan Mernorial, ara5.50.
- 84 -to the Court of 18 August 1991 and in the present Counter-Memorialare
effective fortbis purpose. Insofar,however, as thematteris one to be dealt
with on the basis of objective evidence,then Bahrain contends that in this
respect also the indicationsof the attitudesof the parties in thepresent case,
as developed in the paragraphs that follow, compelthe conclusion that the
1990 Minutes werenot intended to be, and are not, binding.
A. The 1990 Minutes are no morethan a diplornaticdocument
6.76 It is convenient to begin by observingthat the Qatan Mernorialuses
the noun "agreement" orthe verb "agree" indiscrirninatelyto describe both
evento;which even Qatar would hardly contend constitute legally binding
agreements and eventsto which Qatar is anxious to accord tthisstatus. By
way of example,reference may be made tothe QatariMernorial,paragraph
3.19 which begins with the words "Pursuant to an agreement ...."The
so-called"agreement"wasreached,soQatarasserts,at the Gulf Cooperation
CouncilSumrnit in November 1982 and wasto theeffect that "apreliminaq
meeting" should be held in Riyadli to discuss the dispute on the Hawar
lslands and the maritimeboundaries. Bahrainentirely accepts thattherewas
such an "agreement",but does not acceptthat tllis "agreement"was atreaty.
Here Qataris failingto distinguishbetweena social and a legal "agreement";
the breach of the former might bea discourtesy,but it would not have tlie
legal consequenceswhich attend a breach of the latter.
6.77 A furtherexampleoftheQatariinclinationto accordlegal significance
to every use of the words "agreed" or "agreement" is to be found in
paragraphs 21 and 22 of the Opinion of Professor El Kosheri.'" There he
says:
Whenever the parties use the past tense in formulating their
declarations [Le.,whenthey state: 'tamal-itifaq'(it was agreed), or
16QatariMeniorid,Annex 111.1,ol.III,p.266.
- 85 - 'itafiqud (they agreed)] , this should necessarily lead to construing
their manifestationas creatinga legally binding relationship ..."
In paragraph 22 ProfessorEl Kosheri Statesthat Professor Chehata explains:
"that when the parties use a formula, 'sigha', in the past tense to
express that they have already 'agreed'or that it 'was agreed' among
them about somethingto be done, the consent has to be considered
definitively acquiredwithoutany needto establishwhat wastheirreal
intention ..".
6.78 Following on this, Qatar develops the argument that any document
containing the words"it has beenagreed" isa legally bindingagreementand,
-becausethe 1990Minutescontainthosewords,theyconstituteanagreement.
Bahrain must take issue withthis submissionwhichBahrain believesfails to
reflect properly the diplomatic and political, as opposed to the legal,
characterof the processin whichBahrain andQatar were engagedunder the
benevolent auspices of Saudi Arabia. That process was from the first
described as a mediation; and it was foreseenthat it would be an extended
process. On one occasion, Dr Hassan Kamel, speakingfor Qatar, said:
"1 share Sheikh Muhammad'sview on the benefit of these meetings
for theexpressionofopinionsand sentiments,thus facilitatingmutual
understanding between the parties."17"
Such a process cannot develop withoutmeetings and the conclusions of
meetings cannot normally be recorded other than in minutes. The verb
generally usedto describe the achievementof such conclusions is "agreed".
But the fact that in an evolving diplomatic process the steps along the way
are recorded with the verb "agree" does not transforrn the documents of
record into agreementsin the sense of internationally bindingtreaties.
17Anncx1.1 1,Vol. IIatp.79.6.79 Ashas alreadybeenpointed out, the Minutesof each of the meetings
of the Tripartite Committeecontained"agreements"with varying degreesof
content. TheMinutes of the First Meeting, 17 January 1988, stated that:
"itwasagreedto hold another meeting ...on ...2 April 1988,andthat
each sidewill submit thedraft agreementitproposes forreferring the
I171
dispute to the InternationalCourtof Justice ....
The Minutes of the Second Meeting noted in their closing paragraph that:
"it was agreed that the three countries would keep in contactin order
to agree on the date of the third meeting."172
At the fourthmeeting:
"it was agreed that the next fifth meeting wouIdbe agreed upon in
due course."'73
And at the sixthMeetingthe "two partiesagreed" on a list of subjects to be
submitted to the International Courtof ~ustice.'~~
6.80 It was this belief,that theagreementsreachedat tlie variousmeetings
were diplornatic and non-binding in character, that enabled the Foreign
Ministerof Bahrainto signthe Minutes. Hecould notpossiblyhave done so
17'Amcx 1.7,Vol. 11,al p.39. Emphasissupplied.
172Annex1.30,Vol.II, atp.74. Emptiasissupplicd.
'73Annex1.13,Vol.II,atp.88. Emphasissupplicd.
174Amex 1.18,Vol. II,atp.112. Emphasissupplied.if he had thought that he was thereby committing his country to an
internationally binding agreement ortreat~.'~~
6.81 Moreover, if in 1987 it was thought that an important step in the
process shouldbe given the formof an "agreement",why was it thought in
1990that a step of presumably evengreaterimportance (in thatit reaffirmed
what had previously been agreed and, at the sametime, so Qatar maintains,
modified the approach of the Parties in a major respect) need not take the
same form? The answer, Bahrain suggests,is that the developmentof 25
December 1990was not seen by those involved as having the same level of
significance; and,evenif Qatarwished tobelievethat theMinutes possessed
the quality ofan agreement,it was not willing to propose that they should
be given that form because,if it had, and its proposal had been rejected, the
non-treaty character of the text would have been demonstrated even more
cleaîly. So Qatar took the deliberate gamble of accepting the text as
eventually workedoutin the meetings notwithstandingthe inadequacy,from
its point of view, ofts wording. Qatar musthave known full well that that
text would not upon close scrutinybe found to supportits position.
6.82 This leavesopenthe questionof the legaleffectof Qatar's acceptance
of the "Bahraini Formula".In principle, if the Minutes are not a binding
agreement, then no cornmitmentcontainedin those Minutescan be binding.
Thus the statement in item2 of the Minutes that"theparties may submit the
matter to the International Courtof Justice in accordance with theBahraini
Formulat1is not a statementof a final, legallybinding, obligation. Such an
obligation could &se, as a perfected obligation, only if and when
incorporated in an operative Special Agreement.
17Sce bclow, sectionD, paras.6.91-6.104.
- 88 -B. The 1990 Minutes were not regarded by the Parties as constituting an
internationalameement
6.83 The question of whether a text can properly be regarded as an
internationalagreementmust,ofcourse,belargeIydeterminedby themanner
in which the parties subsequentlytreated it.
6.84 So faras Bahrainis concerned, it is evidentfrom al1that has so far
been said,as wellas from whattheForeignMinisterof Bahrainhasaffirmed
regarding his intentions at the time of the adoption of the 1990Minutes,17"
that Bahrain did not regard those Minutes as constituting a binding
international agreement.
6.85 So far as Qatar is cancerned, at any rate until it decided to try to
makecapital out of the Minutes,the positionwouldappearto Iiavebeen the
same. There are three indications of this.
6.86 The first is the failure by Qatartake the steps required of it by its
own Constitution in relationto the conclusionof treaties. Articl24 of the
Qatari Constitutionprovides as folfows:
"TheAmir concludes treatiesby a decreeand cornmunicatessame to
the Advisory Council attactiedwith appropriate explanation. Such
treaties shall have the power of law following their conclusion,
ratification and publishing in the Official Gazette".
The Constitution is, of course,a public documentthe contents of which are
known to Bahrain. Bahrain could quite reasonably expect that if Qatar
regarded any instrumentas a treaty it wouldtake the steps required of it by
its own domestic law. But Bahrain never became aware of any decree
relating to theIlegedtreaty, or ofany communicationof it to the Advisory
lTAnnex 1.25,Vol. Ipm. 13, atp.264.Council, orof any "appropriate explanation",or of any act of ratificationor
of any publication in the Official Gazette of Qatar. Andthe reason why
Bahrain neverbecame awareof such stepsis becausetheywere nevertaken.
Moreover, Qatar has not alleged that they weretaken.
6.87 Tliusnothing was done to put Bahrain on notice of the intention of
Qatar to regardas a treaty or internationalagreement somethingthat Bahrain
had certainly not expected wouldor, indeed, couldbe treatedin sucha way.
