5/12/24, 7:12 PM World Court Digest

WORLD COURT DIGEST

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Summaries of the Decisions

Maritime Delimitation and Territorial Questions between Qatar and Bahrain

On 8 July 1991, Qatar filed an Application instituting proceedings before the Court against Bahrain concerning
certain disputes relating to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Quit'at
Jaradah, and the delimitation of the maritime areas of the two states. Qatar founded the jurisdiction of the Court
upon two agreements between the parties dated December 1987 and December 1990. The subject and scope of
the commitment to jurisdiction were to be determined by a formula proposed by Bahrain to Qatar in October 1988
and accepted by Qatar in December 1990. Bahrain contested the jurisdiction of the Court arguing that none of the
documents referred to by Qatar contained a commitment to have the dispute settled by the Court.

In 1987, the Parties accepted, in an exchange of letters, proposals by Saudi Arabia which provided for a settlement
by the Court of all matters in dispute between the parties. These proposals included the formation of a Tripartite
Committee, composed of representatives from Bahrain, Qatar and the Kingdom of Saudi Arabia, "for the purpose of
approaching the International Court of Justice and satisfying the necessary requirements to have the dispute
submitted to the Court in accordance with its regulations and instructions so that a final ruling, binding upon both 
parties, be issued."
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In 1988, Bahrain transmitted a text to Qatar (the "Bahraini formula") in which the Parties request the Court "to decide
any matter of territorial right or title or interest which may be a matter of difference between their respective maritime
areas of seabed, subsoil and superjacent waters." At the 1990 annual meeting of the Co-operation Council of Arab
States of the Gulf, Qatar let it be known that it was ready to accept the Bahraini formula. The minutes of the meeting
(Doha Minutes) show the two parties reaffirmed what was agreed previously between them: that they continue to
use the good offices of Saudi Arabia until May 1991, following which date the matter may be submitted to the Court
in accordance with the Bahraini formula. Bahrain contends that neither the 1987 agreements nor the 1990 minutes
constitute legally binding instruments which allow for a unilateral seizure of the Court.

In its judgement of 1 July 1994, the Court concluded that the 1987 exchange of letters and the 1990 minutes were
international agreements binding upon the parties. The Court found that the minutes were not only a simple record
of negotiations, but enumerated commitments to which the parties had consented. They thus created rights and
duties in international law for the parties.

As to the content of the agreements, the Court held that already in 1987 the parties had committed themselves to
submit all disputed matters to the Court. The determination of "disputed matters", according to the Court, was
settled by the 1990 minutes, in which Qatar consented to the Bahraini formula. Therefore, both parties had accepted
that the Court, once seized, should decide "any matter of territorial right or other title or interest which may be a
matter of difference between [the Parties]; and should "draw a single maritime boundary between their respective
maritime areas of seabed, subsoil and superjacent waters". While permitting the presentation of distinct claims by
each of the Parties, the Bahraini formula, nonetheless, pre-supposed that the whole of the dispute would be
submitted to the Court.

As the Court had before it only an Application by Qatar and since Bahrain claimed that this Application did not
comprise the whole dispute, the Court decided to afford the Parties an opportunity to ensure that the whole of the
dispute as comprehended by the 1990 minutes and the Bahraini formula be submitted. The Parties were given until
30 November 1994 to do this jointly or by separate acts.

In it's judgement of 15 February 1995, the Court decided finally on the questions of jurisdiction and admissibility. On
30 November 1990, Qatar filed a document entitled "Act to comply with paragraphs (3) and (4) of operative
paragraph 41 of the Judgement of the Court dated 1 July 1994". In this document Qatar referred to the absence of
an agreement between the parties to act jointly and declared that therefore Qatar was submitting to the Court "the
whole of the dispute between Qatar and Bahrain as circumscribed by the text ... referred to in the 1990 Doha
Minutes as the Bahraini formula." Qatar enumerated the subjects which, in its view, fell within the Court's jurisdiction:

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"1. The Hawar Islands, including the island of Janan;

3. The archipelagic baselines;

4. Zubarah;
5. The areas for fishing for pearls and for fishing for swimming fish and other
matters connected with maritime boundaries."

On 30 November 1994, the Registry of the Court received a document from Bahrain entitled "Report of the State of
Bahrain to the International Court of Justice on the attempt by the Parties to implement the Court's Judgement of 1st
July, 1994". In that document Bahrain argued that the Judgement of 1 July 1994 required a consensual submission
of the whole of the dispute. Yet, the documents presented by Qatar rested within the unilateral Application of 8 July
1991. In its observations of 5 December 1994 regarding Qatar's Act of 30 November 1994, Bahrain argued that the
Court did not declare in its Judgement of 1 July 1994 that it had jurisdiction. Bahrain submitted that the Court lacked
jurisdiction at that time because of the unilateral application of Qatar. According to Bahrain, as the Act of 30
November 1994 presented by Qatar rested within the framework of the initial unilateral application the Court still
lacked jurisdiction. The Court therefore had to decide whether the exchange of letters or the 1990 Doha Minutes
permitted a unilateral application.

The Court held that the exchange of letters, together with the Doha Minutes, constituted an agreement between the
parties to submit the whole of the dispute to the Court. Concerning the modalities of application, the parties had
different views on the interpretation of the arabic term "al-tarafan". Bahrain argued that it meant both parties
whereas Qatar understood it as meaning "each party". The Court interpreted the term in the light of its context and
its aim and came to the conclusion that it meant an alternative, not cumulative seisen. Therefore, the Court
understood the Doha Minutes to allow a unilateral application by each of the parties.

As to the question of whether the "whole of the dispute" was submitted, the Court held that with the Act of 30
November 1994 Qatar had indeed submitted the whole of the dispute. The Court therefore considered that it had
jurisdiction and that the case was admissible.

Five Judges appended dissenting opinions. According to Judge Schwebel, the Court did not examine thoroughly
enough the drafting of the 1990 Doha Minutes during which the explicit possibility for each party to seize the Court
was amended to a text which only meant "the parties". This element of the "travaux préparatoires" led Judge
Schwebel to the conclusion that a unilateral application was excluded. Judge Oda repeated his opinion from the first
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judgement where he considered the Doha Minutes not to constitute an agreement within Article 36 (1) of the Court's
Statute. Judge Koroma and judge ad-hoc Valticos were of the opinion that the term "al-tarafan" and the drafting
history must lead to the conclusion that a unilateral application was not intended by the parties. Since no joint action
by Bahrain and Qatar was taken they considered that the Court had no jurisdiction.

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