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The judgments of the International Court of Justice in the jurisdiction and admissibility phase of Qatar v. Bahrain: an example of the continuing need for ‘fact-scepticism’*

Published online by Cambridge University Press:  07 July 2009

John McHugo
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Extract

The two consecutive Judgments by the International Court of Justice of 1 July 1994 (‘the July Judgment’) and 15 February 1995 (‘the February Judgment’) in the jurisdiction and admissibility phase of Qatar v. Bahrain have already attracted attention from writers. The Judgments have provided a focus of interest for the law of treaties, and attention has also been concentrated on three legal questions to which the judgments were of particular relevance: the question of whether sovereign consent is necessary to the manner of seisin employed as well as to jurisdiction itself, the emergence of the concept of a partial decision, and the extension of the use of framework agreements to found the jurisdiction of the court. But this Article considers a different question, a key finding of fact in the February Judgment which was crucial to the decision of the Court that it had jurisdiction. This finding was that the linguistic meaning of wording at the heart of one of the Arabic texts on which Qatar relied in order to give the Court jurisdiction entitled either party to submit the case to the Court unilaterally.

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Articles
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Netherlands Yearbook of International Law , Volume 28 , December 1997 , pp. 171 - 196
Copyright
Copyright © T.M.C. Asser Press 1997

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References

1. See Schwebel, , ‘May preparatory work be used to correct rather than confirm the “clear” meaning of a treaty provision?’ in Theory of International Law at the threshold of the 21st century, Essays in honour of Krzystof Skubiszemki, Makarczyk, J., ed., (1996) at pp. 541–547Google Scholar. See also Klabbers, J., ‘Qatar v. Bahrain: the concept of “treaty” in international law’, Archiv des Völkerrechts (1995).Google Scholar

2. On this point, see P. Weil, ‘Compétence et saisine: un nouvel aspect du principe de la juridiction consensuelle’, in Makarczyk, op. cit. n. 1, at pp. 833–848. Weil argues that State consent is necessary to the form of seisin adopted as well as to jurisdiction to hear the dispute, and points to paragraph 43 of the February Judgment (ICJ Rep. (1995) at pp. 23–24), in which the Court stated that ‘… the question of whether the Court was validly seised appears to be a question of jurisdiction.’ The Court went on to say that ‘In interpreting the text of the Doha Minutes, the Court has reached the conclusion that it allows a unilateral seisin’. Weil's argument is essentially a restatement of a position he elaborated as Bahrain's Counsel in the case. The fact that the Court seems to have accepted the validity of his argument, but ruled that its interpretation of the Doha Minutes made it inapplicable in the case before it, demonstrates the centrality to the Court's judgment of the question which the present Article tries to investigate.

3. See in particular, Lauterpacht, E., ‘“Partial” Judgments and the inherent jurisdiction of the International Court of Justice’, in Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings, Grotius Publications (1996).Google Scholar

4. Rosenne, S., ‘The Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court’, 8 LJIL (1995) p. 161–182.CrossRefGoogle Scholar

5. July Judgment, para. 41, ICJ Rep. (1994) at p. 127.

6. Rosenne, op. cit. n. 4, p. 164. Needless to say, Bahrain did not so see them. It might be mentioned in passing that the documents could not ‘stand on their own’, without interpretation through other extrinsic documents which had been written during the course of the Saudi mediation and which were not all mentioned in (or identifiable from) the texts of the documents submitted by Qatar with its Application.

7. Qatari Application of 8 July 1991, Annex 4.

8. The ‘Article 5’ of the Bahrain draft, and the ratification procedure. The question of time limits would also have had to be addressed before the negotiations were completed.

9. Ibid., Annex 5.

10. Both Qatar and Bahrain submitted English translations of the agreed minutes of this meeting to the Court. Qatari Memorial (Q/M), Vol. III, Annex II. 31, p. 199; Bahraini Memorial (B/M), Vol. II, Annex 1.17, p. 109.

11. Qatar submitted a copy of the original Arabic together with Qatar's own translation with its Application, at Annex 6. For the three translations in parallel text (Qatar's translation, Bahrain's translation by Dr Holes, and a translation by the UN which Bahrain also submitted as evidence) see B/M, Vol. II, Annex 1.20, p. 119.

12. The Bahraini linguistic analysis was written by its expert, Dr Badawi, in his linguistic opinion, at B/M, Vol. II, Annex II.3, p. 257, in particular at pp. 263–272. There were two consecutive rounds of written pleadings in this case. Each of the Qatari Memorial and the Rejoinder (Q/Rej.) contained a linguistic opinion by Professor Shukry Ayyad of Ain Shams University (Q/M, Vol. III, Annex III.2, p. 316; Q/Rej., Vol. II, Annex III.2, p. 101). Bahrain submitted expert opinions on linguistic matters from both Dr Badawi of the American University in Cairo and Dr Holes of Cambridge in the Counter Memorial (B/CM) and Reply (B/Rep.). (B/CM. Vol. II, Annex II.3 and 4 at pp. 261–301; B/Rep., Annexes I.10 and I.11 at pp. 165–198). The legal expert evidence (by Professor El-Kosheri of Kosheri, Rashad and Riad for Qatar and Professor Aboulmagd of Cairo University and Mr Adnan Amkhan of Edinburgh University for Bahrain) also contained argument on issues which were closely connected with the linguistic matters before the Court.

