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The Qatar/Bahrain Case What is a Treaty? A Framework Agreement and the Seising of the Court

Published online by Cambridge University Press:  21 July 2009

Shabtai Rosenne
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Extract

On 8 July 1991 Qatar filed an application instituting proceedings against Bahrain in respect of certain existing disputes between them relating to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibai and Qiťat Jaradah, and the delimitation of the maritime areas of the two states. The case has been entitled by the Court the Maritime Delimitation and Territorial Questions Between Qatar and Bahrain case. The application is in four sections: I. Geographical and Historical Background;II. The Subject of the Disputes; III. Efforts to settle the Disputes; and IV.Jurisdiction.

Keywords

agreementBahrainInternational Court of JusticeQatarseising.
Type
International Court of Justice
Information
Leiden Journal of International Law , Volume 8 , Issue 1 , Spring 1995 , pp. 161 - 182
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1995

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References

1. Application, Annex 5; Qatari Memorial, Annex 11.29; Bahraini Counter-Memorial, Annex 1.14; Judgment (not yet published), at 118 (para. 18); Judge Oda, at 146 (para. 29).

2. 1991 ICJ Rep. 50. From the proceedings it appears that admissibility in this context refers to the method of seising the Court. This highly technical word ‘seising’ denotes the act by which a court or other tribunal is put in possession of a case. See further on this, G.G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. II, at 440 (1986). Fitzmaurice has explained that “[t]he term ‘seising’ denotes the act or process of seising a tribunal, and is best not employed for the state or condition of being or having been seised (seisin, saisine)”.

3. 1992 ICJ Rep. 237.

4. 1994 ICJ Rep. 112. The Court was composed as follows: President Bedjaoui; Vice-President Schwebel; Judges Oda, Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herzegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda.

5. 1994 ICJ Rep. 130.

6. Unofficial Communiqué 94/23, 12 December 1994; United Nations Press Release ICJ/534/Rev.l, 13 December 1994 (New York). In its Judgment of 15 February 1995, the Court by 10 votes to 5 found that it had jurisdiction to adjudicate upon the dispute submitted to it between the State of Qatar and the State of Bahrain, and that the Application of Qatar as formulated on 30 November 1994 was admissable. This judgment will be the subject of a later commentary.

7. Qatari Memorial, annex II.15; Bahraini Counter-Memorial, annex 1.3. The Court quoted the Qatari translation at 117 (para. 17); likewise Judge Oda at 141 (para. 21).

8. Judgment, at 117 (para. 17).

9. Judgment, at 120 (para. 23).

10. Qatari Memorial, Annex 11.37.

11. 1155 UNTS 331. That provision of the Vienna Convention reads: “[f]orthe purposes of the present Convention: (a) ‘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.” The terms ‘treaty’ and ‘convention’ in this context are now synonymous.

12. Qatari Memorial, Annex 11.32; Bahraini Counter-Memorial, Annex 1.19. Annex 1.20 contains the translation prepared by one of its experts. In the Bahraini expert's translation, the critical paragraph 2 reads: “[t]he good offices of [Saudi Arabia] will continue between the two countries until [May 1991]. The two parties may, at the end of this period, submit the matter to the International Court of Justice in accordance with the Bahraini formula, which the State of Qatar has accepted, and with the procedures consequent on it. The good offices of the Kingdom of Saudi Arabia will continue during the period when the matter is under arbitration.” At 119 (para. 19) of the judgment the Court cited the Qatari version and the version prepared by the Bahraini expert, not the UN translation. In his dissenting opinion (at 148, para. 32), Judge Oda cited the Qatari and the UN translations. There is no explanation in the judgment why the Court preferred the Bahraini version over that interpretaprepared by the Translation Division of the United Nations Secretariat.

13. The point at issue was whether the Arabic word translated parties, in the Arabic dual and not the plural form, means either party, or both parties jointly. The word in question, al-tarafan(^tij-^Jf), certainly means the two parties, but that does not answer the legal question of interpretation which, as is normal, depends on the intention of the parties and not on pure grammar. Grammatici certant et adhuc sub iudice est!

35. 1992 ICJ Rep. 351.

15. Registration No. 28207. See also the Monthly Statement of Treaties Registered During the Month of June 1991 (ST/LEG/SER.A/532), at 219. Particulars of the registration and related correspondence with the Secretariat are contained in the Qatari Memorial, Annex II.37. The Bahraini protest is included there and in the Bahraini Counter-Memorial, Annex 1.21.

16. Counter-Memorial, Annex 1.25.

17. Legal Status of Eastern Greenland, 1933 PCIJ (Ser. A/B), No. S3, at 22.

18. Aegean Sea Continental Shelf case, 1978 ICJ Rep. 3.

19. Cf. my remarks at the 678th meeting of the International Law Commission. 1963 Yearbook of the International Law Commission, Vol. I, at 32.

