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

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Telefax (0-0364 99 28). Telex 32323.
- Communiqué

Members of the Court + Staff forimrnediate rclease
and P.O. Peace Palace 12-11-91(16.30) No. 91/32
12 November 1991

Arbitral Award of 31 Julv 1989
(Guinea-Bissav u. Senepal)

Judpment of the Court

The following informationis made available to the Pressby the Registry
of the InternationaC lourtof Justice:

Today,12 November 1991, the Courtdelivered,in the caseconcerning the
ArbitralAwardof 31 July 1989(Guinea-Bissav u. Senenal),a judgmentby
which it rejectedthe submissiono sf Guinea-Bissau that: (1) the Awardof
31 July 1989 is inexistent; (2) subsidiarily, it is absolutelynull and
void; (3)the G0vernmen.o tf Senegalis not justifiedin seekingto require
Guinea-Bissauto applytheAward. The Court then found,on the submission to
khat effect of Senegalt ,hat the Awardis validand binding for both States,
which have the obligatit on applyit.
*
The Courtwas composedas follows: PresidentSir Robert JENNINGS;
Vice-President ODA; Judges LachsA,go, Schwebel,Ni, Evensen, Tarassov,
Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva;
Judaesad hoc Thierry, Mbaye.
*
The fulltextof th,e operativepart of theJudgmentis as follows:

"THE COURT,

(1)Unanimously,

Relectsthe submiss,io onf the Republicof Guinea-Bissau that the
ArbitralAwardgivenon 31 July 1989by the Arbitration Tribuna established
Guinea-Bissauand the RepublicMof Senegal,tis inexistent;icof

(2) By eleven votesto four,

Rejectsthe submission of the Republicof Guinea-Bissau that the
ArbitralAwardof 31 Ju1.y 1989 is absolutelynull and void;

FOR : PresidentS;ir RobertJENNINGS; Vice-President ODA;
JudnesLACHS,AGO, SCHWEBELN ,I, EVENSEN, TARASSOVG,UILLAUME,
SHAHABUDDEEN;Judgead hoc MBAYE.

AGAINST: JudpesAGUILARMAWDSLEY,WEERAMANTRY, RANJEVA;
Jud~ead hoc THIERRY. (3) By twelve votetso three,

Re.jectsthe submissioonf the Republicof Guinea-Bissathat the
Government of Senegalis not justifiedin seekingto requirethe Government
of Guinea-Bissauto applytheArbitralAwardof 31 July 1989; and,on the
submission to thateffectof the Republic of Senegal, findtshat the Arbitral
Awardof 31 July 1989 is validand binding forthe Republic of Senega and
the Republic of Guinea-Bissau,hichhave the obligation to applyit.

FOR: PresidentSir Robert JENNINGS; Vice-PresidenOtDA;

JudnesLACHS, AGO, SCHWEBEN L,I, EVENSEN, TARASSOV, GUILLAUME,
SHAHABUDDEEN, RANJEVA; Juandehoc MBAYE.

AGAINST: JudaesAGUILAR MAWDSLEY ,EERAMANTRY;Judpead hoc THIERRY."

*
JudaeTarassovand Judnead hoc Mbayeappended declaration to the
Judgmentof the Court.

Vice-PresidentOda, Judnes LachsN,i and Shahabuddeen appendedeparate 1
opinionsto the Judgment of the Court.

JudpesAguilar Mawdslea yndRanjevaappendeda joint dissenting opinion,
and JudpeWeeramantry and Judnead hoc Thierry dissenting opinion to,the
Judgmentof the Court.
(A summaryof thesedeclarations and opinionsis attached.)

The printedtextof the Judgment and of the declarationsnd opinions
appendedto itwill become availabli en a fewweeks'time (ordersand
enquiries shoulbde addressedto the Distributionand Sales Section, Office
of the United Nations ,211Geneva10; the SalesSection, United Nations,
New York,N.Y. 10017; or any appropriately specialib zedkshop.)

An analysisof the Judgmentis givenbelow: thishas beenprepared by
the Registryfor the use of the Pressand in no wayinvolvesthe
responsibilitoyf the Court. It cannotbe quotedagainst the textof the
Judgment,of which it doesnot constitutean interpretation.

Analysis of the Judgment

1. Reviewof the vroceedinpsand summarvof facts(paras.1-21)

The Courtoutlinesthe successive stage of the proceedingass fromthe
time the casewas brought beforeit (paras.1-9)and setsout the submissions
of the Parties(paras.10-11). It recalls thato ,n 23 August1989,
Guinea-Bissau instituted proceedings against Se inegalpectof a dispute
concerning the existena ced the validitof the Arbitral Award deliver ond
31 July 1989by an Arbitration Tribunal consisto ingthree arbitratorand
establishedpursuantto an Arbitration Agreement conclub dethe twoStates
on 12 March 1985. The Courtgoeson to summarizethe factsof the caseas
follows(paras.12-21): On 26 April 1960,an agreemenby exchangeof letterswas concluded
between Franceand Portugalfor the purposeof definingthemaritimeboundary
between theRepublicof Senegal(at that timean autonomous State withi the
Communauté establishedby the constitutioof the French Republic o1958)

and the Portuguese Province ofuinea. The letterof Franceproposed
(interalia)that:

"As far astheouterlimitof the territorial sea, the
boundary shallconsistof a straight linedrawnat 240' fromthe
intersection ofthe prolongatioof the land frontier and the
low-watermark, represented for thaturposeby the Cape Roxo
lighthouse.

As regardsthe contiguous zoneasnd the continental shelfthe
delimitation shall bconstitutedby the prolongation ian straight
line, in thesamedirection, of the boundary othe territorial
seas."

The letterof Portugalexpressedits agreementto thisproposal.

After the accessiorlo independencof Senegaland Portuguese Guinea,
which becameGuinea-Bissau, daispute arose betweenhesetwo States
concerning thedelimitationof theirmaritimeareas. This dispute wasthe
subjectof negotiations betwee nhem from1977 onward,in the course of which
Guinea-Bissau insistedt:hathe maritimeareasin question be delimited
without referencteo the1960Agreement, disputingitsvalidityand its
opposabilityto Guinea-Bissau.