If Qatar had done what its Constitutionrequired it to do, Bahrain would
certainly have leamed of it and would then have had an opportunity to
object. In addition to the evidential significanceof thisinactivityon thepart
of Qatar, it can be said that Qatar is now estoppedby its own conduct from
asserting the treaty quality of the 1990 in ut es.'^^
6.88 The second indicationis that Qatar appears not to have considered
that the Minutes warranted the treatment that Article 17 of the Pact of the
League of Arab States requires in respect of treaties and international
agreements concluded by its Members. This Article provides as follows:
"The member States of the League shall file with the General
Secretariatcopies of al1 treatiesand agreements which they have
177That Qatar is in othercircurnstüncesboth respeclîul oî ils Corwlilutionand quile
ready to invoke its provisionswhcn convcnicntin relation to Bührainis shvwn by the
manner in which Qatarreferredlilin a Memorandumdatcd 31March 1986asscrtingits
sovcrcigntyover the Hawar Islm(1s. This Menioraridurnwas annexed toan undated
Memorandumby thcGovcrnrnentof QatarIatersubmittedlo the Councilof Mi~iisloîs
the GulfCooperaliotiCouncil(includingBallrain)in replyto a Bahi-i emormdum of
29 June 1986.Qatar saidin IheMenioranduniof 31 March 1986:
"ArticIc(2)of tlic interim basic systemof rule in Qatarissued in 1970 ruid
amendedin 1972 stipulatethat flieStatc"cxercisitsovereign1.ovet al1land
and territorial waterslling within ils boundarics. It may not relinquish its
suvereigntyor abandonanypartof itslandor waters."
This Constituliori,though describeas "Provisional",is still in force in Qatar. ILis
publishedinEnglish translatiinAmos J. Pcaslee,TheConstituti uotheNutions,vol.
11,12.1247. concluded or will conclude with anyother State,whether a member
of the League or otherwise."
Qatar and Bahrainwereboth Membersof theArabLeaguein 1990. Bahrain
has enquired of the General Secretariat of the Arab League whether Qatar
has filed the text of the 1990 Minutes and, indeed, that of the 1987 ...,
Agreement. The General Secretariat has replied that neither text has been
filed.
6.89 The third indication that,at anyrate initially,Qatardid notregard the
1990Minutes as constituting a treaty is the fact that it was not until aimost
the lastpossible momentbeforethe Application was filed(8July 1991)that
Qatar cornrnunicatedthe text of the Minutes to the Secretary-Generalof the
United Nations on 26 June 1991 for registsation as a treaty pursuant to
Article 102of the Charter.
C. helevance of reristration bv the United Nations
6.90 It is, perhaps,also worthaddingthatthe fact that the texts inquestion
were accepted by the United Nations for registration does not by itself
establishor confinn their standingas internationalagreements. The practice
of theUnited Nations Secretariatis toregistertextswhich aredeposited with
it as agreements without passingjudgment upon them. The position was
clearly stated in a letter from the Director and Deputy to the Under-
Secretary-Generd in charge of the Office of Legal Affairs of the United
Nations dated 15 August 1991 as follows:
"..,Registration of an instrument submitted by a Member State,
therefore,doesnotimply ajudgement by the Secretariatonthe nature
of the instrument.
It is the understandingof the Secretariatthatits actiondoes notconfer
on the instrument the status of a treaty orn internationalagreement if such treaty or international agreementdoes not already have that
il178
status .
The above letter from the United Nations was in response to the objection
raised by Bahrain in a letter of 9 August 1991to the stepstakenby Qatar to
register the 1987 Agreement and the 1990 minute^.'^ ^ahrain believes
that this was the first occasion on which, in the activities of the United
Nations relating to registration,a State had objected to the registration of a
treaty on the ground thatit did not regard the text in question asamounting
to an agreement in internationallaw.
D. Even if the text of the 1990Minuteswereto be construedas a treatv, the
requirements necessarv for its effective operation as a treatv were not
6.91 In paragraph 16 of the Annex to its letter to the Court of 18 August
1991Bahrainreferredto the requirementof Article37of its constitution that
treaties concerning the tenitory of the Stateor its sovereign rightscan only
corne into effect "whenmadeby a law". The purpose of this reference was
not primarily to suggest the applicability of Article 46 of the Vienna
Convention on the Law of Treatias - for that would have implied that
Bahrain accepted that there had,on the Bahrain side, been an inlention to
conclude an agreement, albeit one that had not been constitutionally
sanctioned. Rather, the principalpurpose of the reference was to indicate
that, having regardto Bahrain's constitutional requirements,it could hardly
be imagined that theForeignMiiiisterof Bahrain wouldhave enteredinto an
agreement,let aloneonenow saidto be immediatelybindingupon signature,
'7Annex1.22,Vol. II, at p.136.
179Annex 1.21, Vol. II, p.125. &y a lcttcr of 2August 1991 the Permanent
Reprcsentative ofBahraito the United Nationsconfirmcdthat Bahraiilwishcdits lcttcr
of 9 August 1991tobeconsideredasa formatobjectiob the registrationin questionand
tube registercas such. Anncx1.23,Vol. II,p.139.without meeting Bahmini constitutionalrequirements.'" The existence of
Bahrain's constitutional requirements must have been well known to Qatar
because, first, the Constitution of Bahrain was published in the Officia1
Gazette of Bahrain on 6 December1973and thereis an establishedpractice
of the two countries of exchangingtheir Officia1Gazettes. This factis not
.,&,
denied by Qatar. Secondly, Bahrain had earlier made quite plain the
existence and pertinence of these constitutional requirements to the
establishmentof the jurisdiction of the Courtby including in the draft basic
agreement presentedto Qataron 19Mach 1988a clause, ArticleVIII, which
provided that:
"This Special Agreement shall enter into force on the date of
exchange of instruments of ratification in accordance with the
T181
respective constitutional requirementsof the Parties .
1. The irrelevance of the concept of an agreementin sirnplifiedform
6.92 Qatar seeks to meet this point by arguing, first, that the agreement
was in a sirnplifiedform and entered into force upon signature and without
the need for ratification.18'Balirainresponds to this point, first,by denying
that the 1990 Minutes, even if amouiitingto an agreement, constituted an
agreement that did not require ratification. lt is not necessary for this
purpose to pursuethe question of wliether or not the agreement was in a
simplified form.IH3 It is sufficient to examine the tenns of the Vienna
See alsothestatement b thiseffectby H.E.ShaikhMohammed binMubarak Al-
Khalifa,theForeignMinistcr of Bahrain,Amex 1.25Vol. II,para.13, atp.164.
le'Annex 1.9,Vol. II,atp.52.
182 See QatariMernorial, para.5.14.
Ia3ItmaybeobservedthattheinlemationaL l awCommissioni,nformulating thefinal
Draft Articleson theLawof Treatieswhichwereinlarge partevenballyincorporated in
the Viema Conventionon theLaw of Trealies,statcdin itscommento . n thedraftthatit
had at nne stage distinguishedbelween "atrcatyin sirnplified form" and "a generai
multilaleralreaty"inco~inexionwiththe mlcs goveming"fullpowers"and "ratification".
However, on re-exarnininghe position,Convention on theLaw of Treaties. TheQatariMemorialconectly identifies
the controlling relevance of Article 121 1).lE4 This specifies three
circumstancesin which consentto be bound by a treaty can be expressedby
signature alone.
> ? ,
6.93 The first is where the treaty provides that signature shall have that
effect. Qatar does not suggest that thisis relevant here and Bahrain agrees;
ifQatar had wishedtheMinutesto becorneeffective asa treatyon signature,
then Qatar would have so provided, but it did not attemptto do so; but ifit
hadBahrain would have rejected it.
6.94 The secondis if "itis otherwiseestablishedthatthe negotiatingStates
were agreed that signature should have that effect". As to this, Qatar
contends '85that if this provision applies "the text of [the 1990 Minutes]
itself provides clear evidence that ratification was not envisaged by the
Parties".
The Qatari Memorial continues:
"There can be no doubt that the Agreementwas to enter into force
immediately. Before the Parties were allowedto seise the Court, a
limited periodwas left to Saudi Arabiato exercise itsgood officesin
an atternptto reacha settlernentof the substanceofthe disputes. The
fact that the Agreementwas to be implementedimrnediatelyand was
in fact so implemented,canfirrnsthat the Agreement came into force
upon signature".
