Summaries of the Decisions
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain)
On 8 July 1991, Qatar filed an Application instituting proceedings before
the Court against Bahrain concerning certain disputes relating to sovereignty
over the Hawar islands, sovereign rights over the shoals of Dibal and Quit'at
Jaradah, and the delimitation of the maritime areas of the two states. Qatar
founded the jurisdiction of the Court upon two agreements between the parties
dated December 1987 and December 1990. The subject and scope of the commitment
to jurisdiction were to be determined by a formula proposed by Bahrain to Qatar
in October 1988 and accepted by Qatar in December 1990. Bahrain contested the
jurisdiction of the Court arguing that none of the documents referred to by
Qatar contained a commitment to have the dispute settled by the Court.
In 1987, the Parties accepted, in an exchange of letters, proposals by Saudi
Arabia which provided for a settlement by the Court of all matters in dispute
between the parties. These proposals included the formation of a Tripartite
Committee, composed of representatives from Bahrain, Qatar and the Kingdom of
Saudi Arabia, "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."
In 1988, Bahrain transmitted a text to Qatar (the "Bahraini formula")
in which the Parties request the Court "to decide any matter of territorial
right or title or interest which may be a matter of difference between their
respective maritime areas of seabed, subsoil and superjacent waters." At
the 1990 annual meeting of the Co-operation Council of Arab States of the Gulf,
Qatar let it be known that it was ready to accept the Bahraini formula. The
minutes of the meeting (Doha Minutes) show the two parties reaffirmed what was
agreed previously between them: that they continue to use the good offices of
Saudi Arabia until May 1991, following which date the matter may be submitted to
the Court in accordance with the Bahraini formula. Bahrain contends that neither
the 1987 agreements nor the 1990 minutes constitute legally binding instruments
which allow for a unilateral seizure of the Court.
In its judgement of 1 July 1994, the Court concluded that the 1987 exchange
of letters and the 1990 minutes were international agreements binding upon the
parties. The Court found that the minutes were not only a simple record of
negotiations, but enumerated commitments to which the parties had consented.
They thus created rights and duties in international law for the parties.
As to the content of the agreements, the Court held that already in 1987 the
parties had committed themselves to submit all disputed matters to the Court.
The determination of "disputed matters", according to the Court, was
settled by the 1990 minutes, in which Qatar consented to the Bahraini formula.
Therefore, both parties had accepted that the Court, once seized, 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". While permitting the presentation of distinct claims
by each of the Parties, the Bahraini formula, nonetheless, pre-supposed that the
whole of the dispute would be submitted to the Court.
As the Court had before it only an Application by Qatar and since Bahrain
claimed that this Application did not comprise the whole dispute, the Court
decided to afford the Parties an opportunity to ensure that the whole of the
dispute as comprehended by the 1990 minutes and the Bahraini formula be
submitted. The Parties were given until 30 November 1994 to do this jointly or
by separate acts.
In it's judgement of 15 February 1995, the Court decided finally on the
questions of jurisdiction and admissibility. On 30 November 1990, Qatar filed a
document entitled "Act to comply with paragraphs (3) and (4) of operative
paragraph 41 of the Judgement of the Court dated 1 July 1994". In this
document Qatar referred to the absence of an agreement between the parties to
act jointly and declared that therefore Qatar was submitting to the Court "the
whole of the dispute between Qatar and Bahrain as circumscribed by the text ...
referred to in the 1990 Doha Minutes as the Bahraini formula." Qatar
enumerated the subjects which, in its view, fell within the Court's
|"1.||The Hawar Islands, including the island of Janan;|
|2. ||Fasht al Dibal and Qit'at Jaradah;|
|3. ||The archipelagic baselines;|
|5. ||The areas for fishing for pearls and for fishing for swimming fish and
other matters connected with maritime boundaries."|
On 30 November 1994, the Registry of the Court received a document from
Bahrain entitled "Report of the State of Bahrain to the International Court
of Justice on the attempt by the Parties to implement the Court's Judgement of
1st July, 1994". In that document Bahrain argued that the Judgement of 1
July 1994 required a consensual submission of the whole of the dispute. Yet, the
documents presented by Qatar rested within the unilateral Application of 8 July 1991. In its observations of 5 December 1994 regarding Qatar's Act of
30 November 1994, Bahrain argued that the Court did not declare in its
Judgement of 1 July 1994 that it had jurisdiction. Bahrain submitted that the Court
lacked jurisdiction at that time because of the unilateral application of Qatar.
According to Bahrain, as the Act of
30 November 1994 presented by Qatar rested within the framework of the
initial unilateral application the Court still lacked jurisdiction. The Court
therefore had to decide whether the exchange of letters or the 1990 Doha Minutes
permitted a unilateral application.
The Court held that the exchange of letters, together with the Doha Minutes,
constituted an agreement between the parties to submit the whole of the dispute
to the Court. Concerning the modalities of application, the parties had
different views on the interpretation of the arabic term "al-tarafan".
Bahrain argued that it meant both parties whereas Qatar understood it as
meaning "each party". The Court interpreted the term in the light of
its context and its aim and came to the conclusion that it meant an alternative,
not cumulative seisen. Therefore, the Court understood the Doha Minutes to allow
a unilateral application by each of the parties.
As to the question of whether the "whole of the dispute" was
submitted, the Court held that with the Act of 30 November 1994 Qatar had indeed
submitted the whole of the dispute. The Court therefore considered that it had
jurisdiction and that the case was admissible.
Five Judges appended dissenting opinions. According to Judge Schwebel, the
Court did not examine thoroughly enough the drafting of the 1990 Doha Minutes
during which the explicit possibility for each party to seize the Court was
amended to a text which only meant "the parties". This element of the "travaux préparatoires"
led Judge Schwebel to the conclusion that a unilateral application was excluded.
Judge Oda repeated his opinion from the first judgement where he considered the
Doha Minutes not to constitute an agreement within Article 36 (1) of the Court's
Statute. Judge Koroma and judge ad-hoc Valticos were of the opinion that the
term "al-tarafan" and the drafting history must lead to the conclusion
that a unilateral application was not intended by the parties. Since no joint
action by Bahrain and Qatar was taken they considered that the Court had no