On 12 March 1985the Partiesconcludedan Arbitration Agreemenfor
submissionof thatdisputeto an Arbitration Tribunal, Artic 2lof which
Agreementreadas follows:

"TheTribunalis requestedto decidein accordance with the
normsof internationallaw on the following questions:

1. Does theAgreementconcludedby an exchangeof letterson

26 April 1960,and whichrelatesto themaritime boundary, hav the
forceof law in the relationsetweenthe Republicof Guinea-Bissau
and theRepublicof Senegal?

2. In the eventof a negative answerto the firstquestion,
what is the courseof the linedelimiting thearitime territories
appertainingto the Republicof Guinea-Bissau and the Repubolic
Senegalrespectivel.y?"

Article9 of theArbitrationAgreementprovided,amongotherthings,
thatthe decision"shallinclude the drawin of the boundary linon a map".

AnArbitration Tribuna (hereinafter called "t hribunal")was duly
constitutedunderthe Agreement, Mr. MohammedBedjaouiand Mr. André Gros
having successively beeappointedas arbitratorsand Mr. JulioA. Barberis
as President. On 31 Ju1.1989the Tribunalpronounced the Awar the
existence and validityf whichGuinea-Bissau has challenged ithe present

case.

The findingsof thcTribunal weresummarizedby the Courtas follows:
the Tribunalconcludedthat the 1960 Agreemenwas validand could be opposed
to Senegal andto Guinea-Bissau(Award,para.80); that it had to be
interpretedin the lightof the law in forceat the date ofits conclusion
(ibid., para8.5); that "the 1960Agreementdoes not delimitthosemaritime spaces which
did not existat thatdate, whether theybe termedexclusive
economic zone, fishery zone or whatever..",

but that

"the territorialsea, the contiguous zoneand the continental
shelf ... are expressly mentioned tine 1960Agreementand they
existedat the time of its conclusion"(ibid.).

After examining"the questionof determining how far the boundary line
extends ... today,in view of the evolutionof the definitionof the concept
of 'continentalshelf"',the Tribunalexplained that

"Bearingin rnindthe aboveconclusions reacheb dy the Tribunal

and the wordingof Article2 of the Arbitration Agreement in the
opinion ofthe Tribunalit is not calledupon to replyto the
secondquestion.

Furthermore,in view ofits decision, the Tribunalconsidered
that therewas no need to append amap showing the coursoef the
boundaryline." (Award,para. 87.)

The operative clauseof the Awardwas as follows:

"For the reasons statedabove,the Tribunaldecidesby two
votes to one:

To replyas followsto the first question formulate in
Article2 of the ArbitrationAgreement: The Agreement conclude dy
an exchangeof lettersof 26 April 1960,and relatingto the
maritime boundaryh,as the forceof lawin the relations between
the Republicof Guinea-Bissau and th Republicof Senegalwith
regard solelyto the areasmentionedin thatAgreement, namely the
territorialsea, the contiguous zonaend the continentalshelf.
The 'straightline drawnat 240"' is a loxodromicline."

(Para. 88.)

Mr. Barberis, Presidenotf the Tribunal,who, togetherwith Mr. Gros, W
voted for the Award, appenda eddeclarationto it, whileMr. Bedjaoui,who
had voted against the Award, appena ddissentingopinion. The declaration
of Mr. Barberisread, in particular,as follows:

"1 feel that thereplygiven bythe Tribunalto the first
question putby the Arbitration Agreemen couldhave been more
precise. 1 wouldhave repliedto that questionas follows:

'TheAgreement conclude by an exchangeof lettersof
26 April 1960,and relating ttohe maritime boundary has the
forceof law in the relations between the Republ ofc
Guinea-Bissauand the Republicof Senegalwith respectto the
territorialsea, the contiguous zonaend the continental
shelf,but does not havethe forceof law withrespectto the
watersof the exclusive economiczone or the fishery zone.
The "straightline drawnat 240""mentionedin the Agreement
of 26 April 1960is a loxodromicline.'

This partially affirmativ and partially negative replyis, in
my view, the exact descriptio on the legal positionxisting
betweenthe Parties. As suggestedby Guinea-Bissau in the course of the present arbitrati( oneply,p. 248),this reply woulhdave
enabled theTribunalto deal in itsAwardwith the secondquestion
put by the ArbitratioAngreement. The partiallynegativereplyto
the first question woulhave conferredon the Tribunala partial
competenceto replyto the second, i.e.,to do so to the extent
that thereplyto the first questionwouldhave beennegative.

The Tribunalheld apublicsittingon 31 July 1989 for deliveryof the
Award; Mr. Barberis,the President, and Mr. Bedjaouiwere present, but not
Mr. Gros. At thatsitting, after the Award hadbeen delivered,the
representativoef Guinea-Bissau indicatt edat,pendingfull reading of the
documentsand consultatiow nith hisGoverment,he reservedthe positionof
Guinea-Bissau regardit nge applicabilityand validityof theAward,which
did not, in hisopinion, satisftyhe requirementslaid downby agreement

betweenthe two Parties. After contacts betwee the Governmentsof the two
Parties,in whichGuinea-Bissau indicated its reasons fonot acceptingthe
Award,the proceedings were brought befo the Courtby Guinea-Bissau.

II. Questionof the jurisdictionof the Court.of the admissibilit~of the
ADDlicationand the possibleeffectof the absenceof an arbitrator
fromthemeetingat whichthe Awardwas delivered(paras.22-29)

The Court first considerits jurisdiction.In its application,
Guinea-Bissau foundsthe jurisdictionof the Courton "thedeclarations by
which the Republicof Guinea-Bissau and tR hepublicof Senegalhave
respectively accepte t'hejurisdictionof the Courtunderthe conditions set
forthin Article36, paragraph2, of the Statute"of the Court. These
declarationswere depositedwith the Secretary-Generalof theUnited Nations,
in the caseof Senegalon 2 December1985,and in the caseof Guinea-Bissau
on 7 August1989. Guinea-Bissau'd seclaration containendo reservation.
Senegal'sdeclaration, ,whicreplaced thepreviousdeclaration of 3 May 1985,
providedamong other thingsthat "Senegal may reject th Court'scompetence
in respectof: Disputes inregardto whichthe partieshave agreedto have
recourseto some otherimeansof settlement ...",and specifiedthat it
appliedonly to "al1le,galdisputes arising afte the present

declaration ..".

