INTERNATIONAL COUROF JUSTICE
CASE CONÇERNING THE
ARBITRALAWARDOF 31JULY 1989
(GUINEA-BISSV.SENEGAL)
ANNEX TO THE
APPLICATIONINSTITUTING PROCEEDINGS
OF THE GOVERNMENTOF THE REPUBLIC
OF GUINEA-BISSAU
23 AUGUST 1989 Page
AWARD OF31 JULY 1989 . . . . . . . . . . . . . . . . . . . 1
DECLA~~AT OIhii~JULIUA. BARBERIS . . . . . . . . . . . . 74
The paginationof the presentEnglishtranslation,prepared
bytheRegistry of theInternationalCourtofJusticeon thebais
of the authoritativeFrenchtexof the Award,has been aligned
withthe paginationofthatFrenchtext.ARBITRATION TRIBUNALFORTHE DETERMINATION
OFTHEMARITIMEBOUNDARY
Award of 31 Jui1989
PresideBarberis
ArbitratorsBedjaGros
Registrar ToBernirdez
Geneva, 1989 In the caseconcerningthe determinatibnof the maritime boundary
between I
the aepublicof Guinea-Bissau,
representedby
1
HisExcellency Mx. FidélisCabralde Almada,Minister of Education,
Cultureand Sports
asAgent,
I
HiaExcellencyMr. Pio Correia,~ecretkr~ ofState for Transport,
l
His ExcellencyMr. BoubacarTouré, ~mbassadorof Guinea-Bissau to
BeLgium,the EuropeanEconomic ~ommunity andSwltzerland,
l
Mr, Joao Aurigema CruPinto, Judge ac the Supreme Court,
Lieutenant-CommandeFselicianoGomes, Ohief of the Navy General
Staff,
Mr.Mirio Zopes,Head ofthe Office of the Presidentof the Council
ofState,
Hrs. Wonique Chernillf er-Gendreau,~rofisatrthe Universityof
ParisVII,
Br. Miguel~alvgo Teles,advocate,
l
MriAntonioDuirte Silva,former~ssis/ant at the Ficulty of Liws of
Lisbon, formerProfessor at the School of Law of Guinea-Bissau,
l
as Counsel,
l
Pls.Maurice Baussart,geophysicfst,
1
Mr. André de Çae, geophysiclst,
lthe Rep+lic of Senegal
represented by:
Ais ExcellencyMr. Doudou Thiam, Advocate at the Courtof Appeal,
formerPresidentof the BarCouncil,member of the International
Law CommlssLon,
as Agent,
Mr. BirameNdiaye, Professor of Law,
Mr. OusmaneTanor Dien, diplornatiacdviser to the Preaidentof the
Republicof Senegal,
Mr.TafsirMalick Ndiage, Professor of Law,
Mr. DanielBardonnet, Professorat the University of Law,Economics
and SocialSciencesof Paris,Associate of the Instituteof
InternationalLaw,
Plr.LuciusCaflisch, Professor at the GraduateInstitute of
InternationalStudies of Geneva, Member of the Instituteof
Internationa law,
Mr. Paul De Visscher, Professo Emeritusof the Facultyof Law of
the CathoLicUniversity of Louvain,Wemberof the Instituteof
Internationa Law,
Mr. Ibou Diaite,Professorat the Faculty of Legal andEconomic
Sciences of Dakar,
as Counsel,
Mr. Samba Diouf,geologist,
Mr. AndréRoubertou, hydrographer,
Mss. IsabellaNiang, AssistantProfessor at the Faculty ofSciences
of Dakar,
Mr. AmadouTahirouDkaw,AssistantProfessor at the Facultyof
Sciencesof Dakar,
as Experts,THE TRIBüNAL, composed as above,
ives the followin~Award: I
1 On 12 March 1985 at Dakarthe Goverbenta of the Bepublic of
Senegaland the Republicof Guinea-Bissau signea an Arbitration Agreement
reading as follows:
"The Governent of theRepublic of Senegaland the
Goverment of the Repubiicof Guinea-Bissau,
Recognizing that theyhave beenunable to settfe by means
of diplornati cegotiation thedisputerelatingto the
determination of theirmaritimeboundav,
Desirous,inview of their f~kendlyrelations, to reach a
settlement of that disputeas soon as possibleand, to that end,
having decidedto resortto arbitratlon,
l
Have agreed as follows:
Article 1 ;
1. TheArbitration Tribuna( lhereinaftercalled"the
Tribunal") shallconsist of three-membé1s designated in the
following marner:
Rach Party shall appolntone arbitratorof its choice;
The third arbitrator,whe shallfunctionas Presidentof
the Tribunal, shallbe appointedby mutualagreementof the two
Parties or, in the absence of suchagreement, by agreementof
the two arbitrators after consultationwith the two Parties.
2. The three members of the Tribunalmust be national,^of
third States.
The arbitrators shallbe designate' within 60 days from the
signatureof the presentArbitration Agreement.
3. In the event that thP eresidentor another memberof the
Tribunalshouldcease toact, the vacan'cyshall be filled by a
new memberdesignated by the ~overnment'which appointed the
rnemberto be replaced,in the case of the two arbftrators
designatedrespectively by the two Governments, or, in the case
of the President,by repeatingthe proceduseset forth in
paragsaph 1 above, I Article2
The Tribunalis requested todecide in accordancewith the
noms of internationallaw on thefollowingquestions:
1. Does theAgreement conclvdedby an exchangeof letters
on 26 April 1960,and which relatesto themaritime boundary,
have the forceof law in the relationsbetweentheRepublic of
Guinea-Bissa aundthe Republic ofSenegal?
2. In theevent of a negativeanswer to the Iirslquestion,
what is the courseof thelinedelimitingthemaritime
territories appertainit ngtheRepublic of Guinea-Bissa und
the Republicof Senegalrespectively?
Article3
The seatof the Tribunal shallbe at Geneva(Switzerland).
Article4
1. The Tribunalshall takeits decisions onlyin its full
composition.
2. The decisionsof theTribunal relating tual1 questions
of substanceor procedure,including al1 questionsrelating to
the jurisdfctionof the Tribunaland the interpretatioonf the
Agreement,shallbe taken by a majorityof its membess.
Article5
1. Eachof the Parties shall,within.30days from the
signature ofthe present Agreement,designatefor the purposes
of the arbitrationan agent and oneor more co-agents,and shall
comrnunicattehenames and addressesof theirrespective agents
to the otherPartyand to theTribunal.
2. The Tribunal,as soon asit is constituled, shall
appoint a Registrarafter consultingthe twoAgents.
Article6
1. The proceedingsbeforetheTribunal shall be
adversarial.It shall consistof two phases: a written phase
and an oralphase. 2. The wrftten phase shall comprise:
(a) A Mernorialto be submitted by the Republic of
Guinea-Bissau not latexthanfourmonths afterthe
setting-up of the Triburial;
A Counter-Mernosi al be submitted by the Republic
of Senegal, not latex than four monthsafterthe
filing of the Pîemorial bythe Republic of
Gufnea-Bissau;
(C) A Reply, to be submftted by the Republic of
Guinea-Bissau not laterthantwomonthsafter the
ffling of the Counter-Mernori al the Republic of .
Senegal;
(d) A Bejofnderto be submit'ted by the Republit:of
Senegalnot laterthantwomonthsafter the filing
of the Reply by the Republicof Guinea-Bissau.
3. The Tribunal may extendthe above time-lirnitast the
requestof eieher of the Parties.
Article7
1
1. The wrlttenand oral pleadings shal be in the French
and/or the Portugveselanguage; the decisionsof the Tribunal
shallbe formulated In thosetwo languages,
2. TheTribunal shall,so far as necessary, arrange for
translations and interpretation snd shall be empoweredto
recruit çecretaria Staff, to appointexperts,and to take al1
measures relating to premises and to the purchase or rental of
epuipment.
Article 8 '
The general expensesof the arbitxation shallbe settled by
the Tribunaland borne in equal shares by the two Governments;
eachGovernment, however, shall bear its am expenses involved
in or for the preparation and presentation of its arguments.
Article9 ,
1. Upon cornpletio nf the proceedings befori et, the
Tribunal shall Inform the two Govenvnenta of its decision
regardingthe questions set forthin,Article 2 of the presens
Agreement.
2. That decisionshallIncluée <he drawing of the boundary
lfne on a map, To that end, the Tribunal shall be ernpoweretdo
appointoneormare technical experts to assist it in the
preparation of such map. 3. The Award shallstate in full the reasons on which it is
based.
4. The two Governments shall decfde whetheror not to
publishthe Award and/or the documentsof the writtenor ara1
proceedings.
Article 10
1. The ArbitralAward shallbe signedby the President of
the Tribunal and by the Registrar. The latter shallhand ta the
Agents of the two Parties a certifiedcopy in the two Ianguages.
2. The Award shallbe final and binding upon the two States
which shallbe under a duty to take al1 necessarysteps fot its
implementation.
3. The original text of the Award shallbe deposited in the
archives of the United Nationsand of the InternationalCourt af
Justice.
Article 11
1. No activity of the Parties during the course of the
proceedingsmay be deened to prejudge their sovereignty over the
area the subject of the Arbitration Agreement.
2. The Tribunal shall have the power to order, at the
request of one of the Parties and if the circumstances 80
require,any provisionalmeasures to be taken to safeguardthe
rights of the Parties.
Article 22
The present Agreement shall enter into force on the date of
its signature.
In witnesswhereof, the undersigned, duly authorized by
their respective Eovements, have signedthe present agreement.
Donein duplicateat Dakar, on 12 March 1985, in the French
and Portugueselanguages, both texts befng equallyauthentic." 2. Pursuant to Article1 of the Arbitration Agreement,
Mr, Mohammed Bedjaoui was appointeda memberof the Tribunal by
Guinea-Bissau and Mr. AndréGros by Senegal, both withinthe specified
tirne-Ifmi tf 60 days. Pursuantto the sa,me Articleof theArbitration
Agreement,Guinea-Bissau andSenegalappo'ntedby mutual agreement
Mr. JulioA. Barberis as.thirdarbitrator and President of theTribunal
after oneyear had elapsed.
3. As soonas itwas established, on 16June 1986, the Tribunal,after
consultingtheAgentsof the Parties, appojntedMr. EtienneGrisel as its
Registrar, pursuant toArticle5, paragraph 2, of the Arbitration
Agreement.Mr. EtienneGrisel havingsubseguently resigned, the Tribunal
on 6 September 1988, afterconsulting theAgents of the Parties, appointed
Mr. SantiagoTorres Bernardezas Registrar,of the Tribunal.
4. Pursuant to Article5, paragraph1,of the ArbftrationAgreement,
the Government of Guinea-Bissaudesignate$ as agent Nis Excellency
Mr. FidélisCabralde Almadaand the Government of Senegal, His Excellency
Mr. Doudou Thiam. I
5. Genevahavingbeen designated by Article 3 of the Arbitration
Agreement as the seat of theTribunal, an Agreement relating tothe
status,privilegesand irnmunitfe of the Tribunal in Svitzerlandvas
concluded by the Partieswith the host State. ThisAgreement took the
form of an exchange of Notesbetween the FederalDeparsment of ForeignAffairsof Switzerlandand the Embassy of the Bepublicof Senegal at Bern
and the Embassy of the Republicof Guinea-Bissa ut Brussels.
6. The inauguralmeeting was heLd on 6 June 1986 in the presenceof
the Parties at the InternationalConferenceCentre at Geneva.
7. On 14 Narch 1988, the Tribunal helda specialmeeting in the
AlabamaRoom in the Town KaIl of Geneva where, in the course of a
ceremony,the membersof the Tribunaland the delegations of the Parties
were receivedéy the Councilof State of the Republicand Canton of Geneva
8. The meetings of the Tribunalwere held at first in prernisesplaced
at ita disposalby the Swissauthoritiesat the International Conference
Centre at Geneva and at Villa Lullinat:Genthod(Geneva), and aubsequently
in premisesarranged for by the Tribunalitself,in particularat the
headquartersof the International LabourOrganisation.
9. Hith regardto the procedure, the Tribunalagreed to draw
inspiration as faxas possiblefrom the rules of procedure of the
Internationa lourt ofJustice and to adopt supplementary procedural
decisionaas necessary.
10. The Mernorialof Guinea-Bissauwas filedon 6 October 1988 and the
Counter-Mernoriaolf Senegalon 6 Februasy 1987, withinthe time-lfmits set
by the provisions ofArticle 6, paragraph 2, subparagraphs and of
the ArbitrationAgreementof 12 March 1985. At the request of the Partiesthe Tribunal agreeà to extend the time-limitspecified in Article 6,
paragraph 2, subparagraphs and of the ArbitraLionAgreement for
the Reply by Guinea-Bissau and the Rejoinderby Senegal. Gulnea-Bissau
fIled its Reply on 6 June 1987 and Senegalits Rejoinderon
6 Oceober19&7, i.e.,within the Lime-limitsas extendedby the Tribunal.
11. The case beingthus ready for hearing, the Tribunal, after
consultingthe Agentsof the Parties,fixed14 Plarch 1988 for the opening
of the oral proceedings. Itwas agreed th&t the representatives of
Guinea-Bissauwould speak first.
12. In the course of 16 privatemeetings held at the-VillaLullin at
Genthod (Geneva)on 14, 15, 16, 21, 22, 23, 26 and 29 March 1988, the
Tribunalheard, for Gufnea-Bissau, their~icellencies Mr. Cabralde Almada
andMr. Pio Çorreia,Lieutenant-CommandeG romes, Mr. Lopes,
Mrs. Chemillier-Gendreaua ,ndMr. GalfloTeles, Mr. Duarte Silva,
Mr, Baussart and Mr. de Cae and, forsenegil, His Excellency Hr. Thiam,
Mr. De Visscher, Mr. Bardonnet,Mr. Caflfsch,Mr. Diaïte, Mr. Roubertou,
Plr. DioufandMrs.Niang,
13. Guinea-BissaucalledMT. Grandin as expert. Mr, Grandin made a
statement and replfedto the que~tiona put to him by coionselfor
Guinea-Bissau. Senegal did not cal1 anyexperts other than those forming
part of its delegation. Neitherof the Parties called anywitnesses. 14. Availingitselfof the powers vested in it by Article 9,
paragraph 2, of the ArbitrationAgreement,the Tribunal, after consulting
the Agents of the Parties,designatedCommanderPeter Bryan Beazley as
technicalexpert of the Tribunal.
15. In the writtenphase of the proceedings,the following
i submissionswerepresentedby theparties.
On behalf of Guinea-Bissau, in the Mernorial:
"May it pleasethe Tribunalto decidethat:
- The rules on the succession of Statea in respect of treaties
(Arts.11, 13 and 14 of the Vienna Convention of
23 August 1978 on Succession of States in respect of
Treatfes) do not permit Senegalto invokeagainst
Guinea-Bissauthe exchange of letterseffecéed on
26 April 1960 between Franceand Portugal, which in any case
is absolutely nul1 and vojd and non-existent;
- The maritime delimitation between Senegal and Guinea-Bissau
hss thusnever been determined;
- The delimitationof the territorialseas of the two Statea
shallbe made by application of Article15 of the Convention
on the Law of the Sea of 10 Pecember1982 in accordancewith
an equidistance line (azimuth 247") from the baselinesof the
two States;
- For the delimitationof the continental shelves and exclusive
economic zones,since consideration of al1 the relevant
circwnstancea snd enguiryinto suitablemethods to reach an
equitablesolutionproduces çimilar resultslying between
azimuths 264" and 270°, the maritime delimitatiob netween the
two States shouldbe fixedbetweenthese two lines."
The submissionspresentedin the Reply by Gulnea-Biasaureiterate
those of the Mernorial reproducedabave, except that in the firstparagraphtheword "concluded" replacesthe word "efiected" to describethe exchange
of lettersof 16 April 1960 and that the adverb"absolutely" no longer
qualifies the wora wnull" in the Reply. ,
On behalf of Senenal in the ~ounter-~ernorial:
"May it pleasetheTribunal:
To reject the subrnission of thelRepublic of Gulnea-Bissau;
To declase and adjudge:
That by the exchangeof letters of 26 April 1960 'onthe
subject of the maritime boundary betwet eneBepublic of Senegal
and the Portugiiesp erovinceof Guinea', France and Portugal, in
the full exercise of their sovereignty andin conformity with
the principles governing the validityof international treaties
and agreementsh ,avecarried out the delimitation of a maritime
boundary;
That thisAgreement, confirmed by the subsequent conductof
the contraçting Parties as well as bg the conduct of the
sovereign States which succeeded to them, has the force of law
in the relations between the Republio cf Guinea-Bissa und the
Bepublic of Senegal." l
The submissions in thR eejoinderby Senegalreiteratedthoseset
farth in theCounter-Mernori and reproducéd above, except for the
insertionin the last paragraph of the words "and supplemented" between
the word flconfirmed and the sorda "by the subsequent conduct".
16. In the courseof theara1proceedlngs, the following submissions
were presented by the Parties.
On behalf of Guinea-Bissau at the hearing of 26 March 1988,
(afternoon:) I
i
"May it please the Tribunal to decide that:
(1) Senegal is not entitledto irivoke against the Republic
of Guinea-Bissau the exchange of lettersof 26 AprIl 1960
between France and Portugal. I The non-opposabilito yf tkatexchange results from:
- 8 correctinterpretatio onf theruleaof uti ~ossidetis iuris,
which concern solely landfrontiersand do not extendto
maritime delimitationç;
- the non-publicatio of the Agreement in Portugaland in Guinea;
- the rightof peoples to self-determination an theprocessof
liberation of the peopleof Guinea-Bissauw ,hich had already
begun on the date of the Franco-Portugues Agreement;
- theprinciple of permanentsovereignty of every people and
every State over Its naturalwealthand resources, which finds
fts expression today InArticle 13 of the Viema Convention on
Succesion of States of 23August1978;
The Franco-Portugues xchange of lettersis in addition
absolutely void by reasonof violationof the principles of
tus copens and is void by reasonof non-conformity wfth the
fundamental norm of contemporarylaw In the matter of maritime
delimitation and $y reason of manifestviolation of rules of
interna1law of fundamental importanceconcerning cornpetenc eo
conclude treaties. It is also [legallylnon-existent.
Thus,theAgreement concludedby exchangeof lettersof
26 April 1960 does nothave theforce of law in the relations
between the Republi of Guinea-Bissau an the Republicof
Senegal and no maritime delimitationhas been effected between
them.
(2) The delimitationof the territorial waters between the
two States should be madeby application of Article 15 of the
Convention on the Law of theÇea of 10 Decemher 1982 on a line
of equidistance from thebaselines of the two States running in
the directionof azirnut 47".
For the delimitation of the continentalçhelves and the
exclusive economiczones,since consideration of all the
relevantcircumstances and enquiry lnto appropriate methods to
reach an equitable solutionproduces results situated between
the directionsof azimuths264- and 279", it 1s between these
tvo lines that the maritimedelimitation betweenthe two States
should be fixed." On behalfof Sene~al, at the hearingof 29 March 1988 (afternoon):
"May it pleasethe.Tribuna1:
To rejectthesubmissions of the~overnment of the Republic
of Guinea-Bissau:
To declareand adjudge,
Thatby the exchange of lettersof 26 kpril 1960 'on the
subject of the maritime boundary betwet ene Republicof Senegal
and thePortugueseprovinceof Guinea',France and Portugal,in
the full exerciseof theirsovereignty and in conformity with
the principlesgoverning the validityof international treaties
and agreements,have carried aut the delimitationof a maritime
boundary;
That this Agreement,confirmedand supplemente dy the
subseguentconduct of the contractingPartiesas wellas by the
conduct of the sovereignStates which,succeedetdo them,has the
forceof law in the relations betweenthe Republic of Senegal
and the Republicof Guinea-Bissau;
That whateverreplybe given by the Tribunalto the
question setout in Article 2, paragraph1, of the Arbitration
Agreement,and for thereasansstatedby theRepublic of
Senegal, the maritim boundarybetween the Republicof Senegal
and the Republicof Guinea-Bissau is constitutedby the line
drawn on azimutk240" from the lighthouseat Cape Roxoandby
its prolongationin a straightlineraisedto the superjacent
water-column.
That theterminal point is sltuatedat the intersection of
that same lineon azimuth 240' and the 200-nautical-milleimit."
17. By anOrder of theTribunalof 18,January1989 the Parties were
fnvitedto submitby 1 April 1989 a aupplernentarnote on any information
that mighe have corne to theirknowledgeor whichthey had been ableto
obtainrelatfngta actualor potentialresouscesin thematterof
fisheriesand hydrocarbons of the disputedzone, and their geographicallocation. In response to thatreqdest, Senegal and Guinea-Bissau filed
within the specified time-limitnotes concerningthe informationin
question.
18. The dispute submlttedto the Tribunalpursuantto the Arbitratfon
Agreementof 12 Narch 1989 reproducedin paragraph 1 above ia a disputeof
a legalnature between the Republicof Senegal and the Republfc of
Guinea-Blssau,i.e., between twoadjacentStateswhich occupy that part of '
WestAfrlca which lies on theshoresof the AtlanticOcean between
Mauritaniato the north of Senegaland Euinea to the southof
Guinea-Bissau,except of coursefor the part that belongsto Gambia,which
is an enclave in Senegal and also hasan Atlantic coastline. As such,
this diapute could onlyhave emerged after the accessionto full
sovereigntyand independence at the internationallevel of whichever
non-autonomousterritory was the lastto be decolonized. This $s admitted
both by the Republicof Senegaf and by the Republicof Guinea-Bissau.However, the view of each of those tuo'Statesas to the meaning and scope
to be attributed to certain agreemen ans actions on the part of their
respectivepredecessorStateshas played a very Important role in the
origin of the dispute,
19. Senegal,a French overseas territdrysince 1946,became on
25 Novernber 1958,by a decision of the SenegaleseTerritorialAssembly,an
autonomous State within the Communautéthen instituted by the French
Constitution,an option whichhad been previously accepted on 28 September
of the same yeas by a referendumof the Senegalesepeople. In
January1959,Senegalformed,still within the Communauté,with French
Sudan the Federation of Mali. That Federation became independenton
4 April 1960 and accededto full sovereignty on 20 June 1960. The
Federationof Mali was subsequentlydissolGedand Senegalbecame on
20 August 1960, under the name of the Republlc of Senegal,an independent
and sovereignState separate and distinctfrom thatof the Qepublicof
Mali (the former French Sudan). The 12epubiicof Senegal was admittedto
theUnitedNationson 28 September1960. As forGulnea-Bissau ,ts
independence was proclaimedon 24 September1973 by the National People's
Assembly,havingbeen until then underPortugueseadministration. The
independence of Guinea-Bissa uas been the outcomeof a long strvgglefor
national liberation, at first of a politfcalnature and later,from
early 1963 onwards, by the militaryaction lofthe African Party for the
Independence of Guinea and CapeYerde (PBIE'Ca)ainstPortugal,which at - 17 -
thattime wasunder the régimeof Dr. Anehniode OliveiraSalazar. Under
a Treatyconcluded at Algiers on 26 August 1974,Portugalrecognized
Guinea-Bissaa us an independentand sovereignState. The admission of
Guinea-Bissau to theUnitedNations tookplace on 17 December1974.
20. Priorto the eventswhich led to the internationalsovereignty
and independenceof the Republic of Senegal andthe Republicof
Guinea-Bissau, Franceand Portugal had concludedcertainagreements on the
delimitation of theirrespective possessionsin West Africa, Thus, by a
convention signed inParison 12 May 1886,Portugaland Franceestablished
a delimitationbetween Portuguese Guinea(thepresentRepublic of
Guinea-Bissauo )nthe one side and the FrenchColoniesof Senegal(the
present Republicof Senegal) to the northand Guinea (the present Bepublic
of Guinea) to thesouehand east, on the other,by virtue of which the
land frontierbetweenGuiaeaBissauand Senegalreached the Atlantic Ocean
at Cape Boxo. It shouldalso be notedthat the convention apecified that
the following shouldbelong to Portugal:
"al1 the islandscomprised between themeridianof Cape Roxo,
the Coastand a southern limitforrnebdg a linewhich shall
followthe thalwegof the CajetRiverand continuein a
south-westerlydirection across the Pilotschannelto reach
10" 40'north latitudewith whichit shallmerge as far as the
meridianof Cape Roxo". It is not disputedby the Partieseo the presentdisputethat the
delimitationeffectedby that Franco-PortuguesC eonventionof 1886 defines
the land frontierbetweenthe Republicof Senegaland the Republieof
Guinea-Bissau. The tuo Parties are also iragreementthat the
Franco-Portuguese Convention of 1886 doesnol define the maritimeboimdary
between the Republicof Senegaland the Reppblfcof Guinea-Bissau.
21. But while the Parties to the presentdisputeare agreed on the
meaning and scope of the Franco-PortugueseConventionof 1886, that is far
from being the case as regardsthe Agreementconcludedby an exchangeaf
letterson 26 April 1960 between France andPortugalfor the purposeof
deffning the maritimeboundarybetweenthe Republicof Senegal (at that
time an autonomousState vithin the Communauté)and the Portuguese
territoryof Guinea. A Portuguese Decree of26 February 1958 which
empoweredthe Ministerfor OverseasAffairs to sign a contractgrantinga
concession to theEsso Company gave rfse toobjections on the part of
France. There followednegotlations at Lisbon fram 8 ta 10 September1959
for the purpose of arrivingat an agreeddelimitation of the territorial
sea, the contiguous zones and the continentalshelf. On 10 Septembes 1959
the negotiatorsestabllshed"recommendations" which were submitted to the
two Governrnents.The first of these "recommendations"is the sourceof
the content of the Agreementof 26 April 1950. mat Agreementwas
published in the Official Journal in Prance'aswell as in those of theCommunautéand of the Federation of Mali, but not in the OfficialJournal
of Portugalor that of its Province of Guinea,nor was it registeredwith
the Secretarfatof the United nationsefther by France or by Portugal.
22. The Republic of Guinea-Bissauconsidersthat the
Franco-Portuguese exchangeof letters mentionedabove is void and legally
non-existent, and tbat, In any case, It is not opposableto it, kccording
to the Bepublic of Senegal, on the otherband, the Franco-Portuguese
Agreement of 26 April 1960 has the force of law in the relation8between
it and the Republic of Guinea-Bissau with regard to tkeir maritime
boundaxy. It followsthat, for the Republicof Guinea-Bissau,therela no
maritime delimitationbetween it and the Republicof Senegal BO that such
a delimitationwill have to be effectedex novo, whereas for the Republie
of Senegala maritimedelimitationalready exists,correspondingto that
resultingfrom the Franco-Portuguese Agreement of 26 April 1960, These
divergent positionsof the Partiesexplafnwhy Article 2 of the
ArbitrationAgreement of 12 March 1985 requeststhe Tribunal to reply,in
the firat place, to the questionwhetherthe Agreement of 26 April 1960
ha8 the force of law in the relationsbetween the Republic of Senegal and
the Republic of Gulnea-Bissau nd requests also the Tribunal, in the
evenr.of a negativeanswer to that question, to say what is the courseofthe line delimitingthemaritimeterritories appertainingto theRepublic
of Senegaland the Republie of Guinea-Bissau respectively.
23. The Bepuhllcof Guinea-Bissau cont,endtshatwhen, in
September1977,negotiations between th Palrtiesere, on its initiative,
begun for the purposeof settlingthe questlioo nfthe determination of the
maritimeboundarybetween them, Guinea-Bissauwas not evenawsre nf the
existenceof the Franco-Portugueae exchange jf lettersof 26 April 1960,
and it vas only from 1978on that theRepubPic of Senegalinvoked it in
the courseof thenegotiations. Senegal assertsthat it had always been
aware of the Franco-Portugues negotiations lhich culminatedin the
Agreement of 26 April1960, since the French delegationincludeda
Senegalese member ,hatit has constantly reliedon the 240° maritime
boundary defined by the1960Agreement,and,that Guinea-Bissau haa also
respectedtheAgreement, that for many yeari ithas not protested against
it and that the proclamationof independence 05 Guinea-Bissau,in its
reference to the boundariesof the territorjalwaters,tacitlyrecognized
I
the 240" limit.
24. It shouldalso be mentioned here that thedisagreement between
the Parties to the presentdispute xegarding theFranco-Portuguese
l
exchangeof letters of 26 April 1960 does not concernonly the period
after the independenc of Guinea-Bissau or theperiod after the
commencemeno tf thenegotiations in 1977mencfoned above. The
ldisagreementextends also to the questioof the applicationof the
1960 Agreementbefore thosedates. For example,Guinea-Bissaumaintains
thatwhen in 1963 the Portugveseauthoritkes authorize dheexploration
for hydrocarbonsin the area,they did so withoutany regardfor a
maritimeboundary, thus provingthat they consideredsucha boundary as
non-existent. Senegalon the otherhand emphasizesthat the
1960 Agreementhas been appliedby al1 thoseconcernedand that, despite
the incidents thattook place in and after 1963 betweenitandPortugal,
the latter countrynever disputedthe Agreement, and observedit. Senegal
maintainsthat therevas a mistakein a reply givenby its administration
to the ItalianEmbassy,which was correcteda monthlates,and asserts
that it ha$ alwaysexercisedIts State jurisdictionin the area (granting
of fishinglicences or permits forthe explorati~nor exploitationof
hydrocarbons,protests againstviolations,etc.) in relianceon the
maritimeboundaryestablished by the Franco-PortugueseAgreementof 1960.
25. Anumber of other events msrked the genesisof the dispute: some
incidentsoccurred at sea,in particular in1977, in 1978 and againIn
1984, whenSenegalauthorizedthe constructionof drillingplatformsin
the disputedzone,which prompteda proteston the part of the Government
of the Republicof Guinea-Bissau. Moreover,in 1985 a lav enacted by theBepublic of Guinea-Bissau concerninga new sgstem of straightbaselines
for that country gave rise to a psotestby Senegallodged with the
Secretary-Genera lf the UnitedNations.
26, These eventsdid not however prevp the continuationof the
negotiationsbetween theParties that had begun in 1977; as from 1982,
thosenegotiationsdealt essentiallywith the conclusionof an Brbitration
Agreement, On 12 March 1985, thathrbitration Agreement was concluded
and, by 3 April 1986, the threearbitratorshad been selected.
27. The sole objectof the disputesubmittedby the Parties to the
Tribunalaccordinglyrelates to the determtnation of the maritimeboundary
betweenthe Republicof Senegaland the Republicof Guinea-Bissaua ,
question whlch theyhave motbeen able to settleby means of nepotiation,
The case is one of a delimitation between adjacem natritime territories
which concerns sea areassituatedin the AtlanticOcean off the coasts of
Senegaland Guinea-Bissau. In theirwrittyn documents as well as in the
pleadinga,the Partieshave not failedto drav the Tribunal'sattentionto
a whole seriesof geographical,geologicaland morphologicaldata selating
to the area concerned by the delimitationas well as to their coasts, in
order to enlightenthe Tribunal in itstas$. At the present stage of the
discussion,the Tribunal seesna need to give a precfse definitionof the
area in which the delimitation of the maritimeboundaryis to be effected,or to Say what,in theTribunal'sview, wovld be the effect of the various
special features, geographfcalin particular, on the legal position.
28. Guinea-Bissau, the Coastof which is considerably broken up by
the estuaries of walerways, and off whichlie the Islands of the Bljagbs
Archipelago, stretchesfrom theboundaryof Guinea-Bissau with Guineato
Cape Roxo. Senegalliesto thenorth of Guinea-Bissau, and lts coasts
extendfirstfromCapeBoxo to the frontler with the aouthof the Gambia,
then from the frontier with thenorth of the Gambfa to the boundarywith
Mauritania. Accordingto Senegal,the~ranco-~orkguese Agreementof 1960
has the farce of law betweenthe Parties,and themaritime boundary Is
accordingly constitutedby a line drawnat azimuth 240° fsomthe
lighthouseof Cape Rexo andby its prolongation in a straight line
seaward. In the siew of Guinea-Bissau,on the otherhand, the
delimitation of the territoria waters betweenthe two cauntriesshould
followthe course of an eguidkstanceline corresponding to azimuth 247"
from the baseline of the two States; and the further line relating to the
delimitation of the continentalshelf and the exclusiveeconomiczones
would lie between azimuths264' and 270°, the lattercorresponding to a
pasalLe1 of latitude. 29. According to Article2 of the Ar€ trationAgreement,the Tribunal
must Eirst reply to the Eollowing questfor
"Does the Agreement conclude bj an exchange of letters on
e maritimeboundary ,have
26 April 1960, andwhichrelatesto t
the forceof law in the relations bet een theRepublicof
Gufnea-Bissau and the Republicof Se1 gal?"
30. Before proceedingto examine thi: question, it is appropriate lo
define the cornpetencoef theTribunalin t Is regard. The Tribunal was
established by an international treat cor ludedbetweentheRepublicof
Cuinea-Bissau and the Bepublic of Senegal or the purpose of deciding,in
the first place,whethertheFranco-Portut ese Agreement of 26 April 1960
has the force of law betweenthem. It mil t be questfiinedwhetheran
arbitration tribunal is competentto exam: e the validity of a treaty
concludedby two Stateswhichhavenot col ented to that examination and
proceedings. Sirnilarly, the
which have not participated in the arbitri
questioncouldbe raisedwhether a countq whfch was not a party to a
treatycan assert kt6 validity or its nul: tY.
