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World Court Digest

I. Substantive International Law - First Part
7.3. Conclusion

¤ Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1994, p. 112

[pp. 121-122] 26. Bahrain however maintains that the signatories of the Minutes never intended to conclude an agreement of this kind. It submitted a statement made by the Foreign Minister of Bahrain and dated 21 May 1992, in which he states that "at no time did I consider that in signing the Minutes I was committing Bahrain to a legally binding agreement". He goes on to say that, according to the Constitution of Bahrain, "treaties 'concerning the territory of the State' can come into effect only after their positive enactment as a law". The Minister indicates that he would therefore not have been permitted to sign an international agreement taking effect at the time of the signature. He was aware of that situation, and was prepared to subscribe to a statement recording a political understanding, but not to sign a legally binding agreement.
27. The Court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or, for that matter, those of the Foreign Minister of Qatar. The two Ministers signed a text recording commitments accepted by their Governments, some of which were to be given immediate application. Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a "statement recording a political understanding", and not to an international agreement.

[p. 122] 28. Bahrain however bases its contention, that no international agreement was concluded, also upon another argument. It maintains that the subsequent conduct of the Parties showed that they never considered the 1990 Minutes to be an agreement of this kind; and that not only was this the position of Bahrain, but it was also that of Qatar. Bahrain points out that Qatar waited until June 1991 before it applied to the United Nations Secretariat to register the Minutes of December 1990 under Article 102 of the Charter; and moreover that Bahrain objected to such registration. Bahrain also observes that, contrary to what is laid down in Article l7 of the Pact of the League of Arab States, Qatar did not file the 1990 Minutes with the General Secretariat of the League; nor did it follow the procedures required by its own Constitution for the conclusion of treaties. This conduct showed that Qatar, like Bahrain, never considered the 1990 Minutes to be an international agreement.

29. The Court would observe that an international agreement or treaty that has not been registered with the Secretariat of the United Nations may not, according to the provisions of Article 102 of the Charter, be invoked by the parties before any organ of the United Nations. Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties. The Court therefore cannot infer from the fact that Qatar did not apply for registration of the 1990 Minutes until six months after they were signed that Qatar considered, in December 1990, that those Minutes did not constitute an international agreement. The same conclusion follows as regards the non-registration of the text with the General Secretariat of the Arab League. Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question. Accordingly Bahrain's argument on these points also cannot be accepted.
30. The Court concludes that the Minutes of 25 December 1990, like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties.