Case concerning Maritime Delimitation and Territorial Questions between Qatar

and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility

Malcolm D. Evans
The International and Comparative Law Quarterly, Vol. 44, No. 3. (Jul., 1995), pp. 691-698.
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ICJ Cases
CASE CONCERNING MARITIME DELIMITATION AND

TERRITORIAL QUESTIONS BETWEEN QATAR AND

BAHRAIN ( & A T A R v. B A H R A I N ) , JURISDICTION AND

ADMISSIBILITY'

The current proceedings before the International Court of Justice represent the
latest phase in a series of attempts to resolve a set of complex problems concerning
sovereignty and maritime boundary delimitation issues and was submitted unilaterally by Qatar in July 1991, relying for jurisdiction on agreements made between
the two States in 1987 and 1990.2 Initially, Bahrain claimed there was no agreement permitting a unilateral application to be made and objected to its inclusion in
the General List? but finally agreed to an initial phase concerning jurisdiction and
admi~sibility.~
There is no doubt that the parties had agreed that their dispute should be submitted to the ICJ. What was at question was whether they had entered into a
legally binding commitment that entitled either State to submit that question unilaterally. Qatar thought that they had, whilst Bahrain maintained that they had
not. Underlying this, however, was a further disagreement concerning the nature
of the dispute relating to the island of Zubarah.
B.

"The 1987 and 1990 Agreements"

In December 1987 the King of Saudi Arabia, with the agreement of the Amirs of
Qatar and Bahrain, established a tripartite committee charged with the task of
preparing for the submission of the dispute to the ICJ.' At the fourth meeting of
this committee, Bahrain proposed what became known as the "Bahraini Formula", which provided that:h
1. Maritime Delimitation and Territorial Questions Between Qatarand Bahrain Jurisdiction and Admissibility, judgment of 1 July 1994, I.C.J. Rep. 1994, 112 (hereafter July judgment) and Maritime Delimitation and Territorial Questions Between Qatar and Bahrain
Jurisdiction and Admissibility, judgment of 15 Feb. 1995, I.C.J. Rep. 1995.6 (hereafter February judgment). The July judgment was adopted with 15 votesin favour and 1 against. Judge
Shahabuddeen appended a declaration; Judge Schwebel and Judge ad hoc Valticos
appended separate opinions; Judge Oda appended a dissenting opinion. The February judgment was adopted with 10 votes in favour and 5 against. Judges Schwebel, Oda, Shahabuddeen, Koroma and Judge ad hoc Valticos appended dissenting opinions.
2. July judgment, para.l.
3. See July judgment, dissenting opinion of Judge Oda, para.9.
4. Maritime Delimitation and Territorial Questions between Qatarand Bahrain. Order of
11 Oct. 1991, I.C.J. Rep. 1991.50 and see July judgment. para.4. Valticos sat as an ad hoc
judge in respect of Bahrain for both judgments. Ruda sat as ad hoc judge in respect of Qatar
for the July judgment but, following his death in July 1994, Bernardez sat in respect of Qatar
for the February judgment.
5. July judgment, para.17. The relationship ofthe work of the tripartite committee to the
agreement to submit the dispute to the ICJ was considered in the February judgment.
paras.24-29 and see text accompanying infra nn.13 etseq.
6. July judgment, para.18.

International and Comparative Law Quarterly

692

[VOL.
44

The Parties request the Court to decide any matter of territorial right or other title or
interest which may be a matter of difference between them: and to draw a single
maritime boundary between their respective maritime areas of seabed, subsoil and
superadjacent waters.

Qatar did not accept this at the time, and at the sixth and final meeting of the
committee in December 1988 p r ~ p o s e d : ~
that the agreement which would be submitted to the Court should have two annexes.
one Qatari and the other Bahraini. Each State would define in its annex the subjects
of dispute it wants to refer to the Court.