31. It should be pointedout that thi present case fs not one in
which tw5 States have established a tribu1 L to decide on the validityor
the nullityof an agreement concludedbetr en other countries which are
totallyunrelated to them, as wouLd be th1 situation, for instance,if the
present Tribunalwere asked to pronounce i rthe validity or nullity of an
Agreementconcluded betwee norway and Uri ,uay.
The present dispute concems an Agrei ientbetween two countries,of
which the Partiesare thesuccessorState: Senegal and Guinea-Bissauare, respectively, the successorStates of Franceand Portugal. Although
Guinea-Bissau declare tabula rasaas regardsthe application of treaties
concluded by Portugal, the two Partieshave recognizedthe principle of
the Africanut1 ~ossidetisproclaimecb iy the Organizationof Aftican
Unity, and they have reiterated itexpressly in the presentarbitration.
In addition, from the conductof the Republicof Guinea-Bissauand
the Republkc of Senegalin the presentarbitratfon, it can be inferred
that they are acting as the successorsof Portugal and France
respectively,i.e., as States which,by the operation of the succession of
States,have replaced Portugaland Francein the responsibility for the
international relations of the territoriesof Guinea-Bissauand Senegal
respectively.The very fact of invoking before the Tribunal gsounds of
non-existenceor nullityof the 1960 Agreement,or to claim before it
entitlementto rightsderived from that Agreement,impliesacknowledgement
of the status of suc'cessorof one of the States which concludedthat
Agreement.
32. The two countries admitthat they are the successors of the
States which cancludedthe 1960 Agreement,but their views diverge
regardhg the rules governlng successionbetween States. Thus, while
Senegalassertsthat successionoperates for the 1960 Agreement,
Guinea-Bissau mafntains the contrary. 33. A successor State can invoke befo e a tribunal al1 grounds of
clafm or abjectfon which could have been I voked by the State to which it
has succeeded. Consequently, Guinea-Bissa ,as a successorState, is
the grounds of nullitywhich
entitled ta invoke before the Tribunalal1
ceuldhave been raiseâby Portugal regardi g the 1960Agreement.
Guinea-Bissau can also submit ta the Tribu al any reasons for
non-opposibilltylo it of the Agreement,w ich in its view exclude
succesaionto that Agreement. Sirnilarly, enegal can likewise Invoke
before the Tribunalal1 the grounds which, in its view, support the
existence and validityof the Agreement an its effect in the present case.
34. The Tribunalvil1 thereforeproce d to analysethe
1960 Agreement, in so far as it may be the subjectof a succession of
States, and with regard to its effects In he relations between
Guinea-Blssau and Senegal. The validity a that Agreement in the
relations between Portugal and Franceand he effecte which it might still
have betweenthose Iwo countriesare not a feceed by the presentAward,
which ail1 obviously have effect onLy as t tweentheParties to the
arbitration. 35. Guinea-Bissauhas stated the various reasonson which it relies
te assert that the 1960Agreementdoes nothave the force of law in its
relations with Senegal. From a legal pointof view, thesereasons may be
classified intofourcategorles: (1) grovndsof non-existence and
nullity; (II)grounds of non-opposability;(III)non-registratio nf the
Agreement with the Secretariatof the UnitedNations; and (IV) existence
of a right of verificationor review. The Tribunal vil1 analyse
separately each of thereasonsthus invoked.
1. GROUADSOF NON-EXISTENCA END rmTLLITINVOKED BY GUINEA-BISSAU
36. In a nurnber opassagee of itsMemorial(for example,pp. 117,
129, 130, 158, 164 and246) and of its Reply (pp. 203 and 3393,
Guinea-Bissau referçto the 1960 Agreementas having no existence. The
campetence of thisTribunalis based on the ArbitsationAgreementon which
its existence is based,and the llmits of its jurisdictionare there
defined. The firstquestion to be answeredby theTribunalis the
following: "Does the Agreement ... have the forceof law in the relations
between the Republicof Guinea-Bissaa und theRepublicof SenegaL?" That
question implies the existenceof a treaty. If,on the otherhand,the
question had been "1stherean Agreementrelatingto the maritime
boundary ...?", theproblemwould be different. On the latter hypothesis,the State which claimed the existenceof e Agreement would have had to
prove it. In viee, however,of the wordfi of the firstquestion
contained inArticle2 of theArbitration greement,the 1960 Agreemeni ts
p~es~medto exist, and a claimthat it is oidwould have LO be proved.
Consequently, as regards the burdenof pri f, the grounds for
non-existence put forward by Guinea-Bissaiwillbe treated by the Tribunal
as groundsof nullity.
A. INCOMPATIBILIT OF THE 1960 AGREEMEI WITH TKE INTERNATIONAL WLES
OF JUS COGI5
37. The firstgroundof nullity invold by Guinea-Bissau is that the
Agreement of 26 April 1960 is allegedlyii ompatiblewith certain
international legal norm of jus coaens. n this regard,Guinea-Bissau
stateain itsMernorial that the rulewhicl enshrinesthe right of peoples
to self-determinatio nas the characterO a pesemptory norm. In its
turn, thatnorm 1s allegedlyt'accompanied y corallariest having also the
charaçter of belongingto peremptoxy inte:ational law (p. 140). These
corollariesare statedto include theprii ipleof permanentsovereigntyover natural resources,a principlewhicb accordfngto Guinea-Bissau
(PV/3,p. 131) isno more than the "logicaldevelopment"of the principle
of self-determinatio of peoples.
In theviewof Guinea-Bissau, the violationin the present caseof
the noms of jusconens concerning the rightof peoples to
self-determinatio and permanentsovereignty over natural resourcet sakes
two differentfoxms: (5) in the firstplace, therewould be a
contradiction betweensuch norms and the 1960Agreement, because that
Agreement constitute an allenationof territory, and as suchvas contrary
to the grincipleof permanent sovereigntyover natural resources;(ii) in
the second place, theprocess of liberation1s claimed to havebeen
alreadyunder way at the time of the signatureof the Agreement, thereby
rendering it incompatiblewith the princfpleof the right of peoplesto
self-determfnatfon.
38. The ruleof permanent sovereigntyovernatural resource has been
spelled out inresolutions1803 (XVII)and 2158 (XXI)of the
General Assemblyof the United Nations. Paragraph1, 1, of
resolution1803 (XVII) concerns the "rightof peoples and nationsto
permanent sovereignt over their naturalwealth and resources"andparagraph 1, 1, of resolution2158 (XXI) x iffirms"the inalienableright
of al1 countries to exercise permanentsov .eigntyover their aatural
resources". The rule containedIn these r iolutionsof the United Nations
GeneralAssemblyguarantees to everyState .heright to exploitits own
resources and recognizes the right of each ifthem tonationalizeassets
found on its territory which are being exp iitedby forelgn enterprises.
39. The applicationof the principle *permanentsovereigntyover
ircesin question are to be
naturalresources presupposesthat the res
found within the territary of the Statewh :hinvokes that principle. In
the present case, the 1960 Agreementdeter ned what was the territory of
each State, i.e., it establlshes what belo ;sto each of them. Before the
Agreement,the maritimeboundarieshad not ieendetermined,and
consequently neitber of the two States cou Iassertthat a particular
portionof the maritimearea was "its own" From a logicalpoint of view,
Guinea-Bissau cannotassert that the narm 11thdeterminedthe extentof
-ts maritime territoy (the 1960 Agreement has taken away from it part of
the maritime territorywhich vas "its on" That assertion could only
make senseif therehad been a pre-existia legalnorm which had
attributedthat territoryto Guinea-Bissau which has not been
demonstrated in the courseof the present .bitration. Any State clafrnlng
to have been deprivedof part of its terrI iry or naturalresourcesmust
firstdemonstratethat theybelonged to it It followafrom the foregoingthat the principle of permanent
sovereignty over natural resourcesis not applicable in the presentcase.
40. Guinea-Bissau assertsthat the signingof the 1960 Agreement vas
in conflictwith a corallarywhich followsfrom the principle of
self-determination of peoples,whereby oncea process of liberationla
initiated,the colonialState cannotconcludetreaties relating to
essential elementsof the right of peoples. This nom, since it is only a
corollary,is said toderive its legal existence and its peremptory
character Erom the above-mentione fundamentalprinciple. Accordingly, in
the view of Guinea-Bissau,the principleof self-determinatio n fpeoples
entails as a logicalconsequencea restrictionof the jus tractatus of the
colonialState as from the initiationof a processof national
Liberation. In addition,that limitationIs claimed tohave the character
of a rule of jus cogens.
41. Contemporarywsiterson international law have dweltat length on
Jus coaens, particularlyslnce the 1969 ViennaConvention on the Law of
Treaties. Some of thosewriterspresent jus coaens as çonsisting of norms
of a superiorhierarchicalorder. The studieson the notion of jus coaensand on the identification of ruleshaving hat character have often been
influenced by ideologicalconceptions and y politicalattitudes. From
the pointaf view of the law of treaties, us conens is simply apeculiar
of not admittingderogationby
feature af certain legal norrns,narnelytha
Agreement.
42. Respectfor the principleof equa rightsand self-determination
of peoples is mentioned in paragraph 2 of oticle1 of the Charterof the
,e Organization ,nd this
United mations as oneof the Purposes of t
principlehas subseqvently been the subjec of reformulatlons - in full or
in part - in certain international instruumnts and documente, in
particular certain sesolutionsof the Gen~ al Assemblyof the
United Nationssuch as those concerning th "Declarationon the Granting
of Independence to Colonial Countriesand 'eoplesl'res. 1514 (XV))of
1960,which has been invoked on severaloc asfonsby Guinea-Bissauduring
the present asbitration (seefor example P mmorial,Vol. 1, pp. 139, 141
and 145; PV/1, pp. 113 and 122; PV/13, g 1.112 and 113), and the
Law concerningFriendly
t@Declaratio on Principles of Xnternationa
Relations and Co-operationamong States in accordancewith the Charter of
the United Nations"(res. 2625 (XXIT)of 19 O>.
43. Guinea-Bissauclaimsthat the ru1 wherebyjus tractatus
undergoes a restrictionas Erom the initia ion of a process of national
liberationis a corollary of the principle of the right of peoples toself-deterriifnatio In.the view of the Tribunal,the relationbetween
these two propositions1s not that of acorollary in which the soundness
of one propositioncsn be Inferreâ fromthat of the other by a simple
operationof formallogic. Guinea-Bissau has not put forward anyevidence
or any demonstrationto show that the logicalrelation existingbetween
the two rules is thatof a corollary.The mere assertion tha thereia a
certainlogicalrelationship betweentwo propositions is not sufficient.
The rule invokedby Guinea-Bissau has a contentwhichcannotbe inferred
fromthe right of peoplesto self-determination. It constitutesa legal
nom independentof the principle of self-detesrninatiaond onewhich is
connected morewith the principleof effectiveness and the railegovernfng
the formation ofStates in theinternational sphere.
44. A Stateborn of a process of nationalliberation has the rightto
acceptor to rejectany treatiesconcludedby the colonial Stateafter the
initiation of that proeess. In this field,the newly-independen ttate
enjoys a total andabsolutefreedomand there is no peremptorynorm
obligingit te declarenul1 and void thetreaties concludedduringthat
period, or to rejectthem.
Guinea-Biesauhas not established In the presentarbitrstionthatthe
norm invokedby il has become a rule of yus copensefther by customor by
the formationof a generalprinckple oflaw.
45. In thepresent case, Gulnea-BissauallegesthatFrance,by
signing the 1960Agreement,cornmitte adbreach, to the detrimentofSenegal, of a corallary of theprincipleof self-determinatio nf peoples,
according to irhicha colonial Statecould not conclude, after the
initiation of a psocess of nationallibesation, treatiesbearingon
essentfal elements of the rightof peoples. Accordingto Guinea-Bissau,
that Agreementis nul1 andvoid and,since a norm of jus coaens fs
fnvolved,Senegal has no rightto confirmthe tseaty. The nom relied
upon by Guinea-Bissau existsin international law but, as statedin the
previous paragraph,it 1snot one of jus coEens. Senegalhad therefore *
l
total and absolute freedomto accept or reject the 1960Agreement. By
virtue of thatfaculty,Senegal has accepted it and naw invokesits
application before th Tribunal. As for Guinea-Bissaui ,t fs not entftled
to requestthe Tribunalto declarenul1 and void the 1960Agreementon the
%round of a breach of the aasertednorm comitted by France to the
detriment of Senegal.
46. Guinea-Bisaau alsaclalms that Portugal bas violated,to its
detrfment,the sarnerulementionedabove, which as alleged to be a
corollary of theprincipleof self-determination of peoples. More
specifically, it asserts thatPortugalin 1960 did not have the necessary
cornpetenc eo sign theAgreement: "Neither of the colonial powers still
retafnedin 1960 the necessaryfullsovereignty to concludean Agreement"
(PV/3,p. 133).
47. With a vfew to provingthat this rule 1s applicablein the
present case,Guinea-Bissa has sought to demonstrate that inAptil 1869,
Ithe date of the Franco-Portuguese Agreementth,e processof national
liberationin Guineahad alreadystarted,
Bath In its Reply and duringthe heasings,Guinea-Bissauhas dealt in
particvlaruith the evolutionof the processof nationalliberationin the
Portugueseprovince of Guinea. Accordingta the evidence adduced,the
period from 1955 to 1960was markedby the foundation, in Guineaor
abroad, of a number ofassociations, some of them clandestine,whose
declared ultimate ob'jectiveas the independence of their country. Thus,
in 1955 the Movement forthe National Independencoe f PortugueseGuinea
(MING)was set up at Bissau consistingof a group of merchants,public
officialsand students - a movementwhichwas to disappear again the
followingyear. In September1956 the AfricanIndependenceParty (PAI)
was foundedat Bissau; as from October1960, it vas renamed PAIGC. In
1958 the Anti-ColonialPlovement(MAC) appeared; it was the outcomeof the
actlvitiesof a smallstudy groupvhich had met in Paris in Noverabe1957
tu examinethe situationand the prospects of a stiuggle inthe Portuguese
Colonies. In 1959 the LiberationFront of Guinea and Cape Verde(FLGCV)
waa set up. In 1960,PAIGC and the People'sMovement for the Liberation
of Angola (MPLA) createdthe FRAIN (African RevolutfonaryFront for the
Independenceof the PortugueseColonies). That entity lastedonly one
year, and was replacedin 1961 by the Conference of Mationalist
Organfzationsof the PortugueseColonies(CNCP). During thaz period, and more precisely on 3 Rugust 1959, the
repressionof the workersat Pidjiguiti took place, in the courseof which
5Q personswere killed. That event became the symbolof the struggle for
nationalliberation.
On 3 August 1961 PAIGC proclaimed the change-over from political
struggle to nationalinsurrection. A few acts of sabotagewere then
committed, which provoked a largenumber of arrests. The armed struggle
in Girfnea beganonly in January 1963 (Beply, Vol. 1, p. 213; PVJ3,p. 64).
48. As far as Portugal was concerned, its policywas todeny the
existence of its own Colonies. It regarded itself as a unitary Çtate
constituted by provincessiruatedin several continents. Durfng the
1960is, Portugal continuedto represent ita overseas provincesboth ln the
United Nations and in otherinternational organizations.In 1972, the
General Assemblyof the Unitedyations, In its resolutfon 2918 (XXVIII)
confirmed "that the nationalliberation movements-ofAngola, Guinea
(Bissau) and Cape Verde and Mozambiqueare the authentic representatives
of the true aspirations of those lesritories" but withoutdesignating
l
those movementa by name. Resolution3113 (XXVIII) reiterated that
statement, and finallyresolution 3294 (aIXIX)reaffimed that the "Frente
Nacionalpara a ~iberaqao de Angola,the MovimentoPopularde ~ibera&o de
Angola, the Partido Africanoda Independencia da Gfné e Cabo Yerde, theFrentede ~iberaçao ciMoçambLqueand the Movimentode Lilberaçgdoe
S~O Tomé e principe ... arethe authenticrepresentative of the peoples
concerned". Untll1973Portugalexerciseâ in theUnitedNationsthe
representatlo nf the OverseasProvinceof Guinea. On 17 December1973,
by its tesolution 3181 1 (XXVILI),the GeneralAssemblyapprovedthe
credentials of the representativeosf Portugalsolely for the State
existingwithinits frontiers in Europe and denied themal1 powersof
represeneation for Mozambique, Angol and Guinea-Bissau. That resolution
was but the logicalconsequence of resolution 3061 (XWIII) af
2 Novernber 1973 wherebthe General Assemblh yad welcomed theacce~sionto
independenco ef Gulnea-Bissau.
49. Senegalclaimsthat the principleof self-determinatioo nf
peoples appeared after 1960andcannot be appliedretroactively. As for
the cotollary whichGuinea-Bissau derives from thatprinciple, wherebya
colonial State couldnot concludecertain treaties concerning itscolonial
territory from themomentwhen a processof liberation had begun, Senegçil
accepted it in its pleadings(PV/9,p. 62) but contendedthat the
situation in Guinea in1960 couldnot be consideredas thatof the
Initiationof a processof that klnd.
50. In any processof nationalliberation, there isalways at the
autseta small groupof determined men who organizethernselvesand who
gradually develo pheirintellectual, politicalandmilitaryactivity
until theindependence of theircountryfs obtained. The duration of ehisproceaa and the methodsto be applieddepe'nd on a number of factors,among
I
vhich rnay be mentioned the poliey of the cblonial Star. and the aesistance
which the liberatianmovement recefves from abroad. In the procesa of
liberation a stage is reached in which the aspirations of the movement are
defined and it requires an inatitutionaldrganization. Once it has a
l
structure,the rnovernent can begin to act, bnd cornesout into the open,
The action taken isnot necessarily guerrilla activity; it rnay be only a
political activity. It must be stressed, however, that the decisive
elementfor the success or failure of a likeration moverneni ts always
popular support.
51. In this process of formationof a nationalliberationmovement,
the legal problem is not that of identlfydng the precise momentin which
l
the movement as such is born. The important point zo be determined is the
momentfrom which its activityacqialred ad internationalimpact.
As pointed out by Senegal,there exidts today in western Europe and
inother parts of the worlda number of iddependence movements. It Ls not
possible to assert that the activity of on'e or other of those movernents
has an international impact merely because ithas constituted itself as an
organization,or has held a number of publlic events.
Such activitieshave a bearing at the
internationall evel from the
moment when they constitute, in the instftbtional life of the territorialState,an abnormaleventwhich compels it to take exceptional measures,
i.e., when in order to control,or try to controlevents, it is obliged to
resort to means whfch arenot thoseusednormallyto deal with occasional
disturbances.
In the case of what was then PortugueseGuinea, the Tribunaldues not
have toexaminewhetherthe processof national liberation had, or had
not, started in kpril 1960; what must be ascertained is whetherthe
activitieswherebyehae processmanifested Itself in April 1960 had an
internationai lmpactor not.
52. Guinea-Bissau has stated in this conneetionin ita Mernorial
(p. 62) with reference to the periodwhen the Agreementof 26 Aprilvas
signed: "In 1959/1960,it couldnot yet be said thatthere was any
encroachmenton the integrlty of the Portuguesepowersat the territorial
level." In addittan,in thepresentarbitration,therehave been repeated
statementsconfirmingthe assertionin the Arbitral Awardof
14 February1985 betweenGuineaand Guinea-Bissau to the effectthat the
war of liberationonly began in 1963 in Portuguese Guinea (Reply, Val. 1,
p. 213; PV/3, p. 64). As for the UnitedNations, it was only in
movember 1973, i.e., after the proclamation of the independenceof
Guinea-Bissau, that a resolution was adopted lo the effectthatPortugal
no longerrepresented that country. No evidencehas been adducedin the ~nstitutionallifeof whatwas
present caseto establishthat in1960 thi
then PortugueseGuIneahad experiencedsui upheavalsthat the Statehad
been oblfgedto resortto extraordinar yl ;mes to ensurethenormal
conauct ofcivil activitiesand toguarani'1publicsecurity.
Foral1 these reasons,thenom whiclpLimitsthe capacity ofthe
Stateto concludetreatiesupon theiniti, tonof a processof liberation
exlf
is not applicabletothe situation whichi lstedin 1960in Portuguese
Guinea.
i
B. BREACHOF INT: TAL LAW
'I'
53.Guinea-Bissau claimsthatthe Ag ment concludedby exchangeof
'r'
Noteson 26 dpril 1960 is nuland void bi iuse,by signing it,both
Portugaland Francecommitteda bseach of'tirmsof interna1law of
fundamentalimportance.
With regardtoPortuguese law,at th1t:imeof the signatureof the
1960 Agreement,the Constitutioof 11 Ap L1933 was inforce,Article2
'il
of whichspeçified thatthe State cowldni alienateany part: ofthe
nationalterritory withou the consent af ie NationalAssembLy.
Moreover,Article 91, paragrap9, specifleithat the NationalAssembly
had thepower to "definethe lirnitof thi :erritorieof the Nation
-
("definiros limitesdos territhriosda NiS1")". As to theconclusionofagreements, theprocedure was indicatedin Articles 81, paragraph7,
Article 91, paragraph7 and Article 102,paragraph 2. Bccording tothose
Articles, theNational bssemblyts approvalwas necessary for international
conventionsand agreements concludedby the Government, exceptin cases of
urgency. The Constitution of 1933 dkd not contemplatethe systern of
agreements insimplifiedform. Nevertheless, that practice Massccepted
by Portugal and wasused for agreementsrelatingto subjectswhichwere
not of the competenceof the NationalAssembly (Mernorial,p. 112). From
an analysisof those provisions,Guinea-Bissau concludes that,according
to the PostugueseConstitution of 1933, the 1960Agreement shouldhave
been submitted forapproval to theNationalAssembly. That breachof
constitutiona law was of a "manifest"character and, in accordancewith
the rulecodifiedin Article46 of the Vienna Conventionon the Law of
Treaties,the Franco-Portugues egreementwas, it is claimed,nul1 and
vold.
Senegaldoesnot sharethis view. Its arguments are basedon a
different interpretatio nf the constitutionatlexts, as well ason the
factthat, in additionto thewrltten text of theConstitution,
consideratio hnasto be given to "awhole body of customs and practices
which have appreçiablyalrered the originalmeaning of the constitutional
texts" (Counter-Mernoria p.,40). In particular, Senegal assertsthatthe
competenceconferred upon the NationalAssembly by Article91 of the
Constitution wasnot exclusive ,nd couldbe delegated to theGovernment
(Art.91, para.13). In support of thatassertion, it relieson the factthat Chapter III,TitleIII of PartTwoof the Constitution in force in
1960 concerningthe powers of the NationalAssemblydraws a distinction
betweenthose indlcated in Article91 and hose mentionedin Article 93.
For the latter,the Constitutionspecifie~that they are "matters of the .
exclusivecornpetenc ef the NationalAssen ly" ("matériada exclusiva
competenciada AssembleiaNaclonal"), whe~ as Article91 says nothing on
thia aubject. This circumstance, combinedwithwhat i8 stated in
paragraph 13 of Article 91-,make ktpossib e to Infer that for thematters
mentionedin thatArticledelegationwaç p sslble. Sirnilarly, Senegal
maintainsthat Article 2 does not apply tuthe 1960Agreementbecausethat
Agreement does not embodyan allenation of territorybut a territorial
delimitation. Senegagives in additiona accountof International
case-law and diplornatipcrecedentsrelatin to the nullityof treatieson
grounds of the violation of internallaw. 5n that question,it reaches
the conclusion that the 1960 Agreementdid not involveany manifest
violationof Portuguese internal law. IL tatesin this respect:
"The 2960 Agreementwas concluàe by an exchangeaf notes
effected, on the Portuguese side, by man who cornbined the
offices of Head of Goveniment,Minist r for ForeignAffaira and
strongmanof the political régimeof 3rtugal and on thfs basis
alone such a cornmitmenetnjoys absolu a presumptianof
validity." (Counter-Mernoriapl., 1311Senegalfurtherassertsthat:
"The 'constitutionad leviation'experienced by Portugal for
over 35 years under the authoritarian régimeestablishedby
President Salazah rad the effect of reducingEo a symbolic role
the authorityof the National hssemblyand, In particulas,the
functionsentrusted ta it by the Constitution in thematter of
approval of international treaties." (Çounter-Mernorial p, 131.)
In its Reply, Guinea-Bissaureiteratesthat, Ln accordancevith the
1933 Constitution,the competencevested in the nationalAssemblyby
Article 91 was not capable of delegation (p. 144). Guinea-Blssau points
out that none of the Agreementsin simplifiedform subscribedby Portugal
concerneddelimitation(p. 38). As for the real constitutional situation
obtainingduring the régimeof Dr. Ant8nioOliveiraSalazar,the Reply
States that "the Constitution of 1933never became anominalConstitution,
especially with regardto rules of competenceand form" (p. 166). kirther
on, the Reply adds: "The Portuguese Constitutio of 1933had binding
force and the ruleson separacion of powers and on questionsof form
establishedby it had to be respected." (P. 168.)
Senegal'sRejoinderconffrmsthat State's position regarding the
régime in force in Portugal in 1960,and the internationav lalidityof the
Agreementsigned thatyear. As for the Portuguesepracticein the matter
of delimitation,the Rejoinder points ta two Agreementsconcluded by
exchange of leteerswith the United Kingdom in 193&/1937and in 1940. In their oral argument, the two Parti s developedthe arguments put
forwasd in thewritten phase of the procei Lngs.
54. Beforeexamining the questionof he possiblenullity of the
Franco-Portuguese Agreement by reasonof n nifest violation of fnternal
law, it Is first necessaryta determine tl applicablelaw in the matter.
There is a generalprinciple that tht law to be appliedto a given
situation must be the law in force at the imewhen it arose (se@ Island
of Palmas case in UNRIAA,Vol. TI, p. 845: Consequently,the present
casemust be examinedin the light of intt national law in forcein 1960.
The Tribunalwill therefare not spend timi analysing the 1969 Yienna
Convention on.the Law of Treaties,nor on he question,discussed in the
present proceedkngswhether ornot one of ts clauses, in particular
Article 46, does or does not constitutetl codification of a ruleof
generalinternationa llaw.
or was not acting in canfomity
55. The questionwhethera State vas
with ita internal law when it signed an ii ernationaltreaty, and the
importanc ef that issuefrom the standpo..t of international law, were
not governeciby any generaltreaty in 196( The applicable norms were
those of customary law. As for the pract: e of internationalcourts and
arbitraltribunals, therewas no precedeni of a treaty beingdeclared nul1
and void because one of the contracting si tes had violated its owninternallaw in signingit. Diplornaticprecedentswere not uniform but,
in general,it couldbe deduced from chem that onlya grave and manifest
violationof intemal law could justify a treaty being declarednul1 and
void.
The Tribunalconsidersthat its decisionon that subject must be
governedby the principleof good faith. That principlewas undoubtedly
the rule observedby States in 1960 with regard to the conclusionof
international agreements.
56. The questionwhether a treatyhas been concludedin confomity
wfth the internal lawof a Statemust be exmined in the light of thelaw
in forcein that country,i.e., that law as actually interpretedand
appliedby the organsof the State,includingits judicial and
administrative organs.
57. To this end, itis first of al1 neressaryto examine the
politicalConstitution of the PortugueseRepublic of 1933, whichwas in
force in 1960. Accordingto that Constitution,the Presidentof the
Republic representedthe Nation,directedforeignpolicy and wae empowered
to "conclude internationalconventions ""aiustar convencoes
internacionais") (Art.81, para. 7). The exerciseof that constitutional
power of the Presidentvas attributed in 1938 to the Ministerfor Foreign
Affairsby LegislatfveDecree No. 29319. Article91, paragraph 7,
speciffed that the NationalAssembly vas competentto "approve, under the
termsof No. 7 of Article 81, internationalconventionsand treaties"
("a~rovar, nos termosdo No. 7* do artino 81°, as convenges e tratados
internacionais").Fwrtherrnore, paragraph 9 of the same Articleconferred - 46 -
uaon the NationalAssemblythe competence o "definethe limltsof the
tetritoriesof theNation" ("definir os liiites dos territoriesda
~agai'o").In addition, Article 81, paragral h 4, alreadyquoted specified
that treatiessigned by the Presidenthad
O be submitted by the
Goverment for approval to the NationalAs:embly .
The~e clauses show that the normalprl cess for concludingan
international agreement sccordingto the Pirtuguese Constitution was as
follows: signatureauthorizedby the Pres dent of the Republic,
presentatdonby the Governmentto the Asseibly, and approval by that
Assembly, The Constitution providedalso hat the Governmentcould "in
casesof urgency,approve internationalcol ventionsand treaties" ("m
casos de urnência,aprovar as convenF8es e tratadosinternacionaisit)
(Art. 109, para. 2).
58. In practice,the competence of th1 NationalAssembly beeame
restrictedfor two mainreasons. In the f tst place, in Portugal, as in
rnostcountries,the practice developed of Ioncluding agreements by
exchange of letters. In thesecond place, the Govement eventually
invokedgroundsof urgency regularly in ori erto approve international
treaties itself In place of the Assembly. The fact that the Govement
systematicallyinvokedreasons of urgency Ieant that,in the words of a
commentator,"Parlfamentary approval had a.most diaappeared" ("auase
tivesse desaparecido a arirovag?p;~rlamenti-u) (Marcello Caetano,Manual
de Ciencia Politica e DireitoConstituclon1 -i, 6th edition,Li~bon, 1972,
Vol. II, p. 617).
bccordlngto Guinea-Bissau, agreement: by exchange of letters dealt
with subjectswhich were not within the coapetence of the NationalAssembly.The practlce of Ehat period,howeves,shows matters in a diffexentlight.
Thus, the NationalAssembfy did not take actionto approve the Charterof
the United Nations,or the 1943 and 1971 Agreementswith the United States
of America on the AzoresIslands base, or the frontierAgreementsof
11 May 1936/28December1437 and 29 October1940 with the UnitedKingdom.
Guulnea-Bissaassertsthat the 1960 Agreement was void for lack of
Parliamentary approval. In the text of that instrument,the Portuguese
Ministerfor ForeignAffairs ad interimgave his CO-aignatory,the French
Ambassador,to understandthat the Agreemententeredinto force at the
time of its signature. When two countriesconcludeby exchange of letters
an agreementwhich, for constitutionalreasons, requires the approvalof
the Parliament ofone of them, it is customaryto mentionthat fact in the
text or during the negociations. That was not donein the present case.
59. If accountis taken of the Agreementof 26 April 1960, the
sporadic characterof the Nationalbssembly'sinter vent Son^In the
approval of internationalconventions,of the fact thatcertain
instruments as importantas the Chastesof the United Nationswere not
appxovedby thatAssembly,and of the Eact that the Agreementwas aigned
by Dr. Antonio Oliveira Salazaru,ndisputedhead of the authoritarianrégime which existed at the time in Portug 1, it may be concluded that the
French Governmenthad good reaaon to beii~ e in all good faith that the
treatgwhichhad been signed was valid.
50. Gufnea-Bissau alço argues, as evi ence of the nullity of the
1960 Agreement,that Francehad allegedly iolated its interna1law on its
conclusfon. The only Statewhich could in oke such groundsof nullity is
Senegal. Guinea-Bissauhas no standingtc submit that claim to the
Tribunal.
II. THE GROUNDSOF NON-OPPOSABILITE
61. In adaition to the grounds of nul Ity alreadymentloned,
Guinea-Bissau claims that the Agreementcc cludedbetweenFrance and
Portugalon 26 April 1960 is not opposable to it, i.e., that even
supposingthe Agreement to be ali id,Stat~ successionwould nat operate in
the present case, and the rules of succesa on would thereforenot apply in
the relationsbetweenSenegal and Guinea-E ssau.
The question of successionof States n the matter of boundaries
acquired a very specialimportance in Amerca during the lgth century,
because of the accession to independence o the Statesborn of theSpanishcolonialempire. In certain cases,thenev States decidedby common
agreement that theinternational limitsof theirrespective territorles
wouldbe thosewhichalreadyexisted zo mark the administrative
subdivisionsof the colonialperkod. In other cases, the Statesclaimed
as part of theirnational territorywhathad previouslycorresponded to a
Vice-royalty,anAudienciaor a Captain~y-General. Inal1 those cases,
the ancient colonia law ("derechode Indias")was invoked to determine
the internationalboundaries betwee the new States. Thismethodof
determininginternationab loundarieais imown under thename of
uti nossidetiaor ut1 possidetisluris.
In Africa,on the otherband,uti possidetis has abroadermeaning
becauseit concerns both theboundaries of countriesborn of the same
colonial empireand boundarieswhichduringthe colonialerahad already
an internationa character because they septiratecoloniesbelongfngto
different colonialemplres.
