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World Court Digest



I. Substantive International Law - First Part
7. LAW OF TREATIES
7.9. Specific Treaties
7.9.9. Doha Minutes

¤ Maritime Delimitation and Territorial
Questions between Qatar and Barhain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1995, p. 6

[pp. 18-19] 34. Throughout the proceedings, the Parties have devoted considerable attention to the meaning which, according to them, should be given to the expression "al-tarafan" as used in the second sentence of the original Arabic text of paragraph 2 of the Doha Minutes. Qatar translates those words as "the parties" and Bahrain as "the two parties". Both however recognize that the problem is not one of choosing between two translations which do not, in themselves, provide an answer to the question raised, but rather one of interpreting these Arabic terms in their context. The dual form in Arabic serves simply to express the existence of two units (the parties or the two parties), so what has to be determined is whether the words, when used here in the dual form, have an alternative or a cumulative meaning: in the first case, the text would leave each of the Parties with the option of acting unilaterally, and, in the second, it would imply that the question be submitted to the Court by both Parties acting in concert, either jointly or separately. Qatar and Bahrain each proceeded, before the Court, to a detailed analysis both of the more remote context (paragraphs l and 3 of the Doha Minutes and earlier texts produced in the case) and the more immediate context (other expressions used in paragraph 2 of the Minutes) within which the words "al-tarafan" were employed. Qatar deduces from this that those words have an alternative meaning in the text under consideration, and Bahrain, a cumulative meaning implying a joint action.
35. The Court will first analyse the meaning and scope of the phrase "Once that period has elapsed, the two parties may submit the matter to the International Court of Justice." It notes the use in that phrase of the verb "may", which, in its ordinary meaning, envisages a possibility, or even a right. Accordingly, the expression "the two parties may submit the matter to the ... Court" suggests in the first place, and in its most natural sense, the option or right for them to seise the Court. Taken as such, in its most ordinary meaning, that expression does not require a seisin by both Parties acting in concert, but, on the contrary, allows a unilateral seisin.
In the view of the Court, that interpretation is reinforced both by the form of words and by the logical implications of the expression "Once that period has elapsed", which constitutes the other component of the phrase in question. Indeed, those words imply that the option or right to move the Court was capable of being exercised as soon as the time-limit expired; this in turn necessarily implies the existence of an option or a right of unilateral seisin. Any other interpretation would encounter serious difficulties: it would deprive the phrase of its effect and could well, moreover, lead to an unreasonable result.
In fact, the Court has difficulty in seeing why the 1990 Minutes, the object and purpose of which were to advance the settlement of the dispute by giving effect to the formal commitment of the Parties to refer it to the Court, would have been confined to opening up for them a possibility of joint action which not only had always existed but, moreover, had proved to be ineffective. On the contrary, the text assumes its full meaning if it is taken to be aimed, for the purpose of accelerating the dispute settlement process, at opening the way to a possible unilateral seisin of the Court in the event that the mediation of Saudi Arabia - sometimes referred to, as in the text under discussion, as "good offices" had failed to yield a positive result by May 1991.
36. The Court however considers that it still ought to look into the possible implications, with respect to that latter interpretation, of the conditions in which the Saudi mediation was to go forward according to the actual text of the Minutes. According to the first sentence of paragraph 2, the good offices of the King of Saudi Arabia were to "continue between the two countries until the month of ... May 1991", and in the terms of the third sentence of that same paragraph, those good offices were moreover to "continue during the period when the matter is under arbitration" (meaning, in fact, before the Court). The text did not however specify whether the good offices were likewise to continue between the expiry of the May 1991 time-limit and the seisin of the Court.
In the view of the Court, this text can be read as affecting not only the right of the Parties to seise the Court, but also the continuation of the mediation. On that hypothesis, the process of mediation would have been suspended in May 1991 and could not have resumed prior to the seisin of the Court. However, if that seisin had itself been subject to the negotiation, and then to the conclusion, of a special agreement, any mediation would have been ruled out during the course of that negotiation, which could well have taken a long time. What was more, mediation would have become impossible if no agreement was reached between the Parties and if as a result the Court was never seised. It could not have been the purpose of the Minutes to delay the resolution of the dispute or to make it more difficult. From that standpoint, the right of unilateral seisin was the necessary complement to the suspension of mediation.

