| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.1. | General Rules |
¤
Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1994, p. 112
[pp. 123-125] 32. The determination of the "disputed matters"
was the subject of lengthy negotiations at meetings of the Tripartite Committee.
Those negotiations were unsuccessful in 1988 and the question was only settled
by the Minutes of December 1990. Those Minutes placed on record the fact that
Qatar had finally accepted the Bahraini formula. Both Parties thus accepted that
the Court, once seised, 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".
33. The formula thus adopted determined the limits of the dispute with which
the Court would be asked to deal. It was devised to circumscribe that dispute,
but, whatever the manner of seisin, it left open the possibility for each of the
Parties to present its own claims to the Court, within the framework thus fixed.
For example, it permitted Qatar to present its claims in respect of the Hawar
islands, just as it permitted Bahrain to present its claims in respect of
Zubarah. However, while the Bahraini formula permitted the presentation of
distinct claims by each of the Parties, it nonetheless presupposed that the
whole of the dispute would be submitted to the Court.
34. The Court notes that at present it has before it solely an Application
by Qatar setting out the particular claims of that State within the framework of
the Bahraini formula. Article 40 of the Court's Statute, which provides that
cases are brought before the Court "either by the notification of the
special agreement or by a written application", also provides that, "In
either case the subject of the dispute and the parties shall be indicated."
These indications are thus requirements common to both modes of approach to the
Court. They are also laid down in the Rules of Court in Article 38 for cases
instituted by application; and in Article 39 for notification of a special
agreement. In the present case the identity of the parties presents no
difficulty; but the subject of the dispute is another matter.
35. What, then, is "the subject of the dispute" referred to in
Qatar's Application? That Application only presents the questions which Qatar
would like the Court to decide. Qatar's "requests" in its Application
are thus as follows:
| "Reserving its right to supplement or amend its requests, the State of
Qatar requests the Court:
|
| I. | To adjudge and declare in accordance with international law
|
| (A) | that the State of Qatar has sovereignty over the Hawar islands;
|
| | and,
|
| (B) | that the State of Qatar has sovereign rights over Dibal and Qit'at Jaradah shoals;
|
| and
|
| II. | With due regard to the line dividing the sea-bed of the two States as
described in the British decision of 23 December 1947, to draw in accordance
with international law a single maritime boundary between the maritime areas of
sea-bed, subsoil and superjacent waters appertaining respectively to the State
of Qatar and the State of Bahrain."
|
36. In argument before the Court it was made abundantly clear by Bahrain
that in its view the Qatar Application comprises only some of the elements of
the subject-matter intended to be comprised in the Bahraini formula; in
particular there is the omission of any reference to a dispute over Zubarah to
which Bahrain attaches importance, though this is not the sole subject of its
concern. The fact that the subject-matter of Qatar's Application corresponds to
only part of the dispute contemplated by the Bahraini formula was in effect
acknowledged by Qatar, which invited Bahrain to remedy the matter by bringing a
separate application or a counter-claim respecting, for example, Zubarah.
37. As early as 1983, the Parties, when adopting the "Principles for
the Framework for Reaching a Settlement" (to which reference was made in
the 1987 agreement) had agreed that
"All issues of dispute between the two countries, relating to
sovereignty over the islands, maritime boundaries and territorial waters, are to
be considered as complementary, indivisible issues, to be solved comprehensively
together."
The 1987 agreement provides that "All the disputed matters shall be
referred to the International Court of Justice, at The Hague, ...". The
1990 Minutes refer to the "matter" (in the singular) being submitted
to the International Court of Justice; they also refer to the "matter"
being submitted to arbitration. Finally they provide that if the good offices of
the King of Saudi Arabia which were certainly directed to the whole of the
dispute - were successful, "the case will be withdrawn from arbitration".
The authors of the Bahraini formula conceived of it with a view to enabling the
Court to be seised of the whole of those questions, as defined by each of the
Parties within the general framework thus adopted.
38. The Court has consequently decided to afford the Parties the opportunity
to ensure the submission to the Court of the entire dispute as it is
comprehended within the 1990 Minutes and the Bahraini formula, to which they
have both agreed. Such submission of the entire dispute could be effected by a
joint act by both Parties with, if need be, appropriate annexes, or by separate
acts. Whichever of these methods is chosen, the result should be that the Court
has before it "any matter of territorial right or other title or interest
which may be a matter of difference between" the Parties, and a request
that it "draw a single maritime boundary between their respective maritime
areas of seabed, subsoil and superjacent waters". This process must be
completed within five months of the date of this Judgment.