62. In the presentcase, the Partiesare agreed on the fact that
boundary treatiessignedduringthecolonial period continueto be valid
as between the new States. For thisreason,the tabularasa proclaimedby
the People'sAssembly of Guinea-Bissauon 24 September 1973 for the
treaties cancludedby Portugalis not applicableto treatiesdealing with
frontiers. Accordingl y,negaland Guinea-Bissau recognizethat theirland frontfer is determinedby the Eranco- )rtugueseConventionof
12 May 1886. In addition, it is material 1recall thatthe Organization
of AfricanUnity, of which both Partiesar members, adaptedon
21 July 1964 in Çairo a resolutkonwhereby 'al1Member States pledge
themselvesto respectthe bordersexisting intheir achievementof
nationalindependence"(doc.hHG/Res.16 ( 1).
Although both Parties are agreedon t' :fact that succession is the
rule in the realm of boundary treaties, th r differ with regard to the
extentof the contentof that norm. Seneg .malntainsthat there has been
successionin the present case,whereasGu ~ea-Bissau asserts that various
exceptionsoperate which have the effe~t tl
tetherewas no successionfor
the 1960 Agreement.
The TribunalBILL analysebelow the e :eptionsto the rule of
succession in the matter of boundarytreat :swhich
have been put forward
by Guinea-Bissau.
A. THE DELIMITATION OF MAI TIME FRONTIERS
63. Guinea-Bissau malntainsthat Stat~successiondoes not apply to
maritime boundaries. An international frontier is a line formedby the successive
extremities of the area of validity in spaceof the norms of the legal
order of a particularState. The delimitationof the area of spatial
to the landarea, the waters of rivera
validityof the Statemay relate
and lakes,the sea, the subsoilor the atmosphere. In al1 cases,the
purposeof the relevant treatles Is thesame: to determine in a stable
and permanent marner the area ofvalidity in spaceof the legalnoms of
the State. From a legalpoint of viev, thereIs no reason to establish
differentrégimesdependent on whichmaterial element is being delfmited.
The Judgment of the International Courtof Justice in the case concerning
the kenean Sea ContinentalShelf constitutesa precedent to thia effect
(1.C.J.üe~orts1978, pp. 35-36. See also the case concerningthe
Continental Shelf (Tunisia/Libvah nrab Jamahlriya].1.C.J. Reports 1982,
pp. 98 and 131; case concerningthe Delimitatlonof the Maritime Boundarr
in the Gulf of HaineArea. I.C.J. Reports1984, pp. 246 et sea.).
54. One of the argumentsinvokedby Guinea-Bissau is the absence of
cases in which the question of successionhas arisen in respect of
maritimeboundaries. The law of the sea,except for questionsof
navigation and for some othersconcerning fishing,has only taken shape in
comparatively recenr times,and one cannotexpectto Eind precedentsgoing
back to the last century,the period when the States of Latin America
accededto independence. An analysisof the disputeswhich have occurred
in that part of the world and which relateto frontfersshows that thequestion of maritimeboundariesarose inonly two casea: that of the
BeagleChanneland that of Fonseca Bay. The first case concerned the
interpretation of the Boundary Treaty betveenArgentins and Chile of 1881
and consequentlythe uti possidetis rulewas not applied. In the Fonseca
Bay case, on the otherhand, the Central herican Court of Justice decided
that the lfmitswith the high seaswhlch the Crown of Castilehad
established in that Bay had devolvedin 1821 on the FederalRepublicaf
Central AmerIca and subsequentlyto El Salvador,Honduras and Nicaragua
(Anales de la Corte de Justicfa centroamericana,Vol. VI, Nos. 16-18,
pp. 100 and 131).
Anotherprecedentwhich may be cfted 1s the Anglo-DanishConvention
of 24 June 1901 concerningfisherieslimfts which remainedapplicable to
i
Icelandby successionfrom Denmark until 1951; reference vas made thereto
by Sir HumphreyWaldockin his aeparate opinionin the case concerning
FlsheriesJurisdiction. (-, I pp. 106 et sea,).
LastLy, it is possible to referto a number of cases of successionin
I
the matter of maritimeboundaries inAaia, in consequenceof the
decolonisationwhich followedthe SecondWorld War. The geographicalmaps
of Malaysia, Philippinesand Brunei, for example,show as maritime
1
boundarieslinesthe origin of whichgoes back to the colonialera. Whileit is true that thereare not many cases of Statesuccession to maritime
boundaries, kt is equallytrue thatGuinea-Bissau, for itapart,has not
been able to invokeany precedentin which the tabularasa rule was
applied to a maritimeboundaryestablished in the colonialera.
65. Another argumentput forwardby Guinea-Bissau as constituting a
distinction bettreenland frontiers an maritime frontieri ss that the
Latter establiah limite on for certainmatters, such as fisherlee or the
exploitation of naturalresources. Land frontiers,on the otherhand, it
is claimed,detemine jurisdictional limitswhichare valid for al1
activities or in al1 fields. In reality, that 1snot the case. There are
many examples of land frontiersbetween two countrieswhich are ntit
constftuted by a singlelinebut by several differentlines. Examples
would be whereboundarieson the surfaceof the landdo not coincidewith
the limitaestablished for th subsoil,generally when the exploitation of
mines is involved. Where a river separatet swo States, thereis sometimes
one limit for the divisio of islandsand another differenl timit for the
waters. The townwherethisTribunalhas its seat is itselfseparated
EromFrance by two differentdelimitation lines.
The fact that a frontierestablishes a delimitationfor al1 kinds of
jurisdiction or only for someof them does not constitutea valid resson
for establishing differentlegal régimes. l
66. The contention put forwardby Gufnea-BissauIn the courae of the
presentarbitration is not compatible with the attitudeit has hitherto
maintained. In the Note 3032/CME/SG/77 adhressedon 4 November1977 by
the Comjssariatode Estado dos Ne~ocios ~skranneiros ta the Embassyof
Senegal, it vas stated that the maritime bbundary betveen the two States
was determined by the 1886 Franco-Portuguese Convention(Mernorial,
Ann. 6bis). The same positionvas rnaintaihdin the Note of 3 April 1979
l
addressed by the representative of ~uinea-~issau to the Special
l
Representative of the Secretary-General of the United Nations to the Thira
Conference on the Law of the Sea (Reply, Am. 3). blthough later, end in
consequenceof the ArbitralAwardof 14 ~ebruary 1985 in the case of the
- l
Delimitationof the Maritime Boundary between Guinea and Guinea-B,issau,it
I
was achowledged that the 1886 Conventionhad definedonly the land .
frontiers, the above-rnentione ndotes show khat Guinea-Bissau accepted
State successionin the matter of maritime boundaries. The Arbitration
Agreementof 18 Pebruary 1983 signed by Guinea-Bissauan4 Guinea invokes
l
"the seleomdeclaration of the Meeting of keads of State and Government of
the Organizationof African Unityheld in ~airo from 17 to 21 July 1964 by
which the Member States pledge themselves ko respect the borders exiating
on their achievement of national independence". Since that Arbitracion
Agreementconcernedonly the delimitationIf a maritimeboundary, thereferencequoted means that the two Parties recognized thatthat principle
was applicable to boundariesof that category. In oralargumentalso in
thatsameArbitration, Guinea-Bissau alsoacknowledged that successionof
Statesoperates in respectof treaties onmaritimeboundaries {Pleadings,
verbatimrecordNo. 8, pp. 76 and 77).
B. DURATION OF THEAGREEMENT
67. The questionof the age of theAgreement is dealt wlth fromtwo
viewpointsby Guinea-Bissau.In the firstplace, it maintains that
international treaties concludedby a colonial Statewith respect to a
dependentterritoryare nul1 and void if theprocessof liberation has
begun and the treaties in questionrelate to essentialelements of the
right of peoples to self-determination. In thesecond place, it assests
thatonly international treati es a certain duration- the lengthof
whichit doesnot specify - can be invoked against thesuccessor State.
Thus, in its MernosialGuinea-Bissau refers to the utipossidetisprinciple
and declares that "the logic and the bases of the principle requirethat
it should apply only to treaties concluded a long timeback" (p. 87).
Furtheron, it stresses "the need to distfnguishancientdelimitationsof theuti ~ossidetirule" (p. 89).
68. The Tribunalhas already fndicatedthat thAgreementvas
l
signed13 years befothe independenof Guinea-Bissauand ata time
~
when the proceof liberatioof~ortu~ueçeGuinea had no effeat the
~
level of internatiolaw. The agreementkrelating to boundariessigned
~
by a colonialStaeebefore tprocesaof iiberationhaaninternational
impactdo not have to fulfilany spechdition of antecedenfor them
~
to be validlyinvokedagainthesuccessoi State.uinea-Bissahas nat
beenable to establiahin the couofethe presentarbitratlonthe
l
existencof anynormof internationalawimposingsuch a condition.
69. The questionof the publicaokothe 1960 Agreement has been
raised in variousmanners in the course ofbitralproceedings.
In itsMernoriaGuinea-BissaStatesthat the Agreement26fApril
vas not thaubject oany publicationin Portugal. explainsinthat
conneetionthat the obligationpublislt waslaid dom inArticle 81,paragraph 9, and Article150, paragraph 2, of the 1933 Portuguese
Constitution. The latterArticle relatesto the publication of
instrumentsvhich were to enterinto forcein the Overseas Provinces,and
was later strewthened by the arganlc Law on the OverseasProvincesof
27 June 1953 and 25May 1955. It is claimedthat this total absenceof
publication resulted in the1960Agreement beingwiknown to the
authorities of Guinea-Bissa ut the time of independence. In supportof
that thesis, Guinea-Bissa uescribesits positionat the time of the
derlaration of independence. It had just emerged from a long war of
Liberationwhichhad exhausted itspeopleand had plunged it deeper into
poverty. In addition,the populatio nas for the most part illiterateand
of a low culturallevel (Mernorialp,. 64).
70. Relying on thesefacts,Guinea-Bissa maintains that the
1960 Agreementis not opposableto it because it wasunknown to it, and
alsoassests that the failureto observe the constitutionalprovisions
concernlng publicationinvolveda manifestviolation of interna1law,
thereby glving rise to nullityof the Agreement(Mernorial,pp. 150
and 152).
Senegal, for itspart, has put forward severalpieces of evidence to
show that the 1960 Agreementwas to some extentmade publicand was in
some rneasurhown in Internationalcircles.
71. Non-publicationhas thus been invokedin the Guinea-Bissau Mernorialas a pround of nulliry for manifestviolationof infernalliv and
as gronda for treatingthe Agreement aa dot opposable to Gulnea-Bissau.
I
That approachwas abandonedin the oral arghent, when Guinea-Bissau
declaredthat it vas not claiming"ehat the Agreementwas nat
I
fnternationally valid by reason of its nad-publication"but rathes that
"publication and the interna1 effectfveneds of a treatyin a colony are a
condition of the succession ta that treaty fer the newly independent
State" (PV/14, p. 164).
72. The Agreementof 26 April 1960 was not concluded in secretand,
l
at the tirneof the independence of ~uinea-3issau (19733, it had already
been the subjectof some publication. Its text was publiahed in the
Officia1Journal of the French Republicof 30-31May 1960, in the Official
Journalof the Communautéof 15 June 1960 and In the Official Journal of
the Federation of Mali of 20 August 1960. In addition, the Agreement
l
appears in the compilation of treaties a agreementsof France (Vol. II,
pp. 12-14) publfshed in 1966, as well as dn the Revue généralede droit
internationalpublic (Vol,64, 1460, pp. 891-892). The Agreement was also
invokedby the Parties to the dispute in the North Sea ContinentalShelf
cases, and was mentioned by JudgeFouad oun in his separate opinion
* l
attached to the Judgmentof the Courtin thosecases (I.C,J.Reports1469,
p. 126). It was also mentioned in Volume iV of Whitman's Diaest of
International Law (19651,in the book by J. Lang entitled"Le plateaucontinental dela mer du Nordt'(Paris,1970,p. 114)and ln the commentary
publishedin the Annuare francaisde droitinternational(1969,p. 236).
73. Guinea-Bissau'sargument is basedon the Ideathat because of the
absenceof publication, the 1960 Agreementcould notbe relied on against
the populationof Portuguese Guinea under thelegislationthenin force.
Starting from thatpoint,Guinea-Bissa usserts that, since thetreatywas
not opposable tothe populationof the PortuguesC eolony,it was not
opposableto the successor Statein that territoryeither (PV/3, p. 21).
74. It mustbe stressedfrom the outset that theobligation of
Portugal to publishthe Agreement initsRfricanprovince of Gwinea vas a
matter exclvsfvelyforPortuguese internallaw. Similarly,any obligation
whichmight have been incumbentuponPortugal to publishthat Agreement
officially in Lisbonwas aLso anobligation of Portugal'sinternallaw.
Thenon-fulfilmeno tf tbat obligationcannottherefore be considered as a
non-cornpliancby Portugal with anabligationimposedupon It by
international law. The'only aspect ofthe publicatfonof treatiea which
is the subjectof international regulationis the segistratfonof
treaties, inparticular with the Secretariat of thUnitedNations,a
question whichwill be exarnined by theTribunalbelow.
75. Thatsaid, to return to Guinea-Bissau'sargument mentioneidn
paragraph 73: accordingto that reasoning,independenceresulted in e succession betweenPortuguese Guinea and Guinea-Bissau. From the
stand-point of international law,that point of depastuse is incorrect,
for the succession of sovereignty was fromPortugal to Guinea-Bissau, A
succession of States always takes placebetween States - Portugal and
Euinea-Bissauin this instance - andnot between part of a State, as
PortugueseGuinea was in 1960, and a newState created on the same
territory. Any breach ofinterna1law consistingin a failureby Portugal
- properly to publish the 1960 Agreementin its formerAfrican Colony cannot
be Invoked by its successor, on the internationallevel,as groundsfor
claimiw that thatAgreement 1s not opposable to it. Still less cm that
claimbe made in relation to a third State which had duly
published the
Agreement. It must be added also that,as indicatedin paragraph72, the
1960 Agreement was not a secret treaty. The concepts of unpublished
agreement and secret agreementare in no way aynonymous.
76. Gufnea-Bissaustates alsothat it didnot receive any
notificationfrom Portugal relating to the 1960 Agreement,that it even
requestedclarification sn the subjectbut nererreceiveda reply <PV/l,
p. 92). The questionof notificationsbetweenPortugal and Guinea-Bissau
regardhg the 1960 Agreement,and any responsibilktythat might possibly arise therefrom,concenithe relationsbetween those two countriesand
does not faIlwithin the competenceof this Tribunal.
III.FAILURE TO REGISTER THE 1960 AGREEMENTWITHTHE:SECRETARIAT OP THE
UNITED NATIONS
77. In addition to the groundsalreadyexamined on which
Guinea-Bissaumaintainsthat the 1960Agreement isvoid and not opposable
to it, itclains (IYemorial, pp. 152-156and 159) that since that Agreement
wasnot registered with the Çecretariatof the UnitedNations (Article102
of theCharter), Lt camot be fnvokedin the present arbitration.
78. On this point, itmust be stsessed that the Tribunalis not an
organ of theUnited Nations and consequentlyArticle102, paragraph 2, of
the Charterfs not applicable.
Inaddition,it shouldbe pointed out that itdoes not seem logical
for a claimthat the 1960 Agreementcannot be invokedbefore thfs Tribunal
to be made by a countrwhich has concludedan ArbitrationAgreement
attributlngto thissame Tribunalcompetenceto decide specifically
l
nhether that Agreementbas the force oflaw between the Parties. The
non-registration of the Agreementof 26 April 1960 does notthereforeconstitute a valid reasonto del c the Partiesfrominvoking it
in the present arbitration.
IV. EXISTENCEOF A RIGHTOF f ZIFICATION OR REVIEW
79. Gulnea-Bissaa ulsomaintains that even if the 1960 Agreement
wereopposable to it, it
"would be entitledto require that tl eguitablecharacter of
the line resulting fromthat Agreemer be verified,and that too
In the contextof a possible applical >n of thatAgreement"
(Reply, p. 274).
According to Gulnea-Bissau, that rigI of verificatioo nr review of
the Agreementexistswhenever a treatycor Ludedunder the régimeof the
1958 GenevaConventions governs,by the o~ ration of a auccession,the
Party ta those conventionsbut
relations of a State vhich has never been
whfch 1s a Partyto the 1982 Montego Bay ( zvention. -
This claim has been submittedby Gufr a-Bissauas a subsidiary one
{Reply, pp. 273-274) in the event that th6 1960 Agreement is held to be
opposableto it. The main thesis of that 3untry is that the
1960 Agreement is not opposable to it, ber use it deals with a maritime
boundaryfor which succession doesnot opi nte (see above,paras. 63-66], The right of verificationor reviewinvokedby Guinea-Bissaucould
originateeitherin treaty law or in unwrdttenLaw. With regard to treaty
law, Guinea-Bissau relieo sn the Montega BayConvention,Ln particular
Articles74 and 83. The Tribunal would meïelynote on this point that the
1982 Convention doesnot apply in the presentcase because it bas not pet
entered into force. That does not of coursemean that the Tribunal
interpretsArticles 74 and 83 of that Conventionso as to recognize the
existenceof a rightof review or verification. As for the unwrltten law,
there does not existat preçent in positiveinternational law any
customarynorm or anygeneralprincipleof law that would authorizeStates
which have concludeda valid treaty concerningmaritimedelimitation, or
tkeir successors,to verify or reeviewits eguitablecharacter. V. TILSCOPE OF SUBSTANTIVV EALID
80. The analysismade by the Tribunal in theabove sections1, II,
IIIand IV of thepresentkward leads to t e conclusion thatthe
to Senegaland to Guinea-Bissau.
1960 Agreement isvalfd and can be opposed
Withregard to themaritime boundary, that Agreementprovidesas
follows:
"As far asthe outer limit af th territorialseas, the
boundaryshallconsistof a straight ine drawnat 24OD, from
the intersectioonf the prolongation f the land frontierand
the low watermark, represented for t at purposeby the Cape
Roxo lighthouse.
As regards thecontiguous zones nd the continental shelf,
the delimitationshall be constituted by the prolongationin a
straight lfnein the samedirection O the boundaryof the
territorial seas."
This text clearlydeterminesthe mari ime boundaryas regardsthe
territorial sea, the contiguous zonaend t e continentalshelf. Those
three domains constitutedthe law of the s a in 1960, dateof the
signature of theAgreement. Senegal, howe er,has arguedbefore the
Tribunal that the 1960Agreement must be i terpreted as applyingalso to
the delimitation of theexclusiveeconomic zonesand it has putEorwarda
number of arguments to this effect, which he Tribunalwill examine one by
one.
81. The first argument isstated in t e Counter-Mernaria(p. 316,
note 534) and refers tothe Arbitration Ag eement. Senegalpointsoutthatthe Parties,albeitfordifferent reasans,interpretArticle 2 of the
Arbitration Agreementas meaning that a singlemaritimeboundary shouldbe
arrived aE. Thia voulâmean, according to Senegal,that if the Tribunal
arrives at the conclusfonthat the 1960 Agreementhas the force of law,
the boundary set bythat Agreementmustapplyto the wholeextentof the
continental shelfand alsa to the exclusive economiczones.
TheArbitration Agreementof 12 March1985 is the treaty vhichhas
set up the Tribunaland whichdetermines Its cornpetencet,hepowers
delegatedby the Partiesand themain rulesgoverning its constitution,
but It aoes not containany particular ruleon the substantive law to be
applfed to the questionsvhich the Tribunal 1s calledupon to answer.
Article2 of theArbitration Agreement says simplythat the Tribunalmuat
declde "in accoràancewith thenorms of internationallaw". There are in
the ArbitratioA ngreementno provisionsaetting forthspecialsubstantive
rules applicable to the case. With regard to themerits of the case,the
1985 ArbitrationAgreement doesnot thereforecontain any specific nom
and does na more thancal1 upon the Tribunalto decide in accordance with
the law of nations.
82. A second argumenthas been put forwardby Senegal during the oral
argument (PV/10,p. 213). AccordIng to this argument, to interpret the
1960 Agreement 80 thatit applies only to certainterritories and not to a
wholebody of maritimeareas wouLd be tantamountto saying, byimplication, that this Agreement Is prtiaily valid and partially void,
which wouldbe contraryeo certain rules on the divisibility of treaty
provisions.
The question here is not one of nullity. The Tribunal has already
stated cleaxly in the present Award that the 1960 Agreement 1s valid,
wholly valid. The questionwhich the Tribunal has now to resolve concerns
solely the interpretatioo nf thatAgreement and not iesvalfdityor ita
nullity. The interpretatioo nf the meaning and acope of the text of a
treatyis a legal operation whichmust not be confused with that of
declaring thenullityof a treatyor of one of its clauses.
$3. Senegal alsoconsidersthatpractfce subsequent to the
1960Agreement,and the acquiescence of eachof the twoStates to the
legislationof the other on the.seaward reach of the varfous maritime
areaa, have glven rise to a tacie agreement,or to a bilateral custom,
fixing as the limit for the waters of the exclusiveeconomiczone or the
fisheryzone the very lineof the 1960 Agreement (Rejoinder,pp. 183
et ses.; PV/11,pp. 34, 41 and 42).
The Tribunal is-not attemptingto determine at this paint whether
there exista a delimitationof the exclusive econornic zones based ona
legal norm other than the 1960 Agreement, such as a tacit agreement, a
bilateral customor a general norm. It is merePyseeking to determine
whetherthe Agreement in itself can be interpreted so as ta cover the
delimitationof the wholebody af maritime areas existing at present. 84. Lastly, Senegal maintains that the 1960 Agreementmust be
interpretedtakinginto accountthe evolution of the law of the sea. The
maritimeboundary establfshed bg theAgreement should therefore be
prolongedand enhancedin keeping with functionalrequirement~w ,hich are
altogetheressentialto maintaingood nekghbourlyrelations and relations
of security. A delimitationagreementshould not have any gaps, and such
should be filledup in the light ofgood sense and the nature of things
(W/11, p. 42).
85. The Tribunalconsidersthat the 1960 Agreementmust be
interpreted in the lightof the law in forceat the date of its
conclusion. It is a well establiçhedgeneralprin~iplethat a legal eveat
must be assessed in the lfght of the 3aw in forceat the time of its
occurrence and the applicationof that aspect of intertemporallaw to
cases auch as the present one is confirmedby case-lawin the realmof the
iaw of the sea (International Law ReDorts,1951, pp. 161 et secl,;
Internationaland ComparativeLaw Quarterly,1952, pp. 247 et sea.).
In the lightof the text, andof the applicable principle sf
intertemporal law, the Tribunalconsidersthat the 1960Agreementdoes not
delirnitthoaemaritimespaces which whether
economiczon
example,it was only very recentlythat the International Court of Justice
has confixmed that the rules relating to the "exclusiveeconomiczone" can
be consideredas foming part of generalInternationallaw in the matter (,K.C,J,Bevorts 1982,p. 74; 1,C.J. Report8 1984,
P. 294; 1.G.J. ReDorts 1985, p. 32). To nterpretan agreement
concludedin 1960 so as to cover also the delimitationof areas such as
the "exclusive econorniczone" would invalvea real modificationof its
text and, in accordancewith a well-knowndictum of the International
l
Court of Justice,it 2s the duty of a court to interprettreaeies,not to
I
revise them (1,C.J. Re~orts1950, p. 229; ~L.C.J. Re~orEs 1952, p. 196;
l
I.C,J, Re~orts 1966, p. 48). We are not cdncernedhere vith the
evolutianof the content, or even of theextent,of a maritimespace
which existed in international law at the time of the conclusion of the
1960 Agreement, but with the actualnon-existence in internationallaw of
a maritimespace such as the "exclusiveeconornic zonew at the date of the
conclusion of the 1960Agreement.
On the othes hand, the positionregardhg the territorial sea, the
contiguouszone and the continental shel s quitedifferent. These
I
three conceptsare expresslymentionedin the 1960 Agreement and they
existedat the timeof itsconclusion.In fact, the Agreement itself
specifiesthat its objeet ks to define the maritimeboundary "taking
into
account the GenevaConventionsof 29 April 1958" elaboratedby the first
United Nations Conferenceon the Law of the Sea, and these codification
conventionsdefine the notions of "territorial seam, wcontiguouszone"
and "continentalshelf". As regardsthe continentalshelf, the questionof determining how far theboundaxylin@extendscan arise today, in view
of the evolution of the definitionof the conceptof "continental shelf".
In 1960, two criteriaserv~d to determine theextent of the continental
shelf: thatof the 209-metrebathymetrfc line andthatof
expleitability.The latter criterioninvalved a dynamic conceptionof the
continental shelfs ,incethe outer limit woulddependon technological
developrnent and could consepuentlymove furtherand furtherto seaward.
Inview of the fact ehatthe "continental sheli"existed In the
International lai wn forcein 1960, and thatthedefinition of the concept
of thatmaritimespacethenincludedthedynamiccriterion indicated, it
may be concludedthatthe Franco-Portuguese Agreeme delIrnit she
continental shelf between the Part iesr the wholeextent of that
maritime spac as definedat present.
With regard to thatquestionthere only remainsto determine the
meaning and scopeof the expression "a atraightlfnedrawn et 240°" in the
1960 Agreement.
86. With regardto the expression justmentioned,Guinea-Bissau has
pointedout (leplg,p. 252) that ehere isno such thing as a "straightIlne" on the globe of the Earth, and that t'hiinvolves a technical
inaccuracy which would make the Agreementinapplicable, since it is not
Indicatedprecisely whether the line Lnquéstion is a loxoaromic lineor a
geodesic Ilne. At a distanceof 200 miles offthe coast,lines of these
two types wouldbe severalkilometresapart.
Does the 1960Agreementreallycontain a technical inaccuracyon this
point which would renderit inapplicable? In order to reply to that
question,one must determine the exactmeaning of the expression"a
straightline drawn at 240'" in the 1960Agreement. It is ciear that the
words "straightline1' can relate to a linewhich couldbe drawn just as
as on a map using another
well on a rnapemploying the Aercatorprojection
system. Nor can therebe any doubt that astraight line drawn on a
Mercator projectionmap becomes cusvedwhen itis transferred on to a
differentnautkcalchart, just as a straightline drawnon a rnapwhich
uses a projectionother than the Mercatorprojectionbecomea curvedwhen
transposedto a map preparedaccordingto the lattersystem,
The 1960 Agreement, however, does not referonly ta a "atraight Line";
kt also mentions a "line ,.. drawn at 240'". This rnakesit possibleto
l
ruleout any geodesic line, because such a lineuould not satisfy the
conditionof followinga directionof 240' since it has the peculiarity
i
of not intersectingthe meridians and parallelsat a constantangle. The only linewhicouldfulfilthat conditionwould be a laxodrornic
~
Ilne.Moreover,on thesketcincludedinthe preparatorworkofthe
1960 Agreement,tlineat 240° appears as a loxodrline. Itcan
thereforebe concludedehat the "straightline at240°" mentionedby
7
the1960 Agreement is a loxodrline.
2
87. Bearing in mind the above conclusionsreachedby the Tribunaland
the actualwording of Article2 of the ArbitrationAgreement, in the
opinionoftheTribunalit is not calledupto replto the second
question. 7
FurthermoreInview ofitsdecision, the Tribunalhas not juited
expediento appena mapshowingthe course of the bounâaryline. 88. For the reasons stateâ above,the Tribunal decidesby Ewo votes
to one:
To replyas follows to the first ques ion formulatedin Article 2 of
the Arbltration Agreement:The Agreement oncludedby an exchange of
letters-on 26 April 1960, and relating to he maritime boundary, has the
forceof law in the relationsbetween the epnblic of Gulnea-Bissaa und
the Republicof Senegal with regard solely to the areas mentionedin that
Agreement,namely the territorial sea, the cantiguouszone and the
continentalahelf. The "straigbt line dra n at 240"" is a loxodromie line.
In favour: Mr. Julio A. Barberis, Preside
Mr. André Gros (Arbitrator)
Against: Mr. MohammedBedjaoui (Arbitra
Done at Geneva,on the thirty-first d y of Julg one thousand nine
hvndred and eightynine,in duplicate, in he French and Portuguese
languagea, the French text being authentic The two orfginals shall bedepoaitedwith the archiveofthe Secretariaof the UnitedNati~as and
of theInternationaClourtofJustfce.
tSinnedlJulioA. Barberis
President
(SignedlSantiagoTorresBernardez
Registrar
Mr.JulioA. Barberis,President,app@- -de7la ationto theAward.
Mr. MohammedBedjaoui,Arbitsator, opinio<to
the Award.
(InitfalledJ.A.B.
(InilialledS.T.B. DEÇLARATIOI OF MR. JUI
1 feel that the reply given by the TI bunal to the first question put
by the hrbitratkon Agreement enmoreprecise. I would have
repliedlo that questionas follows:
"The Agreement concluded by an 1 change of letters of
26 Aprkl 1960, and relating to the mi itime boundary, has the
*forceof law in the relationsbetweel the Republic of
Guinea-Bissaa und the Republicof Sei gal with respectto the
territorial sea, the contiguouszone na the continental shelf,
but does not have the forceof law w: k respectto the waters of
the exclusive economic zoneor the f: hery zone. The 's~raight
line drawn at 240'' mentioned in the greement of 26 April 1960
ia a loxodromfc Ilne."
This parttally affirmativeand parti4 ly negatlvereply is, in my
view, the correct descriptionof the lega: position existing between the
Parties. As suggested by Guinea-Bissau ii the course of the present
arbitration {Reply, p. 2-48],a reply of tl s kind would have enabled the
Tribunal to deal in its Award with the sel nd questionput by the
Arbitration Agreement. The partiallv negi ive reply to the first questionwould have conferreâ on the Tribunal a partial cornpetenceto reply to the
second,i.e., to do so to the excent that the reply te the first question
would have been negatkve.
In that case,the Tribunalwould have been competentto delimit: the
waters of the exclusive economiczone1 or the fishery zone betueenthe
two countries. The Tribunal thus could have settledthe whcle of the
dispute,because,by virtueof the reply to the firstquestion of the
Arbitration Agreement, it would have determinedthe boundaries for the
1
territorial sea,/contiguous zone and the continental shelf, as the hward il%/
l-
has just done and, by ies answerto the second question,the Tribunal
courd have determinedthe boundary for the waters of the exclusive
economiczone or the fisheryzone, a boundary which might or rnightnot
have coincidedwith the line drawnby the 1960 Agreement.
11 refer to the "watersw of the exclusiveeconomiczone and 1 thknk it
necessaryto be as specific as this, because it sometimes occurs that the
notion of this zone covers also the continentalshelf as, for example, in
Article56 of the 1982 MontegoBay Convention. DISSENTIMG OPINIONOF MX. I HAMMED BEDJAOUI
1. 1 regret that I canot share with he view of my two colleagues
on the Tribunal. They have been able to ( al with Important problems
such as the noms of jus conens segarding he right ta self-determination
of peoples and the permanent sovereignty r er naturalwealth and
resources. Concerningthe latter, paragri ,h39 of the Award lays down
that:
"The application of the princip: of permanentsovereignty
overnatural resourcespresupposestI t the resourcesIn
question are to be foundwithin the i rritory of the State
which invokes that principle ... Be:me the Agreement
[of 19601,the maritime boundarieshi . notbeendeterminedand,
censequently neither of the two Stati couldassert that a
particularportionof the maritime ai a was 'itsown',"
I am afraidthat the Award createshi e a confusion between the
"right" of every State to a maritime doma: Land the actual "exercise"of
that right through a concreteoperation o. delimitationof the maritime
boundary. The International Court of Jus1 ce had considered that the
right of each State over "its" continenta: shelf (5-e., over the aseas of
thar shelfwhich must belong to lt) is an inherent"right,and laterthe
MontegoBay Conventionalso endorsedthat 4gh5 in the same spirit.The reasoning in paragraph 39 of the Award thus overlooksthe "inherent"
rightwhich every peoplehas over "its"maritimedomain,even if not yet
One of the greatInnovations in the comternporary law
in factdelimited.
of the sea is that it recognizesa right to a maritimeterritory which
existsindependently of, and priorto, any delimitation.
This paragraphof the Award adds that
"From a logicalpoint of view, Guinea-Bissa uannot assert
that the nom which determinedthe extent of its maritime
territory (the 1960 Agreement)has taken away from it part of
the maritimeterritory whichwas 'itsown"'.
IL seemstome that there is here a fundamentalerrorin reasoning.
Guinea-Bissauin fact denies that the 1960 Agreement could represent"the
nom which determinedthe extentof its maritimeterrltory",and that is
the reason why its contention is precfselythat that Agreement is nul1
and void. The nom for Guinea-Bissauis not the 1960 Agreement but the
"inherentt right of every coastalState.
2. But wes it netessaryfor the Tribunal to embarkon this course
whichhas led it to controversialsolutions? For my part, in order to
expressmy opinionin the presentdispute,1 need only examine the
question whetherthe exchangeof notes betweenFrance and Portugal of
26 April 1960 was opposable toGuinea-Bissau,in priority to that of thevalidity of that exchange. The first poir to be determined appear8 to
me to be whetherGuinea-Bissau1s or is nt bound by the Agreement. It
is only afterhaving ascertainedthat an c reement is opposableto a
State that there is any point in examiningits validity; otherwise such
an examination 1s of purely academicintel st.