[pp. 20-21] 37. The Court will now apply itself to an analysis of the meaning and scope of the terms "in accordance with the Bahraini formula, which has been accepted by Qatar, and with the procedures consequent on it", which conclude the second sentence of paragraph 2 of the Doha Minutes. As has already been indicated (paragraph 31 above), the Minutes, in specifying that the Parties might seise the Court "in accordance with the Bahraini formula, which has been accepted by Qatar", placed on record both Qatar's acceptance of that formula and the agreement of the Parties on the subject of the dispute which could be referred to the Court. The Court must, however, ascertain whether, as is maintained by Bahrain, that reference to the Bahraini formula and, in particular, to the "procedures consequent on it", further had the aim and effect of ruling out any unilateral seisin. Bahrain recalls that the Bahraini formula, proposed by it in 1988 - prior to the fifth meeting of the Tripartite Committee - was designed for inclusion in the text of a special agreement which was then under negotiation. It stresses that the introductory sentence of the formula and, in particular, the words "the Parties request the Court to decide", clearly imply a joint seisin of the Court. Bahrain explains moreover that the terms "and the procedures consequent on it" as employed in paragraph 2 of the Doha Minutes, and which were inserted into those Minutes at its request, relate to the Bahraini formula and are intended precisely to indicate that the Parties ought jointly to take other measures to give effect to the formula and bring the case before the Court. Qatar for its part emphasizes that the very object of the Bahraini formula was to enable each Party to submit its own claims to the Court; it considers that the words "and the procedures consequent on it" relate solely to the proceedings before the Court in general, as the Parties merely intended to defer, with regard to those matters, to the Statute and Rules of the Court, rather than to rules they might themselves have defined by mutual agreement.
38. The Court is aware that the Bahraini formula was originally intended to be incorporated into the text of a special agreement. However it considers that the reference to that formula in the Doha Minutes must be evaluated in the context of those Minutes rather than in the light of the circumstances in which that formula was originally conceived. In fact, the negotiations carried on in 1988 within the Tripartite Committee had broken down and the Committee had ceased its activities. If the 1990 Minutes referred back to the Bahraini formula, it was in order to determine the subject-matter of the dispute which the Court would have to entertain. But the formula was no longer an element in a special agreement, which moreover never saw the light of day; it henceforth became part of a binding international agreement which itself determined the conditions for seisin of the Court.
39. The Court furthermore considers, like Bahrain, that the words "on it" that were used in para-graph 2 of the Doha Minutes in the expression "the procedures consequent on it", can only - grammatically - relate to the Bahraini formula. It must then determine what are, from a procedural standpoint, the necessary implications of the Bahraini formula which have survived the change of context. The Court notes that the very essence of that formula was, as Bahrain clearly stated to the Tripartite Committee, to circumscribe the dispute with which the Court would have to deal, while leaving it to each of the Parties to present its own claims within the framework thus fixed. It was on that basis that Qatar, during the sixth meeting of the Tripartite Committee, had suggested that the proposed special agreement should be accompanied by two annexes, with each State defining, in its annex, the matters in dispute that it wished to refer to the Court. Bahrain, for its part, undertook to study that suggestion. Given the failure to negotiate that special agreement, the Court takes the view that the only procedural implication of the Bahraini formula on which the Parties could have reached agreement in Doha was the possibility that each of them might submit distinct claims to the Court.
40. This conclusion accords with that drawn by the Court from the interpretation of the phrase "Once that period has elapsed, the two parties may submit the matter to the International Court of Justice." Consequently, it seems to the Court that the text of paragraph 2 of 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. In these circumstances, the Court does not consider it necessary to resort to supplementary means of interpretation in order to determine the meaning of the Doha Minutes, particularly paragraph 2 thereof; however, as in other cases (see for example Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 27, para. 55), it considers that it can have recourse to such supplementary means in order to seek a possible confirmation of its interpretation of the text. The Parties have moreover themselves referred at length, in support of their respective arguments, to the travaux préparatoires of the Minutes of December 1990, as well as to the circumstances in which they were signed.