Senegalobservedthat if Guinea-Bissauwere to challengethe decisionof
the Tribunalon themerits, it wouldbe raisinga questionexcludedfrom the
Court'sjurisdiction by the termsof Senegal's declarationA.ccordingto
Senegal,the dispute comcernin themaritimedelimitation was the subjectof
theArbitration Agreementof 12 March1985and consequently feli lnto the
categoryof disputes "iinregardto whichthe partieshave agreedto have
recourseto some other methodof ~ettlement~.Furthermore, in the view of
Senegal,that dispute a:rosbefore 2 Decembe1r985,the date on which
Senegal'sacceptance of the compulsoryjurisdictionof the Court became
effective,and is thusexcludedfromthe categoryof disputes"arising after"
that declaration.

However,the Parties wereagreed that ther was a distinctionbetween
the substantivedisputerelatingto maritime delimitation and thedispute
relatingto the Award renderebdy theTribunal,and thatonly the latter
dispute, which arosaefterthe Senegalesedeclaration, is the subjectof the
proceedings before th Court. Guinea-Bissaualso tookthe position,which
Senegal acceptedt,hat thoseproceedingswere notintendedby way ofappeal
from theAwardor asan application for revisionof it. Thus,both Parties

recognize thanto aspectof the substantivedelimitationdisputewasinvolved. On this basis, Senegal di not disputethat the Court had
jurisdictionto entertain the applicatiu onderArticle36, paragraph2, of
the Statute. In the circumstanceosf the case the Court regarded its
jurisdiction as establishedand emphasizedthat,as the Partieswere both
agreed, the proceedings allet gee inexistenceand nullityof the Award
renderedby the Tribunal and were not by way of appealfromit or application
for revisionof it.

The Courtthen considersa contention by Senegalthat Guinea-Bissau's
applicationis inadmissible in so far as it soughtto use the declaration of
President Barberisfor thepurposeof casting doubt on the validityof the
Award. Senegal argues in particularthat thatdeclaration is not part of the
Award, and therefort ehat any attempby Guinea-Bissauto make useof it for
that purpose"mustbe regardedas an abuse of process aime at depriving
Senegalof the rights belongint go itunder the Award".

The Court considersthat Guinea-Bissau' spplicationhas been properly
presentedin the framework of its rightto have recourseto theCourt in the
circumstancesof the case. Accordinglyit does not acceptSenegal's
contentionthat Guinea-Bissau'sapplication, or the arguments used in support-
of it,amountto an abuseof process.

Guinea-Bissaucontendsthat theabsenceof Mr. Gros from the meeting of
the Tribunalat which the Awardwas pronouncedamountedto a recognitition
that the Tribunal hadfailedto resolve the dispute, that th wias a
particularly important meetio ngthe Tribunaland that the absenceof
Mr. Gros lessened theTribunal's authority. The Courtnotes thatit is not
disputed thatMr. Gros participateidn the votingwhen the Awardwas
adopted. The absenceof Mr. Gros fromthatmeeting could not affect the
validityof the Awardwhichhad already been adopted.

III. Questionof the inexistenceof the Award(paras.30-34)

In supportof its principal contentio that theAward is inexistent,
Guinea-Bissau claimtshat the Awardis not supportedby a realmajority. It
doesnot dispute thefact thatthe Awardwas expressedto have beenadopted
by the votesof President Barberisand Mr. Gros; it contendshoweverthat
PresidentBarberis'sdeclaration contradicte and invalidatedhis vote,thus
leaving the Award unsupportb eda realmajority. In this regard
Guinea-Bissaudrew attentionto the termsof the operative clauso ef the w
Award (seep. 4 above)and on the language advocate by PresidentBarberisin
his declaration(ibid.).

The Court considers thati,n puttingforward this formulation, what
President Barberishad inmind was that the Tribunal'sanswerto the first

question"couldhave been more precise" - to use his ownwords -,not that it
in his view, a preferableone, nota necessaryone. In the opinionof theas,
Court, the formulation disclos noscontradictionwith that of the Award.

Guinea-Bissau alsdorew attentionto the fact thatPresidentBarberis
expressed theview thathis own formulation "wouldhave enabled theTribunal
to deal in its Awardwith the second questioput by the Arbitration

Agreement"and that the Tribunal wouldin consequence"havebeen competentto
delimit the waterosf the exclusive economic zone tohre fishery zone between
the twocountries",in additionto the otherareas. The Court considers that
the view expressedby President Barberis, thatthe replywhichhe would have
given to the first question woulhave enabledthe Tribunalto deal with the
second question, represente not a position takenby him as to what theTribunalwas requiredto do, but onlyan indicationof what he considered
wouldhave beena bettercourse. His position therefore coul not be
regardedas standingin contradiction with the position adopted by the
Award.

Furthermore, even if there had been any contradiction, for eio therhe
two reasons relied on by Guinea-Bissau, between the view expres byed
President Barberisand that statedin the Award,the Courtnotes thatsuch
contradiction couln dot prevail over the positio which PresidentBarberis
riadLakenwhen voting forthe Award. In agreeingto the Award,he
definitively agreedto the decisions, which it incorporated, as to the extent
of the maritimeareasgovernedby the1960Agreement,and as to the Tribunal
not being required to answerthe second question in view of its answerto the
ilist, The Court addsthat as the practiceof international tribunals shows,
î: sometimes happens tha atmemberof a tribunal votes in favourof a

&%cilsioonf the tribunal even thoug he might individually have beeninclined
t~ prefer another solution. The validityof his vote remains unaffecte bdy
the:expressionof any such differencesin a declarationor separateopinion
cl the member concerned, which are therefore without consequence for the
nerisionof the tribunal.

kccordingly, in the opinionof the Court, the contentio of
?.nlnea-Bissa that the Award was inexistent for lacokf a realmajority
%:mot be accepted.