3. The present disaenting opinionis n two parts. 1 have reached
the conclusionthat the Agreement of 26 AI il 1960 is not opposableto
Guinee-Bissau; therefore I need not proncnce on the validity of that
Agreement. It is thua my duty to explafn, in my first part, how 1
reached this conclusion. In view of that onclusion,1 will then be
bound to proceed - and that will be my sec nd part - to an ex novo
delimitation of the maritime areas appert: ning to each of the two
Parties.
4. In the first part, the problemwhi
h arisesas a startingpeint
is that of the legal position of the Reput ic of Guinea-Bissauwfth
respect to the exchange of lettersbetweer France and Portugal of
26 April 1960. Portugal and France, the S ateswhich had at the tirne
responsibility for the international relat ons of Guinea-Bissau and
Senegalrespectively, negotiated on 8, 9 a d 10 September1959 twof'recommendatlons" the firstof whlch was the subject on 26 April 1960 of
an exchange of lettersconstitutingan Agreement in simplified fom.
Both at the timeof the negotiationand at that of the signatureof that
Agreement,Portugal was still the adminiatering pover of Guinea-Bissau.
The liberationof Gulnea-Bissaubrought about a successionof States by
decolonization and it can be said that Portugalhad the statusof a
predecessorState and Guinea-Bissauthat of a successorState. 1 make no
finding upon the exact, or even approximate, date atwhich each of them
acquired such status - a point on which these was considerableargument
betweenthe two Parties. I confinemyself to noting the fact.
5. The relationship between France and Senegal ia somewhatmore
cornplex.The independence of Senegalundoubtedlyalso brought abouta
situation of successionof Statesby decelonizatfon and Senegalis
legally a succesaorState of France, which is legally apredecessor
State. But whatwas the status of Senegal at the precisedate of the
conclusion of the 1960 Agreement? On 26 April 1969, or at any rate on
8 September1959, the date at which the negotiationsbegan, Senegal was
no longer legally an "ovesseas terrilory"of France, i,e., a territory
still dependentupon it. UnLike Gulnea-Bissau,which never emerged as aState during the phase of negotiationand tonclusionof the Agreement,
Senegalwas alreadypresent asa State. Thua the maritime territory to
be delimitedconcerneâ, accordingto the actualterma of theAgreement,
the "Bepublic" of Senegalon theone side and the "Portuguese Province"
of Guineaon the other. On the one side we find a delegationfrom
"Portugal", which made known that it considereditself a unitaryState,
and on the other a delegation statedto be from the French wComunauti".
In the AgreementPortugal declaredthat lt vas acting on its own behalf
with respectto "itsl' "Province"of Gufnea, while France stated that it
vas acting "on behalfof the FrenchRepublicand of the Communauté".
6. It is hovevernecessaryto be even more preciseon this subject,
for it does not appear,that, at that finaldateof the independence
process of Senegal, France could have undertakenany actionwhatsoeverin
the region on its own 'lbehalf".Moreover,although the formal legal
requirements conneceed with the birthof the FrenchConmiunaut éf 1958
made It actually necessary fo Frranceto act on behalfof the
~qComrnunautéo ",her texts,and firat and foremostthe Agreement itself, .
specifiedmore exactlythat itwas acting"on behalf of the Republic of
Senegal". The interna1 noteof 26Aprfl 1960, No. 941.1, fromMr. Franco
Nogueirastates in paragraph2 that the French Goverrunent concludedthe
Agreement "on its own behalfand on behalfof theRepublic of Senegal".
A French Overseas Law specialist,ProfessorFrançois Luchaire, coneiders
that, in the eyes of the French Constitutionof 1958, the Africancoutries under French administration had to be consideredas having
legelly obtainedtheir independenceon the day on which, In
September1958, theirpopulations were called upon to vote on their
future status. Theis vote whetherthey wanted or not to stay in the
FrenchCommunautéconstltuted a genuine self-determinatiov note; the
option of complete and immediateindependence was offered, as was that of
becoming a member of the FrenchCommunauté; both were equallyopen.
IncidentallyConakry Guineatook advantage of that option'.
7. In fact,the Republicof Senegal,i.e., the State which that
Bepublicnecessarklyimplies, was created following that vote on
self-determination.hikewiseand a fortioriSenegal was in 1960
autonomous at the time of the conclusionof the Agreement. There is
therefore no doubt that 1t Isnot possibleto consfderSenegal as kaving
acceded to the Agreementby way of succession.Moreover it vas clear
l p r a n t i e r , Judgmentof
22 December1986, I.C.J. R~DoX~S1986,p. 653, SeparateOpinionof Judge
ad hoc François Luchafre:
"the colonialproceas must be regarded as finally over once the
inhabitante of a colonyhave been able to exerciae[their]
right of self-determination. So far as the French overseas
territories are concerned* [...]this means that the colonial
phenornenodnfsappeared on28 Se~tember1958 when, by an act of
self-determinatio n accomplishedthsougha referendum the
authenticltyof which has not been challengedby anyone -,
thoseterritorieschose their status." (Emphasisadded.)
Th18 ia how Senegalchose the status of "memberState of the
Communautéi "n 1958 and "As fromthis date, theFrench overseas
territoriescouldtherefore no longer be consideredaa coloniest'.
* Senegal was a Frenchoverseasterritory.from theterms used that Senegal had "part ;ipatedw in the negotiation
and conclusion of the Agreement. It even grticipated in a dual capacity
since, on the one hand, the delegationwhi 1 negotiatedand concludedthe
Agreementwas that of the "Communautéw of iichSenegal was a member, and
on the otherhand, it was statedby Senega in the presentdisputethat
one of the membersof the delegation,Mr. slrihle, was a Senegalese
national. It thus seems obvious that Sene al did not succeedto the
Agreementbut partkcipated in it. In addi ton,Senegaïhas during the
present diapute produced to the Tribunal d 3lornaticcorrespondence from
the French ForeignMinIsterto the Prime M listerof Senegalinforming
the latterof the openingof the negotiati 1 in Lisbon and asking him to
appointa representatlve for thatnegotiat in. Senegalis thus in a
hybria situation. It is obvfauslynot a p rty to the 1960 Agreementby
way of succession,becauseit was an origi il contractingParty,both by
way of State representratio and through dl !et participationas a member
of the Communautéand as an effective part :ipant. It mustbe considered
first as havinggivenpowers of representa Lon ta Franceand, secondly,
as a direct and effectiveparticipantthro ;hone of itanatlonals. 8. If the foregoinganalysis Is correct,the legal positionvith
regard to the Agreement of the two Partiesto the present case was
radicallydifferent: Senegal vas a State partg to the Agreement, whereas
Guinea-Bissau was a third-partyState in relationto it. Before we corne
to this position of Guinea-Bissau, it is worth noting that
Guinea-Bissau' sriticismof Senegal for not having made a deelaration of
succession to the Agreement appearstotallyunfounded. Senegalvas not a
successorto the Agreement but a real State party whichhad no need
whatsoever to make such a declaration.
9. Thus, regarding the particularissue of the "actors"in the
succession of States, it must be taen as duly establishedin the first
place that Senegal was not a successor State but actuallya Stateparty
to the Agreement,bath as having participated in it and as having ensured
that it ras represented to that end, and in the secondplace that France
Vas not a predeceaserState, but rathera State party itself,or at least
a State acting on behalfof anotherwith powers of representation. If
France considered that it acted on behalfof Senegal, the matter is then
one of representation and pouers, and not a question of successionof
States. In the Portugal/Guinea-Bissar uelationshipon the other hand,
Portugal vas in 1958 and 1960 a unitary State responsible for les
"Provinceof Guinea1' and was therefore a State party to the Agreement,whereas upon its independence~uinea-~issa A ouldbe consideredas a
third-party Stateto theAgreement, followingthe general declaratioo nf
l
non-succession made bythe People's kssemblyof Guinea-Bissau on
24 September 1973. Zn otherwords, the lawof the successionof States
may not be invokedas a Law applicableto thisparticular case, neither
because of the presenceof France nor thatof Portugal,both incîdentally
1
strangersto the presentlitigation, nor that ofSenegal,but only
becauseGuinea-Bissai us involved,- whichanyhow quickly cauaed the
force of that law tobe spent by declaring itselfa third-party State
wfth respectto the Agreement.
10. Moving now fromthe questionof "actors"in the succession of
States, on to that ofthe "subject-matterof the succession" t wfllbe
noted that the 1950 exchange oflettersbetweenFranceandPortugal was a
treaty-instrument which can be termed"bilateral" in order to sfmplify
the cornplex,hybridand arnbfguousrelationshlpswhich It established
between Portugal on the onesfde, and France,the Communautéand Senegal
on the other; in thisrespect,let us saythat:
3. Lt is a treatv(withoutspecifying further thenumberof
participatlng States);
2. it is aboundary treaty, and 11. On the first point regardingthe formalcontent of the
instrument,Guinea-Bissau has adopteda clear and consistentstand.
Throughthe applicationof the tabularasa principle,it rejected al1
succession to the exchange of lettersbetween Franceand Portugal of
26 April 1960, since it repudiated the treatiessigned by Portugal
and applicable to the Province of Guinea. On the basisof the
above-mentioned general derlarationof 1973, as well as UnitedNations
practice and custornary law on succession of States,s successor State is,
according to the tabula rasa principle, especiallyin the case of
succession as a result of decolonization, a "third-partyw State with
respect to al1 the agreements and treatiesfor which it has not expressly
made an act of succession. The tabula rasa princlple clearly definesthe
particularlegal conditionin which the successor State finds itself.
Non-successionconstitutesthe rule, except in the caseof a tacit or
expliçitcontrary decisionof the State concerned. With regard both to
rnultilateraltreatiesand to bilateralagreements,the successorState
starts with a non-successio nituation,making it a third-partyState to
the agreements as fromthe stastingpoint of the tabula rasa. The
essential idea underlying the Vienna Conventionon Successionof States
in respect of Trearies of 23August 1978 is that the successor State,
save in exceptionalcases specified In the Convention, does not
autornaticallbyecome a party to the treatiessignedby its predeceasorfor the transferred territory. Article16 of the above-mentioned Yienna
Conventionapecifiesthat in the case of dkcolonization:
"A newly independentState is no\ bound to maintainin
force, ar to becomea party to, any tyeaty by reason only of
the fact that at the date of the successionof Stateathe
treaty was in force In respect of the territoryto which the
succession of States relates."
A circurnstance whichshouldalso be nated as a completebar in thks case
1s that the 1960 Agreement does not seem tb have been put inta forceat
al1 by the administrative power of.the so-kalled Portuguese Guinea.
Moreover,in its report to the GeneralAssembly,the Internationa law
Commission, transaitting to the Assembly the draft whlchwas to becorne
the ViennaConvention, declaredthat "a nehy IndependentState benins
its international llfe free from anv obllphtionto continue in force
rreaties prevlouilyapplicablewith respeEt to its rerritory2u
(emphasis added). In the psesentcase, Gubnea-Bissaudid not merely
l
invoke, for a specific case, or in a partikularciscumstanee,the
tabula rasa principle fora gfven treaty; it vent much further by making
1
s general declarationof non-succession. This 2s a fact which ii wwould
be difficult legally to leave out of accouhl.
12. This means, incidentally,that it is not possible to concur vith
the statementin paragraph 31 of the Award where it is safd that
2~oc. A/9610 inYearbook of the ~nternatioka~Law Cornmfssion. 1974,
Vol, II, Part One, pp. 166-280 (see para. of the comentary to
Art. 15). "the very factof invokinqbeforetheTribunalgroundsof non-existence
or nullityof the 1960Agreement... impliesacknowledgemen tf the
I statusof successorof one of theStateswhich concludedthatAgreement"
1 (emphasisadded). The reasoningbekind paragraph31wouldhavebeen
1 unfmpeachableif Guinea-Bissahad itself"lnvoked"the benefitof the
Agreement. Thisis not the case. On the contraryit is resistingits
~
application.Moreover, Gulnea-Bissaudoesnol pleadrnerelythe
~
non-existenceor nullityof theAgreement ,ut claimsabove al1that it
is not opposablta it - a pleawhichis its main submissiona fact
which is worthstreesingandwhfch paragraph31 seemsunfortunatelyto
haveoverlooked. This pleathattheAgreementis not opposableto it
l
1 indisputablyirnplieshatGuinea-Bissauis not asuccessorto that
1 Agreement. Itwouldbe a paradoxical situationtoconsidera general
declarationofnon-successionto treatiesas implyingas a starting
~
1 point ...a successionto oneof them. The tabularasa princkplecannot
3~hatbeingsaid, a aubsidiarypointis thatthe statusof successar
State does not necessarily depend uthe position adoptedby theState
regardinga particularagreement. Thisis in thefirst placebecausea
Statenoe havingthe statusof successor Statemaywell fnvokein a
particularlitigationthe benefitof a treatywhileremakninga third
Partyto it, if fts case fallwithinthe exceptionsto the principleof
the relativeeffectsof treaties. That merefact of invokingthe treaty
cannot conferupon it the generalstatus of asuccessorState.
Conversely,the positionof beinga successor Statis not exclusively
conditioned eitheby the successiontotreatiesor by the successionta
one ofthem, inparticularthe 1960Agreement. Succession ofStates
embraces other treatiethanthe 1960Agreementandmatters other than
justtreatiea. Even whena State invokesthe totalapplicationof the
tabularasaprinciple,ft can atillremaina successor Stateregarding
othermatters. Thisis thecase ofGuinea-Bissauw,hich isa successor
Stateof Portugal,but certainlynotdue to thenotion, Inaccuratien any
case,that ithas "invoked"the1960Agreement. 13. If one considers the indisputabli factof the declaration of
non-succession the situation appears as 1 iving two facets:
Ca) Guinea-Bissau, as wasits right,has bjected any successkon to al1
agreements except wherea contzary in sntionis manifest. There has
been no suchmanifestation regarding ' le 1960 Agreement, of the
existenceof whîch it was In fact unar .re. Itmust therefor ee
consiâered, as a pointof departure ai Iaccording to thenorm of the
tabularasa principle with respect to ,uccesslon of States, that
Guinea-Bissau is a third-party State i relationto the
1960 Agreement.
(br It should be ascertained whether,thsi igh this or other State
succession mechanisms, in spite of it: general declasationof
non-successionG ,uinea-Bissau can nevi theless be bound by such an
agreement,in partfcular becauseof i :nature.
14. It remains to be determined whetl !r, due to its substantive
content as a "boundary" treaty, and a "ma time"baunâary treaty, the
1960 exchange of lettershas a specific ni ure such that Lt can negate
the tabula rasaprincfple, which is a prii iple of international law
regarding successio of States. This is 4 .esecond pointto be
examined. In Eact, the tabula rasa princ. 'le does comport an exceptionfor boundary treaties and régimes. 1 will refrain for the tIme belng
from further specifying its nature.
15. The followingfirst stagein the argumentis necessary:
First and foremost the questionmust be asked whetherGuinea-Bissau
adheres to the idea of automatism in the successionto boundary
treaties.This question Isnot superfluous because the uti possidetis
principlefor land frontiershas rfghtfrom the start been under attack
by certain African States. It must therefore be ascertainedwhether
Guinea-Bissau was one of them and whetherin the present case, it has
show aome diffidencetowards this exceptionto the tabulaxass principle
In the case of boundarytreatles.
16. The Organizstionof AfricanUnity (OAU)has admittedthe
principleof uti ~ossidetis,endorsedindirectly in Its Charterof
May 1963 and more directly in its CairoResolution of 1964. As stated in
the Judgment of the Chamberof the InternationalCourt of Justice in the
case concerning the FrontierDispute (BurkinaFaso/Re~ublicof Mali):
"Theelements of uti~ossidetis were latent in the many
declarationsmade by African leaders in the dam of
independence. These declarations confirmed the maintenance of
the territorialstatus quo at the time of independence,and stated the principleof respect both :or the frontiersderiving
fsominternational agreements, and fcr those resultlng from mere
interna1aûministrativ divisions. 1le Charter of the
Organizatian of African UnItydid'noi ignore the principle of
uti ~ossidetis, but made only îndirer: reference to it in
Article 3, according lo whichmember ;tates solemnly affirrnthe
principle of respectfor the sovereig ityand territorial
integrity of every State. However, t: their first summit
conference after the creation of the lrganlzatio nf African
Unity, the African Headsof State, ki theirResolution menrioned
above(AGH/RES.lL(I)) ,dopted in Caj:O inJuly 1964,
deliberately definedand stressedthi principle of
uti possidetisduriscontainedonly ii an implicit sensein the
Charter of theirorganization4 .
17.Guinea-Bissau did not show any hlitility towards thisprincfple,
as dia other States,such as Morocco and :imalia. It may therefore be
takenas eatablished that it is bound by 1ifs principle,sinceit has
never denfed ita compulsory nature, eithei duringits atruggle for
nationalliberation, or sinceit~indepen! :me. In addition, it has
:ase, against the
never at any tfmepleaded, In the present
uti posafdetis principle, which Il vas opii ta it eo da, One of the
pointsof agreement betwee nhe Parties ti the presentdispute is
preciselytheir respect for the uti vossic principle. The point on
which they disagree 1s the scope of this 1cinciple and not its existence
and bindingnature.
4~udgment of 22 Decembet1986, X.C.J. Rew
para. 22. 18. Çonsequently,there is absolutelyno need, for purposesof the
present case, to dwell anyfurtheron the general and mandatory character
of the uti aossidetisprinciple. Any reserve,hesitation, argumentor
questioning regardingthat principleis Irrelevanthere, uhethes founded
on the principleof self-determinati onichhas appeared as conceptually
contradictorj withut1 poçsidetis, or on anyotherconsiderations ,ince,
in the present case,bothPartieshaveclearlystatedtheirconcurrence
with thisprinciple. To my mind, thisis an element of applicablelaw
agreed ta by the Parties,beyondany other consideratio of general
international 1awwhichrnight justify and impose the applicatio of the
principlein question.
19. In theAward,reference is made toa uti ~ossidetis principle
regarded as specificallyAfrtcan. In particular,in paragraph 61, the
Award triesto draw a distinction between,an the one hand, the
experienceof LatinAmerica in the 19th cenlury,where only the colonial
administrativeboundaries, such as thoseof the Sp'anishCrown,had been
erected intaintangible internationE alontlers,and, on the otherhand,
the experience ofAfrica in the20thcentury,where al1 boundaries,
whethertheyhao existed between two colonialempiresor withinone andthe same colonialempire,were erectedintg international and equally
intangible fsontlers, Does thismean that the uti possidetisprinciple
doea not psotectfrantierspreviouslyestablished betweentwo colonial
empires inLatin bmerica, and inheritedfor instanceat presentboth by
Brazil,whichwas formerly Portuguese,and by fts neighkioursformer
1
Spaniah, English,Frenchor DutchColonies' in any event,I do nol thlnk
that any distinctionshould be drawnbetweena Latin-American
l
uti aossideti~and a uti ~ossidetiswhich hould be trulyand specifically
"African": this seems to me to beunfoundkd. No suchdistinction is
made anydherein thewritingsof jurists. The Award introduceshere an
Innovationwhich couldhave unforeseenconkequencesand of no proven
usefulness.
1
20. It is,however, strikingto observe, for purposes of what
follows, that theAward thus drawsa distinction, presumablyfor legal
l
purposes, thuswith a view to establishingdifferentiatedlegal régimes
for land boundariesaccording towhether they separate two former
colonialempiresor existwithin the contextof one and the sameformer
colonial empire. By doing so, theAward séernsto sec out intwo
conflieting directions, pressingby impliAation, for differentlationof
I
legalrégimesforlandboundaries, wh1l.e agsertiaga unity of régimefor
land and maritimeboundaries. Ifone findssufficientreasons to distinguishbetween different land boundary régimea,a fortiori: should
one refrainfrom attributingthe same legal régimeto both land and
1 maritime boundaries?
21. The questionnow to be examined is whethermaritime
delimitationagive rise, from the legal standpoint,to real frontiera,
similarto land frontfers. Guinea-Bissauhas makntainedthat it is not
legitimate to equatemaritimedelimitations le land frontiers so that the
uti vossidetisprineiple,the bindingcharacterof which it does not deny
for land frontiers,does not, in ita view, applyto maritime
deliminatlons. Senegal,which holds the oppositeoiew, has accosdingly
1
accused Guinea-Bissauof trying to deny thatmaritime limitahave the
character and status offrontiers.
22. On this point,I am of the opinionthat maritime delimitations
to preducegenuine vfrontiers" [frontières].The extent of State
I jurisdictionis undoubtedlydifferent formaritimelimits and for land
frontiers. This difference, however, is one of degreeand not one of
kind,even if certainmaritimelimits do notwproduce" an exclusiveand completeStatejurisdiction. However even if the diffesence were
one of kind it wouldnot preveat in any w, , to my minci,a maritIrne limit
from being considered as eguivalentto a rontierM if the term ls
unâerstoodas meaning a Line the function f which is to separate the
domain of exerciseof the competences of e State from the areas under
the jurisàiction of another State. It is rue that the law of the sea,
at least in fts presentstage of developmit, has attributed a seriesof
competences to the coastalStatewhich it ould be difficultto
assimilate in al1 cases to a State sovere nty, i.e., to the full and
exclusivecornpetenco ef the State enjoyini them. This, however,1s not
sufficient to rreateso fundamentala dif rencebetween maritimelimits
and land frontiersas to suggestthat the; limitado not constitute
frontiers; particularly since even in th( realm of land frontiera,a
certaindiversification of régimescan be bserved.
23. In any case, 1 believethat Senei 1 is not interpretingthe
positionof Gu,inea-Bissac uorrectly. It I es not seem to me that
Guinea-Bissauhaa mafntainedthat maritirni lIrnitsarenot frontiers. Tt
han simplycontendedthat those lirnits, wl ch are frontiers also, are
goaerned by a legal régime which is distii L and more recent, andwhich
àistinguishesthem from land frontiers to uch an extent that, accordingto Guinea-Bissau, theremust be a differencein treatmentregardkngthe
applicationof uti ~ossidetis. This is the questionthatwill be
examined now.
24. In an effortto ascestain the meaning of the wordsby applying
the rules of interpretationcodified ln the 1969 ViennaConvention on the
Law of Treaties, the Partieshave engaged in semanticconsiderations al1
of which seem to me bothsecondary and superfluous. Guinea-Bissau has
referred to numeroizstexts,including the 1958 Geneva Conventionsand the
1982 MontegoBay Law of the Sea convention, which apparentlygo so far as
to avold using theFrench term wfronti&re"to designatemaritime
"delimitations". Guinea-Bissau ,hilenot denyfngthat maritime
delimitations "produce"lines of separationwhich constitute real
frontiers,pointsout that the ordinaryrneaning of theterm "frontière",
and chiefly its legalmeaning,confine its use to land and that
uti vossidetisis applicableonly to land frontiers. This is not the
view of Senegal,which conslders thatmaritime delimitarion sannot be
exclvded from the category of frontiersgovernedby uti aossidetfsmerely ed in the relevanttexts
because those delimitationsare not mentfo
relatingto uti possidetis, nor in the pre aratorywork nor in legal
writings.
25. A. Thomasin his Dictionnaire gkn ral de la languefrançaisedu
commencement du XVIIesiécle à nos fours < 690-1900), definesa limite as
the "partie extrêm eùs'arrête un territo re, un domaine" [extreme
portion where a territoryor a domain corne to an end],and a "frontière"
n Etat de celuid'un Etat
as the "limitequi séparele territoire d'
voisin"[limit which separates theterrite y of one State fromthat of a
neighbouring State]. The Arbitration Trib na1 of the twoGuineas, In Its
Award of 14 February 1985,consideredthat "le terme 'limite' ...n'a pas
le sens juridique précisde frontière mais un senspluslarge"[theterm
'limit'doesnothave theprecise legalme ning of frontier,but a
broadermeaning]. It isnoz possibleto g any furtheron the plane of
semantics,and it is ntcessaryto appreeia e the very relative
ts to draw from theuse of al1
significance of any consequencesone attem
5
theseterrns .
26. At the same time, itks an indisp table fact - and onethat is
in no uay contested by the Parties- that he relevant texts relating to
the vti possidetls principledo not indica e anywhere that the expression
-
ber of the International
51t may be simply noted thatafterthe Cha
Court of Justicein its Judgmentcen~ernin theGulf of Maine had used
the expression "frontièrernaritimefl/"marite fsantier", a formulawhich
it took from the textof theArbitration A reementcancluded by the two
Parties in that case, in anothercasethe nurtitselfprudentlydecided
no longer to follow the formula usedby th Parties. The casenow
pending, which was entitledat first"Mari ime Boundary in the Area
betweenGreenlandand JanMayen" has thus 1DW become"Maritime
Delimitation in the AreabetweenGreenland and Jan Mayen". explicitly in thatresolution, to the prini tpleof the intangibilito yf
the frontiersinheritedfromcolonization. Hevertheless, sinceI uae
myself involved quite closely in one capac: :yor anotherin AfrLcan
concernsin the 1960s, I am in a position 1i offer my persona1
testimony. When endorsingthe uti possidei principle,theAfrican
leaders had exclusively in mincithe guestic i of the intangibility of land
frontiers. Followinthe achievernentof II lependence in closesuccession
by one African country after anotherin thr 19609, a situationarosein
which, on the one hand,severalethnicgroi is caexistedin oneand the
same State (poly-ethnic State) and, on the itherhand, one and the saine
ethnicgroup found itself extending over tt) or more Statea
(multinational ethn icoup). It was onEy :hefear of the
newly-independenA tfrican States thatthat iotentially explosive
situationmight causethe break-up of Statt i that were still fragile
after the colonial withdrawaw lhichled tht BErican leaders to proclaim
the intangibility of land frontiersand to :ake the prudent step of a
sortof renewal "ratificationvtof the Genei ilAct of Berlin which, by its
partition of Africa, was historicallythe c -igin of that situation, At
no tirne was there any thought for maritime 'rentiers ,hich coulaonly
relate to a differenthorizon, namely the k iterenvironment,where ethnic
problemsby definition did not arise.
28. It should also be noted that nowhe -ein the travaux
prévaratoires - whichareavailable - of tk :ViennaConventiononSuccessionof States in respect of Treatlesand the ViennaConventionon
Successionof States in respectof StateProperty,Archives and Debts -
both of which recognized at the international level the principleof the
intangibility of the colonialheritagein respect of frontiertreatie~
and régimes - is there any trace in the declarations of the participating
delegations of any referenceto maritimefrontiers; ye'tthis was a time
(1978ad 1983)when the 1982 Conventionon theLaw of the Sea was very
much in everyone's mlnd. Al1 these travauxprériaratoire s were part of
my life, In my fourfoldcapacity of membes of the International Law
Commission,Special Rapporteuron successionof States in respectof
State Property, Archives and Debts, Head of delegation at the Fonference
of Plenipotentiaries al Vienna in 1978 and Expert Consultantof the
UnitedMationsat the 1983 YiennaConference.
29. It is alao necessaxy not to lose sight of a fact which IQ simply
a matter of common sense; for a heritage to be protected, it 1s firstof
al1 necessarythat it shouldexist! There w0uI.dbe no point in creating
a rule for a categorywhich does not exist. It was the less likelythat
the foundlngfathers of the African political institutionscouldhave thoughrof legislatingfor the intangibfli& of maritimeboundarfessinee
those boundariespractically did not exist. In fact. therewas sirn~lvno
colonialheritapeto vreserve fn the matter of maritimeboundaries! It
isthereforeinaccurate to assertthat the African leaders (and even the
plenipotentiaries at Vfenna in 1978 and 1983)had maritime frontiersin
mfnd when they legislated on the question of the Intangibilityof
frontiersinheritedfrom colonization.
30. It is also necessary 20 bear in mihd that theclaim to extend
l
today the scope of application of uti possihetis tomaritime boundaries
is being made at a time when the application of that principleto land
I
frontiersthemselvesia encountering aome Jesistance 6.
It Ta possible
to observe in recent writings renewedcriti'cismo sf the ut1 vossidetia
principlein Africa, and at least one of thk learned counselfor Senegal,
who now'defends before the Tribunalthe extLnsfonof that princfpleto
%ee, among the abundantwritingson the sdject, the recent vork by
Marie-Christine Aquarone,Les frontièresduirefus. Six séparatismes
africafns,Parfs, C.N,R.S. edltion1988.and the validity of the sarneprinciple even for land frontiers. Frontier
disputes have actually broken out in hfrlca; and wheneveruti possidetis
is mentioned,it is alwayswith the reminder that it applieste frontiers
othemise described - with renewedinsistence at present - as "unjust",
"artificial" and designedto serve the Interestsof coloniale,mpires.
This increases still more impatience withwhat is certainlyregardedas
law, but "unjust" law,and this threatens the solidityof the whole
eâifice. A new politicaldfscourse on Africanland frontiers is
developing, to suchan extent that regionalbodies try to take every
possible opportunity to confirmthevalidity of the principlethus
threatened - withou~howeverever thinking of extendingLt to maritime
boundaries. It is a fact that in this new discourse, repeated reference
is madeto the "arbitrary" characterof the (land) frontierabecausethey
enclose States wlthinspatialframeworkswhlch do not caineidewith,
among other things, the ethnic and historical realitiesof the African
peoples. This approach is not at al1 calculated to favourthe
maintenance of the status quo, i.e., the respectdue to the
utl ~ossidetis jurisprinciple; particularly since this discourse, in an
awarenesa of the economic crisis and the scourge of underdevelopment, at
presentmore severethan ever on the African continent,no longer
hesitatesto contrast the "favoured" countries(thosehaving a grestterritorial extent, rich subsoiland soil, outlets to the sea ..,) and
re small or poor in resources,
the "disiadvantaged" countries (thosethat
enclosedon all aides ...), s cleavage mat werse by the colonial
partitions, through the way inwhich front ersweredrani.
31. Yet it is precisely in this peric when the uti wossidetis
ntaining only vith difficulty
principle is receiving dire strokes and mz
its integrity for a sound applicationto c lonialland frontiers, that
attempts are beingmade to extend the sco~ of application of that
principle to maritime lfmits. The least t at can be said on this point
n of the principleruns
is that the proposal for a spatial extensl
counter to the trendsof a certain Africar public opinion.
32. It must hawever be observedthat enegal has denied that it
seeks purely and simply to assimilate the wo types of frontiers. It
~ecognizes the existence of specificchar; teristics proper to each of
them and maintains that today the concept f frontier has become
graduallydiversifiedwith the discovery ( new spaces by man. Thisseems to me perfectly correct. kt the same time, what fs not so correct
is to take that fact as a startfngpoint in order to justify an automatic
alignment of the legal statusof thedelimitation of those new spaces
with thatof land territories. It wouldbe more naturalto envisage the
exactopposite, namely that the diversificatioonf the concept of
frontfer should involvea corresponding diversificatio nf thevarious
régimes. Later developmeniswfll indicatewhethera unification of
régimes is called for, on the grounds of,forexample, a certain identity
of object and purpose for thosevariouslimitsand frontiers,Those
develapments will indicate also howfar that unification can go. To take
unification as a starring point,on the basis of an unveriffable
postulate, would however prejudgethosedevelopments and would at the
same timeassimilate ,y analogieswhichare fragile,if not dubious,
spaceswhich differ by theirvery nature. The law, in itsprocesses of
norm creation, does not proceed Inthatmarner. I failto see, in the
present state of the law,what principle could be Invoked to justifythe
automatic applicatio nf utl possidetfs totwodifferenttypes of space,
and to do so for a principlewhich, likeut1 riossidetis constitutes an
exception to tabula rasa and to Statesovereignty, and which musr
therefore be interpreted reslrictively.
33. In otherwords, theIwo Parties are, if not in agreement, at
least not very far removed from each other,regardingthe fact that the
rulesapplicable in internationa law to land frontiers cannotal1 betransposed to maritimeboundaries,if on: because of the physical
differencebetweenthe twospaces and thi ifferentnature of the two
environments. Hence, the problem is whel r the uti possidetis principle
is one of those rules which cannot be tr, posed from one categoryof
frontier to the other. Guinea-Bissau ha! welt at lengthon the
differentnature of the spaces concerned n the radicallydifferent ways
in which each is linkedwith the populat. s concerned,and on the
different nature of the rights which the ate exercfses in each case.
Senegaldoes not dispute thedifferences legal status betweenthe two
institutions, sinre manifestlyeach of tl is governed by certain rules
which are peculiar to it. However,it di not go ao far as to recognize
that the uti vossfdetisprinciplefs one thosenorms which must remain
specific to land frontiers, and extends. to maritime boundarielmainly
becauseit considers that the two Institi ons have a similarobjective,
namely to avoid conflicts and to maintail eace among peoples.
34. 1 take the view that the differi es of environmentare obvious
and irreducible; that the concept of su? eignty and ils consequences
such as that of territorialinviolabilit: O not have, or do not as yet
have, a place inmaritime areas, so that foreignState can carry out
certain activities in thosespaces which e placed under the1 jurisdiction of anotherState;, that sfmilarlyit is at presentmore
difficult to give effect te anotherconcept, namely that of effectivity,
In maritimespaces than in land spaces; and lastly that, unlike land
frontier agreements,whichare freelynegotiated withouthaving toobeya
pre-establisheldogic,rnaritfmd eelimitationagreements are today
governedby a general princfpleof equity. Above all, however,in viea
of theexistence of theseand otherrules whichâifferentiate them,it
seemsto me al1 the more unwise to alignthese two institutions,unless
thereis some imperativereason to do sa, andto applyto both of them
indiscriminatel ynorm such asuti possidetis, whichis a very strong
andvery "weighty"principle - somuch so that it holds in check the
sacrosanct principl of State sovereignty. If, at the present stageof
developmentof the law of the sea,the legal statusand régimeof
maritimedelimitations do not attributesovereignty to the coastalState,
as 1have already painted out, Ido not see kow it ie logicallypossible
toassert thatan agreementby which those maritime delimitationsare
eatablishedcan be assimilatec o a land frontier treaty which,for ita
part,establishes Statesovereignty.