[pp. 21-23] 41. The travaux préparatoires of the Doha Minutes must be used with caution in the present case, on account of their fragmentary nature. In the absence of any document relating the progress of the negotiations, they appear to be confined to two draft texts submitted by Saudi Arabia and Oman successively and the amendments made to the latter. Qatar denies that the Saudi Arabian draft can be regarded as an element of the travaux préparatoires, since it says that it was never sent the draft in question. The Omani draft unquestionably served as the basis for the text finally adopted at Doha; the only amendment was to the second sentence of the second paragraph of that draft which read as follows: "Once that period has elapsed, either of the two parties may submit the matter to the International Court of Justice."
It is not a matter of dispute between the Parties that the words "in accordance with the Bahraini formula, which has been accepted by Qatar" were added at the request of Qatar; nor, do the Parties deny that it was at Bahrain's initiative that the expression "al-tarafan" was substituted for the words "either of the two parties" and that it was also Bahrain which requested the insertion of the words "and with the procedures consequent on it" at the end of the sentence. On the other hand, the Parties disagree on the consequences to be drawn from these amendments for the interpretation of the text of the Minutes. Bahrain maintains that its amendments are clear evidence of its consistent adoption of an approach excluding any possibility of referring the dispute to the Court by means of a unilateral application; it emphasizes that Qatar made no objection whatsoever to the adoption of those amendments. Qatar, for its part, contends that the Omani draft provides ample proof that there was no plan to hold other negotiations in order to induce the Parties to agree to submit the dispute jointly to the Court. On the contrary, according to Qatar, the draft clearly envisaged the possibility for the Parties to seise the Court unilaterally, and if neither Qatar nor Saudi Arabia nor Oman raised any objections to the amendments proposed by Bahrain, it was because none of them considered that those amendments substantially altered the rights and obligations of the Parties or the aims pursued by the draft; rather, in Qatar's view, the insertion of the words "and with the procedures consequent on it" reflected Bahrain's intention to enable each Party to formulate its own claims and to submit them to the Court in order to safeguard its own interests.
The Court notes that the initial Omani draft expressly authorized a seisin by one or the other of the Parties, and that that formulation was not accepted. But the text finally adopted did not provide that the seisin of the Court could only be brought about by the two Parties acting in concert, whether jointly or separately. The Court is unable to see why the abandonment of a 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. As a result, it does not consider that the travaux préparatoires, in the form in which they have been submitted to it - i.e., limited to the various drafts mentioned above - can provide it with conclusive supplementary elements for the interpretation of the text adopted; whatever may have been the motives of each of the Parties, the Court can only confine itself to the actual terms of the Minutes as the expression of their common intention, and to the interpretation of them which it has already given.

42. In support of their arguments, the Parties have also invoked the circumstances in which the Minutes were signed. In the opinion of the Court those circumstances do not - any more than the travaux préparatoires - provide any conclusive supplementary elements for the interpretation of the text. The Court realizes that the principal concern at the meeting of the Co-operation Council of Arab States of the Gulf, held at Doha in December 1990, was not the achievement of a settlement between Bahrain and Qatar but the conflict between Iraq and Kuwait; moreover, it takes the view that this circumstance could explain why the Parties were not able to reach agreement on a more explicit text. However, the Court does not consider, in the light of the information contained in the record, that more precise conclusions capable of otherwise supporting the interpretation of the Minutes given above can be drawn directly from the particular situation created by the Gulf crisis and the consideration of that situation at Doha.