IV. Questionof the nullitvof the Award (paras.35-65)

Subsidiarily, Guinea-Bissaumaintains that the Awar is, asa whole,

~III;and void, on the groundsof excèsde vouvoirand of insufficiency of
r-asuning. Guinea-Bissau observesthat theTribunal did not replyto the
secmd questionput in Article2 of the Arbitration Agreement and did not
ayyendto the Award the map provided forin Article 9 of that Agreement. It
17 contendedthat thesetwo omissions constitut an excèsde vouvoir.
Fu~~bermore, no reasons,it is said,were given bythe Tribunal for its
bccieionnot to proceedto the second question, fo not producinga single
Soiimitationline,and for refusing to draw that line on a map.

-- Absenceof a revlyto the secondauestion

.calGuinea-Bissau su.ggesttshatwhat the Tribunal di das not to decide

not co answer the second questip ount toit; it simplyomitted, for laco kf
a revlmajority,to reach. any decisionat al1 on the issue. In this respect
Güfn.ea--Biss stressesth.atwhat is referred toin the first sentenco ef
psragraph87 of the Awardas an "opinionof the Tribunal" on the point
appearsin the statement of reasoning,not in the operative clauso ef the
Award; that the Award do'enot specify the majorityby which that paragraph
wc>~ldhave been adopted; and that only Mr. Gros couldhave voted in favour
of this paragraph. In th~e lightof the declaration madb ey
President Barberis, Guinea-Bissau questions whether any wasotekenon
paragraph 87. The Court recognizes that the structure of the Awardis, in
tnatrespect,open to criticism. Article2 of the Arbitration Agreemen ptut

twc questionsto the Tribunal. The latterwas, accordingto Article 9, to
"i~farmthe twoGovernmen~to sf its decisionregarding the questions sf etrth
iriArticle2". Consequen~tly the Court considers thaitt wouldhave been
normal to includein the operative part of the Awardboth the answer given to
the first questioa nnd thidecisionnot to answer the second. Its to be
regretted that this coursewas not followed. Nevertheless the Cour ts of
the opinionthat the Tribunalw ,hen it adoptedthe Award,was not only
approving the content of paragra 88, but was also doingso for the reasonsalready stated in the Award and, inparticular, in paragrap 87. It is clear
from that paragraph, takenin its context,and also fromthe declaration of
President Barberist ,hat the Tribunal decidebdy twovotes to one that, asit
had given an affirmative answetro the firstquestion,it did not have to
answer thesecond. The Court observes that ,y so doing,the Tribunaldid
take a decision: namely, notto answerthe secondquestionput to it. It
concludes that thA eward is not flawed byany failureto decide.

(b) Guinea-Bissau argues, secondl that any arbitralawardmust, in
accordancewith general international law, a bereasonedone. Moreover,
accordingto Article9 of the Arbitration Agreement the Parties had
specifically agreet dhat "the Awardshall state in fultlhe reasonson which

it is based" Yet, accordingto Guinea-Bissau, the Tribunalin this casedid
not give any reasoning in suppoo rt its refusa1to replyto the second
questionput bythe Partiesor, at thevery least, gave "wholly insufficient"
reasoning. The Court observes that in paragraph87 of the Award,referredto
above,the Tribunal, "bearingin mind the ... conclusions"that it had
reached, togetherwith "thewordingof Article 2 of the Arbitration
Agreement", took the vie that it was not calledupon to replyto the second
questionput toit. The reasoning is brfef,and coulddoubtlesshave been
developedfurther. But the referencei sn paragraph87 to the Tribunal's
conclusionsand to the wording of Article 2 of the Arbitration Agreement make
it possibleto determine, without difficulty, the reasons why the Tribunal
decidednot to answer the seconq duestion. The Court observes that ,y
referringto the wordingof Article 2 of the Arbitration Agreement ,he
Tribunalwas noting that, accordin to thatArticle,it was asked, first,
whether the1960Agreement had"the forceof lawin the relations" between
Guinea-Bissau and Senegal,and then,"in the eventof a negative answer to

the first question, what is the couo rsethe line delimitintghe maritime
territories" of the two countries. Byeferrringto the conclusions thatit
had already reached, the Tribun was notingthat it had, in paragraphs80
et sea. of the Award, found thatthe 1960Agreement,in respectof which it
had already determinetdhe scopeof its substantive validity was "validand
can be opposedto Senegaland toGuinea-Bissauv'H .avinggivenan affirmative
answerto the first questiona ,nd basing itselfon the actualtext of the
Arbitration Agreement, the Tribun foundas a consequencethat it did not
have to replyto the secondquestion. The Court observes that thatstatement
of reasoning, while succinct,is clearand precise,and concludesthat the
second contentioo nf Guinea-Bissaumust alsobe dismissed.

(C) Thirdly, Guinea-Bissau challenges the valio dityhe reasoningthus
adoptedby the Tribunalon the issuewhetherit was required to answerthe
second question:

(i) Guinea-Bissau first argue that the Arbitration Agreement on its true

construction, required the Tribun tolanswer the second question
whatever mighthave beenits replyto the first, In this connection,
the Court would first recat llat in the absenceof any agreement to the
contraryan international tribuna has the rightto decideas to its own
jurisdictionand has the powerto interpret for thip surposethe
instrumentswhich governthat jurisdiction.In the present caset ,he
Arbitration Agreement had confirt medt theTribunal hadthe powerto
determine itsown jurisdiction and tointerpretthe Agreement for that
purpose. The Court observes thatby its argument set oua tbove,
Guinea-Bissau isin fact criticizing the interpretationin the Award of
the provisionsof the Arbitration Agreemen which determine the
Tribunal'sjurisdiction, and proposing another interpretation. However,
the Courtdoes not haveto enquire whether or not the Arbitration
Agreement couldw,ith regardto the Tribunal'scompetence, be
interpreted i.a numberof ways, and if so to considerwhichwould havebeen preferable.The Courtis of the opinion thatby proceedingin that
way it wouldbe treatingthe requestas an appealand not as a recours
en nullité. The Courtcouldnot actin thatway inthe present case.
The Courthas simplyto ascertain whetheb ry rendering the disputed

