| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.4. | Jurisdiction on the Basis of a Special Agreement |
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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
designation".
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. 134-135 D.O. Oda] 2. In my view the Court should not have
transformed a unilateral Application into a unilateral filing of an agreement
which it found to have been improperly drafted, but should rather have answered
"yes" or "no" to the Application unilaterally filed by
Qatar. If the Court was unable to find that the documents referred to in
operative clause (1) constituted a treaty or a convention such as to authorize
the unilateral filing of an application by one of the Parties under Article 36
(1) of the Statute, it should have declared that it lacked jurisdiction to
entertain the present Application. If, as is suggested in operative clauses (3)
and (4), the "whole of the dispute" could have been presented by Qatar
to the Court at the outset, Bahrain would not have opposed the Application.
Rather, Qatar and Bahrain together could have jointly submitted the dispute by
concluding a special agreement, and it would not have been the subject of a
unilateral application. It is a fact that not the "whole of the
dispute" but only certain aspects of it (as selected by Qatar) were
referred to the Court unilaterally.
3. It appears that the Court is now attempting to render an interlocutory
judgment - which is not unusual in domestic legal systems - for the first time
in the history of this Court and its predecessor. In my view, the application of
this concept of domestic law to the jurisprudence of the International Court of
Justice is most inappropriate. In a municipal legal system there is generally no
problem of the court's jurisdiction and it is competent to hand down an
interlocutory judgment since its jurisdiction has been established without
question. Sometimes, however, the interlocutory judgment itself is handed down
in order to dispose of the issue of jurisdiction before entering into the merits
phase. On the other hand, the present Court is now confronted by a question as
to whether or not it has the jurisdiction to entertain the Application of Qatar.
Without having disposed of this jurisdictional issue, the Court cannot hand down
an interlocutory judgment. What the Court should do at the present stage is to
state clearly whether or not it has jurisdiction to entertain certain limited
aspects of the "whole" dispute, as submitted by Qatar.
4. Operative clause (4) of the Judgment seems to impose upon both Parties an
obligation to "take action to this end". However, Qatar could only
reconsider its own claim within the framework of a fresh case, brought either by
a unilateral application or by the notification of a special agreement, and this
would only be conceivable if the Court were to find that it lacked jurisdiction
to entertain the claim as submitted at present. On the other hand, Bahrain is
not in a position to receive an order from the Court, unless the Court's
jurisdiction is first established. For the kind of order given in operative
clause (4) of the Judgment to have any effect the Court must have been validly
seised of the present dispute. I fail to understand how the Court envisages the
follow-up to its decision, if the Parties are not willing to "take action"
pursuant to operative clause (4). If the Parties do not "take [that] action",
will it be accepted that either Qatar, or both Qatar and Bahrain, have not
complied with the present Judgment? Or will the Court simply decide to
discontinue the present case which has already been entered in the General List
and of which it will assume that it has been seised? It seems to me that
actually the Court is simply making a gesture of issuing an invitation, in the
guise of a Judgment, to the Parties to proceed to the submission of a new case
independently of the present Application.
5. The present Judgment cannot, in my view, be seen as the type of decision
that the Court should hand down at a preliminary stage of the case concerned
with the questions of the jurisdiction of the Court to entertain the dispute and
the admissibility of the Application. If the Court does not find it possible to
entertain the present Application as it stands, then it should reject it. The
Court's desire to have the two Parties refer to it the "whole of the
dispute", whether unilaterally or jointly, must be seen as a different
matter. My dissent does not mean that I am opposed to the Court's desire to have
the Parties come before it once again to submit the "whole of the dispute",
and the Court's wishes could have been conveyed to the Parties if the present
Application had been rejected. The Court should have taken a clear position on
the matter of whether or not it was able to exercise its jurisdiction to deal
with the Application unilaterally filed by Qatar under Article 38 (1) of the
Rules of Court. By avoiding the essential point, the Court seems to be playing a
role of conciliator rather than acting as a judicial institution.
