Maritime delimitation and territorial questions between Qatar and Bahrain.

• Author: Reichel, Marla C.

"[T]here is no State so powerful that it may not some time need the help of others outside itself, either for purposes of trade, or even to ward off the forces of many foreign nations united against it ... [E]ven the most powerful peoples and sovereigns seek alliances, which are quite devoid of significance according to the point of view of those who confine law within the boundaries of States. Most true is the saying that, all things are uncertain the moment [one] depart[s] from the law."

Hugo Grotius in 1625, Founding Father of International Law

1. INTRODUCTION

   The Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain(1) poses two main issues to the International Court of Justice: those of admissibility and jurisdiction. Initially, the Court has to decide whether Qatar followed proper procedure by unilaterally admitting the dispute for adjudication. Did Qatar properly seise the tribunal when it, alone, submitted an application to the Court's registry? Seisin is the procedural means a State uses to bring its case before the international tribunal, and it is the act of the Applicant which seises the Court.(2) Qatar and Bahrain argue here over the proper method of seisin. Qatar assumes the position that unilateral seisin is proper; one party acting alone may bring the entire dispute.(3) On the other hand, Bahrain argues the Parties must jointly seise the tribunal.(4) Thus, the Court must determine whether Qatar's unilateral application adequately brought the dispute before it. Bahrain, arguing joint seisin, maintains the position that the Parties must seise the Court by Special Agreement. This method of seisin enables the Parties, by dual consent, to confer an adjudicatory role upon the Court.(5) Therefore, the Court must determine whether Qatar's unilateral application adequately brought the dispute before it or whether the Parties had to jointly seise the tribunal.

   In addition to deciding the correct procedural method of seisin, the Court must decide whether it has jurisdiction over the actual territorial dispute. Jurisdiction presents special problems for the Court because its Parties are sovereign states. Only States may invoke the Court's jurisdiction. Indeed, it is implicit in the notion of sovereignty that States may not be subjected to the Court's jurisdiction without their consent.(6) In the case at hand, Qatar accepts jurisdiction. Bahrain, however, contends jurisdiction over the maritime territorial dispute.(7) Bahrain asserts Qatar never properly seised the Court, and alternatively, even if it had properly seised the Court, then it does not have jurisdiction because Bahrain, as a sovereign, did not consent.(8) In response, the Court asserts another means of invoking jurisdiction, the notion that States may compulsorily accept jurisdiction through a treaty's provisions.(9) In the Case Concerning Maritime Delimitation Bahrain argues a treaty never existed, forcing the Court to determine whether there was a binding international agreement sufficient to subject Qatar and Bahrain to its jurisdiction. If the Court finds for a binding agreement it may enforce the provision referring disputes to it, known as a compromissory clause, to bring the case within its jurisdiction.(10) In summary, two major issues face the Court in the Case Concerning Maritime Delimitation: the proper method of seisin and the Court's ability to invoke jurisdiction in order to adjudicate the territorial dispute. This article considers these issues, as well as possible impacts of the Court's decision and its ability to entertain future disputes.

2. THE PRINCIPLES OF SEISIN OF THE INTERNATIONAL COURT OF JUSTICE: THE NOTION OF A UNILATERAL APPLICATION

   1. Origins of Seisin In The Qatari-Bahraini Dispute: The Qatari Application

      In July of 1991, the Minister for Foreign Affairs of the State of Qatar filed an Application in the Court's Registry to institute proceedings against the State of Bahrain.(11) The Application referred to the Court disputes between the two States regarding sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qi'tat Jaradah and delimitation of the maritime areas of Qatar and Bahrain.(12) The Qatari Application founded jurisdiction upon letters exchanged between the two Parties in December 1987, and on the December 1990, Doha Minute agreements that resulted from meetings between the States.(13) In a previous judgment the Court determined the letters between the King of Saudi Arabia and the Amir of Qatar, in addition to the Doha Minutes signed by the respective Ministers for Foreign AL fairs, were international agreements that conferred jurisdiction upon the tribunal.(14) What came to be known as the "Bahraini formula" circumscribed the Court's jurisdiction, defining its subject matter and scope.(15) The "Bahraini formula" stated: "The Parties request the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them; and to draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters."(16) Bahrain proposed this formula to Qatar in December 1988, and in turn Qatar accepted in December 1990. In the 1995 judgment, analyzed here, the Court bases its jurisdiction on the "Bahraini formula," yet the main issues are not jurisdictional content but rather the validity of Qatar's unilateral application to seise the tribunal and whether this action adequately conferred jurisdiction to entertain the dispute.