13. Qatar applied to the United Nations Secretariat to register the 1990 Minutes and other documents in June 1991. (July Judgment, para. 28, ICJ Rep. (1994) at p. 122). Bahrain protested at the registration.

14. The Court did not go into its interpretation of this phrase in any degree of detail, but took the view ‘that the only procedural implications of the Bahraini Formula on which the Parties could have reached agreement in Doha was the possibility that each of them might submit distinct claims to the Court’. February Judgment, para. 39, ICJ Rep. (1995) at p. 21.

15. Or ‘the case’ in the UN translation.

16. ICJ Rep. (1994) at pp. 126–127.

17. At first glance, the legal status of the Minutes might also have been a candidate for first consideration. This was the approach actually adopted by the Court. If the Court had found that no legal obligations were contained in them (as Bahrain had argued), then Qatar's application would have failed. However, the analysis of the meaning of a text is surely essential preliminary ground work for establishing its status, whilst it is hard to see how, at least from an examination of the face of the text, the converse could apply. The analysis of the meaning of the text should have been among the very first issues for the Court to decide in its internal deliberations. In any event, paras. 24 and 25 of the July Judgment set out the Court's reasoning as to why the 1990 Minutes constituted an international agreement. The Court stated that the Minutes ‘enumerate the commitments to which the Parties have consented’. It is striking that these paragraphs give no clue as to the Court's thinking as to whether or not the Minutes permitted a unilateral application. There was no serious difference between the Parties on the meaning of the original Arabic words which set out those commitments which the Court concluded that the Parties had made: only differences as to the nature of these commitments and the interpretation to be placed upon them. The question of a unilateral or joint application is deliberately not included by the Court in its list of commitments. Instead, it states that the Parties had addressed ‘the circumstances under which the Court could be seised after May 1991”. See also note 48 below.

18. Bahrain interpreted this to mean that joint action was required, whilst Qatar took the opposite view. Bahrain's view seems to be supported by Rosenne. See Rosenne, op. cit. n. 4, p. 167: ‘… the implication of the whole [July] judgment is that the proper seising of the Court required action by both parties, even if not necessarily joint action.’

19. February Judgment, paras 12–14, ICJ Rep. (1995) at pp. 9–11.

20. February Judgment, para 33, ICJ Rep. (1995) at p. 18 quoting ibid, 1994, pp. 21–2.

21. ICJ Rep. (1995) pp. 18–19. The official, binding text of the February Judgment was in French. There is no material difference between the French and English texts with regard to the points which are relevant here. The French word used in Article 35 and translated into English as ‘may’ was ‘pourront’.

22. See in particular the Opinion of Dr Holes at pp. 5–6 of attachment 5 to the letter from the Bahraini Minister of Foreign Affairs to the Registrar of 18 August 1991 and Dr Holes's second Supplementary Opinion, B/Rej, Annex 1.11, paras. 8–11, pp. 191–193.

23. See B/CM, Vol. 1, paras 6.06–6.25, pp. 53–62; B/Rej, paras. 5.05–14, pp. 25–30.

24. Para 34, ICJ Rep. (1995) at p. 18. Emphasis added.

25. See note 28 below for a list of the principal references to discussion of this issue in Bahrain's expert evidence.

26. The submission had to be ‘in accordance with the Bahraini formula accepted by the State of Qatar and the arrangements relating thereto’ (UN Translation). These qualifications do not, however, affect the point which concerns us here. For the Court's view, see note 14 above. For Professor Badawi's linguistic analysis of the sentence, see B/CM, Vol II, pp. 264–272. See also in particular the second Supplementary Opinion of Dr. Holes, B/Rej, Annex I.II at pp. 189–195.

27. See Professor El-Kosheri's Supplementary Opinion, Q/Rep, Vol. II, Annex III. 1, para. 26 at p. 91, where there is a quotation from Professor Dickerson's ‘Materials on Legal Drafting’.

28. For Bahrain's evidence on the meaning of the Arabic word translated in the Judgment as ‘may’, see, inter alia. Professor Badawi's analysis at B/M, Vol. II, Annex II.3, pp. 263–72 and also the first Supplementary Opinion of Dr Holes: B/CM, Annex II.4, p. 293; and the opinions attached to the Rejoinder: Badawi, Annex 1.10, paras. 42–9, pp. 183–5; Holes, Annex 1.11, paras. 12–20, pp. 194–6; Aboulmagd, Annex 1.8, para. B.4, p. 145 and Amkhan, Annex 1.9, para. 12, pp. 158–159. See also, B/Rej, para. 5.14 and note 69.