Award the Tribunalac:tedin manifestbreachof the competenceconferred
on it bythe Arbitration Agreement, eitheby decidingin excessof, or
by failingto exercise, itsjurisdiction.Suchmanifestbreach might
result from, forexaniplet,he failureof theTribunal properlt yo apply
the relevantrulesof interpretatiot no the provisionsof the
ArbitrationAgreementw:hichgovern its competenceT .he Court observes
thatan arbitration agreementis an agreement between Statw esichmust
be interpretedin accordancewith the generalrulesof international law
governing the interpretati oofntreaties. Itthen recalls the
principles of interpretation laidownby its case-law and observesthat
theseprinciples are reflecti edArticles31 and 32 of the Vienna
Convention on the Law of Treatieswhichmay in many respectsbe
considered as a codificatioof existing customary internatiol nalon
the point. The Court alsonotesthatwhen Statessign an arbitration

agreement, they are concluda innagreementwith a very specificobject
and purpose: to entrustan arbitration tribuna with the taskof
settlinga dispute in accordancewith the terms agreebdy the parties.
In the performanceO:€the task entruste do it, the tribunal must
conformto thoseterrns.

The Court observes thati,n the presentcase,Article2 of the
ArbitrationAgreementpresenteda first question concerning the
1960Agreement,and thena second question relatit ngdelimitation.A
replyhad to be givento the second question "in the eve ofta negative
answerto the firstquestion".The Courtnotes that thoselast words,
which wereoriginally propose by Guinea-Bissau itself are
categorical.It goerson to examine situationin which international

judicialbodieswere askedto answer successive questions made
conditionalon each other ornot. The Courtnotes that in factin the
present case thePartiescouldhave used somesuch expression as that
the Tribunal should answer the second questi"takinginto account" the
replygivento the f:irstb ,ut they didnot do so; they directedthat
the second question should be answered " onlthe eventof a negative
answer"to that first question. Relyingon variouselementsof the text
of the Arbitration Agreement, Guinea-Bissau nevertheless cot nsitders
the Tribunalwas reqiuiretdo delimitby asingleline thewhole ofthe
maritimeareasapper'tainin to one or the otherState. As, for the
reasonsgiven bythe Tribunal, its answt er the first question puin
the Arbitration Agreemec ntuldnot lead to a comprehensive
delimitation,it followed,in Guinea-Bissau'vsiew,that,

notwithstanding theprefatorywordsto the second question, the Tribunal
was requiredto answer that questio and to effect the overall
delimitation desire by both Parties.

After recalling thecircurnstancein which the Arbitration
Agreementwas drawnup, the Court notesthat the two questions ha ad
completely differentsubject-matter.The first concerned the issue
whetheran internatilonaagreement had thfeorceof law in the relations
betweenthe Parties; the second was directedto amaritime delimitation
in the eventthat th.atagreement did not havsuch force. Senegalwas
countingon an affirmativeanswerto the first question and concluded
that the straight1i:neon a bearingof 240°,adoptedby the
1960Agreement, woulldconstitute the single line separating the whole of
the maritimeareasof the two countries. Guinea-Bissauwas countingon

a negative answetro thefirst question and concludedthat asingle
dividing line for the who ofethe maritimeareasof the two countries wouldbe fixedex novo bythe Tribunal in replyto the secondquestion.
The two Statesintendedto obtaina delimitation of thewholeof their
maritime areasby a singleline. But Senegal was countingon achieving
this result througahn affirmative answe ro the firstquestion,and
Guinea-Bissau throug ahnegative answetro that question.The Court
notes thatno agreement hadbeen reached between the Parti aessto what

shouldhappen inthe event of an affirmative answer leading otnlya
partial delimitation and as to what might bthe taskof the Tribunal
in such case,and that the travauxvrévaratoiresaccordingly confirmthe
ordinary meaninogf Article2. The Courtconsiders that this conclusion
is not at variancewith the circumstancethatthe Tribunal adoptedas
its title"Arbitration Tribunal for the Determinato iontheMaritime
Boundary: Guinea-Bissau/Senegalo ",with its definition, in
paragraph27 of the Award,of the "soleobjectof the dispute" as being
one relatingto "thedetermination of the maritime boundary betwe the
Republicof Senegaland the Republicof Guinea-Bissaua , question which
theyhave not beenable to settleby meansof negotiation ...". In the
opinionof the Court, thattitleand thatdefinition are to be readin
the lightof the Tribunal's conclusio whichthe Courtshares,that,
while the Tribunal's mandate did incl theeakingof a delimitation of w
al1 the maritimeareasof the Parties, this fet ll be done onlyunder
the second questio and "in the eventof a negative answetro the first
question". The Courtnotes,in short,that although the two Stat had
expressedin general terms in the Preambleof the Arbitration Agreement

their desireto reacha settlement of their dispute, their consent
theretohad onlybeen given in the termslaiddownby Article 2 of the
ArbitrationAgreement. The Court concludes that consequently the
Tribunal didnot act in manifestbreachof its competenct eo determine
its own jurisdictionby decidingthatit was notrequiredto answerthe
second question excep in the eventof a negative answetro the first,
and that the first argument mb ustrejected.

(ii)Guinea-Bissau thenarguesthatthe answerin factgiven bythe Tribunal
to the first questio was a partially negative answaerd thatthis
sufficedto satisfy the prescribed condition foenteringinto the
secondquestion. Accordingly, and as was to beshownby the declaration
of President Barberis, the Tribunal was,t is said,both entitledand
bound to answerthe secondquestion.
w'

The Court observesthatGuinea-Bissau cannot bai ses arguments
upon a formof words (thatof President Barberis)which was notin fact
adoptedby the Tribunal.The Tribunal foundi ,n replyto the first
question, that the1960 Agreement had the foroce law in the relations
between the Parties and at thesame timeit definedthe substantive
scopeof thatAgreement. Suchan answer did not permitof a
delimitationof thewholeof the maritime areasof the two States,and a
complete settlemen of the dispute betweethem. It achieved a partial
delimitation. Buthatanswerwas nonetheless both a completeand an
affirmative answe ro the firstquestion. The Tribunal couldthusfind,
withoutmanifestbreachof its competence, that its answerto the first
questionwas nota negativeone,and that it was therefore not competent
to answer the seconqduestion. The Court concludes tha in thisrespect
also, the contentio of Guinea-Bissauthatthe entireAward is a nullity
must berejected.