This was unacceptable to Bahrain. However, the parties did agree in principle that
the subject matter to be submitted would be:
(1)
(2)
(3)
(4)
(5)

the Hawar Islands, including the island of Janan;

Fasht al Dibal and Qit'at Jaradah;
the archipelagic baselines;
Zubarah;
the areas for fishing for pearls and for fishing for swimming fish and any
other matters connected with maritime boundaries.

At this stage, then, there was agreement concerning the subjects in dispute but
no agreement concerning the manner in which they were to be presented to the
ICJ. This reflected the disagreement between the parties concerning the nature of
their dispute over Zubarah: Bahrain claimed sovereignty, whereas Qatar admitted the dispute only to the extent that it raised questions concerning private rights.*
In December 1990, at a meeting of the Co-operation Council of Arab States at
Doha, Qatar accepted the Bahraini formula and both sides agreed to a further
period for the exercise of the good offices of the Saudi King and further agreed that
if this had not produced a settlement by the end of May 1991, then the matter could
be placed before the ICJ. Minutes of this meeting were signed by the Foreign
Ministers of both Qatar and Bahrain (the Doha Minutes). No settlement was
forthcoming and in July 1991 Qatar submitted its unilateral application, by which
it asked the Court to declare Qatari sovereignty over the Hawar Islands and its
sovereign rights over the Dibal and Qit'at Jaradah shoals and to draw a single
maritime boundary between itself and Bahrain.
C.

The Statzis of tile Minutes

The first question which the ICJ had to determine concerned the legal status of the
Doha Minutes. Bahrain argued that the Minutes were a "simple record of negotiations" and, as such, did not amount to an international agreement capable of providing the ICJ with a basis for jurisdiction.' The ICJ, however, pointed to the
definition of an international agreement found in Article 2(l)(a) of the Vienna
Convention on the Law of Treaties (1969) and concluded that: "In order to ascertain whether an agreement . . . has been concluded, 'the Court must have regard
7. Ibid.

8. Ibid.The Bahraini formula avoided passing on this by its reference to "territorial

rights or other title or interest" in dispute.
9. Idem.para.22.

JULY 19951

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693

above all to its actual terms and to the particular circumstances in which it was
drawn upl."'O After examining the Minutes, the ICJ decided that:"
they do not merely give an account of discussions and summarize points of agreement
and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the parties.

It was also argued that the Bahraini Foreign Minister would not have signed
them if he had understood them to be legally binding on Bahrain per se, if only
because he had no constitutional authority to d o so. The ICJ dismissed this on the
basis that the intention of the minister could not override the objective nature of
the agreement.12
D.

The Content of the Agreement

Having decided that there was a legally binding agreement, the ICJ then had to
consider its content. As has already been said, there is no doubt that the parties
were in agreement that the dispute should be submitted to the ICJ, and the tripartite committee was established in 1987 to facilitate this. Qatar's acceptance of the
Bahraini formula in 1990 sealed this aspect of their agreement. Two other questions also needed addressing, however: what was to be submitted and how it
should be submitted.
1.

The subject matter of the submission

As long ago as March 1983 a set of "Principles for the Framework for Reaching a
Settlement" was agreed, the first of which was that all of the issues between the two
States were to be "considered as complementary, indivisible issues, to be solved
' ~ was again affirmed in both the 1987 exchange
comprehensively t ~ g e t h e r " .This
and the 1990 Minutes and the ICJ confirmed that the Bahraini formula "presupposed that the whole of the dispute would be submitted to the C ~ u r t " .Since
' ~ the
original Qatari application manifestly did not place the whole of the dispute
before the Court-and
in particular the questions concerning ZubarahI5-it
10. Idem, para.23, quoting the Aegean Sea ContinentalShelfCase, I.C.J. Rep. 1978,39,96.
11. Idem, para.25 and see also para.30. This aspect of the judgment was not reopened and
was confirmed by the ICJ in its February judgment, paras.9 and 24. Judge Oda, however,
maintained that neither the 1987 Agreement nor the 1990 Minutes amounted to a treaty in
force sufficient to confer jurisdiction upon the ICJ. See July judgment, dissenting opinion of
Judge Oda, paras.6-17 and February judgment, dissenting opinion of Judge Oda,
paras.lCLl6.
12. July judgment, para.27. Cf. Art.46(1) of the Vienna Convention on the Law of Treaties, which would seem to support this view. This, however, applies only to treaties, as defined
by the Convention. Where the legal status of the agreement is itself at issue, the intentions of
those involved are usually taken as relevant factors. Similarly with the subsequent practice of
the parties. The ICJ took the view that the parties' failure to consider or treat the Minutes as
a treaty did not deprive them ofthe status which, objectively speaking, it considered them to
possess (idem, paras.28-29). On non-binding agreements see Miinch, "Non Binding Agreements" (1969) 29 Z.a.0.R.V. 1; Nash (Leich), "International Acts Not Constituting Agreements" (1994) 88 A.J.I.L. 515.
13. July judgment, para.16.
14. Idem, para.33. Indeed, the tripartite committee spent much of its time seeking to
determine precisely what the relevant subject matter was.
15. A point which was conceded by Qatar (idem, para.36).