35. In conseguence, therecan, It seems to me,be no doubt that
maritime limitaconstitutefrontfers, but frontiers of a differentnature
orcategory. For this reason alone,they have, and must have, a legalrégime and status which that very differei cehas impoaedalreadywith
regard to the procedures for concluding ai reementsestablishingthem,
For this reason alone, they do not necess* rilpcal1 for the application
of the uti passidetisprinciple.
36. The Award doesof courserightly 3bserve in paragraph63 that
"the delimitation of the area of spatial '
slidity [of the noris of a
State'slegalorder]may relate to the lai 1area, the watersof rirers
and lakee, the sea, the suhsail or the ati ispheren. Lt goes on tosay
that "Froma legal pointof viev, there i: no reason to establi~h
different régimes dependent on which mate ialelement ks belng
delimited." 1 am afrafd 1 cannotagree v th the Tribunal. In the matter
of frontiers,air law, space law and the xw of thesertdo not comply
with the same principles,rules and patte ISas the law of land
frontiers. It is perfectlytrue to say tl 3tin al1 cases the purposeof
the delimitationis the same, namely to di termine ina stable and
permanentmarner the area of spatialvalii ityof a State'slegal noms.
Nevertheless, therules applicable to ach :vesuch delimitationsmust
necessarilybe ada~ted to the environment :Owhlch they will apply and to
the materialelementspeciffc to that env. ronment. The law is not an
abstractconstructiontotallydetached fri nthe realitywhich Lt 1s
intended to govern. The difference betwei ithe materialelementsgultenaturally calls foa rdifferencein legalrégimes; if this is not so in
certain cases, becauseoneand the same legalconstructionis
occasionallysufficiently flexibleto be adapted partiallyto two
differentmaterial elements,this is merelyan exception which confirms
the rule.
37. The Award,in paragraph65, rejects Guinea-Bissau'aargument
thatmaritimeboundariesonLy establish lfmits forcertainmatters,such
as fisherfes orthe exploitationof natural resources,uhereas land
frontiers deteruilnjurisdictionallimitsfor al1 matters. On the
contrary,the Award stresses that "Thereare many examplesof land
frontiers betweentwocountries whicharenot constituted by a single
lin& but by severaldifferent lines," IL is truethat examples can be
givenof boundarieson'the surfaceof the land whichdo not coiacidewith
the limitsestablished for the suhsoil,generallywhen the exploitation
of mines is involved. The Agard,however, doesnot directlymeet
Guinea-Bissau'asrgument; Guinea-Bissaurightlypointsout'thatthe
residualrulesgoverningmaritimeboundaries and thosegoverningland
frontiers differmaterially in the thatfirstset of rulesare special
law and thesecondgeneral law. Althaugh in actualfacttherearealso
special régimesamong land frontiers, thiiss onlyan exceptfon whichconfirmsthe rule. mLis exception, howevr frequent it might be, is no
more than a specific adavtationbv treatv something whieh is always
possiblebut whicb stfllremainsextraneoi to the generalrule goveniing
land frontiers.
38. 1 cannot agree with Senegalwhen : clafms that
"the distinctionwhich Guinea-Bissau ; makfng betweenmaritime
delimitationagreementsand land deli ttation agreements from
the standpoint of their form and that if their atatus wlth
regardto the rulesof Statesuccessi i Ia not supportedby any
rule of positive international law. i the contrary, al1 the
learnedwritersare agreed in saying lat thereis no
differenceregardingthe object os tk authoritybetween
treatiesin aolemn formand treatiea i simplified foxm.
(PV/9, p. 21.)
IE is indeed true that the two categosies treatfeshave legallythe
same authority; there Is nevertheless an rsentialdifference in that
their mode of conclusion1s justifies by t 1 fact that treaties in solemn
form go through a cumbersomeprocedurebec ise they are considered
pollticallymore important. Senegalhaa ~nted out that the Munich
Agreementof 29 September1938 whfch invol :d a transfer of territory vas
concluded In simplifiedforrn. This is prE .selythe example to beavoidedbecause many authors have held that thatAgreement vas nul1 and
void, If it is true,as Senegal claims,that the stability of land
frontiere is justifiedon grounds connectedwith the peace of the
populationsoccupyingthe territories concerned,that ratio legis is In
itself sufîiclent to juatify non-assim£lation for maritimespaces which
cannot be occupiedin the aamemarner by the populations,
39. 1 can discern another argument to reject the thesisput forvard
by Senegal: it Invokea the view of Judge GilbertGuillaumewho, at the
tirnewhen he vas Dfrector of LegalAffaIrs at the FrenchMinistry for
Foreign Affairs,wrote as follows: "Neitherthe exclusiveeconomiczone
nor the continental shelf tan be assimilated lo terrftorvwithin the
meaningof Article53 of the French Constitution",i.e., the Article
which governs cessions of territory. This rneans that, at leaslwith
regard to the rnanner in which they were treated In the French
*
Constitution, maritime limitspossessa specificityof their on and
cannat be assirnilated to land territory. IR this not just what
Guinea-Bissausought to prove? This observationentailssuffi~ient
reasons to regard it as anythingbut self-evidentthat the uti vossidetis
principle shouldbe appliedautomatically, by transposing it withoutany
precaution and aa a simple and irresistible mechaniam, from the case of
land frontiers to that of maritime limits. 40. Clearly,it is necessaryto exerckse cautionsince itmust not
be forgottenthat theutl ~ossiaetis principleconstitutes anexception
to the relativityof the effectsof treatiesand hence an exception which
I
restrictathe principleof State sovereignky. Now, in sound legal
doctrine, an exceptionmust be interpreted restrictively. It isnot
permissible to extendautornaticall an exception which imposesupon a
successor State a landfrontier treaty, by applying it to a maritime
delimitation.In the future,maritimeboundaries may perhaps corneto be
equatedwfthlandfroneiers, if there is & evolutionin thatsense, It
does not,however,seemlegitimateat the Aresenttirne co effectan
I
automatic mixingof regimes.
41. It must be pointedout that,in takingthis approach, Senegalis
ultimatelyadvancing a sornewhatelectivekgal régime formaritime
limita. It is contendingthatmaritimedelimitation agreements
constitutefundamental instrument sor the peace of peoplesandmust
therefore be protectedbg a rule of lntangibility which is aptlyprovided
by an extension of the initialscope of application of theuti possidetis
I
principle. At the same tirnehovever, it is assertingthat thhose
I
agreements, hoveverfundamental and high-rhking they maybe, can be
I
conclvded by resofting tothe most casual and least formalisticprocedure
of international law, i.e.,that of agreernéntisn simglifiedfonn whlchdo not requireon the sideof either party the controa lnd spproval of
the representative sf thepeople, when it is preciselythe peace and
security of peoples whfch it is soughtto safeguard.
42. I fearthat by findingthe 1960 Agreement to be opposableto
Guinea-Bissau aaaiast ktswill as manifestedin 1973and unchanged today,
this Tribunalhas introduced a major legal innovatio nith important
consequences. One of its implicationsuould be that maritimespaceaare
subjectto the full and exclusivecornpetenco ef thecoastal State,
i,e., to its full sovereignty a, resultwhichwouldupsetthe presentlaw
of the sea as justcodifiedby the international community in the Montego
Bay Convention. That consequence1s difficult to avolà: one cannot for
example clairn thatmaritimelimits must be eguated with land frontiers
governed by the uti ~ossidetisprinciple,wlthout at the same time
asserting that al1 the rulesof international law applicable to land
frontiers can be transposed to maritimefronziers.The need for
consistency forbidsan opportunist selectlon of ruleson the basis of
ill-determined criteria. 43. According to Senegal, Guinea-Biss t,which maintains before this
Tribunalthat uti vossidetlsis not applic ileto maritime limits, has
itselfasserted the contrary in other circ istances. Senegal secalls
that in the past, Euinea-Bissau"it'self ha made no distinctionbetueen
land and maritime frontierawith regard to .heuti ~ossidetis principle"
(Counter-Mernorial of Senegal, p. 158). Th :the Permanent Bepreseatative
of Guinea-Bissau to the United Nations at iwYork,Ambassador
Gil Pernandez,declared in his letterof 3 April 1979 that
"The Governmentof the Republic 'Giiinea-Bissau, faithful
to the principles of the Organizatian f AfricanUnity COAU),
reaffims its commitmeat to respect t borders inherited from
colonizazion. In consequence, the on legal instrument which
ve recognize as valid for the delimit ion of the territorial
waters and continental sbelfbetween ir countryand the
Bepublic of Senegal is the 1886 Franc .Porluguese Convention*'
(PV/9,p. 321,
on the basis of which the second recommend .ion of 10 September 1959 had
been formulatea by the negotlators of the ibsequentAgreement of 1960.
The Tribunal has adoptedthis Senegalese a ,ment (para.66 of the
Award). 1 cannot agree. It cannotbe den idthat this letterwould have
been an admisaion by Guinea-Bissau of the iplicationof uti ~ossidetis
to maritime boundariesif the 1886 Convent n had really establisheda
maritimeboundary. But this Is not so, as fil1be seen from the Arbitralhward renderedon 14 February1985 by the Arbitration Tribunal in the
Guinea/Guinea-Bissac uase.
44. Followinga simflarline of approachSenegalhas recalled
anotherevent, with regard to which the'Tcibuna1 has upheld its argument
(para. 66 of the Award). By a note of 4 November1977 protestingagainst.
the boardingof the trawler Ilha de Fogo, at the parallelof Cape 80x0,
Guinea-Bissau stressed the graveconsequences which vould, it said,
result from "any attempt at a unilateralrevisionof the
1886 Franco-Portuguese Treaty with regard to the intangibilityof the
frontiersInheritedfrom colonization" (PV/9, pp. 33-34/40). As ia well
known, according to the Award af 14 February1985, the 1886 Convention
drew a polygonsurroundingthe islandsof Guinea-Bissau and delimiting
whac Portugalregarded as "lts Interna1 waters" Ln its colony. A polygon
of this kind does not constitutea maritime boundary.
This Tribunal observes that the Arbitration Agreement concluded on
18 February 1983 between Guinea-Bissauand Guinea refers to the principle
of the intangibility of frontiersinheritedfrom colonization. The
Tribunal draws the conclusionthat
"Since that Arbitration Agreement concerned only the
delimitationof a maritime boundary, the reference quoted rneans
that the two Parties recognizedehat that principle was
applicable to boundariesof that category." (Para, 66 of the
Award.)This view of theposition is unfounded. 14 the case cited,Guinea/
Guinea-Bissau,the 1886 Conventionin guesdiondeterminedthe land
frontiers, andthatis enough to explaintde referenceto the
1964Declaration on the intangibilityof colonialEtontiers,
45. In theaame spirit, Senegalhas argued -and theTribunalhas
hela - that Gulnea-Bissau'scontentionis the les$worthyof belief in
that it had itselfmaintainec i radicallycontraryview in the case
between Guineaand Guinea-Bissau{ PVl.,p. 1. The I.ternatIonal Court
of Justice haslaid dom the conditionsunder whichestoppel rnaybe
invoked(Barcelona Traction.Liahtand ~owekCorn~anvL .imited,
Prellminarv Obte~tions.I.C.J.Reporta 1P6d, p.23; North Sei
l
Continental Shelfcases, I.C.J.Reports 1969, p. 26, para. 30and chiefly
Delimitationof theMaritime Boundary in the Gulf ofMaine Area,
I.Ç.J. Re~orts1984, paras. 130to -146). In legaluritlngs, estoppelhas
been seen asa unilateralexpression of intentionby R State whichhas
been formulatecoinan earlieroccasionandwhich it cannot go backon
without infringingthe fundamentalprinciples ofgood faith and equity.
For the Court,"estoppel is linkedto the idea ofpreclusion"
(Delimitationof the MaritimeBoundarvin rwieGulf ofMaineArea,
para.130) ratherthanto that ofacquieçcence. "Preclusionis in Eact
the proceduralaspect and estoppelthe substantiveaspect of the same
principle." [IbLd.) A Statecannot do todaywhat it challenged In the present case, however, 1 cannotsccept the Tribunal's
conclusions (para.66 of the Award). In the firse place, it is necessary
to take a more circumstantiav liew of the facts: the successive
viewpointsof Guinea-Bissau, from one set of proceedkngsto the other,
were far from being as contradictoryas has been suggestedhere. It is
not eneugh to refer to pages 76 and 77 of the record of its argument in
the earlierproceedings. If one reads in full pages 75, 76, 77 and 78 of
the recordit becomesapparenton the contrarythat Guinea-Biasauhas
very fimly and very clearly disputedthe applicability of uti ~ossidetis
to maritime limils. In the secondplace, it is clesr that, in accordance
with the principle of the relativeauthorfty of res iudicata,each case
constitutesa wunicum"independent of thosebeforeand those after it,
Then the Parties a;@ free as to their strategy, which can Vary from one
case to another. The Partiesare in no way bound by an approach
previoualy adoptedby them; a fortiori a tribunalis always completely
free and sovereign,not only in relation to the decisionof another
arbitrationtribunalbut also, and more sa, wlth regard to the strategy
adopted by a party, whether in a case aubmittedto it, or, and yet more
so, in an earlier case before a differentadjudicatingbody. Lastly and
chiefly - and even assumingthat Guinea-Bissau had pleaded in the earlier
case the appltcationof ut$ ~ossidetis to maritimeboundaries,which it
did not - the fact that Guinea-Bissauhaâ a mistakenbelief does notwarrant the Tribunal imperativelyendorsinithe rnistake. An error
I
remains an eiror even if the Party denouncdngit today had ftself
committed it yesterday, aswas the casewith Guinea-Bissau.
46. Lastly,thereis the case-law of the International Couro tf
Justice to whichboth Partiesin the ~resede case have turned in an
effortto find support for their respectivepositions. ThisTribunalhas
alluded to it (para. 63 of theAward) and, in doing so, haa endorsedthe
I
Senegalesepoint of viev. In truth, thatcase-law boils down to one
single Judgment, namely that renderedby the International Couro tf
Justice in theAenean Sea Continental~helfl,(I.C,J, Re~orts1978,
l
para. 85), in which there is apassage readIngas follows:
"Whetherit is a land frontieror a boundary lfne
continental sheu that is in question,the process is
essentiallythe same, and inevitablyinvolvesthe same element
of stabilityand permanence,and Is subject to the rule
excludi- boundaty agreements fromfundamental change of
cfrcumstances."
The two Parties in the presentcase gfve dikferentinterpretationo sf
l
that ruling. Turkey,in order tochallenge the Jurlsdict&on ~f the
Court,had of course Invoked the reservatioRentered by Greece to the
l
1928General Act for the PacfficSettlement of International Disputes,
(General Act of Arbitration),a reservation lpurpostingto exclude
disputes on territorial status. The Court r!ould onlyuphold Turkey'a
objectionby including amongdisputesof this kfnd thosewhichrelated to the geogr&phicalextent of the continentalshelf, thereby attracting
severe criticismsfrom learned writers. Langavant points out that the
Court,in that Judgment,has given to the concept of continentalshelf a
retroactiveeffect, sknce that concept was legally unknovn in 1928.
47. Nor should it be overlookedthat this isolated Judgment,which
. perhaps turned on Its own,facts, must be seen in proportion. The Court
would have been the last to deey that maritime spacesconstitute
"territorles".As such, theyhad therefore to be covered by the Greek
reservationto the 1928 General Act of Arbitration,a reservation
concerningdisputes relating to "territorial wtatus. The Judgment in
addition refera to "fundamentalchange of circumstances".Senegal in the
presentcase assirnilates a successionof Statesto a fundamental change
of clrcumstances,a proposition whichis not altogether unwarranled.IL
may however be wonderedwhether tbis circumstanceshouldnot be capable
of being invoked only by the original contracting State,on the basis of
any upheaval occurring within IL, sdncethe successorState is a third
State, not concerned by the treaty or by any such change. Be that as it
may, this 1978 case-lawis clearlybased on a "territorial" and
geographical conception of the continental shelf, relying on the notionlegal definitionof the continental shel bhich allowsconsiderable scope
~
to the criterionof distance.
48. The extensionof uti possidetistb maritimeboundariescannot be
consfderedas self-evidents,incemaritime boundarieshave appearedonly
recentlyin themodernlaw of thesea, It is precisely for thi~reason
~
Lhat thisTribunal has onlybeen able to flindtuo cases- and it
acbowledgesthis (para. 64 of theAward) ' in whfch maritimeboundaries
I !
have been at stakein Latin hmerica, the uki~assiâetlscontinent
par excellence7. Furtherrnorethe flrstcase, that of the Beagle
Channel,
l
7~t most might one add, reallyasa marginal case, thedispute between
Nicaraguaand theUnited Kingdomconcerning thesovereignty of Nicaragua
over "the coastof the Mosquitos", settledby an ArbitralAward rendered
by the Emperorof AustriaFrancis-Josep h. In that case,the
uti uossidetisprinciple, whichwas well establishedon dry land, was
taken to its extreme limit,in amarner of speaking, whenit ~eachedthe
coast of the Mosquito Indians and the free port oSanJuan del Norte,
without evervenluring beyond into theseal. The memorialsubmitted by
theGovesnment of Nicaragua("Exposépar le gouvernementde Nicaragua des
faits relatifsauxpointsen discussion avkc le gouvernementde Sa
Majesté britannique",Paris, Typographie~eor~es Chamesot,1879,in
French) specifiadthar "the portof San del Norteand the Mosquito
coast have from al1timebelongedto the s~vereigntyof Spain,to whose
rights Nicaraguahas suçceeded"(p. 24). ftillapplying an exclusively
land appsoach touti ~ossidetis,the sme memorialadded: "Al1the
territorial rightsof Spain overits ancient possessionshave reverted to
theStateswhich have formedlatesandmust be consideredas belongingia not at al1 relevant,since the uti possidetiarule vas not applied
therein, as the Tribunalitseli indicates, Thereremainstherefore only
-ne isolatedand atypical case , hatof Fonseca Bay, inwhich the problem
at stake was ratherthatof the territorial sea anda historic bav, a
case in which the CentralAmericanCourt of Justice decided,according to
this Tribunal, that the limitsof the high seas which theCrown of
Castilehad established inthat bay had devolved in 1821on the Federal
Republicof CentralAmerIcaand subsequently on El Salvador,Honduraaand
Nicaragua.
49. This case 1s avery specific one whichconcernaa gulf bordered
by three States, Honduras,El Salvadorand Nicaragua andregarded as a
7(continued) to thosesame States ..." (m., p. 59.) The
United Kingdom had noteven accepted the Idea that the toasthad become
Nicaraguan by Statesuccesskon, and stilllessanyportion of the
maritime space. The submissionsin theUnited Kingdomcoiinter-memorial
contain a point 15 reading asEollows:
"15. That the limitsof the portof Greytown[this is the
port of San Juandel Norte] described in the decreeof
20 February 1861 [adecreeby Nicaragua], as extendedthree
miles to the Eastand threeLo the West, fromthe central point
of the city shouldbe revised, and that the southernlimita of
theportshould be defined."
(Al1 thedocumentsconcerning this case, writlngsof thepartiesand
hvard of the Emperorof Austria, have beenassembled, someof the
documenta king manuscripts in Spanish or in Germangothlc,in a recent
work "Der Wiener Schiedssvructvon 1881: e. Dokumentationzur
Schlichtung d. KonflikteszwischenGrossbritannien u. Nicaragua um
Mosquitia (eingeleiteu t.hrsg. von Günter Kahleunter Mltw. von Barbara
Potthast. - Koln; Wfen: Bohlau,1983)".) !lawarebays in the United
"historiebay", like the "Chesapeake and 1
States or the Conception, Chaleur and Mira iiche bays in Canada", as
stated in the judgment of the CentralAmei .canCourt. The Gulf of
Fonseca was discoveredin the XVIth centui rby the Spaniards, and on the
emancipationof CentralAmerkca, possessic twas transferred undividedto
the patrimonium of the Central American Ft leralRepublicconsisting of
fIve States. In reality,the Gulfof Fons !caconstituted a territorial
reallybeen appliedto the
sea held in connnon, If uti 0ossidetIshac
maritimeboundary between that bay and th( high seas of the Pacifie
Ocean, al1 five federated States, and not ierely the three coastal States
(Honduras, El Salvador and Nicaragua) woul 1 eachhave been entitled(and
1 really do not know in what manner) to a iortionof that undivided bay.
Later, when the Federal Republic was disst Lved it was not the three
coastalStates but only two of them - Honc iras and Nicaragua - which
concluded in 1960 a treatypartitioning tl !bay. Their respectiverights
were âeterminedby that treaty and nat by rtipossidetfs. The Convention
on the delimitation of the frontiers betwt !nNicaragua and Honduras
established ln 1900 the land frontiers bel reen the two countries as well
as a dividing line for the waters of the ( ilfof Fonseca, consldered as
territorial waters of a historic bay. 50. 1 thereforesee nothing in the judgmentof the CentralAmerican
Court of 9 March1917, rendered in thisvery spesial caseof theGulf of
Fonseca,the raters of which were traditionallvand entirelvassimilated
to land territorv,to indicateclearlythat the CentralAmerican Courtof
San José de CostaRica intended to endorse the applicationof the
uti ~ossidetisprincipleto maritimeboundariesproper.
51. Going overto anothercontinent,the Award of this Tribunal
invakes "anotherprecedent"(para.64) said to have been establishedby
the Anglo-DanishConvention of 24 June 1901 concerningfisheries limits
which,by successionfrom Denmark,remainedapplicableto Iceland until
1951. The Award gives somewhat excessiveweight to the separateopinion
of Sir HumphreyWaldock (I.C.J. ReDorts 1974,p. 106). The casewould
have been one of the applicationofut1 ~ossidetis to maritime boundaries
if, in that case,the Anglo-Danish Conventionof 1901 had been
automaticallyimposed upon Iceland. That was not however the case.
Iceland,having become independent,negotiateddirectlywith the United
Kingdoma new treatyin the form of an exchange of lettersdated
11 Masch 1961. This enabled the UnitedKingdom to keep, albeitfora
short periodof tlme, les traditional fishingactivity in thewaters
cloae to Iceland,and this not by virtueof utf possidetisbut by
agreementbetween the two Parties. 52. As for the reference lo maritimr iundariesin Asia (Malaysia,
Philippines and Brunei)made by this Tri1 11 (para.63 [a: 641
in fine), it 1s absolvtely irrelevant. 1 1s of no availto assert that
"geographical maps of Malaysia, PhilippIr and Brunei,for example, show
as maritimeboundarieslfnes the origin c rhichgoes back to the
colonialera". It would be essential to )vethat the lfnesin question
were imposed upon thosenewly-independent :atesby application of an
allegedrule entailingthe obligationeo :ceed tocolonialtreatkesof
maritime delimitation.The reply to that iestionis a categorical
negatlve. Theselimitswere accepted by : Statesconcerned by means of
treaties.
53. 1 shalldwell only very briefly the question raised bg
Guinea-Bissau according to which a frontl treaty, to be inheritedby a
successor State in virtue of uti vossfdet , mustas a general rule be of
a certain age. The dward, (para. 68 1)rules on this point that
"Guinea-Bissau has not been able to estal ihfn the course of the
presentarbitrationthe existence of any -mof internationallaw
imposing such a conditionw(the conditior It'duralion" of the agreement
for it to be opposable). This statement mistaken. In the firstplace, Guinea-Bissauhas never allegedbefore the Tribunal "the existence
of a nom of international lawl'. It reliesnot on a nom but ratheron
the logic of the institution. Moreover,and althoughadopted
subsequentlyto the 1960 Franco-PortugueseAgreement,
resolution2625 (XXXV)voted unanimouslyby the United NationsGeneral
Assernbly on 24 October1470,and embodyinga Declaration on seven
"Principles of InternationalLaw concerningFriendlyRelationsand
Co-operation mong Statesin Accordance with-the Charterof the
United Nations", isapplicablein the casebecause it merely codified
principlesof customaryinternational 4aw. That declaratientwice
ernpha~izetdhat theterritory of a colonywas "sevarate and distInctit
from that of theAdministerin gower and remainedaeparate and distinct
so Long as that territoryhad not obtainedits independence. Lt isthus
clear fhat, under the Charterof the UnitedNations, an Adminiatering
Power has no authorityto dispose of the territorialstatus of a colony,
particularlyin the so-called"suspect"period when it had difficulties
with a movementfor independence, as was the casein Guinea-Bissauin
1960.
The 1960 Agreementthus appears tohave disposed of the territorial
status of a non-self-governingterritorywhich was entitled to an
"inherentt 'ight to a maritimespace. A right of thatkind Is
pre-existentto any delimitation.relative obviouslymeans that those effectlcan only operate asbetween
l
the contractingParties, Save for those ceptions whfch are exhaustively 1
specifiedby the law. Guinea-Bissaudid n'ot -1st aa a State in1960, 1
the date of theconclusion of the ~~reemen'under considerationhere, and
it is thereforeclear that it was not a~tlateparty to that instrument.
Accordingly,its statuscan only be that of a thirdStatewith respect to
the Agreement in question, That status is moreovera logical one under
l
the internationallaw of State succession,whose tabula rasa prlnciple
l
musc mean that thesuccessot State faces the successionex nihilo, and
l
accepte an agreementonly through the exp$essionof its wiP1 to succeed
~
to it. Guinea-Bissauis indisputably a tlirdState from that point of 1
l
55. On thisbasis ft wouldbe a thirdState even if the Agreementin
i
questionhad been previously"receivedMin1 a regnlarmarner into the l
colonial law in forcein the Portuguese~iovinceof Guinea. That waenat
I
in fict the case,and Guinea-Bissa uid ndt even knov of the existence of
l
the 1960 exchangeof letters. For theAgJeement te be valid in. and
opposable to, whatwas then a dependentterritory, it had to fulfila
formal condition: its publication in ~uinh-~issau by the Portuguese
l
administrativeauthoritles. The Parties in the presentcase havehad a
lwas knoun to or published bythevariousStates or entitiesconcerned.
Many of the argumentssubmitted on that point appearto me to be
superfluous or irrelevant. It matters little that theAgreement in
question was publishedby Franceboth in its Journal officie lnd the
Journal de la Communautéor by Senegal in the Journalofficielde la
~édération du ~ali'. The sole issuehere is whether,in one way or
another, the Agreementin question became knownor was the subjectof
publicationon Guineanterritory.
56, Promthat point ofview, the onlyone which showld concern the
Tribunal on the question,the positionis both clear andInstructive.In
the first place, it is notdispucedby Senegal that the exchangeof
letters was not the subjectof any official publicationat Lisbon on the
part of the Portyguesecontracting party. This fact is in itself
somewhat inexplicable, evenassumfng some deviationfrom the
Constitution. A formal conditionwas thusnot campliedwith. I am
recordingthis factwithout pronouncing on the domestic orinternational
legalconsequences ofthat forma1legal defect. 1mention it simply
81t vil1 be noted moreoverthae even that publicationae Dakar did not
prevent the Senegaleseauthorities themselves £rombeing unaware of the
existence of thatAgreement when they replied offfciallyto the Italian
Embassyon thatpoint asfollows: "There doesnot exist any
international agreement; the two countries accept forthe tirne befngthe
course of themaritime boundary inherited from the colonialperiod,
namely: the 272" lin@ fromtheterminusof the the land frontier."
(Counter-Mernoria Vl,l.II A: Annex 3.)because Lisbon ia one of the indispensiblestagesthrough which the
Agreementhad to pass in its progress fromthe metropolitan legalorder
to that of thePortugueseProvince of~uinka. This "metropolitan "tage
l
or support pointis non-existent.
l
57. Buteven if it had existed,it wo?ldnothave sufficed by itself
to make the Franco-Portuguese Agreemententer the coloniallegal order
then in forcein Guinea-Bissau.For tradiiionally - and on thi~ point
l
the Portuguese legal system resembles~ren!=hoverseaslaw - a law adopteâ
or a treaty concluded by theAdministering Powec rouldnot be extended
automatically to a colony or overseasterritory, sinceatherwtaethe
inhabitants of themetropalis and thoseof the calany would have had
exactly the same rightsand the sameduties, a resultwhichwould have
beencontraryto the philosophyof the colonialsystem. For a textto
become applicabl en a non-autonomousterritory, it had to be expressly
introduced into the Law of tbat terrltory,not just by a mere publication
of thattext in the territorybut by an appropriate decisionof the
metropolitan authorities.To sumup, the non-self-governintg erritory
was subject to what was known as the princialeof Leainlative s~eeialitv
I
and the principle of conventional s~ecial.r; the very title of those
principles suffices to illustrate the veryspecial legislativa end
conventional regime of a non-autonornouterritory. 58. Alongsidethat non-existenco ef the metropolitan"stage"there
fs the absenceof any applicationdecision inGuinea-Bissau, as well as
of any publicationwhatsoever,ao that the 1960 Agreement concluéedat
Lisbon was legally"re~ained",as it were, in that capital,as though it
did not concern in any way the Guineanterritory which was nevertheless
its basis, ar more accurately as though the Adminlstering Power intended,
contrary to fte ovn law, ta assertthat the applicationof the Agreement
did noe concernthe people and territoryof Guineabut was a matter
exclusively for the centralauthoritiesat Lisbon. This is so much the
case that Portugalnot only did not publishthe Agreement in
Guinea-Bissau, or take any regulatoryor legislativedecisionto declare
it applicableto that territory, but also appears to have done everything
possible ta make that Agreementtrnly "alien" to Guinea-Blssau.
59. It vas thus that the Portuguese Decreeof 22 movember1963,
which would have provided an ideal and exceptionalo .pportunity to concern
Guinea-Bissauin the Agreement, since it defined or redefinedthe
territory of that Portuguese Province, neverthelesscompletelyignored
that Agreement. Unless one were to conniderthat Portugalhad a
conception of territorywhich was confine6 to land territory and excludedcompletely maritime territory(thiswould Providean additional and
l
unexpected justificatio nor the distinctionbetween land frontiersand
maritime boundariesfor the purpose ofexcluding the applicationof
ut1 possidetisto the latter!), one is bound to conclude thatthe'
Administering Power appearedto have had a conceptionpeculiarto itself
regardingthe ultimateaddreçseeof theAgreement. ForPortugal,that
instrument expressedits internationalsovereignty and iti snternational
responsibility, and the territoxyof Guinea-Bissauconstitutedmerely a
base or supportfor thatsovereignty.
60. Similarly,the Goverment of Portugaldoes not appearto have
made any attempt to take advantageof the adoptionof its Legialative
Decree of 27 June 1967 determiningthe straightbaselinesof
Guinea-Bissauin arder to sefer to the exclange of lettersof
26 April 1960. There is not the slightesttrace of it even in the
preambleof the LegislativeDecree. And yet, even if the 1963Decree
could be considered,by stretchkng a point, as dealing exclusivelywith
land territory, the samecannot be said of the LegislativeDecreeof 1967.
61. It is not forme to look for an explanation ofthat eonducton
the part of Portugal. 1 simply take note of it. Similarly,1 shall
merelynote that after the regulatorytexts of 1963 and1967 which
concerndirectlyGuinea-Bissau, Portugalenactedlegislationconcerningone of its centralorgans - the GeneralStaff of the Portuguese Bavy -
withoutmentionhg the 1960 Agreement either. 1 amreferring to the
instructions issued by the Central Govermentat Lksbon to its Navy and
entitled"Confidential MilitaryInstructions" datea 1971 which - somewhat
strangely - mentionthe two flrecommendation osl'10 September1959 as
thoughneitherof them had been embodiedin the Agreementof
26 April 1960. The positionis enigmatfc,and to al1 appearancesthere
vas a disregard of that instrumentwhich goes beyondnon-publication, as
if amountingto a denunciationof the Agreement in question.
62. Whatever the explanationfor that behaviour,the fact remains -
and this is what matters - that Portugal did not officiallypublishthe
Agreementeither with regard to its rnetropolitat nerritory (for purposes
of the application of the Agreeement by its centralorgans) or with
regard to its overseasprovincedirectlycancerned. 1 camot but
concludefrom thatsituationthat the Agreementof 26 April 1960 is
legally inchoate. This is sufficientto block, with regard to that
instrument, the mechanismof State succession triggered in 1974 by the
accessionof Guinea-Bissau to independence. l
63. What is more, in additionto the non-existenceof the legal
"stage"of Lisbon and of the other stage in the colonialprovince,there
I
was no stage eatablished by independent~uinea-~issau. The latter was
I
the successor State of Portugal,but was a thirdState in relation to the
particular Agreement of 1960, which in any case had never entered its
colonial dornesticlaw, and by the generaldeclaration of non-succession
formulatedby the People'sAssemblyon 24 deptember1973, it applied the
I
principleof tabula rasa,which implies thé cancellingon its territory
of al1 previoustrealies. Besides, on that point, Guineahad no
I
difffculty in erasingthe 1960 Agreement,whieh it could not recognlze
since it did not even knov of its existenceand since, as has been noted,
there was, by the will of Portugal,no trade of it there.
