| 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 |
¤
Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1995, p. 6
[pp. 15-17] 26. The Court will proceed, first of all, to define the
precise scope of the commitments which the Parties entered into in 1987 and
agreed to reaffirm in 1990. In this regard, the essential texts concerning the
jurisdiction of the Court are points 1 and 3 of the letters of 19 December 1987.
By accepting those points, Qatar and Bahrain agreed, on the one hand, that
"All the disputed matters shall be referred to the International Court
of Justice, at The Hague, for a final ruling binding upon both parties, who
shall have to execute its terms"
and, on the other, that a Tripartite Committee be formed
"for the purpose of approaching the International Court of Justice, and
satisfying the necessary requirements to have the dispute submitted to the Court
in accordance with its regulations and instructions so that a final ruling,
binding upon both parties, be issued".
Neither Qatar nor Bahrain denies having committed itself in accordance with
those texts; however, they differ as to the meaning to be given to those texts
when read together and, hence, as to the scope of that commitment. Qatar
maintains that, by that undertaking, the Parties clearly and unconditionally
conferred upon the Court jurisdiction to deal with the disputed matters between
them. The work of the Tripartite Committee was directed solely to considering
the procedures to be followed to implement the commitment thus made to seise the
Court, and there was nothing to show that any particular method or procedure
ought to have been followed to that end, provided that the seisin of the Court
took place "in accordance with its regulations and instructions".
Bahrain on the contrary maintains that the texts in question expressed only the
Parties' consent in principle to a seisin of the Court, but that such consent
was clearly subject to the conclusion of a Special Agreement marking the end of
the work of the Tripartite Committee, setting forth the questions to be put to
the Court by mutual agreement and settling a number of related procedural
questions. Bahrain maintains that its interpretation of the texts is
corroborated by the subsequent conduct of the Parties, in so far as the work of
the Tripartite Committee, in which the two Parties participated, was concerned
exclusively with the drawing up of a Special Agreement to submit the disputed
matters to the Court.
27. The Court cannot agree with Bahrain in this respect. Neither in point 1
nor in point 3 of the letters of 19 December 1987 can it find the condition
alleged by Bahrain to exist. It is indeed apparent from point 3 that the Parties
did not envisage seising the Court without prior discussion, in the Tripartite
Committee, of the formalities required to do so. But the two States had
nonetheless agreed to submit to the Court all the disputed matters between them,
and the Committee's only function was to ensure that this commitment was given
effect, by assisting the Parties to approach the Court and to seise it in the
manner laid down by its Rules. By the terms of point 3, neither of the
particular modalities of seisin contemplated by the Rules of Court was either
favoured or rejected. Moreover, there would have been nothing to prevent
Bahrain's saying in its reply of 26 December 1987 that its acceptance of the
Court's jurisdiction was subject to the conclusion of a special agreement
providing for joint seisin of the Court. Yet the Court notes that Bahrain's
letter expresses its unreserved adhesion to the proposals made by the King of
Saudi Arabia.
28. The Court is not able either to accept the conclusions that Bahrain
draws from the subsequent conduct of the Parties. Indeed, while it is undeniable
that the Tripartite Committee focused exclusively upon the attempt to finalize
the text of a special agreement determining the subject-matter of the dispute,
this does not at all mean that the Parties took that approach to be the only one
sanctioned by the Agreement of 1987. On the contrary, everything tends to
suggest that, if the Committee explored that possibility, it did so simply
because that course appeared to it, at the time, to be the most natural and the
best suited to give effect to the consent of the Parties.
29. The Tripartite Committee met for the last time in December 1988, without
the Parties having reached agreement either as to the "disputed matters"
or as to the "necessary requirements to have the dispute submitted to the
Court". Furthermore the minutes of the meetings of the Committee were
diplomatic documents recording the state of progress of the negotiations, which
possessed no legally binding force. The Court concludes that, from the
standpoint of its jurisdiction, the only prior commitment that the Parties
intended to reaffirm in the international agreement constituted by the Minutes
of 25 December 1990 was the commitment entered into in 1987, in accordance with
the "Principles for the Framework for Reaching a Settlement" of 1983,
to submit to the Court "all the disputed matters" and to comply with
the judgment to be handed down by the Court. The Tripartite Committee ceased its
activities in December 1988 at the instance of Saudi Arabia and without
opposition from the Parties. As the Parties did not, at the time of signing the
Doha Minutes in December 1990, ask to have the Committee re-established, the
Court considers that paragraph 1 of those Minutes could only be understood as
contemplating the acceptance by the Parties of point 1 in the letters from the
King of Saudi Arabia dated 19 December 1987, to the exclusion of point 3 in
those same letters.
[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 1 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.
[p. 27-28 D.O. Schwebel] "The intention of the parties",
in law, refers to the common intention of both parties. It does not refer to the
singular intention of each party which is unshared by the other. To speak of "the"
intention of "the parties" as meaning the diverse intentions of each
party would be oxymoronic.
In the jurisprudence of this Court, jurisdiction can be conferred upon it
only by the common intention of both parties to the case. As held by a Chamber
of this Court in the case concerning the Land, Island and Maritime Frontier
Dispute "it is only from the meeting of minds ... that jurisdiction is
created" (I.C.J. Reports 1992, p. 585, para. 378). That intention
may be jointly expressed, as by the conclusion of a special agreement. It may be
unilaterally expressed, as by the invocation of overlapping or identical
acceptances of the Court's compulsory jurisdiction under the optional clause or
through treaty proviso. But if that common intention is lacking, if the
intention to submit to the Court's jurisdiction is that of one but not both
parties, the Court is without jurisdiction to decide the merits of the dispute.
In my view, these axiomatic considerations combine to defeat the Court's
jurisdiction in this case.
[p. 68 D.O. Koroma] It is obvious that the drawing up of the Special
Agreement, determining the subject-matter of the dispute, was not the only one
function contemplated by the 1987 Agreement, as certain other consequences would
have had to follow if that Agreement had been drawn up and which could have been
given expression either in the Agreement itself or in a related document. But,
as recognized by the Judgment, the Tripartite Committee primarily focused on the
conclusion of the Special Agreement "because that course appeared to it, at
the time, to be the most natural and best suited to give effect to the consent
of the Parties" (Judgment, para. 28).
In my view, this clearly demonstrates that the 1987 Agreement was subject to
the following conditions:
| (i) | | the conclusion of a Special Agreement by the Tripartite Committee for
approaching the Court;
|
| (ii) | | that the consent to confer jurisdiction was conditional on reaching
such an agreement by the Tripartite Committee.
|
Thus, the Agreement, objectively interpreted, demonstrates that the consent
of the Parties to confer jurisdiction on the Court was conditional upon a
Special Agreement being concluded. Accordingly, the consent which the Court had
deduced from the Agreement was conditional on a joint agreement being reached by
both Parties with the assistance of the Committee. That such an agreement was
necessary was the reason the Committee held six meetings and concentrated on
that issue. It is only this reading of the 1987 Agreement which offers adequate
and sufficient explanation for the activities of the Committee and its raison
d'être.