"the Commission rcviscd thc formulation of their provisions considerübly andin
the process found it possible to eliminate the distinmildein them between
"treatiesin simplified forrn" and other treaties which hd riecessitaled the
definition of tterm. Inçonsequence, it no longer appears irithepresent article."
(See Yearliookof rheInternarionalLaw Commission,1966, vol. II,p.189.)
184QatariMernorialp ,ari5.16.
See QatariMemorial,para.5.19.This reasoning cannot support the conclusionto which it is drreckd. The
argumentturnsupontheassertionthat the agreementprovidedfor imrnediate
implementation in the shapeof the continuanceof the good officesof Saudi
Arabiafor alimitedperiod.In tmth, however,the continuanceof Saudigood
offices, thoughof course mentioned in thesecondoperative paragraph, was
not "in implementationof the Agreement"but was in implementationof the
earlier agreements still operativebetween the Parties. The element of real
"implementation"of the 1990Minutes wouldhave beeneither the settlement
of thedispute or the submissionof thecase to the Court -a matterthatcould
not occasion actionuntilMay 1991. That being so, the argumentin support
of the application of Article 12(b)collapses.
6.95 ThatleavesthethirdpossibilityundertheViennaConvention,namely,
Article 12(c): when "the intentionof the Stateto give [immediate effect]to
the signature appears from the full powers of its representative or was
expressed dunngnegotiâtion". Qatar bases its argument in favour of the
operation of this alternative on the terms of Article 7(2)(a) of the same
Conventionwhichprovidesthat "Headsof State ...and MinistersofForeign
Affairs" are considered as representing their State "for the purpose of
performingal1acts relatingto the conclusion of a treaty". Qatarequates this
provision with the intention appearing from the full powers of the
representative, referredto in Article 12(l)(c). But there is nothing in the
tems ofArticle7(2)fa)that accordsto aForeignMinisterfullpowers togive
immediateeffect to his signatureto a treatyif hedoes not intend to do soor
is prohibited by his Constitution from so doing. Even if possession of
"representative power" (under Article 7(2)(a)) may be equated with "full
powers" to sign a treaty, that does not by itself resolve the question of
whether those full powers extend to signature with immediate effect (as
contemplated in Article 12(l)(c)) or to signature subject to ratification (as
contemplated in Article 14(l)(d)). Put in another way, even though the
Ministers may havepossessedfull powers, Qatar would still have to prove
that it was agreed that signature would have had the effect of bindingtheparties immediately. And no such agreement is revealed anywhere in the
1990 Minutes.
6.96 In short, thelegal conditions for theirnmediateentryinto force of the
1990Minutes (alwaysassuming it to be a treaty) were not satisfied. The
first limb of tlie Qatari respor-iseto Bahrain's "constitutional" point is,
therefore, not established.
2. The misapplicationbv Qatar of Article 46 of the Vienna Convention
6.97 Qatar then raises a second argument: that, even if constitutional
requirements were not satisfied, that failure did not prevent the treatyfrom
entering into force, even though at some later stage the treaty might be
invalidatedon thatground.This argument misstatestheprincipal thrustofthe
Bahraini argument which is directed at showing that the Bahraini Foreign
Minister couId not possibly have had the intention to conclude the alleged
treaty, not that,having had an intention toconclude the treaty, the treaty as
concluded lackedvalidity.
6.98 But, in anycase, evenif Bahrainwereto cconcedet,houghonlyfor the
purpose of argument, that a valid "treaty" had entered into force, it would
stillbe entitled, as Qatar itself suggests, to contend that, on the basis of
Article 46 of the ViennaConvention,the consent givento the "treaty"must
be invalidated as having been expressed in violation of a provision of its
interna1lawregardingcornpetencetoconcludetreatiesthatwasmanifestand
of fundamental importance. In the light of what has already been said, and
need not be repeated, that violation wasmanifest, since it must have been
objectively evidentto Qatar ifthe latter was conducting itselfin the matter
in accordancewith normalpracticeandingoodfaith,Moreover,themle was
of fundamental importance since it was embodied in the Constitution of
Bahrain.3. The irrelevance of the Enyptian precedent
6.99 Some reference should be made to the attempt by Professor El
Kosherito equate the termsofArticle37 ofthe Constitutionof Bahrainwith
the comparable (but not identical) provisionsof Article 151of the Egyptian
C~nstitution.''~Professor El Kosheri advances as "a highly significant
precedent undertheArabo-IslamicEgyptianLegalModel" thefactthatEgypt
did not treat the Agreement of September 1986 with Israel relating to the
TahaArbitratinnlg7as requiring approval by the People's Assembly, The
impression which Professor El Kosheri apparentlyseeks to make is that the
manner in which Egypt dealt with this boundaryarbitration under its own
Constitution should provide guidance as to the manner in which the
provisions of the Constitutionof Bahrain should be interpreted.
6.100 There are two answers tothis loosely conceivedcomparison.
6.101 The first is that the terms of the pertinent Articles of the two
Constitutions differ in amaterialrespect.The relevant partof Article 151 of
the Egyptian Constitution refers to "...al1 treaties having as result the
modificationof the State'sterritories or affectingthe sovereigntyrights ...."
Professor El Kosheri treats this as controllingbecause, he says:
"The declaratory nature of judicial decisions as well as of arbitral
awardsimpliesnecessarilythat theStatedoesnotcedeor give up title
to any parce1of its natural territory, but simply accepts a final and
binding delimitationof what initially belongedto it."
6.102 However,the Constitution of Bahraincontains a different provision.
Amongst the categories of treaties which it names as coming "into effect
only when made by a law"is that of "treatiesconcerningthe territory of the
Opinion of ProfessorEl Kosheri, Qatari Mernorial, Am111.1Vol. IIIp.261,
para.14.
lsSee 80 ILR, p.226.State, its naturalresources or sovereignrîghts ....The BahrainiConstitution
is thus wider than is the Egypljan Constitution in its description of
territory-refatedtreaties that do not corneinto effect until enacted inlocal
law. The concept of a "treaty concerning thekrritory" of the State in the
Bahraini Constitution is manifestly wider than that of a treaty leading to a
modification of the State'sterritory in the Egyptian Constitution.Judicial
proceedings of the kind involved in the present case certainly concern the
territory of Bahrain even if the judgment, should it turn out to be purely
declaratory, may not formallyinvolve a cession or renunciationof territory.
6.103 The second answerto Professor El Kosheri's cornparisonis that the
Agreement leadingto the Taba Arbitraticlndifers in two respects fromthe
agreement said to be constituted by the 1990Minutes.
6.104 (i) First, the Tuba Arhitration Agreement was made pursuant to
an obligation arisiiigbetween the Parties under Article V11 of the Treaty of
Peace of 1979to settle by arbitration disputes not settled by other means.
The principal source of obligation, the Peace Treaty, had itself been the
subject of the full ratification process in Egypt and Tsrael involving
parliamentary consideration andapproval.la8
6.104 (ii) Second, the Taba ArbitrationAgreementexpressly providedin
ArticleXV that it wouldenterinto force "upontheexchangeof instruments
of ratification".In contrast, as Professor El Kosheri is careful to point out,
the 1990 Minutes contained no provision requiringratification.
1BR
ArticleIXof the 1979Trcatyprovidcdthdtiwould erileinlnîorceupon exchange
of instrumentof ratificatioSee 18InternationaLtlgalMaterials362,fn., anp.366. CHAPTERVI1
THE RELATIONSHIPRETWEENTHEAGREEMENTOF 1987
ANI) THE 1990 MINUTES
7.1 As shown in Chapter V above, the agreement reached between the
Parties in1987was not,per se, a complete and unconditional agreementto
ôccept the jurisdiction of the Court. It was not seen by either Party aa
treaty or conventionin force for the purgose of Article 36(1) of the Statute,
but rather as a commitment to negotiatein good faith a Special Agreement.
The acceptance of the jurisdiction of the Court would arise in due course
from such Special Agreement.
