A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations Between States
The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court's willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes or to comply with the obligation of peaceful settlement of disputes.
Key Words: dispute settlement; International Court of Justice; international agreements.
1 Professor of International Law, London School of Economics. The author thanks Sir Ian Sinclair and Anthony Aust for their assistance, including a preview of the text of the latter's forthcoming book on treaty law.