694

International and Comparative Law Quarterly

[VOL.
44

decided in its July judgment "to afford the Parties the opportunity to ensure the
submission to the Court of the entire dispute, .. . [which] could be effected by a
joint act by both parties with, if need be, appropriate annexes, o r by separate
acts".Ih
Unhappily for the ICJ, the attempt to act as a self-appointed conciliator proved
unsuccessful. Immediately upon the publication of the July judgment, the Foreign
Minister of Bahrain invited Qatar to "work towards the signing of a joint submission". Qatar responded by expressing the hope that they might meet to discuss
joint action to place the dispute before the ICJ.I7 A series of meetings was held
during October and early November 1994, but the two States were unable to reach
agreement.
O n 30 November 1994 the ICJ received a letter from Qatar containing an "Act
to comply with paragraphs (3) and (4) of the operative paragraph 41 of the Judgment of the Court dated 1 July 1994" in which Qatar simply added what it considered to be the missing elements of the dispute to its original application. That
same day, Bahrain submitted a "Report of the State of Bahrain to the International Court of Justice on the Attempt by the Parties to Implement the Court's
Judgment of 1st July 1991" in which it objected to the Qatari attempt to pursue the
subdispute within the framework of the original unilateral a p p l i c a t i ~ n .Bahrain
'~
mitted further comments in writing on 5 December 1994 and explained that it
would not appear before the Court since it did not believe that the "Act" of Qatar
could bestow upon the ICJ a jurisdiction to consider the unilateral application
which the ICJ itself had failed to assert in its earlier judgment.19 No further oral
hearings were held before the issue of the judgment on 15 February 1995.
The principal problem remained the questions relating to the island of Zubarah.
This had not been included in the original application in July 1991 and its omission
lay at the heart of the ICJ's decision to grant the parties the opportunity to place all
matters in dispute before it. In its "Act" of 30 November 1994 Qatar did add Zubarah to the list of subjects falling within the jurisdiction of the ICJ,'O thus placing all
the relevant matters before it.
This, however, did not solve the problem as far as Bahrain was concerned, since
the exchanges which took place in October and November 1994 reaffirmed that it
was the manner in which reference was to be made to the dispute that lay at the
heart of its objections. Bahrain wanted the question of "sovereignty" over Zubarah to be included in the list of disputed matters." Qatar was not prepared to
place the question before the ICJ in this way and in its "Act" stated merely: "It is
understood by Qatar that Bahrain defines its claim concerning Zubarah as a claim
of sovereignty."" Nevertheless, the ICJ concluded that the addition of these miss16. Idem, paras.38 and 41(3).
17. February judgment, para.18.
18. Idem. paras.13-14.
19. Idem, para.14.
20. Idem, para.12.
21. Idem, para.13.
22. Idem, para.12. In the course of these discussions, Qatar again suggested that they
should present their claim in separate annexes. This suggestion was first made, and rejected,
in the tripartite committee-before Qatar had accepted the Bahraini formula-and its
reappearance at this stage seems to underline just how little progress had in fact been made
on this central question (idem, para.21 and see text at supra n.7).

