As to the content of the agreements, the Court held that
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.
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 jurisdiction:
"1. The Hawar Islands, including the
island of Janan;
2. Fasht al Dibal and Qit'at Jaradah;
3. The archipelagic baselines;
4. Zubarah;
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 jurisdiction.