7.2 The situationis in fact remarkably similar to that faced by the Court
in the Aegean Sea There the two parties, Greece and Turkey,
had, in theBrussels Communiquéof 31 May 1975,decidedthat, as regards
their continentalshelf problemsthese shouldbe resolvedby the International
Court of Justice. The Greek argument, similar to the present argument by
Qatar, saw in this joint decisionan agreementdirectly to conferjurisdiction
on the Court. Whilstacknowledging thatthePartieshad soughtto negotiate
an implementing agreement, Greecesaw this as a commitmentarising from
a pre-existing obligation,and assertea right to seise the Court unilaterally
should Turkey refuse ta conclude the implementingagreement.'g0
7.3 The Court noted that priorto the Brussels Cornmuniquk,Greece had
proposed to Turkey a special agreement on the basis of which the parties
would proceed jointly to the Co~rt.'~'The Court noted also that the Parties
'!Aegean Sea ContinentalSheCase(Juri.sdictiI,CJReports 1978,p.3.
lgThe GreekGovcrnmcnt'sargumentsaresummarisedby the Couratpara.98.
l9Ibidpara.100. Butnoieîhatinsndning,Greecehadrescwcditsrightoproceed
unilaterally.had established a Cornmittee of Experts to draft a compromis'92 and that
Turkey had throughout been prepared to contemplate only tliis metliod of
seisin. The Court furthernoted that the Greek Governmenthad at no stage
invoked theJoint Communiqué as an "existingand complete, directtitle of
jurisdiction1.193And, accordingly, the Court concluded that
" ...the Joint Communiqu6 ...was not intended to, and did not,
constitutean immediatecornmitmentby the Greek andTurkishPrime
Ministers ..to acceptunconditionallythe unilateral subrnissionof the
present dispute to theCo~rt."''~
7.4 The parallel with the present case is sttiking. Qatar's failure to
register the 1987Agreement, as a treaty in force, untiI June 1991 (and the
fact that Bahrain has not registered it at dl); Qatar's agreement to the
constitution of the Tripartite Cornmittee;Qatar's agreementthat the task of
tliat Committee was to draw up a Special Agreement; Qatar's own
submissioii of a draft Special Agreement in March 1988'~~: al1 these
evidence theclear understandingby bothParties (and, indeed, the Mediator)
that the 1987 Agreement was, as such, ncitan unqualified cornmitment to
the Court.
accept the jurisdiction of
7.5 In factthe recordshowsthat, althoughconsiderableprogress had been
made towards finalising aSpecial Agreement prior tothe Dohalimeeting in
December 1990,there were at least tliree issues outstanding.
Ibid., para. 103.
'9Ibid.,para. 106.
"4Ihidp .ara.107.
19'Anncx 1.8,Vol. II, p.41.SECTION1. The Matters remaininn outstanding after the Agreement of
-987
A. The formulation of "the Ouestion"
The record of thenegotiationswithinthe Tripartite Cornmitteeshows
7.6
how disagreement over the formulationof the questionto be put to theCourt
dominated the discussions.
7.7 Qatar objected19"o the first Bahraini formula in Article II of
Bahrain's original draftI9',and, although Bahrain's draft of "the question"
went through two re-formulations, aslate as the SixthTripartite meetingon
6 December 1488the Parties had reacliedno agreement. Qatar suggestedat
that meeting thatthe SpecialAgreement should have twoAnnexes,in wliich
the two Parties should separately identify the matters of difference they
wished to submit to the Court.19'
7.8 It is evident frorn the record that, althoughthe differences were not
confined to the question of Zubarah, it was Zubarah which preoccupied
Qatar,for Qataropposedanyformulation ofthe questionwhich wouldallow
Bahrain to claim sovereignrights in ~ubarah.'~~
lgQatar i emonal,Annex11.24,Vol. IIIp.157.
19Anncx 1.9Vol. II,atp.49.
Amex 1.18, Vol. alp.112.
193
Seefhe TripartiMeetingof 15 Novembcr 1988 (Annex 1.16Vol. II, at p.102),
whereDr Hassan Karnclthought the pruposed lawyemecting had noright to discuss
Zubarah. And îhe signedMinuteof7 Dccember 1988.(Annex1.18 ,Vol.II,atpp.112-
113.B. Article V of Bahrain's draft: the obli~ation of non-disclosure of the
proposals for settlement priorto the Special Agreement
7.9 Altliough tliis provision was contained in Bahrain's draftfrom the
o~tset,~OiOt was overshadowed by the contsoversy over the formulationof
"the question", Nevertheless, in Qatar's Memorandum of 27 March
1988,20'commenting oiithe Bahrain draft, a detailed opposition to this
provision was expressed - the wordsused were "totallyunacceptable" - and
nothing in the subsequent record suggests any change in this position. It
remained a substantivematter of dispute between theParties.
C. Entrvinto Force and tlie Metliod of "seisin"
7.10 For BahrainthereJiadalwaysbeen twoquite separatestepsnecessary
to make anySpecial Agreementeffective once the Parties were agreedon its
essential terms. The firstwas to ensure that Bahrainbecame boiind by the
Special Agreement iii accordance with Bahrain's internai constitutional
requirements. The secondwas to notify the Special Agreementto theCourt
once Bahrain was bound. Necessarily,the stepshadto be taken in thatorder.
As to the first step, Bahrain's draft of 19 March 1988provided as
7.11
follows:
"Article VTII
This Special Agreementshallenter intoforce on the dateof exchange
of instruments of ratification in accordance with the respective
constitutional requirementsof the
7.1 2 Thus,Bahrainnever had in mindan informa1agreementin sirnplified
form - its Constitutionprecluded it203 -and, Qatar was thus put on notice,
201Annex1.9,Vol. II,atp.51.
*OLQitan Mernorial,Aririe11.24,Vol.111p.157.
Annex1.9,Vul. II, ap.52.
'O3See above, ChapterVI, Sectio2.D.
- 102 -fom the outset, that interna1constitutional requirementsin Bahrain had to
be met, and that this would precede formal exchange of instruments of
ratification.
7.13 Qatar's draft Special Agreementof 15 March 1988provided
differently:
"Article V
1. The present Agreementshall enter into force on the date of its
signature."'04
7.14 There was, therefore,a differenceto beresolved overthisquestion of
entry into force, although the Qatari observations submitted on 27 March
1988on Bahrain's draft, did not refer to it and, in the further negotiations,
this difference was overshadowed by the more substantial difference over
"the question".
7.15 As to the second step,notificationof the Agreement,Balirain'sdraft
of 19March 1988 contained nothing. Bahraindid not doubt the need for
notification, since Articl40 of the Statuterequired it, and Article39(1) of
the Rules left open the possibility that the notification mightbe effected by
the Partiesjointly or by either of them. Thus, Bahrain believed theSpecid
Agreement required no special provision since the rnatter was governed by
both the Statute and tlie Rules.
716 Qatar took a different view. Its own draft provided:
"Article V
2. The present Agreement shallbe notified to the Registrar of the
Court by a joint letterfrom the Parties.
20Annex 1.8Vul.II, atp.45. 3. If such notification is not effected in accordance with the
preceding paragraph of this articlewithin one month after the entry
into force of the present Agreement, it may be notified to the
Registrar by either Party.""'"
7.17 This did not become amatterof controversy during the negotiations,
since Bahrain saw no reason whyjoint notificationshould not be effected,
once ratifications were exchanged.
SECTION 2. The degree of resolution of these outstanding matters
achieved at Dohah in December 1990
7,18 It is clear that progress wasmade at Dohah as regards the definition
of "the question". As noted in the Qatari ~emcirial,'~~ the Amir of Qatar
stated thathe was preparedto accept "the Bahrainigeneral formula". This
referred to Bahrain's draft of Article JI of the Special Agreement,'07and
Qatar's acceptanceof Article II was recordedin the Minutesof the Meeting
of 25 December 1990 preparedby Saudi ~rabia.~~
7.19 But this was the lirnit of the agreement on the outstanding issues.
There was no agreement as regards Article V in Balirain'sdraft -to which
Qatar presumablyremained "totallyopposed". There wasno agreement on
whether the Special Agreement should enter intoforce following the
exchange of ratifications, as Bahrain proposed, orupon signature, as Qatar
proposed.There was certainly no agreement thât the Parties should abandon
their attempts to proceed to the Court via a Special Agreement; indeed on
that point, the most fundamentalof all, there was no discussionwhatever.
'OIbid.
20QatariMernorial,para.3.55.
2MSee StatcmcntoftilForcignMinistc rfBahrain ,haikhMohammedbinMubarak
Al-Khalifaaid of Dr.Al-Bahma, Annexes 1.25,Vol. IIatp.165 and 1.26,VoI. IIat
p.181.