64. Subsequently,Gufnea-Bissau had requestedPortugalto furnishit
with a list of the a~reementsconcludedby it concernfngthe former
I
colonial province. Guineahas explained,and Senegalhas not disputed,
that on 3 Janvary1978 Guinea-Bissaurequested from Portugalinformation
on the international commitrnents of ~ortugallconcerning Guinea-Bissau
(PV/i.translation, p. 5). In particular,buinea-Bissau, vhich hid had
l
conversationswith Senegal four rnonths befoke, in Septernber 1977, on the
maritirnedelimitationbetween the two countkies,requestedPortugal tothe legalvalidityof the recomendiitians of 10 September1959 as well as
the Portuguesedomesticproceduresgoverningsignature,ratificationand
publicationof the treaty (if any) on maritimedelimitation. Portugal.
gave no reply to these requests (W. 1, p. 6, translation,and p. 74/113
of the originaltext) until the end of theoral proceedings in the
presentcase in March 1988,
65. This silence by Portugal is in linewith its behaviourin 1963,
1967 and 1971: the AdministeringPower appeared to ignorethe
1960Agreement for unknown reasons. Such silenceseernsto fit in well
with the logic of this earlierconduct. Itamounts to a set of coherent
elernenes of which the inevitableresultwas to prevent the automatic
triggering of the phenorneno nf Statesuccession. That blockkngof
successionas a result'of theconduct ofPortugalthen linksup with the
voluntaryact of non-succession decidedin full sovereigntyby
Guinea-Bissau.That non-consent to bebound by the 1960 Agreement was
manifestedsignificantly in threeiriays: ina general way in 1973 when
the People'sAssembly of Guinea-Bissau declaredthe applicationof the
tabularasa principleto al1 treaties prior to independence; in a
specific way, when the leaders of thenew State proclaimed its -
indepenàence withoutmentioningthe maritimelimitsof the new State,
althoughits declarationof independence had definedpreciselyitsterritorialscope; lastly in an equallysbeckfic way, when the
I
Governent of Guinea-Bissauregue~ted the Eovernmentof Portugalto
inform it particvlarly on the possibleexiAtence of an Agreementon
l
maritimedelimitationand did not recelve Any reply.
66. In their declasationof independencet ,he leaders of
Guinea-Bissaucarriedprecisionto the extént of giving figuresfor the
area of their territory; surely they would have been equallyprecise,
l
and would not have overlooked ar forgottenthe 1960 Agreement on maritime
limitawith Senegal if theyhad known of ids existenceand had accepted
successionto it. The territory,says the declaration,"covers a land
surface of 36,125 km2, plus the territoriallwaters, corresponding to
l
the area designatedin the paçt as the coldnyof PortugueaeGuinea".
Howevermuch the territorial waters rnaybe equatedto land territory
because of the full exercise of sovereigntithroughout their extent, the-
mention of the "territorialwaters" in that declarationnevertheless
testifies to the evidentconcern of the leahersof Guinea-Bissau not to
neglect the maritime environment. Tn that connectionthey could have
referred to the maritime boundarywith senebal if they had been avare ofit and had the intentionof succeeding to it. Bound as they were by
their generaltabula rasa declaration,they would have had ta make a
clearand express exception to it if theyhad "known" and "recognizedw
the Agreement.
67. This means, for al1 the reasons given above, that I am to my
regret unable to accept the point of view expsessed In paragraphs 70 to
76 of the Award. These paragraphs contain an extensive description of
the publicityreceivedby the 1960 Agreement in "fnternatfonal circles"
as well as in France,Mali and Senegal. These arguments are strictly
irrelevant,for:
(a) "The publicity and interna1entrylnto force of the treaty in a
colony are a conditionof succession by the nevly-independent State
to that treaty" (PV/14,p. 164). It is preciselyfor that reason
that the treaty is "not opposable". This means that the issue ia not
whether the Agreementvas knownby "international circles" (para.70
/
of the Award) or by France,Senegal or Mali (para. 72 of the Award)
but whether it was knom by Guinea-Bissau,against whom that
Agreement is befng invoked. On that point, however,the Award does
not bring, and cannot brlng, proof that the treaty was known by Guinea-Bissau,because it was not pub1shed in that territory (apart
from the fact that IL had not been guk .isheon metropolitan
territory).
lb3 Guinea-Bissau has never claimedthat "he Agreementof 26 April 1960
was ... concluded in secret" (openinevords of para.72 of the
Award). It asserts,as is the fact, tat the conductof Portugal
(absenceof publication both inLisbon and in Bissau; carefully
avoidingmention of the Agreement at1 ast on two important occasions
in tvo fundamental texts where it shou dhave normally appeared, and
which concerned Guinea-Bissau)has had the result of ahroudingthat
Agreement in great discretio nn theP rtugueseside,both in
Portugaland in the colony.
1C) The references given in pnragraph72 a e thereforeirrelevant and
should have been omitted from theAwar . Besides, the acts of
publication mentionedtook place in f~ eigncountries and in
languages alien to Guinea-Bissau.
68. It is of course clear thatPortug 1 had no obligation under
international lat wo publish the1460 Agre ment In Lisbonand in Bissau
(see para. 74 of the Award). It is true t at thfsobligationexisted
solely under Portuguese domesticlaw. If uinea-Bissau had introduced
proceedings a~ainst Portugalasserting its responsibility for that
violation, the Arbitration Tribunalwould ave been entitledta reject
it, becausethe obligation involvedis not an obligation underinternationallaw. The positionhere, however, is totallydifferent;
Guinea-Bissauis not claiming. anything from Portugal; it ia merely
defendingitself in legal proceedingsand protectingitself againstan
instrumentwhich Portugalrefrained frommaking known to it and which is
being invokedagainst it by a third State. Zt is not right to seek to
deal in the same manner with those two different situations.
Guinea-Bissau has not requested the Tribunalto make a findingagainst
Portugal,eitherof violationof an obligationunder international law
(nosuch obligation in fact exists), or of failure to observe an
obligation of Portuguesedomestic law (for which also the Tribunal lacks
jurisdfction). What it does seek from the Tribunalis that it treat that
violation of Portuguesedomestic law at leastas a fact and, havingnoted
that simple fact,to draw from it the obviousconsequence of
non-opposability of the Agreement(not chat il isnul1 and vaid or
non-existent). T fail to se@ how it would be possible to get round the
fact of the-ignorance of the Agreementby Guinea-Bissau, and not to take
into account that element, of capital importance in this case. 69. 1 mustnow considerwhetherthedon-opposabilit yo
Gufnea-Bissau of the exchange of letterso'f 26April 1960which to my
mind reaults both fsomthe non-applicabilit of the ut1 ~ossidetis
principleto maritimedelimitations and fromthe absence of publicity, 1s
or is not confirmecl by Statepractice subslequento the Agreement Sn
question. Since 1 do not examinethe ~robhernof thevaliditp of the
Agreement as between al1 the contractlnghies, 1 shall not examinethe
questionof the confirrnationof thatvalidkty by the subsequent conduct
I
of France, Portuga lr Senegal. Accordingly, my study here shouldbe
confined eo thepractice of Guinea-Bissau the only one relevantsince
the sole question is that of the opposabilhtyof the 1960 Agreement to
that State.
l
70. Before examining thispoint,howeber, 1 would like to give the
following summary of the legalcontext and the spiritin which it seerns
to me that that analysis of thepracticeok Guinea-Bissau must be
undertaken.
l
(al It is abundantly evident thata State :annot unilaterally impose a
territorial delimitationupon another itate(Continental Shelf
h 1.Reports1982,paras. 87, 90,
92 and 95; Delimitation of the MaritiieBoundarv in the Gulf of
Maine Area. I.C.J. Reporta1984, paras 81 and 112). The Tribunalin
the GuineaIGuinea-Bissa caseheld tha
:the decrees whereby the Presidentof the Bepublkc of Guinea,Mr. SékouTouré, claimedta
determinethe international maritimeboundarybetveen his country and
Guinea-Bissau, by followingparallels of latitude, contrary to
international law and non-opposableto Guinea-Bissau. Referrlng to
anolher, albeitless radical, case, I cannothoweveragreewith the
separateopinionof Judge Ago in the 1982Continental Shelf case
betweenTunisia and Llbya,who consicleretdhat the regulationa
adopted on 16 Aprll 1919 by theItalianGovernmentin Tripolitania
and Cyrenaica delirnitedthe maritimeboundary betweenTunisiaand
Libya simply because Tunisiahad not voicedan objection. Where the
issueconcerns a frontier -whethera maritime boundaryor a land
frontier - and one which is officiallyrecognized as such, the
requiremeatm sust necessarllybe more strict becauseof the political
importance of the operation. In any case, the establishment of a
frontier must be the result of an agreement,and not be based on the
fragile elementof the absenceof oppositionon the part of one of
the parties.
Whenmakinga carefulasseasmentof the subsequentpractice of
States, it must be stressedthat in no case can practice lead to
ereatingeffectivitiesin the maritimedomain,as might be the case
in the land domain.
(c) As statedby the Internationa lourt of Justice in its 1969 Judgment
in the cases concerningthe North Sea ContinentalShelf, acquiescence
presupposes a "clearlyand consistently evidenced acceptance"
(I.C.J. Re~orts 1969,p. 26, para. 30). The practice of a State genesates rights and obligationsonly to the extent that it provea
sufficiently uniforrn,constantandnon-contradictort yo warrant the
existence of an explicit agreement.
(d) Lastly,sometfmeswe may thinkwe areapplyinga rule of law when al1
we are in facr doing is setting abackground which is striking in its
surreallsm.Thereis in particulas a sisk of doingthisif the same
criteriaare applied to identifyand analysethe practice of two
States whichareas differentfromeach other as a developed State
and an underdeveloped State. ~sacticdreally expresses a choice,an
intention and a rationalwill when it Is the practice of a developed
State in command of its arsenalof legal argument, perfectl yware of
the stateof its international cornitdent snd possessingthe
appropriate materfal and technologicalmeans for it to adopt a line
of conduct in full awareness of the facts. On the otherhand,can
one be certain that practfce reallyrdflects a choice and an act of
freewill vhen it is that of aState cruçhedby underdevelopment in
al1 fields, sornetimesnot evenhaving a governent legal department,
however modestor nominal, oftennot in possession of the colonial
archives,without sufficient officiaiswith the necessary
qualifications, and stillmoredeprived of thematerialor technieal
means for it to be aware of its rightsand to exercise them in
conformity vith ils interests? In this factual context,I uas not at al1 surprised, for example,thatGuinea-Bissau should have never
known the text of the 1960 Agreement. Similarly, 1 have neverat any
time had the slightest doubt as to the perfect good Eaithof Senegal
throughoutits successive attitudes whenat first it appeared to be
unawareof the 1960 Agreement - both in 1977 during the first
negotiations with Guinea-Bissau and later in its contraâictory
correspondancw eith the Italian Embassy - and lastly, when it
discovered,and invoked againsG tuinea-Bissaut ,he existence of that
Agreement. These Eew examplesillustrate certainrealitiesof many
developingcountries which,confronted with severedffficulties of
al1 kinds, act on a dailycase-by-case basismore to assuretheIr
precarious survivalthanto claimthe full extent of rightsor to
createother rights by the proper means. In face of theserealities,
great caution, and fndeed masked restraints ,houldbe observed in
accepting practice as a source of law in such circumstances. A rule
of law would be a very fragile one if it reliedexclusively an a
practiceobserved under those conditions.
71. It is in the light of the foregoing observations that 1 propose
to examine the subsequent practice of Guinea-~issau. It is particularly
strikingthat, according to every indication, Guinea-Bissau neverknew of
the existence of the 1960 Agreement iintilSenegal invoked it against it
and until Guinea-Bissau addresçed a note to Portugalin 1978 requesting 1
information on any negotiationsregarâing bt. Accordingly,any
examination of the practice of ~uinea-~issàf urom the praclamatianof its
independencea .nd up to its firstnegotiatibns with Senegal (1973-1977)
seems tome to be automatically ruled out, as is also any examination of
the periodafter the date when the diaputecrystallized(1985 to the
presentdate). The conduct of ~uinea-~issh uust theref ore be examined
from the autumn of 1977 to the spring of 1985. It is clearly apparent,
and this is no surprise slnce it could have been expected, that nothing
in the conduct of Guinea-Bissausupports the idea that it accepteà the
line dram at azfmuth 240" establishedby the 1960 Agreement.
l
72. Senegal has, however, arguedthat Guinea-Bissau respectedthat
line during the said periodand regardsthat fact as a recognition of the
I
1960 Agreement.That is a dangerous argument. If one were to accept it,
it would mean that good faith cannever exdst as betweenStates and must
never be gresumed in international relatioAs. And yet, can anythingbe
more normal, or at least more commendable,than this duty of a State to
abstainfromanythingwhich might prejudicé a forthcomingnegotiationor
l
judicialdecision? 1 see no reason - and Senegalhas not put ferward any - to suspect Guiaea-Bissauof Eonductcontrary to that fncumbentupon
any Statebound in good faithto respect the disputedareapending the
outcomeof the settlement proceedings.
73. 1 canonly regardGuinea-Bissau's attitude as irreproachable
when, throughoutthe said period, it abstainedfrom any activity in the
disputed area pendingthe outcome of the dispute. That attitude was not
only irreproachablebut also perfectly consistent for,during the same
period, Guinea-Bissaeunteredprotestswhenever it became aware that
Senegal, for itspart, vas carrying out activities in that area, These
two attitudeson the part of Guinea-Bissau complement and explaineach
other. By respectingthe 240° line, that State dIdnot acquiesce in the
1960 Agreement,sinceit made representationsto Senegal in respect of
1 activitiesIn the disputed area.
74. The Partieshave engaged in lengthyargumentsand counter-
argumentson numerouspoints relatingto subsequent practicebut these do
not seern tme to be relevant. 1 shall refer to some of them solely
ex abundanticautela. Senegal has in particularmaintainedthat "the
conductof the predecessorState can also bind the successor State"
(PV/9,p. 104), interpreting the Islandof Palmas Award of 4 April 1928
and the Awardof the Tribunalin the Guinea/Guinea-Bissac uaseof l
14 February 1985. In othervords, a suceessor Statewhich has duly
expressedits refusa1 lo succeed to a particular agreement neverthelesa
remains bound by that agreementbecause of the practlce of its
predecessor,itself based on that agreement! This is in the first place
to undennine the tabula rasa principle, which is one of the fundamental
principles of the law of Statesuccession in respect of treaties; for,
on thie approach, the successor State, whatever it does, will never be
able to rkd itself of an agreementconcludedby its predecessor: if, by
a declaration of non-succession, it ejects the agreementby the front
door, it will return through the window, by way of enforced succession
based on the subsequentpractice of the predecessor State. The position
would actuallybe the same, according to Senegal, if the agreement had
not existed at all: "Even if the 1960 Agreement had not exi~ted,
Guinea-Bissauvould have been bound by the 240' rnarftime boundaryfrom
Cape Buxo solely because of the notorious conductof Paxtugalw(PVf9,
p. 104). This contention cannat be accepted, because it leads to an
absurd result, and for many other reasons,theleast of which ia the
dictum"nui Deut le d luspeut le mains" (hk who can da more tan do
less); if the successor Çtate is entitled to fnvokethe tabula rasa
principle to set aside an agreement,it 1s not evidenthou it couldbe
bomd by a mere practice, or by any ether consequenceof that agreement, 75. Furthemore,thatwould be makingtoo much in the circurnstances
of the erratic, incoherentand meagre practiceof Portugal, uhichhas in
any case never invokedthe Agreementin its international relationa s,d
whose relevant textsof coloniallaw relatingto Guinea-Bissauwere
enactedin ignoranceor in di~regardof that Agreement. While it is true
that internationallaw derives, albeitvith considerable caution legal
consequences from the practi ofeStates,that operation can only be
legitimatein so faras it concernsthe States which are the direct
actorsand authorsof thatpractice. Otherwise,and in parti.culawrhere
successor State asreinvolved,the inevitable resultvil1 he to create
absurdities.
76. Senegalhas thus referred, amongothermatters, to
Gufnea-Bissau'p sracticeIn petroleummatters, in whiçh it discens two
successivephases. During the flrstphase(1973-1977), the nev State
semained ailent, andthat silence is interpretedby Senegalas an
acquiescence in the conductof the formerAdministering Power. That
argument has alreadybeen refuted, but itmusl also be pointed out that
the intepretationof silence for legal purposesis hazardousand that,in
the case of practicerelating to s boundary treaty,that silence seemsto
me insufficient. During the second phase,senegai considers that the
respectshown by Guinea-Btssaufor the 240"line in petroleumcontracts
(Petrominas Agreementof 9 February1984)Is a confirmatory practice. - 144 -
That argument, whichdisregardsthe princl le of good Eaith requiredof a
State, so as to respect the disputedarea ending the settlementof the
dispute,has also alreadybeen answered.
77. Having concludedthIs analysls,i. seems to me that the
Franco-Postuguese exchange of letters of 2 April 1960 is a treaty in
respect of which Guinea-Bissau has not exp rssedits consent to be
bound. It follows, first, that Lt cannot a invokedagainst it as a
"treaty". Secondly,it seems to me that a a treaty which establishesa
"maritime boundary" it cannotbe taken to I governed by the ,
uti wossidetisiuris principle,and theref re cannotbe the subjectof an
automatic and compulsorysuccessionby Gui ra-Bissau,constituting an
exceptionto the principlesof State sover kgnty, free consentto be
bound by a tseaty, and the relativeeffect of treatles.
78. Having thus reached the conclusio that the Franco-Portuguese
exchange of letters of 1960 is not opposab to Guinea-Bissau, and cannot
therefore have the force of law between it ind Senegal for the
delimitation of their maritime boundary,1 nustnow proceed to that
delimitation ex novo. 79, The Éirstquestionwhich arises is that of the applicablelaw
for carrying out thataperation. Since the 1960Agreementis not
opposable to Guinea-Bissau ,either that Agreementnor the legal sources
to which it refessare relevant in the matter. Conseguently,and in
particular, no accountcan be takenof the
"principles containedin the reportof the Commission on
Maritime Law of the UnitedNationsandthe textsof Articles1,
2 and 4 of the Conventionon theTerritorial Sea andthe
Contiguous Zoneconcluded at the Conferenceon the Law of the
Sea held at Genevain 195~~".
That paesage designatedthe lawappliedfor the conclusion of the
1960 Agreement andnot the lawapplicable to thepresentdisputewhich 1s
new unrelatedto thatAgreement. The rejection of the1960 Agreement
10
entails the rejectionof the lawwhichgoverned its conclusfon . In
any case, theAgreementcould not relateto the
%inutes of the cùnversationç of 10 September 1958, preparedby the
Portuguese Mfnisterfor ForeignAffairs, point II, paxagraphA.
l01t willno doubtbe observedthat the law referred to bgthe two
contracting Partiesto the 1960Agreement is constitutednot by al1 the
1958GenevaConventions, but solelyby the Convention on the Territorial
Sea and the ContiguousZone,a fact whichwould confirm that theParties
not only did not have Inmincithe exclusive economic zone,unknownat the
time,but wished at theoutset ta delimitby treatysolely the
territorial sea and thecontiguouszone.exclusiveeconomlczone which was unknown at the tirne.Boreover,
Senegal,which ratifiedthe 1958 GenevaConventions,has first denounced,
on 9 June 1971, the above-mentionedconvention on the Territorial Sea an6
the ContiguousZone, and subsequently, on 1 March 1976 the Conventionon
the ContinentalShelf,while Gulnea-Bissauhas never acceded to any of
those conventions,so that both Partiesto the presentdispute are
excluded from this international treaty law,
80. As for the Montego Bay Conventionof 10 December1982 on the Law
of the Sea, it has been ratified bybath Guinea-Bissauand Senegalbut it
has not yet enteredfnto force. It is, hoaever, clear that this fact
does not excludethe application to them of that Convention. It is
effective for them,not as a body of internationaltreatyrules (since
thesehave not yet enteredinto force], but as a body of rules accepted
by them. In the presentcase, the two Partiesare of course not in
Agreement, and challengeeach other'sright to invokeone or other rule,
or Co claim exemptionfrom it. Nevertheless, the act of ratification of
the Conventionby each of the two Parties means that each of them is
prepared to apply it to any other party which accepts to do the same. Ratificationrepresents a final and definitive cornmitmen which, in al1
good faith,makes it incumbent upon the two States to considerthemselves
bound aith respectto eachotherby the Convention.
81. In order to eut short any discussion on that point, however, it
must be pointed out that Senegal and Guinea-Bissau have requested this
Tribunal to decide the present dispute"inaccordance with the noms of
i
international lawM. This obviously warrants taking into account
cuatomary rules and al1 that has become custom in the international
treaty law of the sea, both that of 1958 and that of 1982,and this
regardless of the particular positionor specific legal status of each
party uith respect to one or otherconvention. As long ago as
30 June 1977 in the Arbktration between the United Kinndornof
1 Great Britain andNorthern Ireland and the French 8e~~blIc on the
Delimitation of the Continental Shelf,the Court of Arbitration declared
in ita Decision of that date that It should "take due account of the
evolutian of the law of the sea" [IIHRIAA,Vol. XVIII,p. 37, para. 481;
and the International Court of Justice, in the case concerning the
Cantinental Shelf (Tunisia/Libya nrab Jarnahiriva),consideredthat it
'
"would have had psqwrio motu to take account of the propress made by the
Conference eren if the Parties had not alluded to it in theIr Special
Agreement'qwhich haâ in fact requested the Court to take it into
account). International judicial and arbitrationbodies have thus taken
!* intoaccountpropriomotu the customary rules of the law of the sea In
l
1 its "evalution"throughthe "progress" of the Conference. - 148 -
A fortiori must account be taken of the definitive which is the
l
outcorne ofthat "progress",and gives shape to that evolution, whenever
l
the text reflectsa customaryrule.
I
82. It followsthat there is no need ko pronounceupon questions
raisedby oneor otherof theParties whfck have, fromthat standpoint,
becornesecondary. Tt thus appears superfluovsto examine the question
whetheror not there is a.right of unllatesal denunciation by a State of
a multilateraltreaty where the treatyitsdlf has made no provisionfor
sucb denunciation, as is the case of the 1458GeaevaConventions.
83. In conclusion, sincethe Tribunal has been requested to decide
In accordance with thenorms of international law, the applicable law is
l
indeedcustornari ynternational law as applIed, interpreted and developeè
l
by judicialand arbitraldecisions. Ultimately, both Partiesto the
present dispute are on the whole in agreemlt as to the applicableLaw,
for one of them considers that it arnounts tlothe "searchfor an equitable
solutionby means of equitable principfes,lequidistance being one method
amon$manyothers to arrive at such a solutlion"(Caunter-Mernorialof
Senegal, para. 330) and the oeher Party fulky agrees with that statement
(Reply by Guinea-Bissau, p. 275). 84. The areain disputernust be determinedas sirnplyas possible.
It seems to me quitenaturally marked out by the claimsof the Parties
embodiedin their respective submissions: to the south,the lirnit is the
line drawn at 240° startfng from the Cape Roxo lighthouse and taken from
the Franco/Portuguese exchange of letters of 26 April 1960, as clairned by
the Republicof Senegal; to the north, the limit is a line starting from
Cape Roxo running in the direction of the parallelof 270°, as the
Republicof Guinea-Bissau appears to be claiming. It is within thia
triawle representingthe area in disputethat the line separatingthe
respective marltimedomains of the twa Partieswill have to be dxawn.
85. The area in dispute is that lying betweenthe lines at azimuths
270" and 240" which mark the maximumclaims by the two Parties, stasting
frorn Cape~oxo''. The dividlngllne which 1 have to drai vil1 thvs be
ll~enegal'aclaimsare well defined: the Line drawn at 240° laid down
by the 1960 Franco/PortuguesA egreement. Those of Guinea-Bissau are
necessarilyundetermined,since it demands an ex novo delimitationand it
1s the Tribunal which it expectsto determine a line. Nevertheleas,
Guinea-Bissau'sconception of an equitableresult for the delimitatfon
has led it to propose to the Tribunalfigureswhich, as the arguments
proceeded, lay within a range between 25S0 and 270" without ever reaching
the latter maximum figure,whfch corresponds to a parallel. I take it
here as the extreme limit,by way of guidelfne.necessarily sltuatedwithin theangle Torr d by those tvo Iines:
azimuths270" and 2-40".But Lt may then 1 em strange and even
ineguitablefor the position of the line i be thus enclosedin advance
within a triangledefkned bythe Parties, .e., that it shouldbe
"predetermined "hen 1 am invitedto proci d to an ex novodelimitation
the result of which cannot be knewn eithei to the Partiesor to myself
even before theequftableprincipleshave een applfed to the relevant
circumstances of the case. This approach fould seernto amountto guiding
the arbitratora in their choiceof line, i dictating theirsolution,and
such limitation of their freedorn of judgmit and assessrnen tould be
incompatible with the functkonof adjudici ion. If a line "produeed* by '
the application of equitableprinciples o. the modern law of the sea were
to aie eithershortof 240" or beyond270' thatresultwouldbe
embarrassingboth forthe arbitratorsand or the Parties, A conflict
would then ensue between the requirements ,f equity, which in this case
would demand a line outside that 24Q9/270' angle, and the respective
claimsof theParties, beyand which the a:iitrators cannot go without
infringing the ultra ~etita principle. :1 thissituation it is
necessary nnt to lose sight of the fact tl.t an arbitrator is bond by
the termsof the arbitration agreement ani of the submissionsof the
parties. It is these which formulateand .etermine his mission,without which there can neitherequitabledelimitationnor indeed aWnd of
delimitation.
86, Nevesthelessbeforeconsiderinwhether theconflictenviaaged
in the emharassfhypotheticalcasementionedabove canbe resolveand
ifso how,it is necessaryto determine whethersuahconflictcan
actuallyoccurin reakity.For eachof the two Parties considersthat
itsom solutionisequitable,eitheron thebasisof the1960 Agreement,
or throughthe applicatiof appropriateprinciples and methodIt is
thereforhighly reasonableto assume that tequitablsolutionto be
arrivedat,by the asbitratointotalindependenceofjudgment ail1
necessarillie somewhere betweenheextremeclaims othe two Parties
and n~t elsevhere. The two Parthaveworkedbefore the Tribunalvnder
thecriticaland vigilanobservationofeachother. It is reasonableto
~
belfevethattheyhave marked out al1 the possible coursestoethe
~
arbitrators. The factneverthelessremains that the judor's
~
1 arbitratortsscopof appreclatioof the equitablecharacteofa
solutionis infact limiteby thewkll ofthe Partiesthernselves.
1 87. Of course, the areain disputeto which 1 must confine rny
examination does not at al1 coincidewith :hemuch larger body of
of Guinea-Bissae uxtends
maritime domains of the two Parties. That
betweena line as yet undetermfned and sit iatedsomewhere in the dieputed
area and a second lineto coincidewith az .muth236O and startingfrom
the terminus of the land frontier between :uinea-Bissa aund Guinea
(frontierdrawn by the Arbitral Award of 1 1February 1985).
88. As for themaritimedomainof Sen :gal,it has the peculiarity of
consistingof two guite distinct spaces, o iesituatedshortof the
maritime boundary to the south of Gambiera ~drepreaenting al1 8r part of
the disputed zone according ta the Award O this Tribunal and the other
corresponding te another area stretching b :yondthe maritime boundary to
the north of Eambia and extendhg untilth !as yet undeterminec mlaritime
boundary betweenSenegaland Mauritanla 12 .
12senegalmaintains that it has establishei themaritime boundary
separating the two Statesby a treatywith Maurltanfa.The document
produced by Senegal to the Tribunal, apart Erom being a "new" document
inplacesillegible, is in
from the procedural pointof viewand beini
reality rnerelythe minutes of a ministeria meetingheld inJanuary 1971
at Saint-Louis du Sénégal and continued at Nouakchott. In sectionVI of
these minutes,dealingwith the "determina ion and the delimitation of
the maritimeboundary"one finds: "The ma itimeboundaryshallbe
determinedby the perpendicula ro thecoa t of theAtlanticOcean
starting from the marker definedabove", 'he markerin question1s the
one provided for by the FrenchDecreeof 8 December 19.. (33 or 35?,
figures illegible) whichhad to be constru~ ted on the siteof the ruins
of the "G..Aouse"(nameillegible). It mist therefore be pointed out: This situationof Senegal with two quitedistinct maritimd eomaine
separatedby the domain of anotherState is quiteexceptional In the
world,although not unique. In theCaribbeanSea, the maritimedomain of
theNetherlands (in respectof the Islandsof Aruba, Curaçao andBonaire)
bisectsthat of Venezuelaas well as thatof the DorninicaBnepublic; a
sirnilasituation can be observedbetweenthe,French West Indies and the
DominicanBepublic; in the Arab-PersianGulf,themaritime domain of the
Emirateof Ajman bisects that of the Erniratof Sharja; in the Atlantic
Ocean,the Portuguese maritimedamain divides intotwo thatof Spain; ln
theMediterranean, the maritime domainof the Principality of Monaco
interruptsthatof France; the same istrue of al1 enclaves such as
HongKong,Slngapore, Gibraltar orCeuta. Tt Is indisputable, hovever,
that thecase of Senegal is undoubtedlythemost classic and themost
striking,because the maritime boundariesof Gambiaconsist of two
parallellines whicficut neatly throughthemaritime spaces of Senegal.
(i)thst thedocumentis not a treaty;
i
(ii)that these mere (illegible)minutesare not even signed and may
wellhave constituted simplya draft for a negotfation whichdld
not succeed;
(lii)that in any case the documentcontains a paragraph 4 specifying
that "after the apvsoval ofthese conclusions, the two Govements
shallappoint a commissionof experts which will give concrete
shape on the site to thepro~osed course, at a date the choiceof
whichis left to the initiativeof the Goverment of Senegal"; and
(iv)thatSenegal has not adducedany proof of the "approval"of that
mproposed'c *ourseby the twoGovements. Senegal.has arguedthat its
89. In contradiction with thesefactal
II
maritimetersitoryconseitutes a unity andl the maritimedomain of Gambia
an enclave,spparently in the firstplace in order to make it more
acceptablefor the Tribunal to take into dccount the whole length of the
Senegalesecoastline and,in the secondplbce, in order to give greater
support to the equitablecharacterof the line drawn at 240" on the basis
of the relationshipbetweenthe length of the coastlinesand the maritime
areas. It has thus maintainedthat "the ~'mbianeconomiczane is a
completeenclave in thatof Senegaland cllearl y.. the economiczone of
l
Senegal is a continuousone and (...) the bresenceof Gambia does not
produce any interruption that cannotbe ckkcurnvented"(Replyof
Guinea-Bissau, p. 329) {PV/12,p. 211).
90. This approachseerns to me unfoundLd, The maritimespace which
prolongs that of Gambiaseaward beyond the 200-mile limit cannotbe
attributedto Senegal so as to enable it tb link its two maritimedamains
to the north and southof Gambia. If ~enegalis in fact referringto the
exclusiveeconomiczone, the 6paCe in question lying to seavard beyond
the 200 milee does not belong elfher to Gambiaor ta Senegal; it ia
l
eitherpart of the high seas or of the ecohomiczone of the opposite
State, namely Cape Verde, slnce the width of the exclusiveeconomic zone
cannot exceed 200 miles. And if the teferenceis to the continental
shelf, that sme space situatedbeyond 200 milee in prolongationof theGamblan damain cannotbelong toSenegaleither. It would eitherbelong
to Gambiaif its continentalshelfcan geologfcallyextendbeyond
200 miles (assumlng of course thatthe rightsof the Stateopposite,
namely Cape Verde, permit ft),or it would belong to the international
sea-bedarea which constitutesthe commonheritageof mankind.
Accordingly,whether it is the exclusiveecenorni cone or the continental
ahelfwhich is in question, ItLs nol apparentwhat basls there couldbe
for a legs1 title for Senegal. Thus the Gambianmaritime space
represents a completebarrier which divides the Senegalesemaritime
domain into two parts.
91. In any case, evenif Senegal'smaritime space were continuoue,
this would notbe a materialcircumstancefor taking into account the
whale lengthof the Senegalesecoaatlinefor the solution of the present
dispute. As 1 shall explain later,the appropriate course is to take
account only of the relevantcoastlinein the case under consideration,
and in the present case this1s the coastline of Casamance. Moreover,in
order to verify a posteriorithe equitable characterof the result
obtained,it is not necessaryto refer to the total area of the twa
maritime spaces of Senegalnorth and south of thatof Gambia, The area
of the southern area is the only relevantone for that purpose, for the
requirementsof equitydemandonly that one kilometre of Coastof Senegalshould have approxirnately the same power i generate continental shelf
area as a similarkilornetre of Coast of Gi ea-Bissau.
