Albarillo, Demi Georfo, Recca EH 304 Flores, Jedan Roy Salgado, Ella Gacis, Angelika Labisto, Rovemy

Albarillo, Demi Georfo, Recca EH 304
Flores, Jedan Roy Salgado, Ella

Gacis, Angelika Labisto, Rovemy
General Facts
In 1991, Qatar filed in the Registry of the Court an Application instituting
proceedings against Bahrain in respect of the two decade dispute between the two States
relating to sovereignty over certain islands and shoals, including the delimitation of their
maritime areas.
In the course of the dispute, both parties have exchanged letters and have
acknowledged the same. A Tripartite Committee was made for the purpose of
approaching the International Court of Justice (ICJ)—it was formed by representatives of
Qatar, Bahrain, and Saudi Arabia. Despite several meetings, the Committee failed to
settle the dispute. Two years later, the matter was brought up and have ended in
‘Minutes”, which stipulated that the parties may submit the dispute to the ICJ. The ICJ’s
jurisdiction was then disputed by Bahrain when Qatar filed the above-mentioned
Application.
Topic/Principle of Law Involved
The concept of treaty under international law is the principle involved. Under Article
2, Paragraph 1 of the Vienna Convention on the Law of Treaties (VCLT), a treaty is 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. This is in contrast with a ‘treaty’
entered by states under national law, in which case it will be governed by domestic law
and not international law.
Moreover, the title of the written instrument is immaterial for the purposes of
determining if it is a treaty governed by international law. What is material is that the
instrument testifies an intention to create rights and obligations.
Specific Facts
The resolution of the dispute between Qatar and Bahrain over certain islands and
shoals could be traced way back to 1976 when the King of Saudi Arabia and the Amirs of
Bahrain and Qatar exchanged letters containing proposals for settlement of dispute. For
the next few years, there was no progress towards a settlement of the dispute.
Until they finally agreed to establish a Tripartite Committee “for the purpose of
approaching the International Court of Justice (ICJ).” However, the Committee failed to
produce an agreement on the specific terms for submitting the dispute to the Court.
Eventually, the matter was again the subject of discussion two years later during
the annual meeting of the Co-operation Council of Arab States of the Gulf at Doha in
December 1990. It was decided the parties may submit the matter to the International
Court of Justice in accordance with the Bahraini formula, which has been accepted by
Qatar. This was recorded in the “Minutes” of the meeting signed by the Foreign Ministers
of Bahrain, Qatar and Saudi Arabia.
As both parties had given their requisite consent through the minutes of the
meeting, which is considered as an international agreement, Qatar considers that the ICJ
has been enabled to exercise jurisdiction to adjudicate upon their disputes and, as a
consequence, upon the Application of Qatar.
However, Bahrain maintained that the 1990 Minutes do not constitute a legally
binding instrument because it was just a record of a meeting and a “statement recording
a political understanding. Bahrain further contended that the 1990 Minutes is not a treaty
as it failed to be registered with the United Nations (UN) Secretariat specified under Article
102 of the UN Charter. Consequently, the ICJ lacks jurisdiction to deal with the Application
of Qatar.
Fact-Law Interplay
The minutes of the meeting is considered as a treaty under international law and
therefore, legally binding between the parties.
To reiterate, the title of the written instrument is immaterial for the purposes of
determining if it is a treaty governed by international law. What is material is that the
instrument testifies an intention to create rights and obligations. Thus, ‘minutes’,
‘protocols’, ‘exchanges of notes or letters’, and other titles may qualify as treaties under
international law as long as it has the intention to create rights and obligations.
In the case-at-bar, the 1990 Minutes is said to be a binding agreement between
Qatar and Bahrain for they have expressed their consent on certain terms, thus, creating
rights and obligations. The 1990 Minutes is not only a record of negotiations, nor merely
an account of discussions and summarize points of agreement and disagreement, nor
just a "statement recording a political understanding", but it is also an enumeration of the
commitments to which the Parties have consented. Thus, it created rights and obligations
in international law for the Parties constituting an international agreement.
On the argument of non-registration or late registration of a treaty, the ICJ ruled
that it does not have any consequence for the actual validity of the agreement, which
remains no less binding upon the parties. While registration under Article 102 of the UN
Charter may indicate that the parties have entered into a legally binding instrument, it is
not entirely decisive. Under Article 2, Paragraph 1 of VCLT, a treaty can come in to a form
of whatever instrument and whatever its particular designation. Non-registration should
not prevail over the actual terms of the instrument in question.

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