20Anncx1.19,Vol. II.p.115.7.20 Given the clear requirernentthat the jurisdiction must be based on
consentF9 and given furtherthese points on which no agreement had been
reached, it isextsaordinarythat Qatar should see in themeetingat Dohah a
complete agreement to proceed to the Court on the basis of a unilateral
application. Whilst there may be, as Qatarcontends, a distinction between
jurisdiction and seisin,t is cIear that the requirementof consent extends to
boh. In essence, Qatar seeks to find a total agreement where no sucli
agreement existed,to tead into the Dohahmeetingan implied abandonment
of the search for a Special Agreement, and to derive from the words al-
tur@n a meaning contrary to theirnormal meaning and not at al1intended
by Bahrain,
7.21 There is one element in the situation which Qatar has chosen to
ignore, andyet it is anelement which, prima facie, has anobjectivecharacter
which neither Party can claim forits own interpretationof events: thisisthe
position of the Mediator, King Falid of Saudi Arabia.
7.22 In September 1991 - that is, after Qatar had filed its Application to
the Court -the Mediator submittedtobothParties a suggested "compromise"
Special It had been drawn up in the Foreign Mnistry of
SaudiArabia,utilisingtheBahrainiformulafor "thequestion"andcombining
features of both theBahrainidraft Special Agreementof 19March 1988and
the Qatari draft SpecialAgreementof 15Mach 1988. Bahrainwasprepared
to resume discussions on the basis of this Saudi draft (and on the
assumption that Qatarwoulddiscontinueits unilateralapplication),butQatar
waïnot,
7.23 The importanceof the Saudi initiativelies in its clear perceptionthat
there had been no agreementbetween theParties at Dohah to abandon the
search for a Special Agreement. The Saudi initiativeis simplyincompatible
with the Qatari thesisthat,at Dohah, theearlier,common,understandingthat
the Court was to be seised by way of a Special Agreement had been
'OSee above,ChapterIV, Section1, especiallypara.4.3.
21Annex 1.24Vol. II,p.143.abandoned. And itis incompatibwithQatar'snotionthat,Dohah,Qatar
had acquiredarightto proceed by wayof unilateapplication. PARTTHREE
CLOSING CONSIDERATIONS
CHAPTERVI11
DISADVANTAGES FOR BAHRAINOF BEINGMADE
DEFENDANT
8.1 The Court may perhaps wonder why it is that Bahrain shouldobject
so strenuously to the unilateral commencement by Qatar of the present
proceedings.After allit may be asked, if Bahrain is in principle willing to
accept thejurisdiction of the Courtin respectof themattersin issue between
Qatarand Bahrain, willnotits interests,andtheprospectsfor the satisfactory
disposition of those issues, be equally welf served by the process which
Qatar has initiated on the basis of its interlpretationof the 1990 Minutes?
What is the difference between a joint submission and two unilateral
submissions,subsequentlyjoined together,hichbetweenthembring before
the Court the same issues? The answer lies in large part in the
considerations set out below.
SECTION 1. Evasion of Bahrain's constitutionalrequirements
8.2 As explained in Chapter VI,Z1"e constitution of Bahrain requires
that an international agreement vesting the Court with jurisdiction to
determine issues such as those raised by Qatar in the present proceedings
requires legislativeapproval in Bahxain.Qatar has long been aware of this.
The termsof theBahrain Constitutionareknown to Qatar. Even moreto the
point, when Bahrain presented a draft Special Agreement for the joint
submission of the dispute to the Court?l2 it made its position piain by
including in the draft a provision thatit would enter into effect only after it
Seeabove,ChapteVI, Seciion2, paras.6and6.102.
212
Seeabove,para.6.91.
- 107 -fiad been constitutionally ratified. Yet,notwithstandingboth the clarity of
this requirementand Qatar's awareness of its relevance in the present class
of situation, Qataris claiming that an effective agreement has enteredinto
force. It goes without saying that thiissprejudicial to Bahrain,
SECTION2. Disregard of Bahrain's wish ta secure the protection of a
non-disclosure undertaking(the "ArticleV" point)
8.3 Bahrain's insistence on the inclusion in the joint submission of a
specific provision toensure non-disclosureof settlementproposals that may
have been put forwardby eitherParty in the course of negotiations has been
a significantfeature of the negotiations.It was reflected, from the first,in
Bahrain 's draft Special Agreement of 1988.21"atar, by commencing
proceedings unilaterally, quite overrides Bahrain's wishesin tliisregard and
Bahrain is thereby prejudiced. It does not matter for this purpose whether
Bahrainis right or wrong in pressing this point. The fact is that Qatar has
takenit into its own handsto resolvethis issue, stilloutstandingbetween the
Parties,by the simple expedientof decidingit in its ownfavour. Again,that
is obviously prejudicialto Bahrain.
SECTION3. Considerationof the question of Zubarah is foreclosed
8.4 Bahrain hasernphasisedtheimportancethatit attachestothe inclusion
of its clairnsto Zubarahwithin any judicial proceedingsforthe settlementof
outstanding issues between the Parties, Zubarah was amongst the issues
covered by the terms of the Bahraini Formula and specifically discussed
between the Parties as an element in the litigation. Yet, by unilaterally
cornrnencingproceedingsby meansof an Application,Qatarhas limited the
scope of the proceedingsto the issues coveredby that Application. Zubarah
is, self-evidently, not among those issues.
8.5 Qatar has made twosuggestions to meet this situation. One is for
Bahrain to introduce the Zubarahclaims by way of a counter-claim in the
213
See above,parüs.5.40and7.9.
-108 -present pr~ceedings.''~The other is for Bahrain itself to start proceedings
in respect of Zubarah by the filing of its own separate application against
~atar.~~~ Bahrain does not see either of these ideas as the equivalent of the
inclusion of the Zubarahissuewithinan agreedquestionjointlysubmittedto
the Court.
8.6 Beforeexaminingeachof theseideasseparately,thereis an important
point to be made which is equallyapplicable to them both. It is that the
basis on which Qatarnow seeksto invoke thejurisdiction of the Court is, as
Qatar claims, an agreement which involves its acceptance of the Bahraini
Formula. As already ~tated,~'~ that formula covers the question of
Zubarah. That being so, it is not for Qatar to pickand choose as it pleases
from withinthat formulaand therebyto excludethat question. If Qatarfails
to frameits Applicationin a mannerthat expressly covers theZubarahissue,
so that therecan be as little doubt that it is includedwithin the proceedings
as, Say,there is regarding the Hawar Islands, Qatar has not brought its
Applicationwithintheterrns ofthecompromissoryclauseevenasinterpreted
by itself.
8.7 Nor is it for Qatar then to Say that in this situation Bahrain can
remedy the imperfections of the Qatiui Application by the devices of
counter-claimor separateapplication. As will presentlybe shown,even this
proposalis opento seriousdoubt. But there is amorefundamentalobjection
to it. The validity of the Qatari Application has to be judged on that
document as it stands at the time of its filing and withinits four cornersIf,
to be effective in relation to the matterscovered by it, the application hasto
be completed by some other act or document, whether a counter-claimor a
separate application, it is not a satisfactoryapplicationand must fall. That
said, Bahrain will now explain why each of Qatar's two suggestions is in
itselfunsound.
'1QatariMernorialp, ara5.81.
'1lbid., para.5.78See paras.9.6-9.7below.
'1See above,para.6.58.
- 109 -8.8 Considerationof the idea of a counter-claimmust begin withArticle
80 of the Rules of the Court: a counter-claim must be directly connected
with the subject matter of the claim and must come within thejurisdiction
of the Court. While it is no doubt arguable that the Zubarah claims are
"directly connected" with thematters covered by the Qatari Application,it
is also arguable that they are not. Bahrain entirely reserves its position on
that question. Qatar is not entitled to determine conclusivelythat there is a
"direct connection". If there is any doubt, then under Article 80(3) of the
Rules of the Court,it is for the Courtto decideandthe Court'sdecisionmay
not be pre-empted by one Party.
8.9 Reference is made in the Qatari Mernorial to the Asylumcase as a
possible ~arallel."~ But Bahrain fails to see its utility in the present
context. Even if the elaboration of the issues in that case was left to the
action of the Parties subsequentto the Application in the formof submission
and counter-claim,that could only take place because of the underlyingand
demonstrable willingness of the Parties to go to the Courtin the first place.
