|I. ||Substantive International Law - First Part|
|7. ||LAW OF TREATIES|
|7.1. ||General Questions|
Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1994, p. 112
[pp. 120-121] 22. The Parties agree that the exchanges of letters of
December 1987 constitute an international agreement with binding force in their
mutual relations. Bahrain however maintains that the Minutes of 25 December 1990
were no more than a simple record of negotiations, similar in nature to the
Minutes of the Tripartite Committee; that accordingly they did not rank as an
international agreement and could not, therefore, serve as a basis for the
jurisdiction of the Court.
23. The Court would observe, in the first place, that international
agreements may take a number of forms and be given a diversity of names. Article
2, paragraph (1) (a), of the Vienna Convention on the Law of Treaties of
23 May 1969 provides that for the purposes of that Convention,
"'treaty' means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
Furthermore, as the Court said, in a case concerning a joint communiqué,
"it knows of no rule of international law which might preclude a joint
communiqué from constituting an international agreement to submit a
dispute to arbitration or judicial settlement" (Aegean Sea Continental
Shelf, Judgment, I.C.J. Reports 1978, p. 39, para. 96).
In order to ascertain whether an agreement of that kind has been concluded, "the
Court must have regard above all to its actual terms and to the particular
circumstances in which it was drawn up" (ibid.).
24. The 1990 Minutes refer to the consultations between the two Foreign
Ministers of Bahrain and Qatar, in the presence of the Foreign Minister of Saudi
Arabia, and state what had been "agreed" between the Parties. In
paragraph l the commitments previously entered into are reaffirmed (which
includes, at the least, the agreement constituted by the exchanges of letters of
December 1987). In paragraph 2, the Minutes provide for the good offices of the
King of Saudi Arabia to continue until May 1991, and exclude the submission of
the dispute to the Court prior thereto. The circumstances are addressed under
which the dispute may subsequently be submitted to the Court. Qatar's acceptance
of the Bahraini formula is placed on record. The Minutes provide that the Saudi
good offices are to continue while the case is pending before the Court, and go
on to say that, if a compromise agreement is reached during that time, the case
is to be withdrawn.
25. Thus the 1990 Minutes include a reaffirmation of obligations previously
entered into; they entrust King Fahd with the task of attempting to find a
solution to the dispute during a period of six months; and, lastly, they address
the circumstances under which the Court could be seised after May 1991.
Accordingly, and contrary to the contentions of Bahrain, the Minutes are not
a simple record of a meeting, similar to those drawn up within the framework of
the Tripartite Committee; 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. They constitute an international agreement.
[pp. 137-138 D.O. Oda] 10. Of what does the "Agreement of
December 1987" consist? There exists a letter dated 19 December 1987 from
the King of Saudi Arabia addressed to the Amir of Qatar in which the former
presented proposals as a basis for settling the relevant disputes. A letter in
reply was transmitted by the Amir of Qatar to the King of Saudi Arabia on 21
December 1987, expressing his full agreement with the proposals set out in the
King's letter. A letter identical to Saudi Arabia's letter to Qatar was
despatched by the King of Saudi Arabia to Bahrain also on 19 December 1987, but
Bahrain's response to Saudi Arabia was not sent until 26 December 1987. It
should be emphatically noted that there was no exchange of letters directly
between Qatar and Bahrain at that time. How could the two separate exchanges of
letters, as described above, constitute a legally binding "international
agreement concluded ... in written form" (Vienna Convention on the Law of
Treaties, Art. 2 (1) (a)) between Qatar and Bahrain?
11. Reference is also made to a "draft of the announcement made public
on 21 December 1987" (quoted in part in paragraph 17 of the Judgment),
which I quote below in paragraph 21. This text is incorporated into Qatar's
Application but it is not known from the documents presented by Qatar whether
this announcement, which is reported simply as "a draft", was actually
made or not. If it was in fact made on 21 December 1987, this was, strange to
relate, five days in advance of the despatch of a letter from Bahrain addressed
to Saudi Arabia on 26 December 1987, in which Bahrain agreed to accept the Saudi
Arabian offer. The "draft of the announcement" certainly was not
signed by either Qatar or Bahrain and cannot constitute a legally binding
12. One may ask how a "treaty" which may be defined as "an
international agreement concluded between States in written form and governed by
international law" (Vienna Convention on the Law of Treaties, Art. 2 (1)
(a)) was concluded between Qatar and Bahrain solely on the basis of this chain
of events? I fail to understand how the "Agreement of December 1987"
can be regarded as one of the "treaties [or] conventions in force"
contemplated by Article 36 (1) of the Statute. I have a rather firm view that
there was, in December 1987, no treaty or convention within the meaning of
Article 36 (1) of the Statute.
13. It may further be noted that Qatar, which regards the December 1987
Agreement as a basis of the Court's jurisdiction, did not register that "agreement"
with the United Nations Secretariat, whereas the "1990 Agreement" was
registered in June 1991. While it may not be necessary to discuss the effect of
the registration of "every treaty and every international agreement"
with the United Nations Secretariat (Charter, Art. 102), this fact may lead one
to doubt whether Qatar has always regarded the December 1987 Agreement as a
treaty in the true sense of the word.
[pp. 138-139 D.O. Oda] 14. Qatar's Application takes the "Agreement
of December 1990" as a basis for the exercise of jurisdiction by the Court
(Application, para. 40). Qatar did register the 1990 Agreement" with the
United Nations Secretariat on 28 June 1991, just a few weeks before it filed its
Application in the Registry of the Court. Bahrain, which did not regard this
document as an international agreement, protested against that registration on 9
August 1991 and that protest was also duly registered.
15. Qatar uses the term "1990 Agreement" to denote the Minutes of
a meeting on 25 December 1990 between the respective Ministers for Foreign
Affairs of Saudi Arabia, Qatar and Bahrain which took place during the 1990
session of the Gulf Co-operation Council (GCC) summit in Doha (Application, Ann.
6). It is stated in these Minutes that, at the time of the GCC summit,
consultations took place between the Foreign Ministers of Bahrain and Qatar and
were attended by Saudi Arabia's Foreign Minister, and that certain items were
agreed by the three Ministers, who signed the Minutes.
16. In fact, the three Foreign Ministers, in attestation of that agreement,
did sign the Minutes of the meeting (i.e., the agreed record of the discussion
that had taken place during that tripartite meeting) and, in my view, they
certainly did so without the slightest idea that they were signing a tripartite
treaty or convention. It is clear from what is described in paragraph 26 of the
Judgment that at least the Minister for Foreign Affairs of Bahrain never thought
that he was signing an international agreement. Given what we know of "the
preparatory work of the treaty and the circumstances of its conclusion"
which, according to the Vienna Convention on the Law of Treaties (Art. 32) is to
be used as a supplementary means of interpretation of a treaty, as those "circumstances"
are reflected in the statement made by the Minister for Foreign Affairs of
Bahrain, these Minutes cannot be interpreted as falling within the category of "treaties
and conventions in force" which specially provide for certain matters to be
referred to the Court for a decision by means of a unilateral application.
Whether a document signed by the Foreign Minister in disregard of constitutional
rules relating to the conclusion of treaties can or cannot be considered a
legally binding treaty is not at issue. Quite simply, the Foreign Minister of
Bahrain signed the Minutes without so much as thinking that they were a legally
binding international agreement.