2. Absenceof a mav

Finally Guinea-Bissau recalls that, accor toingticle9, paragraph 2,

of the Arbitration Agreement, d theisionof theTribunalwas to "include
the drawingof the boundary lino en amap",and thatno suchmap was producedby the Tribunal. Guinea-Ebissa uontendsthat the Tribunal also di dot give
sufficient reasons forits decisionon that point. It is contendedthat the
Award should,for thesereasons,be considered wholly nul1 and void.

The Court considerst.hatthe reasoningof the Tribunalon this point is,
once again,brief butsuff'icient to enlighten thePartiesand the Courtas to
the reasonsthatguided theTribunal. It found that tboundary line fixed

by the 1960Agreementwas a loxodromicline drawnat 240" from the pointof
intersection of theprolorigatio nf the land frontiearnd the low-waterline,
represented for thatpurpciseby the Cape Roxolighthouse. Since it did not
replyto the second questioni ,t did not haveto defineany otherline. It
thus considered thatthereiwas no need to draw on a map a linewhich was
commonknowledge, and the definitive characteriso tiwhich it had
specified.

In view ofthe wordirigof Articles2 and 9 of the Arbitration Agreement,
and the positionstakenby theParties before thT eribunal,the Courtnotes
that it is open to argument whetherin the absenceof a replyto the second
question, the Tribuna was under an obligationto producethe map envisaged
by the ArbitrationAgreement. The Court does not howeverconsiderit
necessaryto enter intosuch a discussion. In the circumstanceo sf the case,
the absenceof a map cannotin any eventconstitutesuch an irregularity as

would render the Awardinvalid. The Court concludes that the last argument
of Guinea-Bissauis therefore alsonot accepted.

V. Final observation(sparas.66-68)

The Court nonetheless take note ofthe fact that the Awar has not
brought about a completeclelimitatioonf the maritimeareas appertaining
respectively to Guinea-Bissau and to Senegal It wouldhoweverobservethat
that result is due to the wordingof Article2 of the ArbitrationAgreement.

The Courthas moreove!rtakennote of the fact thaton 12 March 1991
Guinea-Bissau filei dn the Registrof the Courta second Application
requesting the Court toacljudgeand declare:

"Whatshouldbe, on the basisof the international law of the

sea and ofal1 the relevant element of the case, including the
future decisionof the Courtin the case concerning the arbitral
'award'of 31 July 1989,the line(to be drawnon the map)
delimitingal1 the maritimeterritories appertaining respectively
to Guinea-Bissauand Senegal."

It has alsotakennote of the declaration made bythe Agentof Senegal
in the present proceedings, accordi togwhich one solution

"wouldbe to negotiat:weith Senegal,whichhas no objectionto
this,a boundary for the exclusive econoz mice or,should it
prove impossibleto reachan agreement,to bring thematterbefore
the Court".

Having regardto that Applicationand thatdeclaration,and atthe close
of a long and difficult arbitral proceduared of theseproceedings before

the Court,the Court considersit highly desirable that the elementsth of
dispute thatwere not sett:leby the Arbitral Awardof 31 July 1989 be
resolvedas soon as possible,as both Parties desire. Annexto PressCommuniaué No. 91/32

Summarv 13fDeclaration~and Opinionsappended
to theJudpementof the Court

Declarationby Jud~eTar$assov

JudgeTarassovbegiinshis declarationby stating thathe voted forthe
Judgment bearinign mind thatits solepurposeis to solvethe dispute
between the Republi of Guinea-Bissauand the Republicof Senegalrelatingto
the validity or nullitylofthe Arbitral Awarodf 31 July 1989,and thatthe
Court didnot examine - ,anwas notaskedby the Parties to examine- any of
the circurnstanceand evidence relatintgo the determinatioonf the maritime
boundaryitself. From a procedural pointof view,he agreeswith the
analysis and conclusioo nsthe Courtthatthe submissions and argumen ofs
Guinea-Bissau against the existence or valo idithe Awardare not
convincing.

He thenpoints outthatthe Awardcontainssome seriousdeficiencies
which cal1 for strong criticismsI.n his view,the Arbitration Tribund ald
not accomplish thmeain task entrustetdo itby the Parties,inasmuchas it
did not definitively settle the dispute about the delimio tatal1n
adjacent maritime territories appertai tnongchof the States. The
Tribunal shoulhdave informed the Partieosfits decisionwith respectto the
two questions puitn Article2, and its contentionin paragraph87 of the
Award thatit was not calledupon to replyto the second questionbecauseof
"theactual wording of Article2 of theArbitration Agreement"doesnot
sufficeto substantiate thd eecisiontakenon suchan importantissue.

The Tribunalalso didnot state whether the straight linerawnat 240°
providedby the 1960 Agreement mighotr mightnot beused for the
delimitationof the economiczone. JudgeTarassov considers that al1 these

omissions, togethe with the Tribunal'srefusa1to appenda map (in
contradictionwith Article9 of the ArbitratioAngreement),did not help to
solve thewholedispute betweet nhe Partiesand merely paved thweay to the
new Applicationby Guinea-Bissauto the Court.

Declaration bvJudne M'baye

In his DeclarationJudgeMbayeexpresses seriousdoubts overthe
jurisdictionof the Courtto entertain, on the solebasisof the provisions
of Article36, paragraph2, of its Statute,an application contesting the
validityof an arbitralaward. This is why he is pleased that the Court,
takingnote of the positionof the Parties,consideredits jurisdiction to be
established onliyn view of "thecircumstanceso"f the case,thusavoidinga

precedent that could bii nd in future.