This is made plain by the relevant tems of the declaration made by the
Parties in Lima:
"1. [The Parties] have examined in a spiritof understanding the
existing dispute which they agree to refer for decision to the
International Court of Justice in accordance with the agreement
concluded by the two Governments
2. ThePlenipotentiariesofPeru andColombiahavingbeeiiunable
to reach an agreement on the terrns in which they might refer the
dispute jointly to the International Court of Justice, agree tkat
proceedings before the recognisedjurisdiction of the Court may be
instituted on the application of either of the Parti....1218
The difference between the position reflected in the Act of Lima and the
present situation could hardly be clearer.
'17Qatari Memonal,para.5.71.
'18ICJ Reports1950,p.268.8.10 Nor should it be assumed that Qatar would not object to a counter-
claim brought inrespect of the Zubarah claim. Inparas. 3.40,3.42and 3.48
of the Mernorial Qatar describes the Zubarah claim as introducing "an
entirely new issue" which "could notbe included within the subjectmatter
of the dispute" because "theonly disputesthat could bereferred to thecourt
were already well defined in the Mediation. This constitutes a clear
.,.,,
indication by Qatar of its unwillingnessto concede any "directconnection"
between a Zubarah counter-claim and the matters covered in Qatar's
application. In short, the possibility, such aitis, of a counter-claimdoes
not serve to remedy the defects in the Qatari Application.
8.11 Qatar'sother ideato enableBahrainto introduce theissue of Zubarah
is that Bahrain should file a separate and parallel application to cover
Zubarah, thus initiating a case that tCourt could subsequentlyjoin to the
present proceedings toforrn a single case. Qatarmentionsas a precedent in
this connection the South-Eastern Greenlundcase.21"
8.12 However,theSouth-Eastern Greenlandcaseis completelyinapposite.
It was based on twoexistingOptionalClausedeclarationseach wideenough
to embrace al1the issues raised by the Parties,22There was no question of
either Statehavingto change itstegalpositionin ordertoperFectjurisdiction.
There would have been jurisdiction inany event, whether or not the other
party had filed its ownconcurrent case, simplybecauseof the fact that each
separateapplicationwas basedon theoptionalclausedeclarationof the other
party.Denmark could have proceededagainst Nonvay, and vice versa, with
no questionarising as tojurisdiction. Moreover, therespective applications
in South-EasternGreenlanw dereaddressedto substantiallythe samesubject
QatariMernoriaip,ara5.70.
'"See theDanish Applicationof 18July1932:"...haviregardto the declarations
whereby Denmarkand Norway have acceded to the optionalclause of Articl36,
paragraph2, of theStatuteof theCourt"(SeriesNo.69,pp.lQ- and te Norwegian
Applicationof 18July1932:"...havingregardto thede~l~dtionswherebyDenmarkand
Norwayhaveaccededtotheoptionalclauseconccrningtheacceptance of thecompulsory
jurisdictioftheCourt"(SeriesCC,No.69,p.L).pl StatusoftheSouth-EasteTerritory
of Greenland,Ordersof 2 and3 August 1932, CIJ,SerieAIB,No.48, pp.268and277
respectively;OrdeofIIMay 1933,PCIJ,SeriesAIB,No.55,p.157.matter, and thusjoinder presented no problem for the PermanentCourt. In
theOrder (Joinder) of 2 August 1932the Court statedthat:" ..t follows that
both theNorwegian andDanishapplications are directedto the sameobject",
and "...the situationwith whichthe Court has to deal closely approximates,
so far as concerns the procedure, to that which would arise if a special
agreement had been submittedto it by the two Governments, parties to the
dispute, indicating the subjectof the dispute and the differing claims of the
~arties."~~'
8.13 The present case is quite different. The strength of opposition by
Qatar to the inclusion of the Zubarah issue in the Bahraini draft special
agreement of March 1988is fully exposed in paras. 3.37-3.40 of the Qatari
~emoria1.~~~Qatar stated explicitly that in 1988it "continued to hold the
view that anyclaim such as the one relating to Zubarah could not be raised
and that the only disputes that could be referred to the court were already
well-defined in the course of Saudi Arabia's Mediati~n."~~" The very
words of the Qatari Mernorial show that Qatar is liiely still to raise
difficulties(eg. in thefom of an objection to adrnissibility)if Bahrainraises
the Zubarahclaim* This beingso, it can hardlybe predicted witb confidence
that the two cases would be joined by the Court or tliat, if joined, al1
difficulties would disappear.
8.14 To conclude on this aspectof the matter,Bahraincannot be expected
to lend its assistanceto Qatar to fil1the gaps which the latter, in its haste to
pursue a unilateral initiative contrary to Bahrain's wishes,has Ieft in the
subject-mattersubmittedto the Court. JfQatar wantsto go to the Court (as,
in principle, Bahrain does), then Qatar shouldadhere to the agreedroute of
22As statcdinthe lastparagraphreferrcdto:"Qatarvbviuuslycould notaccept the
wordingof theBahrainidraftproposalas tothenatureof thedisputetobcrcfcrrcdtothe
Court. Qatar also rejecteany suggestionthatnu referencecouldbe madebelorethe
Courtto anynegotiationsduringSaudiArabia'sMcdiaüonorearliereffortsto settlethe
disputes.Furthermnre,Qatarstronglyobjectedtotheintroductioofancntirelynew issue
relatingo Bahrain'sso-calledrightinandaroundZubarah."
223
QatariMernorial,para.3.48.a joint submission on agreed terms. This is a matter to which Bahrain
reverts in constnictive tems in paragraphs9.2-9.5below.
SECTION 4. Bahrain is disadvantagedby beina made Defendant
8,15 Generally, it had been Bahrain's expectation that by reason of the
approach being pursued by the Parties towards a joint subrnission there
would be genuine substantive andprocedural equality between the Parties.
Bahrain had assurned that the Parties would approach the Court on an
identical basisofa commoninterestin a harmoniouslyconductedlitigation.
Instead, it finds Qatarying to secureadvantageby adopting the posture of
a plaintiff in contentious proceedings. Bahrain had supposed that it was
negotiating towards an agreed question that would reflect the concerns of
both Parties. Instead,itfacedwithissues that represent onlythe pointsthat
interest Qatar. Bahrainhadexpected thatthe nature,order and timingof the
writkn pleadings would be agreed between the Parties pnor to the
commencement of the proceedings. Instead,it is confronted by a situation
in which the usual procedures of the Courtenable Qatar to presentthe case
within aframeworkof its constructionand,no doubt, ina manner best suited
to the advancementof its interests. Bahrainhad foreseen that the world at
large would first hear of thelitigationbetween itsand Qatar in a form that
would dernonsinte that this is a friendly action brought jointly by two
fraternally cooperative States, Instead, it finds itself impliedly pilloried as
a State being draggedreluctantly before the Courtby a virtuous plaintiff,
SECTION 5. Conclusion
8.16 The disadvantages accruing to Balirain in a case brought by
application are therefore obvious: its constitutional requirements are
circumvented; ArticleV of its draft SpecialAgreementis lost; thepossibility
of raising the issue ofubarahis imperilled;it is forced into the positionof
Respondent; it can no longer insist on simultaneous filing of written
pleadings; it cannotagree the timelimits and otherprocedural elernents; and
Qatar has the advantage ofhavingpublicizedthedispute in tems which suit
its own interests.8.17 The procedural and substantive differences just described, in the
context of the present case, underscore the unacceptability of proceedings
instituted by application. These differences suggest that it is simply not
credible that the parties could have intended to equate the two types of
procedure. There are too many importantdifferencesbetweencases brought
by special agreement and cases brought by application to suggest thatone
titleof jurisdiction can arbitrarily be substitutedfor the other. CHAPTER IX
CONCLUDING POINTS
9.1 The Qatari Memorialcontainsmanyreferencesto the "Arabo-Islamic
tradition" as something that bears upon the content of Qatar's international
obligations.22As Bahrain hopes it has shown, whateverelse there rnay be
in this tradition, ites not have the effect for which Qatar contends in
modifying fundamental rules of universalinternational law. But thereone
respect in which tradition in the Arab and Tslamicworld is relevant and
shouldbe understood.It is that oneArabStatecannotdishonouranother. By
acting inthe manner that it has in launching, suddenlyand without warning
to Bahrain, proceedingsof a kindquite differentto thosethat habeen under
discussionfor someyears,Qatarhas affrontedthehonourofBahrainand that
is amatter which, in Arab andIslamic tradition, cannotbe accepted.