20. The expression “applied to the United Nations Secretariat to register the Minutes” is not understood. The decision whether to register a treaty under Article 102 of the Charter rests with the states: registration is not a discretionary matter for the Secretariat after a state has ‘applied’ for registration. Since 1955, both the volumes of the Treaty Series and the Monthly Statement have included a disclaimer to the effect that registration does not imply a judgment by the Secretariat on the nature of the instrument. See my Developments in the Law of Treaties 1945–1986, at 414 (1989).

21. Judgment, at 122 (para. 29).

22. In fact, registration within six months of the conclusion of the instrument is hardly ‘late registration’. There is no time-limit within which registration must be effected, and many States allow their registrable agreements to accumulate and send them to the Secretariat once or twice a year. Very frequently this is a matter of routine and convenience in the Treaty Sections of Ministries for Foreign Affairs, although one must assume that in this case, the registration was effected in order to avoid the sanction of Article 102 of the Charter after the proceedings had been instituted.

23. Pablo Nájero case, 19 October 1928, V RIAA 466 and 468 (Verzijl, President, Ayguesparse and Gonzalez Roa, Commissioners). The Commission seems to have been unanimous on this point.

24. Article 38 of the Rules refers to the institution of proceedings by application, and Article 39 to the institution of proceedings by notification of a special agreement. The Court's reference to each of these provisions emphasizes the flexibility of a framework agreement as the basis for the jurisdiction of the Court and its seising. Where a case is introduced by the notification of a special agreement, and any other agreement between the parties is absent, the system of the simultaneous filing of written pleadings is followed: each pleading is filed within the same time-limits and communicated through the Registry of the Court to the other party.

25. The Registry of the Court regards framework agreements as special agreements, for example in its list of cases submitted to the Court by means of special agreements found on page 63, footnote 1, of the Court's Yearbook for 1992–1993.

26. South-Eastern Greenland case, 1932 PCIJ (Ser. A/B), No. 48, at 270.

27. The Diversion of Water from the Meuse, 1937 PCIJ (Ser. A/B), No. 70, at 4.

28. 1954 ICJ Rep. 19.

29. For these cases, see 1950 ICJ Rep. 266 and 395; and 1951 ICJ Rep. 71.

30. XI RIAA 111.

31. 1960ICJ Rep. 192. Honduras instituted these proceedings and based the jurisdiction also on declarations made under Article 36, para. 2, of the Statute. The Court made no reference to that aspect.

32. 1992 ICJ Rep. 386 (para. 39); 390 (para. 47); 401 (para. 67); 554 (para. 325); 557 (para. 331); and 579 (para. 368). On the significance of the agreed English translation of the special agreement, see 1992 ICJ Rep. 356 (para. 2).

33. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Order of 26 October 1990, ICJ Rep.149; and Judgment of 3 February 1994, ICJ Rep. 6, at 11 (para. 8).

34. Judgment, at 123 (para. 32).

35. Id., at para. 33.

36. Id.

37. Id., at 124 (para. 35).

38. Id., at 126 (para. 36).

39. Id., at 125 (para. 37).

40. Id., at 125 (para. 38).

41. Rules of Court, Article 46. At Bahrain's request the Court also reaffirmed the established parties may have made in the course of direct negotiations when the negotiations in question have not led to an agreement between the parties (Judgment, at 125, para. 40).

42. The previous instance of this procedure being followed by agreement between the parties is the Boundary and Transboundary Armed Actions case between Nicaragua and Honduras,1988 ICJ Rep. 69. The Court's decision that it had jurisdiction and that the application was admissible opened the way to the determination of the merits. In an order fixing the timelimits for the pleadings on the merits, the then President, Ruda, stated that the suspension of the proceedings on the merits pending settlement of the questions of jurisdiction and admissibility had come to an end with the delivery of the judgment upholding jurisdiction and admissibility. See 1989 ICJ Rep. 6. But the proceedings on the merits had never commenced in that case, or in the present case, so it is not clear how they could have been suspended. The case was later discontinued. See also note 44 infra.

43. Judgment, at 149 (para. 36).

44. 1989 ICJ Rep. 175; and 1992 ICJ Rep. 222.

45. Case concerning Passage Through the Great Belt (Finland v. Denmark), Order of 10 September 1992, 1992 ICJ Rep. 348.

46. 1991 ICJ Rep. 20.

47. Judge ad hoc Ruda, chosen by Qatar, died shortly after this judgment was given. He has beenreplaced by Santiago Torres-Bernárdez, who made the solemn declaration required by Article 20 of the Statute of the Court at a special sitting of the Court on 30 January 1995.Unofficial Communique 95/2, 18 January 1995.

48. GAOR, 49th session, A/49/PV.29 (Provisional), 13 October 1994, at 4.