\
'\ 92. The determination In paragraphs ' to 83 of the applicable law
prov\es, in the matterof maritimedelirn tion, only a few basic
prlnclplesafmed at an essential purpose, mely "ta achievean equitable
solution"(Arts.74 and 83 of the Montego y Convention). This is what
the 1977 Court of Arbitration between Fra1 and the United Kingdom,and
later the Chamberof the International Coi of Justice in the case
concerningthe Gulf of Maine termed-the " damental normw. The
applicable rules are thosewhichmake it 1 sible to consider that
certain portions of the sea-bed adjacent the coasts of a State form
part of the continental shelf of that Stai (rules governlng legal
title), and those which, In the presence 1 competing legal titles put
forwardby neighbouring States,make it pi ible to effect a delimitation
between those States (rulesof delimitatic proper). The factors to be
taken into conaideration to carry out thai elimitationare no longer
descrlbed expressly a? ''equitable"s ,ince at ks involvedis not an
intrinsic qualitybut a character which ii erified in a given context.
The adjective "equitable" thus appears to reserved for the result, so rnuchso thatthe viy has been expressedthatequityhas ceased to be an
elernentof themeans, to becomean element of the result.
93.Thisdevelopment has been the subjectof severe criticisrnin
legalwritings, curiouslyenough more oftenaddressed to judges or
arbitratorsthan to the legislator, althoughit is he who is really
responsiblefor it. Regret has been expressedthat "the gains
representedby the Legal edifice of 1958,the 1969 Judgmentand the 1977
Deciaionhavebeendestroyedby ... 'theuse of an emptyformula13iq1.
Elsewhere referencehas been made to the "legalimpresaionism" attributed
to the Courtin the case concerning theContinental Shelf ITunisia/Libvan
Arab ~arnahiriya)'~.The intuitive and arbitrarycharacterof its
Judgmentshas at timesbeendeplored15. But it is the international
1 13~issentingopinionof Judge Gros in the caseconcerning Delimitation
of the MaritimeBoundarv in the Gulf ofMaine Area, I.C.J.Reports 1984
p. 365,para. 9.
1
14~ecawr,in Annuairefrancais de droitinternational, 1982 p. 358;
ElizabethZoller,"Recherche sur lesméthodesde délimitation du plateau
continental",in Revue nénérale de droit international~ublic, 1982,
p. 655.
15~issentingopinion of Judge Koretsky, inNorth Sea Continental Shelf
cases, I.C.J.Reports1969, p. 166; dissentkngopinion of Judge Gros in
the case concerningthe Continental Shelf(Tunlsia/Libya nrab
Jarnahiriva)I.C.J. Reports 1982, pp. 150,152 and 156 and in the case
concerningDelimitation of the MaritimeBoundary in the Gulfof Maine
Area. I.C.J.Reports 1984, pp. 377, 379and 382; dissentingopinionof
Judge Oda [and ofJudge Schwebel {sic)],J.C.J. Reworts1982, pp. 161,
181 and 183; Elizabeth Zoller op. cit.,pp. 677-678; EricDavid "La
senteneearbitrale du 14 février1985 surla délimitation de la frontière
maritimeGuinée - Guinée-Bissau"i ,nAnnuairefrancaisde droit
international,,985, p. 365; Queneudec,"L'affaire du plateau
continentalentrela France et le Royaume-Uni,in Rewe nénérale de droit
internationalpublic, 1979,pp. 74-75.legislators themselve shohave conferred pon the judgeand the
arbitratorsuch latitude ofjudgment,by 1 oviding him, as a tool for the
purpose, with thianom whichhardlydesei e8 the name of "fundamental"
norm, in that it is almostempty of conter . As one author pointaout,
"la liberte d'appréciation dont jouissent es juges reflètetrèa
fidélement leur situationd'un droitdont es tensions et lesmouvements
contradictoires quf le parcourenten tous ens débouchent surdes
compromis 05 la souplesse confineparfois la vacuité1'". [me
freedom of assessrnenetnjoyedby the judgr reflects very closely theis
position in a law whose tenaionsand contr dictorymovements in al1
directionslead to compromiseswhere flexl ilitysometirneb sorderaon
inanity.] To this comparativeinanityof he norm must be added the
fluidityof the concept of equfty,and evt the Impossibility of
apprehendingit, whkcb ledme, togethervi h PresidentJiménez de
kréchaga and PresidentJosé Maria Ruda to eiend the Court and to urge
learnedwritersnot to be surprised at a c rtain "praetorian
subjectivisrnwwhich the "finestlegal dis5 ttations on equitywlll never
succeed in completelyeliminating ...17rg*
94. Consequently, 1have al1 the less kesitation in expressing
regret at the InternationalCourt of Justf e's conceptionof the
"fundamental norm", which,already emptied of content by the legislator,
16gric David, op.cit.,p. 365.
lJseparateopinion ofJudges Ruda, Bedjaou and Jiménez de Aréchaga,in
the case concerningContinental Shelf (Lib an Arab damahkriya/~alta),
I.C.J. Reports 1985,p. 90.ha8 been furthereviscerated, and to no purpose,by the Court's
case-law. The InternationalCourt of Justice took astandon this
questionin the case conçerningthe ContinentalShelf(Tunisia/Libyan
Arab Jarnahiriva).It consideredthatthe formula according to which "the
result of the applicatioonf equitableprinciples must be equitable", is
simply a form of words"whichis generally used [but]is not entirely
satiefaçtory because itemploya the term equitableto characterize both
the resultto be achievedand the means tobe applied to reachthia
resultw. The Courtthen went on to state:
"It is,however,the resulrwhich is predominant;the
principlesare subordinate to the goal. The equitableness of a
prfnciple mustbe assessedIn the light ofits usefulness for
the purposeof arrivingat an equitableresult. It is nat
everysuchprinciplewhichis in itselfequitable; it may
acquirethisqualityby seference to the equitablenesosf the
solutfon. Theprinciples to be indicatedby the Courthaveto
be selectedaccosdingto theirappropriatenesf sor reaching an
equitable result. From thisconsideration It followsthatthe
term'eauitable principleaf cannotbe interpreted in the
abatract; ...It 1s a trulsm to say thatthe determination
mustbe equitable, rathei rs theproblemabove al1 one of
defining the means wherebythe delimitationcan be carriedout
in aucha way as to be recognizedas equitablel8".
95. Although itis true that, as statedby the Court "net every
principleIs in itselfequitableU,.ths etatementthat the principles (and
not only the result)must be equirable is not devoidof meaning. This
~~I.Ç.J. Re~orts 1982,para, 70.means thereforethat the judge shoulddiseard prIiciples whichare not
equitable. Thus iG is apparentlynecessarkto assert that thene"
I
wording of Article83 of the Montego Bay chvention waa not intended to
I '
promoterecourseto any principle whatever providedthe final result wae
equitable. That Article rnust In realitybk interpreted more strictly, so
as to make it compulsory to verify the quitable characterboth of the
principlesemployed and of the resultabtakned. Article83 shouldthus
cal1 for a dual operationand a dual asseshrnent. Only by thi~ means can
the law of maritimedelimitationbe rescueh from arbitrariness.
96. Moreover,the passagequoted abovk from the 1982 Judgment of the
Court does not seem to have really taken into account the circumstances
in which the expression"equitableprincipiesl 'as ultimately dropped
from the final text of Article83. That deletionwas the result of a
compromisewhereby the expression"equitable princlples" was deletedonly
I
in exchangefor the rernoval of the wording t*employing,where appropriate,
the median or equidistance line"as well,
97. It is true that the 1982 ~onventidn, a monumental work whfch
includesmany compromises,has, in the difkicult quest for a general
, l
consensus, cut down to a minimum the "fundamentalnom". This hoveveris
no reason for international courtt so redude it still further. In a fkrststage,the Court stated in 1982, in the case concernkngthe
Continental SheLf {Tunisia/Llbvan Arab Jarnahiriva)quotedabove, that the
expression"equitableprinciples" had to be construedignoring the
adjective"equitable". Two years later, in a secondstage,the Court,
through its Chamberin 1984, consideredthat even the "principles"in
questiondid nat yet exist (I,C,J, Re~orts 1984, p. 299, para. 81) and
that it would be desirableto describe them more modestly as "criteria"
(I.C,J, Re~orts 1984,p. 292, para. 89). This is a somewhatunforeunate
judiclaldeviation,wfth the disappearance one after the other of the
equitablecharacter of the principlesand then of the prineiples
themselves,retaining in the endonly the sesult. A judge or arbitrator
cannot be gkven discretionarypowers as to the choiceof the principles
to be applied, He must bring out principles which are in thernaelves
equitable. The test of equitableness must in consequencebe applied at
l
- two different levels: that of the means employed and that of the result
obtafnedwith thosemeans.
98. The present case poses a problem of essentiallylateral
delimitationbetween two adjacentStates, even though part of the coasta
of Guinea-Bissauis tu some slight extentopposite to the coastsof
Senegal. The rulesgoverningthe legaltitle of a State to itscontinental shelf are distinctfrom the nohs applicableto an operation
of delimitation, and the problemthereforearisesof ensuringconsistency
between those two seriesof rules, chieflywhen proceedingto a frontal
delimintation. Since the present case, however, invalvesa lateral
delimitation,that question of consistencyis less pressing.
99. Let us now examine the relevantgeographicalfactors in the
1
presentcase. They are three in number: khe configurationof the
l
coastline,the generaldirectionof the coastlineand fts length. In
arder to apprehendthesethree natural chadacteristics and to make a
cornpariso nhlch, in certain instances, muse be expressed in figures,man
1s obliged tocarry out operatiotis ,o make certaincanstructions and to
effect certainmeasurements, none of which Ian do more than conform
approxirnatelywith nature. This is the tase with an evaluationin
figures ofthe length of a coastline,islandsincluded; the maritime
1
front ia "smoothed outufto arrive at an arikhmeticexpressionof the
generaldirection of the coasts; also, normalor straightbaselinesare
l
drawn for purposes of delimitation. The evAluationsthus furnishedbyof litigation,are for this reasonrarely convergent,in a field in which
howevergeographyprovfdesIrreducibleand inescapablephysical elements
of a reality which shouldimpress itself indisputablyupon all. Equity
must thereforeremainvigilant at this firststage already, in the face
of theae approximations which are undoubtedlynecessaryfor human
understanding, but are sometimestoo readklyinfluencedby him in his
attempta to correctnature for his benefit,
100. Indeed,the two Partiesdo not have the same vision of
geographicalreality; they have two differentapproaches to a question
which is nevertheless a purely Eactual one. Each has Its own viewpoint
and has made its own picturea,accordingto the distanceat whlch the
obJect to be examined is seen. In order to setrle thesedisagreements
between one-sidedpositions, it is my dutynoe to take tao distant a view
of the wholewesterncoastof Africa. I cannot,at least at the pxesent
stage of identification of and allowance forthe relevant geographical
factors,look from still furtherup, as if fsoma satellite,at the whole
rnap of Africa. This is no more material thanto contemplatethe Earrh
from Siriusand to observe,in a detached manner, that it Is round and
convex. What is relevantis the coast,or more exactlythe partionof
the coast of each of the two Stateswho have requested the delimitation
of theirmaritimeboundary. ~hesé caastlinesmusc be envisageaand - 164 -
considered as they are and in their real configuration,with what they
comprise, neithermore nor less.
l l
101. For al1 those reasons, to the gréatest possibleextent 1 shall
l
only use the raw data of nature, and 1 shail resort to human
l In particular,1 do l
extrapolationsonly to the strictminimumextInt. I
not wish to make use here of the straight daselines which the two Parties
i
have dlscussed so learnedlyand at such great length.
102. Adhering to this line of conduct, the equitablesearch for
geographical factors, I observethe followikg :
in the first place, an overall look at the two countrIes shows a
situationwhich cornbfnes the cornonplace anh the most visual. Senegal
l
and Guinea-Bissau are two adjacent countries whose geographfcal position
with respect to each other createç a relatibnship of adjacency between
I
them and therefose calls for a lateral delikitation.
One of these adjacent States, however, namely Senegal, has four
special features: (ii) it has oppositeto it a third State, Cape Verde, at a distanceof
less than twice 200 miles;
(iii)its coastline is incerruptedby another third State, Gambia,with
which itconcludedin 1975 an Agreement on maritime delimitation
indicatingtwo parallels as maritimeboundaries; and lastly
(iv) it has not producedany relevant documentestablishingthat a
delimitation kas taken place with Cape Verde to the West and
Mauritania to thenorth.
The second State party to the presentarbitralproceedings,
Guinea-Bissau, has for its part threespecial featuses:
(i) it has a maritime front which is not at al1 cornonplace, firse
becauseof itsparticularly indentedand broken coastlinesand, on
the ather hand, the presenceof a large "bulwask" of islands which
give to that fronta marked convexlty;
(ii) for these reasons part of its coasts is very partiallyand very
slightlyopposite to the coastsof Senegal; and
(lii} It has obtained, by anArbitralAward of 14 February1985, a
maritime boundarywith Guinea-Conakry constitutedby a broken line
adopting a directionof 236'.
103. The coastlineof Senegal has a c~nfigurationwhich has been
smoothedout by nature itselfover most of its length. The Coast does
not have a rugged outline. It does not break out into Islands, isletsand rocks. The relevantportion of that t sat to be taken into
consideration in the present case is that zich is bovnded by southern
Garnbia, This approach seems to be entirel justified at this first
stage, when the microdlmensional method mi L prevail, taking into account
the lenath of the relevant eoasts, narnely ?ose which, in al1 equity,
have the power to generateareas of contir ltalshelf without the rksk of
creating enclaves, buffersos scseens for ther stretches of coast, or a
too lkttle justifieddivergence. From th: point of view, the Senegalese
coast of Casamance seems to me to constiti e eqvitably the "relevant"
coastlinefor the purposes of the present elimitation. Thi~ relevant
coastline of Casamance is practically recl linearand "smooth" with one
exception, thae of the coast between Cape oxo and Cape Skirring,which
in any case is only 5 miles long. Nature >mes here to the rescue of
man,avoiding the need to resort to .hazarc us extrapolations to determine
either the general directionof that relei nt coaat or its length.
Senegalhas been endowedon that side by 1 ture with a coastlinewhich is
neitherconvexnor concave but actually ri tillnear, and riinning
vfrtually !n a general nerth-south direct] n, at approximately
azimuth 358", according to the statement an independent expert who
estimatesits length at 44 miles. 104. In al1 delimitationoperations,whether frontao lr lateral,
internationaljudkcialopinion generallytakes intoconslderation only
the lengthof l'relevantc"oastlines. It setsaside those portionsof the
geographical Coast:which areextraneous to the delimitation operati oon
be carriedout 19.
191nactual fact, thereare internationaljudicial precedents fora
whole spectrum of solutions,ranging fromthosewhich takeintoaccount
onlya portion of thecoastlineof each partyto thosewhich allowfor
the length.ofthird States(neighbouring States),not forgettingthose
which take intoaçcountthe totality of the coastlinesof the two Parties
ta thedispute. The lasttwo solutions,however, concern particular
cases; the only solution whic heems tome ta have a firmpermanent case
law behindit is the resortto the conceptof a portion of the coastline
of the two States indispute which Is describedas "relevant". The
Arbitration Tribuna ln theGuinea/Guinea-Bissa case took intoaccount
the whole lengtohf the coastlineof the two Parties from CapReoxoto
the Sallatouk Pointbecausethe Partieshad basedthekrarguments on the
coastline asthusunderatood (para, 92 ofthe Award of
14 February1985). That sameArbitration Tribuna uent even furtherwhen
it allowedfor the length ofthe coastlinesof neighbouring States
becauseof its concern tu distribute withutmostequity the "divergence"
factor; it framedthe concept of "long coastline"which it contrasted
with that of "shortcoastline".It thus ignoredthe viewpointof
JudgeKoretskyaccording to which "Alf 'macrogeographiçal considerations
areentlrely irrelevant,except in the improbableframeworkof a deaire
.toredraw the politicalmap of one or moreregions of the world." (North
sea Continental Shelfcases, I.C.J. Re~orts1969,p. 162.) Tome,
however,it seemslegitimate to resort,so far as may be needed,to
macrogeographyb ,ut onlya ost te rio and rnerely in orderto verifythe
equitable characte orf theresult obtainedby themicrogeography of the
"relevant" coastlinesand only when the circumstanceslend thernselveto
it. It Ls only under thoseconditions thatthisdual successive approach
would be valid.
In many other cases,it was the logfcal notionof the "relevant"
coasts which has been appliedby the internationaclourts. It will
sufficeto mention thecase concerningthe Continental Shelf (LibyanArab
Jamahiriva/Maltal( ,I.C.J.Re~orts 1985)or again that of the Continental
Shelf, paras. 131
and132). 105. 1 shall revert furtheron at greater lengthto thiaquestion
when it cornesto verifyfng the equitable characterof a delimitation by
taking into account the relationship of proportionalitbyetween the
lengths of coastline and themaritime areas attributed. Forthe time
being, 1 ehall confine myself to the follo,~inremarks. In the caae
concerning the Continental Shelf (LibyanArab JamahirivalMalta)c ,ounsel
for Malta had expounded a doctrine describ'eas thatof "radial
projection" (ormultidirectiona lrojection) fromthe coasts of Malta so
as to take into account, In the case in gusestionthe major part of the
length of the coasts of Malta as compared to themore extensive coasts of
Libya. The Courtdid not hesitate to setaside thatdoctrineof
projectionin al1 directions from the coastsand Eook into account anly
the partions of theMaltesecoastswhichwkre atrictly oppositt ehoseof
Libya. It preferredthedoctrineof frontalprojectionto that of
multidirectionap lrojection. The same is true inthe case of a lateral
delimitation concerning two adjacent States,when the Court takesinto
account the length of only those portions of the adjacentcoasts which it
considers "relevant",i.e., necessaryfor thedelimitatian operation. A
geographical relationship between the coastsof two States cannot &ive
rise to a legal relatfanship capable of creatingmaritime spacesunless
that geographical relationsh ip apossible one,which 1s only the case
if it Is established betneenportionsof tpe Coast which are appropriate
or relevant. In a delimitation betwee Franceand Italyor Spain, a judge would not take intoconsideratio the lengthof al1 the French
coasts, includingthose of the Channeland theAtlantic. The latter
coasts have no geographicalrelationshipwith the Mediterraneancoasts of
Itaky or Spain capableof producinglegal effects. They are unrelatedto
each other. Moreover,the judgewouldnct even take intoconsideration
the whole lengthof the FrenchMediterranean coast, but no doubtonly the
length of the coastsof the Golfedu Lion for a delimitationwfth Spain
and that of the coasts of theGulfof Genoa for a delimitationwith Italy.
106. Moreover,in the presentcase,the delimitationbetweenGambia
and Senegalcreatea a very speciallegal situation, alreadydescribed
above, which leads to the existencof kwo distinct maritimespaces
appertainin go Senegal. Only the Senegalesecoaçtlineof Casamance
which generatesa maritime spaceand continental shelf inthe south la
relevantto the presentcase. ThedelimitationbetweenSenegal and
Gambia is a circumstanc eroductiveof an interruption inthe Senegalese
coastlineas awhole which a court cannotbut take into account. No
relationship canbe established betweenthe Senegaleçecoast to the north
I of Gambia and the coastsof Guinea-Bissaubut only between thelatter and
the Senegalesecoastline,adjacent toit, to the southof Gambia. The
interruptionin question "cannotbe circumvented". 107. Lastly, it shouldbe observedin passing thatSenegalis request
that thewhole lengthof its coastline be takeninto account couldnot
carry conviction when at thesame time it proposed to theTribunal to
takeintoconsideration afive-mile lonp gortion betweenCape Boxo and
Cape Skirringthe influenceof which in the context of an equidistance
line would be felt as faras 200 miles off the Coast, therebynullifying
any other influence of theremainder of the Senegalese coastlinewhich it
claimed had to be takenintoaccount.
108. The coastlineof Guinea-Bissau ,n the otherhand, dksplaysto
thegeographer, the expertand the jurist an originalitywhichis so
marlcedthat it cannot gaunnoticed. The coastline of Guinea-Bissauw,ith
its large islands,islets,rocksand fragments of land massee,has the
indisputable peculiarityof protruding out into the aea. It isa
"bulwark" of land presentedto the breakers by somegiganticNeptune.
That body of islands 1s ofthe same material as the land mass and
constitutes a part of the coastlinewhichin many places is underwater.
The sea has invaded the land,leaving parts of that coastline visiblein
the form of islands. The presenceof islands constitute srnoststriking
feature
1of the country: it is preciselythe identifyingcharacteristic of
Guinea-Bissau.The capital of that State is itselfsituated on an
island,and the very name of the country is taken froman island. The
insular character of part of Guinea-Bissau, including the capital, is
Indeeda relevant circumstance, to a degree rarely encountered.
Moreover,thereexists a close relationahi between the sea and the land,
and suchcloseintimacybetween the two, thae one can no longer tell an
arm of the sea froman arm of the land. Saint-Jahn Perse's description
of the Giens peninsula as a privileged spot where"la terreaccompagne
l'homme lamer" ("the land accompaniesman to the seau) applies
perfectly to Guinea-Bissau.
109. If In imaginationone were to visualizethat territory
uncoveredby the waters in which ie is now submerged,the land would be
seento continue to slopevery gentlyat 0.4 Per cent,i.e,, 4 metres per
kilometre,up to a distance of nearly 100 kilometses seaward. If, still
in imagination, we remove that thin layer of water, we will see that the
country has a prolongation which fully deserves to be describedas
"natural". The maritime frontof Cuinea-Bissau does not consistof
distant islands isolated from the land and far apart from each other.
The real position, on the contrary, is that those islands constitut e
projection of the land territory,articulatedwith the mass of that
territory. Al1 of them together form the territorialbase that ernerged
after the flooding of the continent.Thewaters around them are veryshallow: less than 20 metres for some of them and less than 10 metres
for most. Someof the islands, like ~olama,which are close to the-
cantlnent,can be reachedby animals at loV tide, as pointedout by
President Grantof the United Statesin hi; Arbitral Award of
20
21 April 1870 , I
110, This effortof the imaginationto remove the thin layer of
water in order to discoverthat spectacleof nature is in factnot really
necessary: nature does it 'everyday. ~he; phenornenoof the tides
diaplaysthis extraordinaryintimacybetweenthe land and the sea,
because some 8,000 squarekilometres,i.e., one-quarter of the land
territory of Gufnea-Bissau, is every day uncoveredand covered by the sea
with the fneesaantebb and flow of the tidea, It is rare to find a
comparablecountry one-quarter of whose territorydisappears and
reappears evexyday. There can be no more relevantcircumstance than
that bulwark of islandsof "semi-insularu Guinea.
111, It is therefare not possibleto ignore those Islands, which
conatitute the real coastline of Guinea-Bissau. Since the maritime front
consists of al1 the land borderingon the sea and the coastlineis the
20~oore, Hlstorv and Diaest of International Arbitrationsto which the
United States has been a Party, Washington, 1898, Vol, II, p. 1921.limit of the land or thepointsof junction or contactof the landwith
the sea, then unquestionabl yhat constitutes the coastlineof
Guinea-Bissau 1s that densebulwarkconsiatingof a multitudeof islands,
in the fom of a giganticgoase-footor of hippopotamidrowsing in the
water, It is not anarchipelagie State withintherneanfng of the Montego
Bay Conventionor in the ordinarygeographicalsense, but it is
undoubtedly a semi-insularState, the islandsof which are of great
importance for thedetermination of the curvatureof the maritimefront
of the country, of thegeneral direction of that frontand of the length
of its coastline.
112. ~onsequentl~,the geographical factsthus examinedconfer - and
this couldnot be otherwise- on the maritimefront of Guinea-Bissau an
indisputably convexgeneral shape. The lengthof the Guineancoastline,
takinginto account theislands and using a weightedmethod, is, in the
view of an independentexpert, 154miles.
113. At the sametime, the natural datato be takennormally into
account in delimitationare not exclusively thoserevealedby the coastal ,
geography of thetwo Parties to the presentdispute. The question arises
whether the geologicaland geornorphologicd altamust also be considered,as being relevant elements for purposes of delimitation.My reply Co
that question, whichwill be givenIn two stages: first, 1 shalldraw on
those theoretical considerations which, following a rapid evalution, have
rnavedaway from solutionsreached by decodifyingthe mysteriousfolding
and unfolding of geological and geomorphologicalsites; and secondly, I
shall referto purely practicalconsiderations which, in the present
case, show that these geological and ather factors are of very limite6
relevance and, al1 in all, of no assistance in the search for a solution.
114. The idea of "natural boundaries"forrned by mountains,waterways
!
or various accidents of nature, has never been able to commenditself to
Statesfor purposesof delimitation of their landfrontiers, although
these limits are visible to the naked eye. Legal science Is unlikely to
accept for maritimespaceavhat it rejectsfor land spaces and to confer
1egal standing on those"natural boundarles"constitutedby an important
and signfficant gsologicalfeature when that boundary is not even visible
to the naked eye, Kaving always shunned land reliefdespite the fact
thatit is visible, mantcannot but shunstillmore underwate relief
which Is out of his sight.
115. This is perhaps the reason why the notion of "natural
prolongationt has offered so weak a resistanceto the advance ofthe concept of "distance"which tends to eclipsegeologlcal and
geomorphological factors. This is also thereasonwhy lawyers have given
a legal definitionof the continental shelfwhich is quite unrelated to
that of geologistsand geographers. Thisalço explains why geological
and geomorphologicalfactorshave been of practically no importanceat
al1 in the treatypracticeof states21. Lastly,this is the reasonwhy
internationac lase-Lawhas not taken into accounteitherthe "Norwegian
Trough" (North SeaContinental Shelf cases,I.C.J. Reports 1969,paras, 4
and 45), or the Wurd Deep" (Court of Arbitrationbetween the United
Kiwdom and Franceon the Dellmitation of the ContinentalShelf,1977,
UnitedNations Reports ofInternational Arbitra Awards, Vol. XVIII,
p. 63, para. 1071, or the "TripolitanianFurrow" JContinental Shelf
(Tunisia/Llbya AnrabJarnahirival ..C.J.Reports 1982, para. 66), or the
"Northeast Channel"{Delimitation of theMaritime Baundarv in the Gulf of
Maine Area. 1,C.J.Reports 1984, paras. 51 and 56)or, lastly,the "rift
zone"(Continental Shelf(Liavan Arab Jamahirisa/Maltal,
1.Ç.J. Reports 1985,para. 25).
116. At theaame rime,it musc be pointe8out that, at the present
stage of the evolution ofthe law of the seaand of the relevant
international case-law,it wouldundoubtedly be hazardousto assert that
geologicaland geomorphologica actors have completelylost al1
21~hedelimitation Agreementbetween Colombia and the
DominicarRiepublicdld not takeintoaccaunt the Aruba trough althoughit
1s 4,600metresdeep; the proâigious trpugh ofthe CaymanIslands
(2,900 metres deep,1,700metresin length ana100 kilometresin width)
doesnot appear tohave counted for much in the Cuba-HaitiAgreement.relevmce and that they generateno legalconsequences. The rulingsof
the International Couro tf Justice in theNorth Sea Continental Shelf
cases in 1969 and of the Court ofArbitrationin the Arbitration between
ae United Kinrrdomof Great Britainand Northern Ireland and the French
Rep~blicon the Delimitation of the ContinentalShelf of 1977 are perhaps
not altogether clearon thatpoint. But in thecase concerning the
Continental ~helf (TunisiaJLlbva nrabJarnahiriv,a)I .CJ. ReDorts1982,
paragraph 80, and the case concerning Delimitationof the Maritime
Boundary in the Gulf of Maine Area. I.C.J.Reports 1384, paragraph 511,
the Court in the first case, and a Chamberof the Courtin the second,
clearly indicatedthat if the "Tripolitania nurrov" in the first case
and the "Northeast Channel"in the secondcase had clearlymarkedan
interruption in continuity, they wouldhave considered thatgeological
factor as relevant. Thus,international jurisprudence has neverstated
expressly that thoaegeologkcal factors must always and as an absolute
rule be set aside, whateverthe circumstances,The fact that
Jurisprudence has noe taken geology intoacraunt would appear to be
explained, not by the frrelevance of thatfactor in itself, but by the
inadequacyof the scientlfic evidenceput forward in one or other
partlcular case. It is the absence ofa given relevant geologfcal
phenornenon ,r the doubt whether Lt is presen, which has led
jurfsprudence not to takegeologyintaaccount.
117. In the case'concern fg the Conilenta1 Shelf (Tuniaia/l*ib~an
ArabJarnahiciva)t ,he InternationalCourtof Justiceeven went so faras
to declare that it
"does not necessarilyexcludethe posslbilitythat certain
geomorphoricac lonfigurationosf the sea-bed, whichdo not
amountto such an interruptionof theaaturalvrolon~ation of one Party with regard to that of the othes,may be taken into
account for the delimitation,as relevantcircumstances
characterizingthe area1' (I.C,J. Reports 1982,p. 58, para. 68).
118. In reality,the Court,whase functian is to apply the law and
not to createit, has not itself decreedthe eclipseof geological
factors,which is due ratherto the action of internationallegislation.
The fate of geological factorl sa necessarilylinkedto thatof the
l
conceptof naturalprolongation. The Montego Bay Convention of
10 December1982 recognizedthe legaltitle of the coastal Stateover its
continentalshelfby the operation of a concept of "distance" as a
complernento, and sometimes a substitute for, thatof "natural
prolongation". In fact, the 1982Convention,without atal1 neglecting
the conceptof "naturalprolongationF( 1itsArticle76 refersto it in Its
very firstparagraph), has nonethelessintroduced in a spectacularmanner
anothercriterion,namely that of distance.
119. Thia comparativeeffacementaf the conceptof natural
1 prolongation in relation ro that of distancecould not but result in the
eclilpeeof geologicaland morpholagical considerations. The
International Court of Justicewhich, in its 1969 Judgment in the Elorth
1 Sea Continental Shelf cases, stressedthe concept of naturalprolongation, has itaelfheld it to be an essentiallyrelative
principle.The factthat the legal notionof the continenta shelf and
the physicalrealityof that shelf donot coincide, the absence of any
fmperatioeand neceasarylink between the baaisof the coastalState's
titleto its continental ahel fnd theprinciples of delimitation ,he
fact that the Courthas the duty to cause equktyta prevail as a result,
ratherthantheprinciple of natural prolongatiw ohnichsometimes does
not contribute to it, and lastly the new trendsof the law of the sea
expressedinArticles76 and 83 of theMontegoBay Convention, - all
these have contributedto thfs comparative.effacemen of the institution
of natural prolongation anc do,nsequentlylofgeologlcal and
geomorphologica factors.
129. I have not observed any fundamentaldisagreement at the
theoretical level between Guinea-Bissauand Senegalregardiag eitheï the
conceptof naturalprolongation or the geologicaland geornorphologlcal,
factors. The two Parties have more or less,rninimiz ordneglectedthe
theoretical considerationa sndanalysesin)the Jurisprudence referredto
above andhave thus botb been led to resort to geology. They agree on
the legitimate character of this referenceto underwaterphysical factors
as well as on theplace of the concept of natural prolongation
(Gounter-Mernorial,paras. 319 and 322; Reply, pp. 286-287). Each of the
Parties, however, has attempted to deriveflomthesephyslcal
characteristic sf the zoneelementsfavourable to its own thesis.
Accordingto Guinea-Bissaut ,he structureof the sea-beâ of the regionand its sediments imprintupon the Eaults to be found In that regionan
east-westdirection which would justify a line dsawn at azimuth 270' as
delimitationbetween the maritime spacesof the two States (Reply,
p. 287; PV/5, pp. 153-154). For Senegal, on the otherhand, the relief
and the geological structure of the sea-bedof the regionrun in a
northeaoterlydirection(Counter-Mernoriap l,ras. 319 and 322; ibid,,
paras. 19 to 49 and anns. 7 and 8; Aejoinder, paras. 424-4541 PV/Il,
pp. 153, 154/60,161 and 251).
121. 1 am not preparedto followeitherof the two Partieson to
that ground. First, for the reasonsI have indicatedabove, which
demonstratesufficiently, by means of an analysisof international
jurisprudence, the comparativedisfavourattaching tothe relief and
structureof the sea-bed. "Geography yes, geologyno." Secondly,
because, in the view of the two Partiesthemselves,the submarine gealogy
of the region showsno exceptionalor major features. Guinea-Bissau has
admittedthat "these faults ... are not fm~ortant", even though they are
"notnegligible". The geologicaland morphologIca1differentiations in
the aea-bedoppositeSenegaland oppositeGuinea-Bissaudo not appear
sufficient to constitutenaturalboundariesfor their respectivemaritime
domains. It must be rememberedalso that the present case concernsnot
only the delimitationof the continental shelf but also the drawing ofa single lateralboundary as the dividing line that establishesthe
exclusiveeconomiczone, a task Far which the geological or morpholagical
structureof the sea-bed is strictlyirrelevant. At most,the geological
or morphologfcalindicators, however discrete,may conszitutesupporting
elementsfor verifying a posteriori the equftable characterof the
delimitationobtainedby a combination of other factors.
122. IE Isnow necessary to devise a method of delimitafioncapable
of obtaininga line, i.e., an intellectualconstruction which, appliedto
the relevant factors alreadyidentified, wi+l producean equitable
solution. Unlike a rule, a method is by definition not compulsory.