JULY19951

ICJ Cases

695

ing elements to the Qatari application had put the entire subject matter of the
dispute before it in accordance with the Bahraini formula and that it was in a position to hear the case.23

2.

The method of seisin

The other principal question concerned the nature of the agreement relating to
the manner in which the ICJ was to be seised of the case. This turned on the
interpretation of the Minutes, which were in Arabic, and disagreement centred on
the meaning of the phrase "al-tarafan". According to Qatar, the crucial sentence
of the Minutes provided: "After the end of this period [May 19911,the parties may
submit the matter to the ICJ in accordance with the Bahraini formula."24This is
exactly what Qatar sought to d o in July 1991. According to Bahrain, however, the
correct translation was: "The two parties may, at the end of this period, submit the
matter to the ICJ in accordance with the Bahraini formula."2s
In its February judgment the ICJ had no option but todecide whether Qatar was
entitled to present a unilateral application, the decision which it had sought to
avoid making by virtue of its July 1994 judgment.26It therefore had to determine
the exact scope of the obligations assumed by virtue of the 198711990 Agreement.
First, Bahrain argued that the 1987 Agreement only committed the parties to submit the disputed questions to the ICJ by means of an agreement reached within the
framework of the tripartite committee which it established. The ICJ rejected this,
and pointed out that the committee had not met in the two years prior to the signing of the 1990 Minutes and, since neither State had sought to reactivate it, those
Minutes could only be understood as contemplating the acceptance by the parties
of the commitment to have the dispute submitted to the ICJ outside the framework of the tripartite c ~ m m i t t e e . ~ '
The ICJ then turned to this central question but again failed to meet it head on
and, rather than choose between the two interpretations offered by the partiesneither of which, it felt, provided an a n s ~ e r ~ ~ - a d o p t ead different approach. It
noted that the crucial phrase said that "the two parties may submit the matter to
the ICJ" and, since "the verb may . .. envisages a possibility o r even a right . . . the
expression 'the two parties may submit . . .' . . . suggests.. . the option or right for
them to seise the Court".29 Thus, even if the Bahraini translation of the Arabic
Minutes was accepted, "that expression does not require a seisin by both Parties
acting in concert, but, on the contrary, allows a unilateral s e i ~ i n " . ~ T h iits ,felt, was
23. Idem, paras.31, 4748. Four of the five dissenting judges, however, questioned the
I U ' s finding on this point, maintaining that the Bahraini claim to sovereignty over Zubarah
had not been placed before it and, in consequence, the ICJ lacked jurisdiction (dissenting
opinions of Judge Oda, para.24; Judge Shahabuddeen, pp.53-54, 65; Judge Koroma,
pp.71-72; Judge ad hoc Valticos, paras.5-10).
24. February judgment, para.19.
25. Ibid.
26. In the absence of any further written pleadings or oral hearings,the ICJ drew upon the
submissions made prior to the July judgment when formulating the February judgment.
27. February judgment, paras.26-29.
28. Idem, para.34.
29. Idem, para.35 (emphasis in original).
30. Ibid.