      Pursuant to Article 40, paragraph 1, of the Statute of the Court, States party to the statute may bring a case before the Court by a written application addressed to the Registrar.(17) In addition to the Statute, the Rules of the Court provide for the initiation of proceedings. In conjunction with Article 40 of the Statute, a State may institute proceedings by means of a unilateral application in accordance with Article 38(1) of the Rules of the Court.(18) Qatar invoked these provisions to seise the Court and to commence proceedings against Bahrain regarding maritime delimitation and territorial disputes. Bahrain, in turn, contested jurisdiction on the basis of Qatar's unilateral application, arguing that the Parties had to jointly seise the Court.(19) Seisin is a procedural step, independent of the basis of jurisdiction invoked, and is governed by the Statute and Rules of the Court.(20) Bahrain contended that without mutual seisin the Court lacked jurisdiction over the dispute.(21) Mutual, or joint seisin, is the notion that a complementary agreement is a legal prerequisite for seisin of the Court.(22) In its prior judgment of July 1, 1994, the Court found the unilateral application of Bahrain was admissible and afforded to the Parties an opportunity to submit the whole of the dispute.(23) However, the tribunal did not determine the link between unilateral seisin(24) and jurisdiction in the former judgment.

      As noted, Qatar's unilateral application premised jurisdiction upon two agreements between the Parties concluded in December 1987 and December 1990. The Court found the letters and Minutes constituted binding international agreements,(25) bringing the Parties within the compulsory jurisdiction of the Court. One form of compulsory jurisdiction occurs when States agree to refer certain legal disputes to the Court, and the Court may then exercise its jurisdiction on this basis.(26) This type of jurisdiction, treaty-based compulsory jurisdiction, obligates a State to accept the Court's jurisdiction over a legal dispute the State expressed in a treaty in force.(27) Article 36(1) of the Statute of the International Court of Justice references this form of compulsory jurisdiction.(28) The article allows States, in connection with the procedures of Article 40(1), and Article 38(1), supra, to unilaterally bring a dispute under the Court's compulsory jurisdiction when treaties and conventions in force refer cases.(29) A treaty clause referring a dispute between States to the Court is known as a "compromissory clause," and it triggers compulsory jurisdiction. Thus, a "compromissory clause" may bring a case before the Court pursuant to the terms of the treaty between the Parties, which refer to the disputed matters.(30) After deciding that the December 1987, and December 1990 agreements were treaties in force,(31) the Court admitted Qatar's Application based upon them, finding for compulsory jurisdiction. According to the Court's decision, Qatar effectively seised the Court by unilateral application.

      Bahrain contended it had not agreed to refer the whole of the dispute by the letters and Minutes, and that the two Parties must jointly seise the Court by special agreement.(32) States parties to a dispute may refer a case to the Court by a special agreement, or compromis.(33) A special agreement, or compromis, is an ad hoc agreement between the parties concerning the specific dispute, and it becomes the legal basis of the Court's jurisdiction.(34) Bahrain argued that Qatar's unilateral application was insufficient to confer jurisdiction because on grounds of special agreement some form of agreement between the Parties must exist referring the dispute. The majority replied by stating that, "[T]here 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."(35) Since the Parties continued to argue whether Qatar could unilaterally seise the tribunal or whether it had to be jointly seised, the Court found it incumbent upon them to resolve this issue.

   2. Resolving the Question of the Method of Seisin

      In the December 1990 Minutes, paragraph 2, both Qatar and Bahrain refer to seisin of the Court.(36) For Qatar, paragraph 2 authorized unilateral seisin by means of an application filed by...