[pp. 35-37 D.O. Schwebel] In my view, such explanation as the Court thus offers in support of its position that the travaux préparatoires do not provide it with conclusive supplementary elements for interpretation of the text is unconvincing. Because "the text finally adopted did not provide that the seisin of the Court could only be brought about by the two Parties acting in concert ...", the Court "is unable to see why the abandonment of a 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". But since deletion of the specification, "either of the two parties may submit the matter to the International Court of Justice" in favour of the adopted provision, "the two parties may submit the matter ..." surely manifested Bahrain's intention that "either of the two parties" may not submit the matter, the Court's inability to see so plain a point suggests to me its unwillingness to do so.
In preceding passages of the Judgment, the Court holds that an interpretation other than that it chooses "would deprive the phrase of its effect and could well, moreover, lead to an unreasonable result" (para. 35). But in interpreting the meaning of the deletion of the phrase, "either of", the Court deprives that deletion - and hence the text adopted by the Parties - of its effect and produces what in my view is "an unreasonable result". If it was not the intention of Bahrain to require joint seisin of the Court by insisting on, and achieving, the excision of the provision permitting "either of" the two Parties to submit the matter to the Court, what was its intention?

The Court concludes that,

"whatever may have been the motives of each of the Parties, the Court can only confine itself to the actual terms of the Minutes as the expression of their common intention, and to the interpretation of them which it has already given" (para. 41).

The Court's choice of the word "motives" is revealing of its devaluation of the intention of the Parties. But the fundamental flaw in its reasoning, as I see it, is the contention that it adheres to the actual terms of the Minutes "as the expression of their common intention" when I believe that it is demonstrable - and has been demonstrated - that their common intention could not have been to authorize unilateral application to the Court.
Thus in my view the Court's construction of the Doha Minutes is at odds with the rules of interpretation prescribed by the Vienna Convention. It does not comport with a good faith interpretation of the treaty's terms "in the light of its object and purpose" because the object and purpose of both Parties to the treaty was not to authorize unilateral recourse to the Court. It does not implement the Convention's provision for recourse to the preparatory work, because, far from confirming the meaning arrived at by the Court's interpretation, the preparatory work vitiates it. Moreover, the Court's failure to determine the meaning of the treaty in the light of its preparatory work results, if not in an unreasonable interpretation of the treaty itself, in an interpretation of the preparatory work which is "manifestly ... unreasonable".
Since, by using evidence submitted by both sides whose accuracy and comprehensiveness is contested by neither, Bahrain has demonstrated that its intention in signing the Doha Minutes was to exclude unilateral application to the Court, since Qatar's rebuttal of that demonstration is unconvincing, and since the Court's analysis on that critical point is no more convincing, it follows that the 1987 exchanges of letters and 1990 Minutes do not suffice to support a finding of the Court's jurisdiction. The requisite common, ascertainable intention of the Parties to authorize unilateral reference to the Court is absent. Its absence is - or should have been - determinative.

[p. 39 D.O. Schwebel] The Court provides no more explanation of why the travaux préparatoires do not provide it with conclusive supplementary elements for the interpretation of the text adopted than described above. But it also implies - in referring "to resort to supplementary means of interpretation - in order to seek a possible confirmation of its interpretation of the text" - that it discounts the travaux préparatoires on the ground that they do not confirm the meaning to which its analysis has led. In my view, such a position, if it be the position, would be hard to reconcile with the interpretation of a treaty "in good faith" which is the cardinal injunction of the Vienna Convention's rule of interpretation. The travaux préparatoires are no less evidence of the intention of the parties when they contradict as when they confirm the allegedly clear meaning of the text or context of treaty provisions.
These considerations have special force when the treaty at issue is one that is construed to confer jurisdiction on the Court. Where the travaux préparatoires of a treaty demonstrate the lack of a common intention of the parties to confer jurisdiction on the Court, the Court is not entitled to base its jurisdiction on that treaty.

[p. 58 D.O. Shahabuddeen] The danger of relying on inadequate preparatory material must not be overlooked. On the other hand, however full the material may be, it is almost always possible to say that it could be still fuller. The travaux préparatoires in this case are not as ample as they might be; but I am not persuaded that, on the pertinent points concerning the fashioning of the text of the Doha Minutes, they are so fragmentary as to be useless. They show the state of the original draft; who presented it; who changed what; and in what sequence the changes were made. Those are the steps which normally occur in the drafting of a negotiated text. The material indicates that Bahrain maintained its previous opposition to the idea of a right of unilateral application. The travaux préparatoires are therefore confirmatory of the interpretation of the Doha Minutes proposed above; alternatively, they operate to resolve any ambiguity in favour of that interpretation.