29. See the Supplementary Opinion of Mr Amkhan, B/Rej, para. 12, pp. 158–159.

30. B/Rej, para. 5.13

31. Emphasis supplied.

32. February Judgment, para. 35, ibid., at p. 19.

33. Dissenting Opinion of Judge Schwebel, ibid., at p. 38.

34. Rosenne, op. cit. n. 4, p. 165. ‘In fact the [July] Judgment bears the hall-marks of a compromise decision covering a deep division in the Court’.

35. Dissenting Opinion of Judge Valticos, para. 12, ICJ Rep. (1995) at p. 75.

36. Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. (1995) at p. 56.

37. Dissenting Opinion of Judge Koroma, ibid., at p. 70.

38. Note the wording quoted above from para. 35: ‘On the contrary, the text assumes its full meaning if it is taken to be aimed …’

39. February Judgment, para. 33, ibid., at p. 18.

40. The Omani draft was first put before the Court (together with the translation by Dr Holes) by Bahrain at Attachment 3 to Bahrain's letter to the Registrar on 18 August 1991. See also B/CM, Vol II, Annexes I.25 and I.26, pp. 157–193, which contain statements by the Bahrain Minister of Foreign Affairs and Minister of State for Legal Affairs which discuss inter alia the Omani draft and its evolution into the final, agreed text.

41. The other was the addition (also at Bahrain's request) of the wording translated by the UN as ‘in accordance with the Bahrain formula accepted by the State of Qatar’. The words translated by the UN as ‘and the arrangements relating thereto’ (discussed above) were also added before the final text was agreed.

42. The change did not affect the structure of the sentence, which has been analysed above. The only difference was that the permission contained in the impersonal verb yajuz was to the effect that ‘al-tarafan’ and not ‘ayyun min al-tarafayn’ might proceed to submit the case to the Court. The rules of Arabic grammar required no consequential changes to be made to the grammatical number of the verb, or to anything else in the wording.

43. See B/CM, Vol. I, paras 6.06–6.25, pp. 53–62; B/Rej, paras. 5.05–14, pp. 25–30.

44. February Judgment, para. 41, ICJ Rep. (1995) at p. 22. (Emphasis added)

45. July Judgment, para. 23, quoting Aegean Sea Continental Shelf Judgment, ICJ Rep. (1978) p. 39, para. 9; ICJ Rep. (1994) at pp. 120–121.

46. July Judgment, para. 20, ibid., at p. 20.

47. July Judgment, paras. 26 and 27, ibid., pp. 121–2.

48. See paras. 24 and 25 of the July Judgment for the limited findings by the Court at that stage as to the commitments contained in the 1990 Minutes. They were summarised at the beginning of para. 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’. Ibid.

49. See the dissenting opinion of Judge Schwebel on the ‘good faith’ requirement, and in particular his quotation from the representative of Portugal at the Vienna Conference: ‘What would happen if, though the text of a treaty was apparently clear, in seeking confirmation in the preparatory work and other surrounding circumstances a divergent meaning came to light? It was impossible to be sure in advance that those circumstances would confirm the textual meaning of the treaty. If the emphasis were placed on good faith, it would appear that in such a case those circumstances should be taken into consideration, although they did not lead to the confirmation of the meaning …’ United Nations Conference on the Law of Treaties, First Session, Official Records, p. 183, quoted in ICJ Rep. (1995) at pp. 31–32. (Emphasis added)

50. Schwebel, op. cit. n. 1, p. 546. It might also be noted that the International Law Commission's Commentary on the Vienna Convention took the view that the principle ut res magis valeat quam pereat is embodied in Article 31, to the extent that it reflects a true general rule of interpretation. Yearbook of the International Law Commission (1966) Vol. III, p. 219.

51. See in particular Schwebel, ibid., and the report by Malcolm Evans in 44 ICLQ (1995) at pp. 691–698.

52. Paras. 33–37. Despite its quotation from Libya/Chad which recites the good faith principle and the other elements of Article 31(1), the Court did not use argument based on this principle in interpreting the 1990 Minutes.

53. See Schwebel, , ‘Three Cases of Fact-Finding by the International Court of Justice’ in Fact-Finding before International Tribunals, Lillich, R., ed. (1992) pp. 13–17Google Scholar. See in particular at p. 16, ‘In my view there is, in any consideration of the Court's processes of fact-finding, ground for profound concern that, in a case as important and as delicate as that of the case concerning Military and Paramilitary Activities in and against Nicaragua the Court failed to use its fact-finding capacities to the full. Moreover, it made a critical factual holding contrary to the weight of evidence before it and in doing so failed to apply the very evidentiary criteria it had laid down’, and T. M. Franck, ‘Fact-finding before the International Court of Justice’, ibid., pp. 21–32. See also Kazazi, M., Burden of Proof and Related Issues (1996) at p. 83.Google Scholar