9.2 However, in making the submission that there is no basis on which
Qatar may unilateruElyinitiate proceedings against Bahrain in the
International Courtof Justice, Bahrain wishes toemphasize that it has not
turned againstthe originalintentioof the processinitiateby the mediation
of Saudi Arabia.Bahrain fully accepts thatit is an element in tl~atprocess
that the Parties should submitheir differencesto the Court. What Bahrain
does not, and cannot, acceptis the clairn of Qatarto replace a bilateraljoint
submission by a unilateral application.
9.3 Bahrain'soppositiontotheQatan action isnotmerelyformal.Itrests,
as already explained, on Bahrain7sbelief that the Qatari actionhas certain
implicationswhich, to theextentthat theycan be foreseen,are unacceptable
and, to the extent that they cannot be foreseen, should not berisked. The
issue is, in part, one of good faith touching the relations of theies not
only in the context of the mediation processbutlso generallyin the future.
The Court shouldnotfee1that a proper strivingto ensure the applicationof
thejudicial processto the present disputecan onlybe satisfiby permitting
Qatarto procecd with the present casein its presentform. An approachthat
224SeetheQatariMemorial,e.g.paras5.09and 5.57.
- 115 -ismuch more likely to be conducive to a properly conductedcase is one in
which the Parties come to the Court jointly and willingly - as was and
remains the intention of the Mediator andof Bahrain.
9.4 Bahrain thereforewishes totake the present opportunityof declaring
its continuing willingness to conclude with Qatar a Special Agreementfor
, ,
the submission to the Court of al1the disputes outstandingbetween them.
The conclusion of such an agreement would necessarity entai1 the
discontinuance by Qatarof the present proceedings.Bahrainrnust,however,
emphasize that this declaration is not an invitation to the Court to use its
high authorityto constructforthe Parties somenewbasis ofjurisdiction that
might more closely resemblea consensual submission. Any continuationof
proceedings within the frameworkof the present unilateral applicationby
Qatar is not acceptable to Bahrain.
9.5 To the end, therefore,thata suitablejoint submission shouldbe made
to the Court, Bahrain will within the very near future forward to Qatar a
fresh draft joint agreement coupledwith an invitation that the two Parties
should meet under the auspices of the Mediator with a view to discussing
and resolving any remaining pointsof difficulty.
9.6 In conclusion, Bahrain tms to an entirely different and somewhat
technical point regarding adrnissibility whicharises not out of Bahriin's
specificexaminationof that subject in paragraph1.16above,but instead out
of paragraph 5.75 of the QatariMernorial.ln that paragraph Qatar refers to
Bahrain's cornplaintin its letter to the Court of 8 August 1991 that Qatar,
by unilakrally starting proceedings and framing them in terms of its own
claims, had prevented Bahrain from introducing the issueof Zubarah. In a
sornewhat indirect and obscure manner Qatar appears to be arguing that it
could not object to the presentationby Bahrain of a claimif it comes within
the terms of "the Bahrainiformula"; and,by implication,Qatar appearsalso
to be suggesting thaton this basis Bahrain couldintroduce the question of
Zubarah even into the present proceedingsas frarnedby Qatar. Bahrain has
dealt in Chapter VIII, Section 3, above with the difficulties inlierentin this
suggestion. But the point thatrequiresmentionnow is the manner in which
Qatar, at thesame time asit seemsto suggestthat the Court hasjurisdictionover the Zubarahquestion, appears toresenie to itself the right to challenge
the adrnissibilityof the introductionof thismatter by Bahrain. Qatarstates:
"Of course, if a claim is put fonvard which one Party alleges is an
admissible claim coming within the formula, and if the other
maintainsthat it is not,it is then for the Court to decide, after having
considered the argumentsof the Parties, whetherit is an admissible
claimw225
9.7 Bahrain hnds it impossibleto put any otherinterpretationupon these
rather Delphic words thanthat Qataris reserving the right to challenge the
admissibility of any daim that Bahrainmay make inrespect of Zubarah, if
this matter is subsequently brought before the Court even by a joint
submission of the two Parties. The same considerationsapply to questions
relating to archipelagic baselines and the fishing areas and pearl banks,
matters which were agreed to be included in the Bahraini Formula at the
Sixth Meeting of the Tripartite Cornmitteebut not referred toin the Qatari
Application as matters upon which the Courtis asked to adjudgeZz6
9.8 Bahrainis accordinglyboundto prokct its positionin anyfuturecase
by noting that, though not objecting to the admissibilityof Qatar's present
Application (as opposed,of course, to the present objectiontojurisdiction),
Bahrain is acting only withinthe frarneworkof the present case as set by
Qatar. Such acceptance of admissibility cannot extend to any other
proceedings, even ones involving the same issues as those now raisedby
Qatar. Thus,for example,if in suchlaterproceedingsQatarwere toquestion
the adrnissibility of any Bahraini claim to Zubarah by reference to
considerationswhich, in its turn, Bahrain mightperceive at that timeand in
that context as also being applicable to Qatar's claims, Bahrain wouldfeel
free to invoke suchconsiderations - to the extenof theirrelevance -against
the admissibilityof anyclaims that Qatarrnightassert,e.g. in relation to the
Hawar Islands.
22QatariMernorialp, ara5.78.
22Seeabove,foomote 159,p.78. CHAPTERX
FORMAI,SUHMISSIONS
The State ofBahrainrespectfully requesttheCourt to adjudgeanddeclare,
rejectingal1 contrary claims and submissions, thatthe Court is witliout
jurisdictionover the disputebroughtbefore itby the Applicationfiled by
Qatar on 8 July 1991.
(Signed)
HusainM. Al Baharna
Minister of StateforLegal Affairs
and Agent of the Stateof Bahrain LISTOFDOCUMENTARY ANNEXES
Volume II
Part 1
GENERAL
Annexes 1.1- 1.26
Page
1978Mediation Principles,as amended in 1983; translation
1.1
into English by Qatar................................... 1
1,2 Letter from KingFahd of Saudi Arabiato the Amirof the
State ofQatar,H.H. ShaikhKhalifa bin HarnadAl Thani,
19December 1987, togetlierwith draft Announcement made
public on 21 Decernber1987;translation into Englishby
the United Nations. .................................... 5
1.3 Text of the UnitedNations translationof the letter from
King Fahd of Saudi Arabia to the Arnirof the State of Qatar,
H.H. Shaikh IUialifabin Hamad Al Thani, 19 December 1987,
together with draft Announcementmade public on 21 December
1987 together with Qataritranslationof the same in paral...... 13
1.4 Letter from H.H. The Amir of the Statof Bahrain to King
Fahd of Saudi Arabia, 26 December 1987,in Arabic with
translation into English Bahrain. ....................... 23
1.5 Draft Procedural Agreementto form the Joint Cornmittee,
Decernber 1987;translationinto English by Qatar.............. 291.6 Minutes of the first meeting of the TripartiteCornrnittee
held at the Ministryof Foreign Affairs,Riyadh, 17 January
1988(extracts); translationinto English by Qatar. .. ... . .... .. .
7.7 Agreed Minutesof the First Tripartite Cornmittee Meeting,
Riyadh, 17January 1988;translation into Englishby Qatar. .. ... ... 37
1.8 Original draft Qatari Special Agreement,15Mach 1988. . . ..... . . .41
1.9 Original draft Bahraini Special Agreement,19Mach 1988. ..... ... 47
1.10 Minutes of the second meetingof the Tripartite Cornmittee,
held at the Ministry of Foreign Affairs, Riyadh,3 April 1988;
translation into English by Qatar. . . . . . . .... .............. 53
1.11 Minutes of the third meeting of the Tripartite Comrnittee,
held at the Ministry of Foreign Affairs, Riyadh,17 April 1988
(extracts); translation into Englishby Qatar. ... ., .... . . . ... ,. 75
1.12 Revised Bahraini question, 27 June 1988. . . .... ..... ... ...... 81
1.13 Minutes of the fourth meeting of the Tripartite Cornrnittee,held
at the conferencepalace in Jeddah, 28 June 1988(exbclcts);
translation ititoEnglisli by Qatar. , ..... . . .. . ... . . .. . . . . . .. .