696

International and Comparative Law Quarterly

[VOL.
44

not only its most natural and ordinary meaning, but also conformed to the object
and purpose of the 1990 Minutes, which were to "advance the settlement of the
dispute". The parties would always have had the capacity to seise the ICJ by a joint
act: the purpose of the Agreement was to open the way for unilateral seisin should
the Saudi Arabian mediation faiL2'
Bahrain also argued that the reference back in the Doha Minutes to the Bahraini formula "and the procedures consequent upon it" (which it had insisted
upon32)confirmed the need for a joint submission, since that formula was always
intended as a basis for the submission of the dispute by means of a special agreement. However, since by 1990 discussions on the formulation of a special agreement by the tripartite committee had ceased, the ICJ took the view that the
reference to the formula was intended solely to identify the subject matter of the
dispute to be referred to the ICJ in the fashion established by the 1990 text.23
In the light of these conclusions, the ICJ decided that "the Doha Minutes, interpreted in accordance with the ordinary meaning to be given to its terms in their
context and in the light of the object and purpose of the said Minutes, allowed the
unilateral seisin of the Court".34In consequence, it did not consider it necessary to
resort to supplementary means of interpretation to determine the meaning of the
minutes. Nevertheless, it did look at the travaux priparatoires in order to see
whether they provided confirmation of its interpretation of the minutes.
They did not. In fact, it is difficult to find fault with the opinion expressed by
Judge Schwebel in his dissenting opinion when he observed that "what the text
and context of the Doha Minutes leave so unclear is, however, crystal clear when
those Minutes are analyzed with the assistance of the travaux preparatoires . . . a
reasonable evaluation of [which] sustains only the position of Bahrain".3"s
the
ICJ itself observed, the initial draft of the Minutes expressly authorised a seisin by
one or other of the parties, but this was amended, at the instance of Bahrain, and
'~
it means "the
the controversial Arabic phrase "al-tarafan" i n t r ~ d u c e d . Whether
parties" or "the two parties" it seems clear that the reason for its use was to make it
plain that a unilateral application would not be possible. The ICJ, however, was
"unable to see why the abandonment of the form of words corresponding to the
interpretation given by Qatar to the Doha Minutes should imply that they must be
interpreted in accordance with Bahrain's thesis"."
One suspects that few outside the majority within the ICJ suffer from such acute
myopia. If the original, clear and unambiguous version of the Minutes accurately
recorded the agreement between the parties, why was it changed?38If the change
has rendered its meaning ambiguous, how can the ICJ possibly determine that its

31. Ibid.
32. Idem, para.41.
33. Idem, paras.37-40.
34. Idem, para.40.
35. February judgment, dissenting opinion of Judge Schwebel, pp.38-39. See also the dissenting opinion of Judge Koroma, p.69.
36. February judgment, para.41.
37. Ibid.
38. See February judgment, dissenting opinion of Judge Koroma, pp.69-70.

JULY 19951

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697

meaning was so clear and unambiguous that resort to supplementary sources of

interpretation was unnecessary?
E.

Comment

It is difficult to avoid agreeing with Judge Schwebel when, in his separate opinion,
he described the July judgment as "novel-and di~quieting",'~a description which
might also, perhaps, be extended to the February judgment. H e observed that the
July judgment had failed to adjudge the principal issues submitted and did not
respond to the submissions of the parties. Yet it did decide that Bahrain had bound
itself in law to the submission of the full dispute, whilst at the same time accepting
that that had not happened. The ICJ's jurisdiction to make even this preliminary
finding remains something of a mystery."
The very basis of jurisdiction offered by Qatar was also unclear. As Judge Oda
observed, although the Qatari application was submitted unilaterally under Article 38(1) of the Rules of Court, "the relevant provision . . . is ambiguous to an
extent that permits of an interpretation that this submission is based on an agreement of the par tie^".^' What was agreed between the parties lay at the heart of the
was that the ICJ
case and the real problem, as hinted at by Judge ad hoc Valtico~,4~
could not choose between the two conflicting versions of the 1990 Minutes. The
very fact that the ICJ sought to avoid choosing between these alternative versions
carried with it an implication that it had, at the very least, severe reservations:
otherwise, why refer it back to both parties at
Nevertheless, the ICJ opted for a solution that gave priority to the agreement to
submit the substance of the dispute to the ICJ and downgraded the outstanding
questions relating to the presentation of the subject matter and the resulting procedural disagreement concerning the method by which submission of the dispute
was to be achieved. When this did not achieve the desired result, the ICJ asserted
its jurisdiction through an application of principles of interpretation which seems
difficult to reconcile with its own problems in ascertaining the Agreement's
meaning.
It may be that the ICJ felt somewhat frustrated. The principal problem standing
in the way of the parties agreeing on amethod of submission-joint or otherwiseconcerned the manner in which the dispute concerning Zubarah would be presented. The ICJ seems to have taken the rather pragmatic view that, once the case
was before it, claims of sovereignty could be presented by Bahrain if it wished."
This, however, put the ICJ a step ahead of Bahrain, which had conducted itself in
39. July judgment, separate opinion of Judge Schwebel, p.130.
40. Cf. idem, dissenting opinion of Judge Oda, para.3 (where it is argued that the ICJ is
attempting to develop an interlocutory jurisdiction which is entirely inappropriate).
41. Idem, para.7.
42. July judgment, separate opinion of Judge ad hoc Valticos, p.132.
43. A point built upon by Bahrain (February judgment. para.13) and accepted in the February judgment by Judge Koroma (dissenting opinion, p.71) and Judge ad hoc Valticos (dissenting opinion, paras.l5,21). Judge Shahabuddeen argued that, if the ICJ wasitself in doubt
about its jurisdiction, the requisite standard of proof concerning the existence of that jurisdiction could not have been met and, therefore, jurisdiction should not be asserted (dissenting opinion, pp.64-65).
44. February judgment, para.48.