Since proximity concerns the legal nexus existing betweenthe
outlineof the coastal front of a State and the maritimesurfaces
generated by it, the traditionalmethod of applying the proximity rule
is, quite naturally, to resort ta the equidistancemethod. Ho point on
the line obtained by that method of delimitationmay be closer to the
coast of one State than to that of the other,throughovtthe whole length
of that line. I the equidistanceline is lntended to produceita effectsas far out as
200 miles. And if one were to take salient points close to each other
for purposes of determinhg the equidistance point^, the position of
those pointswould become Increasingly uncertain as one moved away from
. the coast, a situationwhich is liable to resultin considerable margins
of error. An equidistance line as far out as 200 miles is liable to be
very inequitableif it is predetermined by takinginto account points on
Cape Skirringand Cape Roxo situatedonly five mlles from one another.
In brief, equidistance, which 1s not in itself at al1 inequitable,
proàucea,once a certain distance from the coast is reached (50 to 109
mlles), an uncertaintywhich renders arbitrary the course of the
equidistance line,with al1 the risk of unfairness involved(Reply,
p. 304). Since moreoverthe mechanismused fordrawingonly takes into
account certaincritical points on the coastline,curvatures or salients
of the coast, it does not ensure equity in the attribution of surfaces.
124. In viewof these and other drawbacksof the equidistancemethod
in the present case, Guinea-Bissauhas suggested the applicationof other
modes of delimitation, one of them being that of the "median curve
Icourbe médianelW. This has been defined as a seriesof points at sea
situated at the same curvilinear distancefrom the frontier point as two
associated pointson each coastlin'e and situated at an equal distance
from those two points (Memorfal,p. 225). 'Thismethod is clrlmedto havethe merit of "overcomingthe opacity of the bufferpoints", of remaining
"unaffectedby accidental features of the coastline whateverthey rnay be"
and of "taking into account the whole coastlineof eachof the two
neighbouringStates"(ibid.). This method would produce, accordingto
Guinea-Bissau,a line dram at azirnuth 264".
125. Senegalconsidersthat this methodmay prove useful invery
complexsituations but is not suited to simple configurations or to those
whlch cornportstraightbaselines. It describea it as "perfectly
arbitrary"aince its reaultwill depend on the distance chosen between,
on the one hand, the terminus of the land frontier (CapeRoxo) and, on
the other hand, the pointson which the baselinesare constructed. The
result of that method would thus be dependentupon the baseline used by
Guinea-Bissauand disputed by Senegal. The latter adds that the median
curve proposed by Guinea-Bissau would result in
"a complete frontierconstructedfor the greater part on two
geographicalelements only: on the side of Senegal, a portion
of the Coast vesy close to the southern frontier of Gmbia; on
the side of Gulnea-Blssau, only the Rio Grande Banks. In both
cases, there would be a pesfect buffer to mask completelythe
geogsaphyof the two ceuntries"(PV/12, p. 184). In short,Senegal'scriticismsof themethod are, essentially,
,
first, that it would give a limitedeffect,to the Cape Roxo-CapeSkirring
segment and, secondly,that it takes into account in their entiretythe
I
straightbaselinesadoptedby Guinea-Bissao un 17 May 1985 connecting
I
Cape Roxowith the RioGrande Banks (PVJ12,p. 213; Counter-Mernorial,
paras. 447-448; Rejoinder, para. 433). ,
125. The expert appointedby the ~riblnal has analysed the median
curve method and Its application in the present case. The resultsof
that method appear to depend ro a considergble degree on the distances
l
adopted. In other words, the method appears to containan elementof
l subjectivity. When appliedto realcoastlines, it can, depending on the
l intervalsselected,benefit one or other of the Parties. Furthemare,
where straightlfnes are involved (straightbaselinesor general
i direction of the coast), the use of this méthod becom.es a specialcase of
the application of equidistancw ehich consists of taklng thebisector of
the angle formed by thelines considered.,The proposedmethod does not
eliminatealtogetherthe negative effectsthatwould result from the
applicationof traditional equidistance no;, in the presentcase, remedy
them.
127. Gwinea-Bissa uroposes a second method, namely that of the
"average distance curve [courbede la distancemovenneLtw 'hlch it defines
as follows: "At each point at sea al1 the'distances are calculatedto everyvfsible point on the coastllneand the averageof thosedistances
is taken; the curve will consistof the Loci of thepoints of an equal
average distance"(Mernorialp. 225). This method would,according to
Guiaea-Bissau,result in a lime drawn at azimuth265O.
Senegaladmitsthat thismethod makes it possibleto correct two
perverseeffects of the traditionalequidistancemethod: the firstis
I
that In certaincases thewhole of a maritimebounâary rnaybe determined
1 bya very srnall nurnber of poinon the coast of a particular country,or
indeedby only one point; the second fs that equidistancecan result in
attributingto Islandsa weight which1s disproportionateto thefr
importance(Counter-Mernoriapl,ra. 366).
~
1 128. Senegalrecognizesalso that the method proposeddoes not give
. excessiveweight zo any point on thecoast. IL notes,however,that it
doesnot give to thosepoints an equitable value, and this,in its view,
leads to unacceptableresulta. The method would,in pastlcular, penalize
Stateshavinga longvisiblecoast,and favour Stateshaving short
coasts. It vould al60 inc~easethe drawbacksof the traditional
equidistancemethod with regard toislands. In fact, if the visible
insular coaetvexe tobe taken into account,the average distance would
be shorter on the sfde/ofthe State exercisingsovereignty over the
islandsin questionand the maritime spacemasked by the coasts of the
islandswould be treatedas though it were dry-landterritory
(Counter-Mernorialp, 366). 129. Senegal gives the followfngmore compact summary of it~
criticismsof the average distanc method:
I
(i) it favours a Statewhose visible coastlini es lessextensive;
(11) it favours a Statepossessingislandssituatedoff its Coast.
Furthermore, Guinea-Bissauavails itself nat only of the sectorof
an islandvisiblefrom apeint at sea but also from its invisible
sectoror its "own çhadow" (Reply,pp. 308-309), the resultof
which is to pushnorthward the pointssituated at sea at anequal
average distance;
(iii) in its calculation for purposesof pr~portionalityG ~uinea-Bissau
8 .
has taken intoaccount the onlyreleyantcoastline of Senegal,
namely thatof Casamance,but this restrictioi ns emitted for
purposes of the applicationof the averagedistancemethod(PV/12,
pp. 214 et sea.).
~
130. In Its Reply, Guinea-Bissauhas recognized with great candour
sorneof the drawbacks of the averagedistance method which it proposes:
"Slnce It partakeçof the search for proximity, the
average distancecurve retainsthe defects inherent in any
introduction of the conceptof distance from the coastlfne,in
particular its uncertaintieswhen that distance increases.
Accardingly, it has not been proposedto the Tribunal asbeing
capable of constitueing in itselfa rneans ofdelimitation."
(Peply, p. 310.)In view of this declarationand of the disadvantageeof thks method which
have been alreadypofntedout,there isno point in examininghere any
furtherwhether iémight be useEu1 in the presentcase.
131. Lastly,Guinea-Bissau has proposeda thfrdmethod of
delimitation,namely the somewhat originalone of "iso-distanceo'
(Mernorial, p.226). Thismethodis explainedas follows:
"According to bothnatusaland legallogic,the coastline
does not constftutea frontierbut a transitioncurve between
two zonespertaining to the same jurisdiction. The coastline
fs where the levelof the sea stops today; it could have
stopped at ahigher or lower level,and mightdo It in a fcw
centuries'time. The coastlineis accordingly only oneamong
many curves. The line of the Coast:isnothing other than a
curve at landlevel zero altitude,i.e., isobathzero, and has
no more significancethan the other curvesat land or
undemater level." (PV/6,p. 211.)
Bearingthis inmind, "the iso-distanc curvecan be defined, starting
from the linitof territorial waters, as thequidistance line of
successive isobathsor as the perpendicularto those isobaths"(PV/6,
p. 193). "As the equidistance curve of thesuccessivecoastlknes which
would be uncoveredby a gradua1withdrawalof the Ocean,iso-distance
constitutes a synthesisof the equidistancemethodand of the present
essentialcharacterfstico af the continentalshelf in its physicalsense"
180-distancewould thus integrate in effect the
CPY/6, p. 194/200).two criteriaof natural prolongationand distance from the coast (PV/6,
132. Since it is thus based on the underwaterrelief,thfe technique
appears to runcounter to the evolutionof contemporary international
law, rnarkedby the decline of geologicaland geornorphalogica lactors and
in particular of the notion of natural prolongation. This method,
however,cannotbe rejected solely for that reason. Senegal considers
that "its originalityis equalledonly by the absence of al1 basis in
practiceand in case-law"(PV/12,p. 251). Nevertheless,the fact that
the method has not been enshrined in the practice of Statesor in
case-lawis not decisive,for that is what ft is - a method that is still
new. Anotherobjection,and one that carriesgreater weight, is that
iso-distanceseems capable of "beingappliedonly togeographiesthat are
fairlysmooth ... al1 of whose disturbingelementscapable of generating
perverse inequitable effectshave been previouslyeliminatedby processes
which are necessarily alien ta the method itself"(PV/12,p, 201), and
"whichaccordingly deprfve It of al1 abjectivity"(PV/12, p. 203).
133. This overviewof methode of delimitation,equidistanceand its
improvedversions(medlan curve, average distancecurve and iso-distancecurve) suggeats that it Is impossibleeo take into account any of them in
the present instance.
134. In the present case, rnanifestlythe most characteristic
geographicalfactoris the presenceof a large bulwark of islandain
Guinea-Bissau.That country has described itself as semi-inaular, or
even aa amphibious,because of the strikingintirnacg existingbetween the
land and the sea in Guinea-Bissau. Accordiwly, the major problemwhich
arises is that of determinfngwhat treatment for these lslands can be
recomended and producedon the basis of equity. This amounts to
evaluatingthefr exact importance in relationto Guinea-Bissau' sainland
domain (surface,population,economicactlvity)and their degree of
linhge to ir (distance, expanse of land uncoveredat low tide, brackisb
waters). These islands,most of which have been traditionally grouped
under the name of "Bijagos ~rchiiela~o "arQuiDélano, are in
fact a decisive factor, as has alreadybeen seen,for assessingthe
nature of the coastline of Guinea-Bissauand the general configurationof
fts coasts. Guinea-Bissauwoulâ not be what it is without the Bijagos.
In the present instance, the presence of the Bijagos Archipelago is a
decisive factorboth for the purpose of calculating the length of the
coasts and for that of establishingthe lateraldelimitation. Hhatever
the method or process of delimitation applied, due regard must be hadfor this essentialfeatureof the coastalfrontof Guinea-Bissau
constitueedby the presence of these isiands and their close connection
wfth the continent, a featuse which cannot but have a bearing on the
establishment of the general directionof ~uinea-~issa;'s Coast.
135. In the Guinea/Guinea-Bissa uase, the Tribunaldrew a
distinction between three categories of islands:
Ci.) coastalislands,which are close to the mainlandand which are
often connectedwith it at lov tide,are "consideredas an integral
part of the continent";
(ii) the Bijagos Islands,the furthermostof which 1s 37 miles from the
continentand the closest2 miles from it and which are in no case
more than 5 milea apart from one another;
(iii) the isletsscattered further to the south among law-tide
22
elevations .
136. In the present instance,the thfrd category of islands excludes
itself automatically. A11 those existingbeyond the large island of
Orango towards the south can have no infkulnce on the present
delimitation. Only the first two categoriesof islandswill be taken
into consideratio nere. In that respect, the problern however arises of
22~ward of 14 February 1985, para. 95.how far one must go westward and seaward,and this ralses first the
question whetherto take into account the group named "Baixosdo
Rio Grande" (Rio Grande Banks,with their drying shoals, their rocks,
their other natural elementsand theirlighthouse),and seconülythat of
the islandof Unhocorno with its extremesouthwestpoint of
Anqueiêramedi, ~uinea-~issauhas contendedthat the Rio GrandeBanks and
the lighthousemust be taken into account, arguing that unless this is
done the line drawnal 240°would become inequitablebecauseit would be
closer to those Banks than to theSenegalese Coast.
137. 30th Parties have discussedar great: lengththe '*Baixos do
Rio Grande", in the process of defendingtheir respective systemsof
baselines. The law of the seapermit6under certain conditionsthe use
of Low-tide elevations as supportingpoints fordrawing baselines.
Accordingto Article 13 of the MontegoBay Convention,which definea
low-tideelevations,the Low-vaterline on such an elevation may be used
as the baseline fE that elevationis sktuatedwholly or partly at a
distance not exceedingthe breadth of the territorialsea from the
mainland, i.e., 12 miles. Now, the distanceseparatingthat lighthouse
(built on that lov-tide elevation) from thefsland of Catavela, - a
coastalIslandas indfcatedby the ArbitrationTribunal in the case of
the two Guineas - EL 11.3miles. 138. Article7, paragraph4, of that same 1982 Conventionon the Law
of the Sea specifies that low-tideelevatibnsmay not be used as
end-points for the drawingof straightbaselines "unless lighthouses ...
have been buflt on them". Senegal maintains that the ~traightbaselines
adopted by Guinea-Bfssau under its Act of 17 May 1985 cannot be invoked
against It, chfefly ratione temworis,first of al1 because they were
introduced after the Arbitration Agreement of 12 Flay 1985 whereby
Guinea-Bissau and Senegal constitutedthis Tribunal and referred the case
to it, and secondlybecausethey rely on a low-tide elevation which, at
the timeof their introduction, Iiad no lighthouseor any other similar
installation built on it.
139. There is no doubt that the project for buildinga lighthouse on
the Rio Grande Banka goes back to the late fifties, that this project was
rnentioned during the Franco-Portuguesn eegotiations of 1959 (reports of
Captain de Beavida),and that the lighthouse wae finallybuilt by the
authorities of Guinea-Bissau in 1984, i-e., before the date of the
Arbitration Agreement and before the Act of;17 May 1985 whereby
Guinea-Bissaure-deffnedits baselines. One of the functions of an
arbitration agreementia to psevent a party frommodifyingen existing
situationunflaterally for its ewn henefit. Guinea-BisseutsAct of
17 May 1975 dia not, properlyspeakkng, modify the situationto thebenefft of that country by creating a rigbt. That right had been created
preriously,when in 1984 Guinea-Bissau built the lighthouse, an operation
wbich had been intended, ever since 1959, ta permit the banks of the
Rio Grande to be taken as a supporting point for a strafght baseline.
Besides, if the baselines established in 1985 uere to be discarded,one
would have to Eall back on those drawn in 1978, which are still more
favourabletu Guinea-Bissau,
140. However that may be, and however well ioundedGuinea-Bissau's
position with regard to the shoals of the Rio Grande,iE seems to me
neither necessary nor advisableto continue to examine the arguments
exchangea by the Parties regardlng their respectivebaseline systems.
I have statedabove my resolve to avoidwhereverpossibleresortim to
man-madeconceptsbased on natural data, BaselIne systems, which are the
product of human artifice,have given rise in many places to thrustsin a
seawarddirectionwhich learned writers have deplared, and which have
been only partly incorporated into the new law of the sea.
141. There remains the problem of the island of Unhocornowhich a
representative of Senegal has describedas the "forward sentinel of the
Bijagoa archipelago" (PV/IZ, pp. 205/110). It is quite a small ialand,rather far away from the coast, so that thereis no very stron$ reasonto
take it into consideration.
142. An indicationshould now be given ofthe effectwhich equitg
requires to be given ta these islands. Disregardingthe islands, the
general direction of the coasts of Guinea-Bissaumay be calculated ta
be 132", but this result isnot equftablebecauseit does not take into
account the islands,and the line for the generaldirectionthus obtaîned
actuallygoes so far as to exclude Bissau,the capital of the State that
is situatedon an ksland, behind which tha;proposed generaldirection
would pass. An orientation for the general outlineof the coast that
would take into account the more relevant islands(Garavela at its
extreme southwesp toint of Acudama,Uomo dd Orangoat its extreme
southwest point) would give a general directionof 160' for the coast of
Guinea-Bissau.
143. Accordinglyif, as indicatedabove, the islandsto the south of
the Bijagosarchipelago as well as the small islandof Unhocornoat the
western extremfty of that archipelagoare disregarded,the general
directionof Guinea-Bissau's coastlinewi13 be givenby s line drawn at
azimuth160' from Cape Roxo to Acudama,vhich is the vestefnmost point of
the main islands of the archipelago. This simplification makes itpossible to avoid giving an unwarrantedimportance to the exiguous and
desolate ialandof Unhocorno. As for the general direction of the
mainlandcoast of Guinea-Bissau,it can be representedby a line drawn
from Cape Roxo to the coast of Catunco Islandsituatedto the north of
Rio Cumbija. This general direction of the coast,as far as the southern
extrernityof the major elementsof the BlJagos Archipelago, ia
represented, aa alreadyindicated, by azimuth132".
144. Senegalhas maintainedthat the present trend in State practice
and international case-lawfavours glving only a partial effect to Island
territory. The Court of Arbitrationin the case between France ad the
UnitedKingdom on the delimitationof the continental shelf gave only
half-effect to the coastal archipelagpof the Scilly Islea, whbch are only
21 miles distant from the Britishcoasts. The International Courtof
Justice attributedonly half-effectto the coastal archipelagoof Kerkennah
in the case concernlng the Continental Shelf (Tunisia/Lfbyan Arab
Jarnahirival,eventhough that group of ialands is only 11 milee away from
the mainland coast, from which it is separatedby an am of the sea the
depth of which exceeds4 metres only in certainchanneleand furrows.
Moreover, that arehigelagois surroundedby low-waterelevations which form
around it a belt 9 to 27 kilometres wide (I.C.J. Reports 1982, para. 128).
The Chamber of the Court in the case concerningDelimitation of the
Maritime Boundarv in the Gulf of PlaineArea gave only half-effect toSeal Island situated off the ceast of Nova Scotia (1,C.J.Reports1984,
para. 222) and the Court itself gave only quarter-effect to the islands
of Malta (case concerningContinentalShelf (Libyan Arab
JamahiriyaJMalta) ..C,d. Reports11985, para. 73).
145. The western frontof the archipelago,representedby a line
dram fromAcudama point on Caravela Islana to hncumbe point on Orango
Island, is, accordlngto the expertappointedby the~ribunal,
approximately33 miles long. This length Is on the whole comparable to
the relevant caast of Senegal(Casamance)which is 44 miles long, and
does not possessany islands. It would not be equftable to give to the
western frontof the archipelago,stretchingfrom Acudama to Ancumbe, the
same importance for the purposeof delimitation as to the continental
coaat of Senegal. This is why a half-effectshonldbe aufficlent.
146. kccordingly,the appropriate cours 1esto draw for that purpose
a line whichbisects the angle havfng as its apex Cape Roxo and as one of
its siidesthe general directionof the western front of the Bijagos
Archipelago(Roxo-Acudama, 26Q0), and as its other side the general
direction of the mainlandCoast (Roxo-Catunco, 132O). Th18 producesa
line drawn at azimuth 14G0, therebygivinghalf-effect to the islands. 147.The Republic of Senegalhas mafntainedthat the Republicof
Guinea-Bissauhas accepteda line lying at azimuth 140' for the
determination of theterritorial sea of eachof the two States. If this
is the case, thedelimitation to be effectedby the arbitrator for the
maritime spacesotherthanthe territorial sea has to take as its atarting
point a pointsituatedat the outer limitof thatterritorial sea defined
by a linedrawnat 240". An arbktrator canot of course decide
ultra petita. In fact,however, 1 see no indicationanywhere of an
acceptanceby Guinea-Bissau of azimuth 240° forits territorial sea, In
its submissions,whichare bindingupon itand also upon the Tribunal, it
ha# requestedthe application of the law of thesea, i,e., the rule of
equidistancewhfch, contrary to the1960Agreement, gives azimuth247" for
the territorialsea. For the rest, neither in the pleadingsof the
Republic ofGuinea-Bissau nor in its oralargument has azimuth 240" been
l
~ accepted by itug to 12 miles,eitherexpresslyor tacitly. Consequently,
the questionof ultra~etita does not arise. The line to be drawn will
accordinglynecessarily startfrom Cape Roxowithout taking intoaccount
azimuth 240".
148. It isnow possible to draw the linevhich, in this ex novo
delimitation,constitutesthe maritimeboundarybetween the Republicof
Guinea-Bissauand the Republic of Senegal. The linethus takenwillbisect the angle having as ils apex Cape Box0 and as one of its sideathe
general directionof the maritime front of Guinea-Bissau obtainedafter
givinghalf effect to its main Islands (146"),and as the other side the
general direction of the relevantSenegalese coast (358'), Thia produces
a line drawn at azimuth 252". Maritime boundary between
the Republic of Guinea aissau
and the Republic of Senegal
(252') - 200-
1
149.The equitableness of the result chusobtained must now be
verified. The notionof "length of coasts"is a physicalfactthe use of
which in international case-lawhas hithertobeen confinedto employment
a ~oster;Lorias an element for the purposeof verifyingthe equitableness
of a proposeddelimitation, by legallytranslating this physicalfact
into a criterionof tfproportiona tlf ta beobserved between the length
of the coasts and the maritimeareas generated by them. International
courtscontinueto adopt"proportionalitya "s a subsidiarycriterion or
secondary element.
150. 1 shallalso adopt it here as an,elementfor purposes of
verification, since no other use wouldbe justifi~din the present
instance. Before doing so, however, I vould liketo point out that this
physical factor shouldbe considered as somethingmore than that, namely
as a criterionof delimitation likethe rest,especially moreaverin a
frontaldelimitation like the one effected~by the Internationa Clourtof
Justice in the case concerning Continental'Shelf (LibvanArab
Jamahiriya/Maltal. It is of course cleartjhhatthis factor of
proportionalit yas no placein the basis qfthe legaltitle, for the
"fundamental norm" of Article 83 of the 1982Convention newhere mentions
it. The fact is, however,that the fundamental normbarelymentionsthe
other principles, which arenevertheless applied. It does na more than
require an equitable result. There are verystrong reasons forkeepingthat principlebecause"that elementof a reasonabledegree of
proportionalityis indeed required by the fundamental principle of
ensuring an equitable delimitation" (ContinentalShelf (Tunisia/Libvan
Arab Jarnahirival.I.C.J, Revorts1982,p. 75, para. 103). Thus, a
powerful reason for doing so canbe found in the close links that this
principlequite naturallyhas, with thenotion of equity,itself
containedin the fundamental norm.
151. There is a logicalneed to take Into accounl,and not only at
the stage of a os ter losting, the factorof the length of the coasts
expressed as a "ratio of proportionalitytqbecause it Is this ratio vhich
expressesquantitatively the power to generate maritimezones. That
power depends, mong othecthings, on the lengthof the coasts. Since
every coastalStatehas an equal entitlement over maritimespaces, its
coasts canbe takento have thesame power to generate a domainof
maritimejurisdiction. It 1s in this sense that one can speakhere of
the principle of the equalityof States. As has been statedby the
Court, it 1s the Coast,and hence its length, which "is the decisive
factorfor title to submarineareas adjacentto it" (1.C.J. Reports 1982,
para. 73). Clearly, it is not the naturalfact of adjacencywhich
creates the kegal title to the continentalshelf (case eoncerning
Delimitatfonof the Maritime Boundary in the Gulf of PlaineArea
(Canada/United Statesof Arnerica),1.C.J. Reports 1984, para. 103). Thewhich establishes a logicallink betweenthe territorial sovereignty of
the State and the righes to be enjoyed by that same State over the
continental ahelfand the maritime areas adjacentto it, At thesame
time,one must not go too far in juggllng vith abstractions forthe sole
purpose of refusing to recognize the role of the length of the coasts.
Territorial sovereignty makes it possibleforrightsovermaritimespaces
to be generated, but lt fs wholly powerless to give tTconcretet' shape to
th&e rights, to quantifythe extent of the surfaces, or to carry out a
delimitation, The territorial sovereignty of theStateconfersonlya
"vocation" to the continental shelf. The extentand the limitaof that
shelfare determinedin concrete terrnsby the maritime front, in relation
to the geography of that front,a geography which includesal1 the
physical characteristics ,mong themthe lehgth of the coast. The
maritime cnastlineis a parameterwhich permits the utilization of the
sea; it is a means (a more or less extensibe means) of accessto the
sea; for that reason, it is expressedin yits of measurement,
152. Territorial sovereignty generates rights mer maritime spaces
because of the coastlfne(proof of this is the fact that it casmot give
rise to them in the case of a State without thatmaritimefront).This
coastlinegeneratesa certain atea of marit,im epace becauseof its
length,amongother thingo. Sincesovereigbty ereatesthe legat title
but can only gfve it materfal form by means'of the coastal"support",it is that supportwhich becornesthe decisivefactor for deterrnininin
concretetems the area ofthe zone attributed.That supportis to be
defined by ail its constitutiveelements,lengthincluded.
153. In any maritimedelimitation case,the physicalfartof the
length of the coastsis one of the elements of the"coastal geography"
which make it possible toestablish the lfsatioof thecoasts" of two States
for that purpose. That ratio is represented by the sumof the
characteristics of the relevantcoasts of the two States,and it can only
be converted and translatedintoa legal relationshipby integrating al1
the elements capableof individualizin ghose coasts: their configuration,
their curvature, theirgeneral direction,theIr projection(radial or
frontal),the changein directionof certainof their segments, their
indentations, theirsalients, their irregularities,their "normal" or
ltspecial "haracteristics,their "non-essential or "unusual"features,
theirrelations as adjacentor oppositecoasts, etc. Itvould of coursebe
surprising and ahnormalnot to take into account also their respective
lengths.
154.In fact, internationaljudicial decisionshavenot ruled out the
coastal length factor inany case: it: isas though ithad, more than other
factors, a certain permanence. 1 shall quoteonly the case concerning
Delimitation of theMaritimeBoundarv in the Gulf ofMaine Area, in which the Chamber ofthe International Courtof ~;usticsetressed partfcularly
that,in its view, it was "impossible tdoi!sregartdhe circumstance,
. which is of undeniableimnortance in thepresent case, that thereIs a
differencein lengthbetween the respectivecoastlines of the two
neighbouringStates ... Not to reco~nizethis fact would be a denialof
the obvious."(I.C.J.Reports 1984, para.218.) The same occurred in the
case concerningContinental Shelf (LibyanAirab Jamahiriya/Malta)in
which the lengthsof the coasts of theIwo partieswere so
disproportionate.
155. As the Internationa lourt of Jus'ticead already indicatedin
1969, the proportionalit yest is notbasedlon a mathematical ratiobut
rather callafor "a reasonable degree" ofproportionality
(I.C.J.Reports 1969,p. 54). For thedifference In lengthof the coasts
to become embodfedin an equitable legalcrlterion, it is necessaryto
avoidexpressingit as an arithmeticalratio renderedblind by its
automatfsmand rigidity. The quest for anequitable resultrequires the
differencein the lengths to be taken intoaccauntin a flexibleand
manageableformula whichreflects, ina reasonablerneasure, themanner in
which the ratioof those lengthscorresponds to that of the surfaces
attributed. I
156.The effect of the principleof the equality of States fs to
support, and no2ta destabilize, theproportionalitc yriterionas thus
defined. In the first place, a delimitationis not a sharing-out; It is
a legal operation. The equality ofStates means that the sovereigntyofGuinea-Bissauand that of Senegal. are legally of equalvalue and equal
scope and that theg are therefore both capable of generatingzonesof
continental shelf by their respectiveprojecti~nsseaward. The principle
of the equalityof States does not howeverrequire every State to be
entitledto a continental shelf equal In extentto that of another
State. LegaL equalitycan only be attainedby givingdifferenttreatment
to twophysicalelementswhich are themselvesdifferent: the length of
the coasts.
157. The sovereigntyof Guinea-Bissau isno more "intense"in
quality than that of Senegal,and vice versa. Its translattoninto
concreteand materialterms, however, isquantitatively different. The
power to generate maritime surfacw eisthan equal "intensity" for each
Statedependsconcretely upon physical factorw sith which the States are
not equally endowed. The legal equality of the two States is satisfied
if the coasts of each of themproduce appreciablythe same effects, and
therefore if eachkilometreof the one or the otherproduces the same
effectfor eitherState and generates the same maritimearea. Aa a
reault,it is the equitablecriterionof proportionality which best
satisfies the principle of the equality of States. 158. In order to verlfy, by referenceto the lengths of the coasts
of the two Parties,the equirablenessof the delimitationcarriedout
ex novo, it ia necessary to define the maritime spaces which are going to
be relatedto thoselengths. The areain question is neither the
disputedarea, definedby the 240°/2700 anglebounded by the lines af the
extreme claims of the Iwo Parties,nor the total area of each of the
maritimedomainsof the two States.
159. The northern lirnitof the relevantzone can be identified
without any difficulty. It is constitutedby the southernmaritlme
boundary betweenSenegaL and Gambia. The length of this parallel,has
however to be determined: it 1s the lengthwhlch the line establishizig
an exclusive economiczone vould have, i.e., 200 miles, for It 1s highly
probable that the titleof the State opposite, i.e., Cape Verde, camot
compete vith that of Senegal and Gambia. ',
To the south, the maritimespaces of the southern part of the
Bijagos Archipelagocannot in any case averlap those of Senegal; for
this reason, thoae areas must be excluded from the relevant zone to be
determinedfor purposes of the proportionality test. In consequence, the
southernlimit of that zone must start from the intersectionof the
200-mile limitwith the boundaryline definedby the Arbitration Tribunal1 in thecase betweenGuinea-Bissauand GuineaThelimit istherefore
detemined bythe PontaAncumbepoint.
~
Furthermore,it wasofcourseprovidedIn theFranco-Portuguese
I
1 Conventionof 12 Ma1886 that the followibelongedto Portugal:
"Al1the islandscomprisebetweenthe meridiaof
followingthethalwegafdtheRiverrCajetandrunning nextin a
south-westerlyirectionthro,ugthepass ofthe Pilotesso as
lo reachIO0 40'northlatitudewhkchit then followvntil the
meridianof Cape Raxo."
1 The maritimeapaceswithinthepolygonthusdefined accordingly
constituteinternalwaterappertainingtoGuinea-Bissauand excluded
~
fromany delimitation.It wouldthereforbe unreasonablto include
~
1 - thoseareasin the determinatioofthe relevantzone.
1 For consistencwith thatapproach,the evaluatioofthe expanses
1 of waterin the relevantzonmustexcludeal1 the interna1watersas
well, of course,athe territoryofthe islandsandthe dryingshoals
>
uncoveredat lowwater.
1 160. Thecoastallengthsare, in thecaseaf Senegalthe direct
distanceErom Cape Box0 to tsouthernfrontiewfth Gambia,namely
~
44 milesand,in thecaseof Guinea-Bissau,he distanceframCapeRoxo
l
to Punta Ancumbei.e.,85 miles, accordito expertopinion. The ratio
of the relevancoastsis therefor33 ta67. Themaritimesurfaces
1 I
appertaining to eachof the two Partieswi~h the limit of azimuth 252"
are, according to the expert,for Senegal 52,260 km 2 and for
Guinea-Bissa 103,176 km2,which gives a ratio virtuallyidentical to
thatbetween the lengths of the caasts.
If however the maritime frontof Guinea-Bissau Is taken as being the
relevantmainland coast (from Cape Roxo to,Catuncoisland)its length
would then be 111 miles and the ratiowould be 28 to 72. That ratiois
not disproportionateeither.
*
161. 1 would nat wish to end this opinion without making a final
commentwith regard to the exact scope of the mission entrusted to the
Tribunal by the ArbitratfonAgreement. The Partieshave entrusted the
Tribunalwith the task of deciding theirdispute in a campleteand
definitivemanner, by establishinga single line of delimitationfor the
whole body of thefrrespectivemaritime spaces. Et does not seem to me
that the Awara meets that desire. The Awa~d has given a partfally
positive answer to the first question put by the Arbitratfon Agreement,
in so far as it has deciàedthat the 1960 Agreement has the force of lav
between the Partiesfor the territorial sea, the contiguous zone and the
continentalsheif, but not for the exclusive economiczone, an Institution whichwas unknawn at the date of the conclusion of that
Agreement. The Award which has been rendered is therefore partial in -
that, in accordance with its own logic, it has neithesestablished a lfne
for the exclusive economiczone, nor found a solution - whichvouldin
fact be impossible - to the new problem facing it, namely the existence
of two lines where the Parties, in their justifiable concern to av~id al1
I
risk of future conflictbetween them, wanteda singleline. The
1 Declaration by the Presidentof the Tribunal shows to what an extent the
Award 1s incomplete and inconsisten tith the letterand spiritof the
ArbitrrttionAgreement with regard to the single line desiredby the
Parties. Since it emanates from the Presidentof the Tribunalhimself,
1 that Declaration,by its very existenceas well as by its contents,
justifies more fundamental doubts as to the existence of a rnajorityand
the reality of the Award.
(Signedl Mohammed BEDJAOUI
Annex to the Application instituting proceedings of the Government of the Republic of Guinea-Bissau (Arbitral Award of 31 July 1989)