SeparateOpinionof Vice-President Oda

Inhis separateopinion,Vice-President ODA expresses th view thatthe
submissionsof Guinea Bissaucouldhave beenrejectedon simpler groundt shan
thoseset forthat lengthin the Judgment.In the firstplace,
GuineaBissau'scontention that the Awaw rds inexistentecausethePresidentof the Tribunal, in his declaration,"expressed a view in
contradiction with the one apparently adoptbed the vote"was untenable
becausethe declaration corroboratt ede substanceof the decisionvotedupon
in paragraph 88 of the Award,and any differenceof viewdisclosedby it
related solely to paragraph87. Secondly,Guinea-Bissau's allegationof
nullity, based on the factsthat the Tribunaldid not answer the second
question putto it, and neither delimitet dhe maritime areaas a wholenor
recordeda singlelineupon a map, simply reflected the fact that the

Arbitration Agreementhad not beendraftedin termswhich Guinea-Bissau found
to be in its interest. The allegationcouldnot be sustained,becausethe
Tribunal hadgiven a fully affirmative answe to thefirst question put to
it, as was shown bythe very fact that PresidentBarberishad had torephrase
that answerin order to suggestthat it couldbe seen as partiallynegative.
Henceno answerto the second question ha been required.

Vice-PresidentOda continuedby analysing the backgroun to the dispute
and the drafting of the Arbitration Agreement,ointingout that the two
States had had opposite reasons for highlight tinquestionof the validity
of the 1960Agreement while eaci hntendingto achievea delimitation for W
their exclusive economi zones aswell as other maritime areas. The
Arbitration Agreement ha not howeverbeen draftedin such a way as to
guarantee that result a,deficiency forwhich the Tribunalcouldnot be

blamed. It was rather the representativo es the two countrieswho had
displayed insufficient grasp of the premises of n theiriationin the
light, particularlyo ,f the interrelatioonf the exclusive economic zoaned
the continental shelf.

Vice-PresidentOda further doubts whethet rhe introduction of
proceedingsin the Court had any meaningful object,since the positionsof
the Partiesin relationto the principal object of their dispute- namely,
the delimitation of their exclusive economizones - wouldhave remained
unaffected even if the Courthad declared the Award inexiste ntnul1 and
void. The present issue between the two States sho beldhe delimitatioonf
thosezones in a situation where the existenceof a loxodromicline at 240'
for the continentas lhelfhas been confirmed. Accordingly,and without

prejudiceto the interpretatioo nf the new Application presentetdo the
Court,Vice-President Oda points out, finally, thi atany further
negotiation the two States mu stoceedon one of two assumptions,either
that separaterégimes for the continents alelfand exclusive economic zone
may CO-exist,or that theyintendto arriveat a singleline of delimitation
for both; in the latter case, however, there wob uldroom for negotiation
only on the assumptionthat the now established continenta shelfboundary
may be subjectto alterationor adjustment.

SevarateOpinionof Judne Lachs

Judge Lachs, in hisseparateopinion, stresses thatwhilenot actingas
a courtof appeal, the Courw tas not barredfrom dealing with theentire
process traversebdy the Tribunalin its deliberationsw ,hichhas shown

seriousflaws. The declarationof the Presidentof the Tribunalcreateda
seriousdilemmaand a challenge.He finds theway the replywas framedopen
to seriousobjections. It is not only too brief butinadequate. The absence
of a chartdid not constitute"suchan irregularity as would renderthe Award
invalid"but elementary courtesy requir that thematterbe dealtwith in a
differentway. He regretsthat the Tribunal did not succeedin producing a
decisionwith the cogencyto commandrespect.Se~arateOpinionof JudgeNi

Judge Ni statesin :hisseparateopinion that he agrees generallwyith
the line of reason.ingn the Judgment buthe feels that certain aspect cal1
for elaboration. He thi:nksthat thequestionof the exclusive economic zone
constituted no part oft;heobjectof the arbitrationand thatMr. Barberis's
declaration attachet do the Award dinot override or invalidatehis vote for
the Award. Judge Ni thi:nksthat areplyby the Arbitration Tribuna to the
second question in Article2, paragraph2, of the Arbitration Agreement would
have been mandatory onlyif the first question habdeen answeredin the

negative. This is not o:nlyclearly statedin the Arbitration Agreemenb t,t
also confirmed by thene.gotiationwshichpreceded the conclusio of the
ArbitrationAgreement. Sincethe first questiow nas answeredin the
affirmative, no ex novo(delimitatioby a single lineof al1 the maritime
spaceswas to take place, no new line of the boundary woulde drawnand
consequently no mapcoulldhave beenappended. Al1 theseare interlinked and
the reasoning in the Arbitral Awardis to be viewed in its entirety.

Se~arateOpinionof JudneShahabuddeen

In his separateopi:nionJ,udge Shahabuddeen observetdhat,on the main
issueas to whether the 'Tribunalshouldhave answered the second questip ont
to itby the Arbitration Agreement, the Court sustained the o Awarde
ground that,in holding that it was notcompetentto replyto that question,
the Tribunalinterpreted the Agreemen in a way in which it couldhave been
interpreted withoutmanifestbreachof competence. He noted that the Court
did not go on to considerwhether the Tribunal's interpretato inothat point

was indeedcorrect. This was becausethe Court,in relianceon the
distinction betweennullityand appeal, took thv eiew that it was beyondits
authorityto do so. Judge Shahabuddeen considered, first, that that
distinction didnot preclude the Court from pronounci onngwhether the
Tribunal's interpretatio,was correct, provided tha tn doing so the Court
took account of considerationsof securityof the arbitral proceswsith
referenceto the fina1it.yf awards; and, second, that t Tribunal's
interpretationwas indeedcorrect.

Joint DissentinnO~inionof JudnesAnuilarMawdslev and Ranleva

JudgesAguilar Mawdsley and Ranjevahave appendeda joint dissenting
opinionthat primarily centre upon an epistemological criticisof the
approachadoptedby the .ArbitratioTnribunal. The problemof the
nullity/validityor invalidityof an arbitral award involvesmore than an

assessment resting exclusive lythe axiomatic foundation of law. The
authorityof res ludicatgwith which any judicial decisionis vested performs
its function fullwyhen that decisionis subscribedto by the convictio luris.

