Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal)

On 23 August 1989, Guinea-Bissau instituted proceedings against Senegal, on the basis of the declarations made by both States under Article 36, paragraph 2, of the Statute. Guinea-Bissau explained that, notwithstanding the negotiations pursued from 1977 onwards, the two States had been unable to reach a settlement of a dispute concerning the maritime delimitation to be effected between them. Consequently they had jointly consented, by an Arbitration Agreement dated 12 March 1985, to submit that dispute to an Arbitration Tribunal composed of three members. Guinea-Bissau indicated that, according to the terms of Article 2 of that Agreement, the Tribunal had been asked to rule on the following twofold question:

“1. Does the Agreement concluded by an exchange of letters [between France and Portugal] on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal ?

2. In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal respectively ?”

Guinea-Bissau added that it had been specified, in Article 9 of the Agreement, that the Tribunal would inform the two Governments of its decision regarding the questions set forth in Article 2, and that that decision should include the drawing of the frontier line on a map. According to the Application, the Tribunal communicated to the Parties on 31 July 1989 a “text that was supposed to serve as an award” but did not in fact amount to one. Guinea-Bissau asserted that the decision was inexistent as the majority of two arbitrators (against one) that had voted in favour of the text was no more than apparent given that one of the two arbitrators — in fact the President of the Tribunal — was said to have “expressed a view in contradiction with the one apparently adopted by the vote”, in a declaration appended thereto. Subsidiarily, Guinea-Bissau maintained that the Award was null and void, as the Tribunal had failed, in various ways (see explanation below) to accomplish the task assigned to it by the Agreement. By an Order dated 12  February 1990, the Court dismissed a Request for the indication of provisional measures presented by Guinea-Bissau.

It delivered its Judgment on 12 November 1991. The Court first considered its jurisdiction, and, in particular, found that Guinea-Bissau’s declaration contained no reservation, but that the declaration of Senegal, which replaced a previous declaration of 3 May 1985, provided among other things that it was applicable only to “all legal disputes arising after the present declaration . . .”. As the Parties agreed that only the dispute relating to the Award rendered by the Tribunal (which arose after the Senegalese declaration) was the subject of the proceedings before the Court and that it should not be seen as an appeal from the Award, or as an application for revision of it, the Court accordingly regarded its jurisdiction as established. It then rejected, inter alia, Senegal’s contention that Guinea-Bissau’s Application, or the arguments used in support of it, amounted to an abuse of process. With regard to Guinea-Bissau’s contention that the Award was inexistent, the Court considered that the view expressed by the President of the Tribunal in his declaration constituted only an indication of what he considered would have been a better course. His position therefore could not be regarded as standing in contradiction with the position adopted by the Award. The Court accordingly dismissed the contention of Guinea-Bissau that the Award was inexistent for lack of a real majority.

The Court then examined the question of the nullity of the Award, as Guinea-Bissau had observed that the Tribunal had not replied to the second question put in Article 2 of the Arbitration Agreement and had not appended to the Award the map provided for in Article 9 of that Agreement. According to Guinea-Bissau, those two omissions constituted an excès de pouvoir. It was further asserted that no reasons had been given by the Tribunal for its decision. With regard to the absence of a reply to the second question, the Court recognized that the structure of the Award was, in that respect, open to criticism, but concluded that the Award was not flawed by any failure to decide. The Court then observed that the Tribunal’s statement of reasoning, while succinct, was clear and precise, and concluded that the second contention of Guinea-Bissau must also be dismissed. With regard to the validity of the reasoning adopted by the Tribunal on the issue of whether it was required to answer the second question, the Court recalled that an international tribunal normally had the right to decide as to its own jurisdiction and the power to interpret for that purpose the instruments which governed that jurisdiction. It observed that Guinea-Bissau was in fact criticizing the interpretation in the Award of the provisions of the Arbitration Agreement which determine the Tribunal’s jurisdiction, and proposing another interpretation. Further to a detailed consideration of Article 2 of the Arbitration Agreement, it concluded that the Tribunal had not acted in manifest breach of its competence to determine its own jurisdiction by deciding that it was not required to answer the second question except in the event of a negative answer to the first. Then, with respect to the argument of Guinea-Bissau that the answer given by the Tribunal to the first question was a partially negative answer and that this sufficed to satisfy the prescribed condition for entering into the second question, the Court found that the answer given achieved a partial delimitation, and that the Tribunal had thus been able to find, without manifest breach of its competence, that its answer to the first question was not a negative one. The Court concluded that, in this respect also, the contention of Guinea-Bissau that the entire Award was a nullity must be rejected. It considered moreover that the absence of a map could not in this case constitute such an irregularity as would render the Award invalid.