QUATAR V. BAHRAIN ICJ 1994 The Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations. Bahrain, however, maintains that the Minutes of 25 December 1990 were no more than a simple record of negotiations, similar in nature to the Minutes of the Tripartite Committee; that accordingly they did not rank as an international agreement and could not, therefore, serve as a basis for the jurisdiction of the Court. The Court would observe, in the first place, that international agreements may take a number of forms and be given a diversity of names. Article 2, paragraph | of the Vienna Convention on the Law of Treaties of 23 May 1969 provides that for the purposes of that Convention, ‘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,” Furthermore, as the Court said, in a case concerning a joint communique, “it knows of no rule of international law which might preclude a joint communique from constituting an international agreement to submit a dispute to arbitration or judicial settlement” (Aegean Sea Continental Shelf; 1.CJ. Reports IY78, p. 39, para. 96). In order to ascertain whether an agreement of that kind has been concluded, “the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.” (ibid.) The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the For-eign Minister of Saudi Arabia, and state what had been “agreed” between the Parties. In paragraph 1, the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar's acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to say that, if'a compromise agreement is reached during that time, the case is to be withdrawn, Thus, the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution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 Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement. Bahrain, however, maintains that the signatories of the Minutes never intended to conclude an agreement of this kind. It submitted a statement made by the Foreign Minister of Bahrain and dated 21 May 1992, in which the States that “at no time did I consider that in signing the Minutes I was committing Bahrain to a legally binding agreement.” He goes on to say that, according to the Constitution of Bahrain, “treaties ‘concerning the territory of the State’ can come into effect only after their positive enactment as a law.” The Minister indicates that he would therefore not have been permitted to sign an intemational agreement taking effect at the time of the signature. He was aware of that situation, and was prepared to subscribe to a statement recording a political understanding, but not to sign a legally binding agreement. The Court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or,25 of 35 CHAPTER 3 25 ‘THE LAW OF TREATIES for that matter, those of the Foreign Minister of Qatar. The two Ministers signed a text recording commitments accepted by their Governments, some of which were to be given immediate application. Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a “statement recording a political understanding,” and not to an international agreement. The Court concludes that the Minutes of 25 December 1990, like the exchanges of letters of December 1987, constitute an inter- national agreement creating rights and obligations for the Parties. Similar was the case of Norway v. Denmark} The case involved a dispute between Denmark and Norway over sovereignty in Eastern Greenland. In the course of negotiations, Denmark had offered certain concessions important for Norway for the purpose of persuading Norway not to obstruct Danish plans in regard to Greenland. In reply, the Norwegian Minister accepted the offer: “I told the Danish Minister today that the Norwegian Government would not make any difficulty in the settlement of this question.” The Court found this declaration suf- ficient to bind the Norwegian government. In fact, even a unilateral declaration concerning legal or factual situations may create legal obligations. This was what happened in Nuclear Test Cases. Australia v. France, New Zealand y. France,’ France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct tests in the South Pacific until 1973. The tests conducted in 1972 and 1973 led to the filing of protests by Australia and New Zealand. The case, however, was taken off the Court’s list without a decision when France announced by a series of unilateral announcements that it would conduct no further tests after 1973. The Court nevertheless commented on the legal significance of these announcements saying: Itis well-recognized that declarations made by way of unilateral acts conceming legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to26 INTRODUCTION TO PUBLIC INTERNATIONAL LAW its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of intemational negotiations, is binding The Court added: In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large its intention to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of intemational intercourse, and the confidence and trust which are so essential in the relations among States. Two characteristics the Court found which convinced it that a binding obligation had been incurred. First, the commitment was very specific; second, there was a clear intent to be bound. This, however, did not prevent France from conducting nuclear tests in the South Pacific. After having conducted six nuclear tests, France responded to worldwide outrage and stopped the testing at six in 1996 rather than the originally planned eight. Moreover, care in attributing binding effect to a unilateral declaration was expressed in a case involving the Trade Act of 1974 between the European and the usa* 7.118 Attributing international legal significance to unilateral statements made by a State should not be done lightly and should be subject to strict conditions. Although the legal effects we are ascribing to the US statements made to the DSB [Dispute Settlement Body] through this Panel are of a more narrow and limited nature and reach compared to other internationally relevant instances in which legal effect was given to unilateral declarations, we have conditioned even these limited effects on the fulfillmentCHAPTER 3 2 ‘THE LAW OF TREATIES of the most stringent criteria. A sovereign State should normally not find itself legally affected on the international plane by the casual statement of any of the numerous representative speaking on its behalf in today’s highly interactive and inter-dependent world nor by a representation made in the heat of legal argument on a State’s behalf. This, however, is very far from the case before us 7.121 The statements made by the US before this Panel were a reflection of official US policy, intended to express US understanding of its intemational obligations as incorporated in domestic US law. The statements did not represent a new US policy or undertaking but the bringing of a pre-existing US of a pre-existing US policy and undertaking made in a domestic setting into an international forum. Function of treaties. Treaties have many functions. They are sources of international law, they serve as the charter of international organizations, they are used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments, etc. The different kinds of treaties may be classified from the standpoint of their relevance as source of intemational law. The first are multilateral treaties open to all states of the world. They create norms which are the basis for a general rule of law. They are either codification treaties or “law-making treaties” or they may have the character of both. Another category includes treaties that create a collaborative mechanism. These can be of universal scope fe.g., regulation of allocation of radio frequencies) or regional (e.gfishing agreements). They operate through the organs of the different states. The third and largest category of treaties are bilateral treaties. Many of these are in the nature of contractual agreements which create shared expectations such as trade agreements of various forms. They are sometimes called “contract treaties.” While treaties are generally binding only on the parties, the number of the contracting parties and the generality of the acceptance of specific rules created by the treaty can have the effect of creating a