Confiningthemselvesto the Court'sjurisdictionto excercise control
over arbitral awardsonce theyhave become final, JudgesAguilar Mawdsleyand
Ranjeva refrain from substituting theirwn way of thinkingand
interpretation forthoseof the Arbitration Tribunal but take except toon
its method- which is,rnoreover,recognizedby the Courtas being open to
criticism. How, indeed, can one justify the Tribunal's complete fail ture
explainthe absenceof a complete delimitation resultin on,the one hand,
from the affirmative repg lyven to the first questionnd, on the other,
from the decisionto refuseto answer the second? Contrary the opinion of
the Court, theauthorsof the joint dissentino gpiniontake theview that the
Arbitration Tribunal ,y decliningto give an answerto the second questionhas committedan excès de pouvoir infv rati- or through omissio -na
hypothesis hardly eve encounteredin the international jurisprudencT e.e
Tribunal shoulh dave simultaneouslyakenintoaccount the threc eonstitutive
elementsof the Arbitration Agreemen t,mely,the letter,the objectand the
purpose,in orderto interpretthatArbitration Agreemen wthen it cameto
restructure the dispute.Recourseto a technique of argumentby logical
conclusion as a basis for thereasoriingeadingto the dismissal, firstly, of
an application aimeadt the recognitioonf a rightand,subsequently, of a
request for the compilati ofna map constitutesi,n the view of Judges
Aguilar Mawdslea ynd Ranjeva,an excès de pouvoir,n as much as the logical
conclusion is conceivable on ilfythe relationof causality betweetnhe two

propositions are ineluctab innature,which is manifestlynot the case with
the contested Award giventhe declaratioo nf Mr. Barberis,the Presidenof
the Tribunal, and the dissenting opinionf one arbitratorM,r. Bedjaoui.

In the judgmentof the authorsof the joint opinion ,incethe Courtwas
not actingas a courtof appealor ofcassation, it was undera duty to be
criticalof any arbitral award with which itmightdeal. Amongthe tasks
comprising the missio of the principal judicioalganof the international W
communityis thatof guaranteeing both respect forthe rightsof partiesand
a certain qualitoyf reasoningby other international cour ansd tribunals.
The membersof the international community i ardeeedentitledto benefit
froma sound administratio of internationalustice.

Dissentina Opinion of JudaWeeeramantry

JudgeWeeramantry, in his dissenting opinion, expresshis full

agreement with the Court's rejectioof Guinea-Bissau'pslea of inexistence
of the Awardand of Senegal's contentioo ns lackof jurisdictionand abuse
of legalprocess.

However,he disagreed with the majoritof the Courton the
interpretatioonf the Arbitration Awar and on the questioof itsnullity.
While it is importantto preserve the integrioty arbitral awardsh,e
stressed that it was also importanto ensurethatthe award complied with
the termsof the comvromis.Where there was aseriousdiscrepancy between
the awardand the comvromis, the princip ofecompétencede la comvétencdid
not protect theaward. w

In his view, the Awardin this case departed materially fromte thes
of the compromisin that it did not answer Question and left the workof
the Tribunal substantially incompb letnot determining the boundari es

the exclusive economic zo and the fisherzone. An interpretatioo nf the
compromisin the lightof its context and itsobjectsand purposesled
necessarily to the conclusionhatwhatwas referredto the Tribunal for
determinationwas one integralquestion relatint go the entiremaritime
boundary. Thismade it imperative for the Tribun aoladdress Question2
withoutwhich its taskwas not discharged.The Tribunalwas thusnot
entitledto decidenot to address Questio2 n and the decisionnot to do so
constituted an excèsde pouvoir, thereby renderi theAwarda nullity.

Furthermore, thienterlinkednatureof the boundaries determine by the
Awardand thoseleft undetermine das likelyto causeseriousprejudiceto
Guinea-Bissauin a future determinatio of the remaining zoneso longas the
boundariesof the territoriaslea, the contiguous zon and the continental
shelfremainedfixed bythe present Award. Consequently, the findi ng
nullityextended also to thedeterminations madien answerto Question 1.DissentingOpinionof Jube Thierry

Judge ad hocThieïr:ysets out the reasons fowrhichhe is unableto
concurwith the Court's decision. His dissentfocuseson the legal
consequences of the fact,recognizedby the Court,that the Arbitral Award of

31 July 1989:

"hasnot broughtabfout a complete delimitatio nf the maritime
areasappertaining respectivet ly Guinea-Bissauand to Senegal"
(para. 66 of the Co.urtlsudgment).

In the opinionof Judge Thierry,the Arbitration Tribunal, established
by the ArbitrationAgreeinentof 12 March 1985, didnot settlethe dispute,
concerningthe determination of the maritime boundary between t two States,
thatwas submittedto it.

As providedin the :Preamblaend Articles2, paragraph2, and 9 of that
Agreement, the Tribunalliasto determine the "maritime boundary" betw een
two States bya "boundar:~ine" tobe drawnon a map to be includedin the
Award.

As it did not performthesetasks, the Arbitration Tribunal fait led
accomplish its jurisdiction alssion. This defect shouldhave led the Court
to declarethe Award of 31 July 1989nul1 and void.

In the view of Judge Thierryt,he Tribunal's failurteo carry outits
missioncouldnot be justifiedby the termsof Article 2, paragraph2, of the
ArbitrationAgreement. This provisionsets out two questionp sut tothe
Tribunalby the Parties. The first, concerning the applicabili ofythe
Franco-Portuguese Agreemeo nt 1960, receivedan affirmative reply, but,
relyingon the phrase "1:nthe eventof a negative answerto the first
question",at the beginningof the second question, the Tribunal implicitly
decidednot to answer this question which concerned the coursoef the
boundaryline, therebyleavingunresolved the essential pao rt the dispute,
including the delimitatio on the exclusive economic zone.

Judge Thierryis of the opinion that the Tribunal shoh ulde
interpreted Articl2e in the lightof the objectand purposeof the

Arbitration Agreement, consistenw tlyh therulesof international law
applicableto the interpretatioo nf treaties,and shouldhave answered the
second question accordingly, seei thgat thereplyto the first question
couldnot by itself bringaboutthe settlement of the dispute,which wasthe
Tribunal's primary tas and its aiso d'être.

JudgeThierry nevertheless concui rs the pointsmade in paragraphs66
to 68 of the Court's Judgmenwtith a view to the settlemenof "the elements
of the disputethatwere not settledby the Arbitral Award of 31 July 1989".
What is necessary is,in his opinion,to bring aboutan equitable
determinationof the maritime boundary between the S twotes inconformity
with the principlesand rulesof international law.