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.