1.14 Revised Bahraini Formula, October 1988. . . . . . . . . . . . .. . ... 89.
1-15 United Nations translationof the Arabic text of the Bahraini
Formula into English. .... . . .,. . ... . . . . . . . . . . . .... .. . 93
1.16 Minutes of the fifth meetingof the Tripartite Comrnittee,held in
Riyadh, 15 November1988(extracts); translationinto English by
Qatar. .,......,..,................................ 97Minuiesof the sixth meeting of the Tripartite Cornmittee,held
in Riyadh, 6 December 1988 (extracts); translation into English
byQatar. ......................................... 103
Agreed Minutes signed at the end of the sixth meeting of the
Tripartite Cornmittee, December1988;translation into English
byBahrain, ........................................ 109
United Nations translationof the ArabicCextof the Minutes of
25 December1990. ................................... 115
United Nations translationof the Minutes of 25 December 1990,
together with theQatari translation anthe translationby
Dr Holes,in parallel, ................................. 119
Letter from the Permanent Representativeof the State of Bahrain
to the Secretary General of the United Nations, 9 August 1991.... 125
Letter from the Director and Deputy tothe Under-Secretary-Generai
in charge of the Office of Legal Affairs of the United Nations
to the Permanent Representativeof the State of Bahrain,
15August1991. ..................................... 133
Letter from the Permanent Representativeof the State of Bahrain
to theDirector and Deputy to theUnder-Secretary-Generalin
charge of the Office of Legal Affairsof the United Nations,
23 August 1991. ..................................... 139
Saudi Arabian draft Specid Agreement receivedby Bahrain,
September 1991,and covering "Explanatory Memorandum"in
Arabic withtranslation into Englishby Bahrain. .............. 143
Statement of H.E. Shaikh Mohammedbin Mubarak Al-Khalifa, the
Foreign Minister of Bahrain ,1 May 1992................... 1571.26 Statementof H.E. Dr .Al Baharna.Ministerof State for Legal
Affairs. 20 May 1992 ................................. 177
Part II
EXPERTOPINIONS
Annexes 11.1. 11.4
II1 Opinion of ProfessorA.K. Aboulmagd.dated 20 May 1992 ....... 197
11.2 Opinion of Mr AdnanAmkhan.dated 20 May 1992 ............ 217
....
11.3 Linguisticopinionof ProfessorE. Badawi.dated 22 May 1992 257
11.4 Linguisticopinionof Dr.C .Holes. dated 12May 1992 .......... 285 Volume III
THE HISTORICALPERSPECTIVECORRECTED
Annexes 111.1-111.26
Page '
111.1 Map of the Persian Gulf producedin Proceedings of the Govcrnment
ofIndia,October 1868,no. 277, Appendix 2, P/438/3. ............ 1
111.2 Précisof conversation between Major Grant, First Assistant Resident
and Shaikh Esau bin Alli,the Chief of Bahrain, on 16 August 1873,
IORL/P&S/9/23 [transcriptand India Office copy]. .............. 5
111.3 Translatedpurport of Shaikh Esau bin Khaleefa's statement of 2
Septernber 1873,IORL/P&S/9/23[transcriptand India Office copy]. , 11
111.4 Lieutenant Colonel Rossto the Secretary to the Governmentof India,
4 Septernber1873, IOR L/P&S/9/23[hanscript and India Office
copyl. ............................................. 15
111.5 Translated purport of a letter from ShaikhEsaubin Ali al-Khalifa,
Chief of Bahrain, to Lieutenant ColonelE. C. Ross, PRPG,dated
Bahrain, 14 June 1875. Proceedings ofthe Government of lndia,
September 1875,P/776. ................................. 23
111.6 Exû-actfrom Saldanha,J.A. PrÉcis ofBahrain.Affairs, PartI
Political Affairsfium ante 1857 tu 1870, f908,p.64 ............. 27
111.7 Extracts from Saldanha, J.A.,Précisof QatarAffairs,Part I,
Historical and PoliticalMatters, 1873-1904, 1904,pp, 29 and 60-2 . .31
111.8 Extracts from Lorimer, J.G. Gazeteer of thePersiun Gulf,'Oman
and CenfralArabia, Volume 1,Historical,Par 1,printed in 1915,
pp. 839, 840, 868 and 910. ............................... 37111.9 Extract from Lorimer,J.G., Gazeieer of thePersian Gulf "Oman,
and CentralArabia, VolumeII, Geographicaland Statistical,
1908,~. 1305. . .. .. .,.. ,,, . ,. +,.... .... .. .. ..... . ., ... 45
Prideaux to Cox, 20 March 1909,IORR/15/2/25 [transcriptand
111.10
India Office copy of handwrittendraftl. .... . .. . . ..... . . ..... 49
.,,,,
111.11 Political Residentto H. M.'s Secretaryof State for India,
10Janurtry1934,IOR R/15/1/627. . .... . . .. . . . . . . . . . . .. .57 . . .
III.12 "Notes on Qatar"by A. F. Williamson,14January 1934,
F0/371/17799, [transcriptand Public RecordsOfficecopy]. ........ 61
111.13 Ruler of Bahrainto PoliticalAgent, 14 April 1937,
IORR/15/2/202. . . . . . . .. . . ..... ... ... . ,.. ,. +., ... .. 71
III34 Letter from Rashidbin Mohomedal Jabor , ated 3 Safar 1356
(equivalentto 16 April 1937),IOR R/15/2/202[English
and Arabic copies]. ........... , .............. . ... ... . . 75
111.15 Ruler of Bahrainto Political Agent, 29 April 1937,IOR R/15/2/202. . 79
111.16 Adviser to the BahrainGovernmentto Political Agent,20 June 1937,
IOR R/15/2/202. . .. . . . . . . . ... .. .... ... .. . . . . ... . . .. 83
III.17 Political Agent to Political Resident4 July 1937,IOR R/15/2/203. . .. 87
111.18 Ruler of Bahrain to Political Agent, . .. 91
6 July 1937,IOR R/15/2/203.
111.19 Ruler of Bahrain to PoliticalAgent, 6 July 1937,IOR R/15/2/203. .. . 95
111.20 Adviserto the BahrainGovernmentto the Political Agent,5 August
1937,IOR R/15/2/204[transcriptand India Officecopy of original
handwrittentex t]. . .. ....... .. .... . . . . . .. . .... .. .. .. . 99 .111.21 Agreement between Bahrain and Qatar signed on 17 and 23
June 1944,IORR/15/2/205 [Englishand Arabic copies]. ......... 105
111.22 Letter dated 26 Rarnadhan 1363correspondingto 14 September
1944 from H.H. Sir Salmanbin Hamad al-Khalifa,K.C.I.E., Ruler
of Bahrain, to the Political Agent, Bahrain,IOR R/15/2/205, [English
and Arabic copies]. ................................... 109
111.23 Letter dated 16 Safar 1364 (30.1.1945) fromShaikh Abdullah bin
Qasirn al Thani,C.I.E.,Ruler of Qatar, to H.H. Sir Salmanbin
Hamad al-Khalifa, K,C,I.E.,Ruler of Bahrain,IOR R/15/2/205,
[Englishand Arabic copies J ............................. 113
111.24 Letter dated 19Safar1367 (13.12.1947) fromH.H. Shaikh SU.
Sulmanbin Hamad Al Khalifa, K.C.I.E.,Ruler of Bahrain, to Political
Agent, IORR/15/2/431, [Englishand Arabiccopies]. ........... 127
111.25 Pelly to Political Resident,23 April 1950,F0/371/82041,
[tîanscript and Public Records Office copy.................. 123
111.26 Extract from El Mallakh,R: Qatar:Development ofan Oil
Economy, 1979, pp. 96-7. ............................... 141 LISTOFILLUSTRATIVE MAPS
Sketchmapof Bahrain,Qatar
Vol. 1insidefrontcover. .. ... .:/
andthe surroundingarea
Mapof thePersianGulf,from
Proceedingsof the Government
oflndia, October1868, No. 277,
Appendix 2,P/438/3 .,. Annex111.1.Vol.111,p.1. . ..... ABBREVIATIONS
The following is a list of the main abbreused:ons
1987Agreement The Agreement describedin paragraph 1.6hereof.
1990 Minutes The Minutesof ameeting drawnup on 25 December 1990
FO Foreign Officedocuments (PublicRecordsOffice,London)
ILR InternationalLaw Reports
10R India Office Records
LP&S Letters Political and Secret (TndiaOffice Library, London)
P Froceedingsof theGovernrnentof India (India Office Library, London)
PA PoliticalAgent
PR Political Resident
Residency Fileslndia Office Library, London)
R/1512 PoliticalAgency,BahrainFiles (IndiaOffice Library, London)
Counter-Memorial of the Government of the State of Bahrain