39. On the completion thus of the reference of the whole dispute to the
Court, the Court will fix time-limits for the simultaneous filing of pleadings,
i.e., each Party will file a Memorial and then a Counter-Memorial within the
same time-limits.
[p. 125-126] 40. The Court notes that Bahrain has attached
importance to a matter which was referred to in Article V of a draft Special
Agreement put forward by Bahrain during the 1988 discussions in the Tripartite
Committee, which Article provided:
"Neither party shall introduce into evidence or argument, or publicly
disclose in any manner, the nature or content of proposals directed to a
settlement of the issues [to be referred to the Court], or responses thereto, in
the course of negotiations or discussions between the parties undertaken prior
to the date of this Agreement, whether directly or through any mediation."
The inclusion of an Article on these lines was objected to by Qatar, and no
such provision appears in the 1990 Minutes. In any event, there is a rule of
customary international law in this domain, defined in 1927 by the Permanent
Court of International Justice, namely that the Court cannot take account of
declarations, admissions or proposals which the parties may have made in the
course of direct negotiations when the negotiations in question have not led to
an agreement between the parties (Factory at Chorzów,
Jurisdiction, P.C.I.J., Series A, No. 9, p. 19; see also Factory at
Chorzów (Claim for indemnity), Merits, P.C.I.J., Series A, No. 17, pp.
51, 62-63). The continued existence of the rule was recognized by the Chamber
formed to deal with the case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras:Nicaragua intervening), which
commented as follows on the dictum of the Permanent Court:
"This observation ... refers to the common and laudable practice -
which, indeed, is of the essence of negotiations - whereby the parties to a
dispute, having each advanced their contentions in principle, which thus define
the extent of the dispute, proceed to venture suggestions for mutual
concessions, within the extent so defined, with a view to reaching an agreed
settlement. If no agreement is reached, neither party can be held to such
suggested concessions." (I.C.J. Reports 1992, p. 406, para. 73.)
[pp. 130-131 S.O. Schwebel] The Court does make two findings, in the
first and second operative paragraphs, which have judgmental elements. But these
are preliminary decisions, which put the Court in a position to pass upon the
submissions of the Parties; which the Court then fails to do (at any rate, as
yet). Thus, the second operative paragraph, which makes a finding that is
correct as far as it goes - that the Parties agreed that the whole of their
dispute should be submitted to the Court - fails to draw what in my view is the
proper conclusion from that holding, namely, that since not "the Parties"
but one Party submitted to the Court not "the whole of the dispute between
them, as circumscribed by the text" agreed between them, but only part of
that dispute, the Court lacks jurisdiction.
The Court rather proceeds, in the third operative paragraph, "to afford
the Parties the opportunity to submit to the Court the whole of the dispute".
But if the issue now before the Court is whether the Court lacks jurisdiction,
either because, by the purport of the agreements between Qatar and Bahrain, the
Court could be seised only by the two Parties acting together, or because its
material jurisdiction comprises only the whole and not part of the dispute
between them, or both, the Court should rule upon that issue. That would be a
proper decision in exercise of its judicial function.
As it is, the Court has rather reserved, for a future time, its entire
decision as to whether it has jurisdiction, whether the Parties move by what it
calls "a joint act" or "separate acts". If the Parties
together, or separately, make no fresh motions at all, the Court's ultimate
position is unstated and unclear.
The Rules of Court provide, in respect of Preliminary Objections (and hence
equally in respect of other ways of passing upon objections to jurisdiction or
admissibility) that,
"After hearing the parties, the Court shall give its decision in the
form of a judgment, by which it shall either uphold the objection, reject it, or
declare that the objection does not possess, in the circumstances of the case,
an exclusively preliminary character."
These are the three options afforded by Article 79, paragraph 7, of the
Rules, but with this Judgment, the Court has invented another.
I question whether the judicial function is served by such an innovation,
however well meant its purposes and however desirable it is that Qatar and
Bahrain realize their commitment to submit their dispute to the Court.