698

International and Comparative Law Quarterly

[VOL.44

such a fashion as to reserve the right not to have the dispute submitted unless it was
in a framework which required Qatar to accept that sovereignty was at issue.45
Viewed in this light, it is evident that there was still no agreement between the
parties concerning the subject matter of the dispute. A fortiori. it is difficult to
justify an assertion of jurisdiction where the evidence for the common consent of
the parties to a unilateral application is, at best, dubious and is deduced from an
interpretation of inherently ambiguous wording that flies in the face of the evidence provided by the travaux prc?paratoires.The extent to which this truly represents an interpretation of the Agreement between the parties "in the light of its
object and purposes" is open to question.46
Judge ad hoc Valticos characterised the February judgment as having skilfully
"circumvented the obstacle constituted by the lack of real consent of the Parties"
but believed that "the very legitimate desire to prevent a conflict" should not
"allow the Court to appear to be less exacting as regards the consensual principle
A t one level, then, these judgments
which lies at the root of its juri~diction".~~
provide yet another m a n i f e s t a t i ~ nof~a~problem which penetrates to the heart of
debates concerning not only the relationship between consent and third-party dispute settlement but also the nature and function of international law in contemporary international society, although it is hardly to be expected that such themes
would be directly addressed by the Court in the context of these judgments. Be
that as it may, the actual result has been that Bahrain has subsequently refused to
assist the Court in setting limits for the submission of the Memorials of the parties49
and it seems unlikely, therefore, that Bahrain will participate in the later phases of
the case.

11. CASES BEFORE THE COURT*

A.

Contentious Cases

1. Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of

America),Jurisdiction and Admissibility.
45. Cf. Merrills, "The Optional Clause Revisited" (1993) 64 B.Y.I.L. 197,237, who notes
that some States seek to achieve a similar degree of control over the presentation of territorial disputes by means of reservations to declarations accepting the jurisdiction of the ICJ
under Art.36(2) of its Statute.
46. See e.g. February judgment, dissenting opinion of Judge Schwebel, p.36; dissenting
opinion of Judge Koroma, p.70.
47. Idem, dissenting opinion of Judge ad hoc Valticos, p.5.
48. Cf. the ICJ's decisions in the Nicaragua case (I.C.J. Rep. 1984, 392 and I.C.J. Rep.
1986.14) which prompted Reisman to observe that "it is an affirmation and not a repudiation
of law to reject a decision by a Tribunal that had no jurisdiction to make such a decision"
("Has the ICJ Exceeded its Jurisdiction?" (1986) 80 A.J.I.L. 128,134). For the considerable
debate engendered by these decisions see (1987) 81 A.J.I.L. 77-183.
49. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Order
of 28 April 1995, I.C.J. Rep. 1995.83. Memorials are to be filed by 29 February 1996.
* As at 1 May 1995. All cases listed are being considered on the merits unless otherwise
indicated.