Replies of Senegal to questions put during the hearings (translation)

[Translation]

Reply by Senegal to the questions put on 12 February 1990
by Judge Oda

First Question

Under what internal law or acts of Senegal did the Senegalese Navy

board the fishing vessel Hoyo Maru No. 8 and take it to the port of

Dakar on 9 October 1989, and was the Captain of the vessel subjected to

judicial proceedings as a result of which he was ord.ered to pay a fine of

15 million CFAfrancs? Under what internal law or acts did the

Senegalese Navy board another fishing vessel, Yan Yu 625, and take it

to the port of Dakar on 9 November 1989, and was the Captain subjected to

similar judicial proceedings as in the case of the first fishing vessel

Hoyo Maru No. 8,

Reply

Thé Senegalese Navy intercepted the fishing vessels

Hoyo Maru No. 8 and Yan Yu 625 by virtue of the provisions of Law

no. 87-27 of 18 August 1987 containing the Sea Fishing Code, and in

particular its Title IV, Article 25, entitled Boarding Procedure.

(Official Gazette of the Senegalese Republic, No. 5189 of 22 August 1987,

annexed hereto.) The representative of the Minister in Charge of Sea

Fisheries, who, under Article 38 of the above-mentioned law, is

responsible for bringing actions and initiating prosecutions before the

competent courts, has, in this case, under Article 41 of the same law,

which authorizes him to enter into compromises on behalf of the

Senegalese State, settled for the payment of 90 million CFAFrancs for

the Hoyo Maru No. 8 and 50 million CFAFrancs for the Yan Yu 625.

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Second Question

Four Senegalese vessels Helène, Marie-Josephe, Betty and

Connie were'boarded on 1 January 1990 by the authority of

Guinea-Bissau. What kind of licence or permission was granted, and under

what internal law or act was such a licence or permission granted by the

Government of Senegal to those vessels? Under what internal law or act

did Guinea-Bissau's Navy board these vessels? What is the state of the

judicial proceedings?

Reply

The four Senegalese vessels, the Helène, the Marie-Josephe, the

Betty and the Connie, which were boarded on 1 January 1990 by

authorities of Guinea-Bissau, were covered by a "coastal demersal fishing

licence" for the year 1990, issued by the Deputy Minister in Charge of

Animal Resources by virtue of the provisions of Law 87-27 of

8 August 1987 containing the Sea Fishing Code and the Decree for its

applic~tion, no. 87~1042 of 18 August 1987 (annexed hereto).

Reply by Senegal to the question put on 12 February 1990
by Judge Schwebel

Question

Article 11 of the Arbitration Agreement which gave rise to the

Arbitration, specifies in paragraph 1: "No activity of the parties

during the course of the proceedings may be deemed to prejudge their

sovereignty over the area the subject of the Arbitration Agreement".

Counsel for Guinea-Bissau stated this morning that Guinea-Bissau had

abstained from any such activity. I should like to ask the

representatives of Guinea-Bissau whether, in the view of Guinea-Bissau,

Senegal abstained from such activity during the pendency of the arbitral

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proceedings, and in_particular activities comparable to those at issue

this morning. I also wish to ask the representatives of Senegal to

indicate in due course whether, in the view of Senegal, either party

engaged in such activities during the pendency of the arbitral

proceedings, comparable to those at issue in these proceedings for the

indication of interim measures.

Reply

The agent of the Government of Senegal replied to the question put

in the course of the statement he made on 12 February 1990 in the

following terms:

"It should be recalled that Senegal has always carried on
such activities, both prior to and during the arbitral
procedure, as well as at the present time. It is therefore
surprising that Guinea-Bissau should only now wake up to the
situation and request the discontinuance of activities that have
always be.en carried out and of which it has never complained

before."

, Reply by Senegal to the question put on 12 February 1990
by Judge Guillaume

Question

According to the papers before the Court, two vessels were stopped

by the Senegalese authorities in November and December last in the area

in dispute; four vessels were stopped in January 1990 by the authorities

of Guinea-Bissau in the same area.

I should like to know whether, under Senegalese law, on the one

hand, and under the law of Guinea-Bissau, on the other, these vessels

were stopped in the territorial sea, the contiguous zone or beyond it?

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Reply

The vessels in question were stopped by the Senegalese authorities

by virtue of Law no. 87-27 of 18 August 1987 containing the Sea Fishing

Code. Article 2 of this law provides as follows:

"The right to fish in the waters appertaining to Senegal
belongs to the State. This right is exercised within the
territorial sea and within an exclusive economic zone extending
to a width of 200 nautical miles from the base lines that have
served to measure the width of the territorial sea ••• "

Reply by Senegal to the question put on 12 February 1990
by the President of the Court

Question

If you read the operative part of the Award of the Arbitral

Tribunal, you will see there the following:

"For the reasons stated above, the Tribunal decides by
two votes to one:

To reply as follows to the first question formulated in

Article 2 of the Arbitration Agreement: the Agreement concluded
by an exchange of letters on 26 April 1960, and relating to the
ma'ritime frontier, has the force of law in the relations between
the Republic of Guinea-Bissau and the Republic of Senegal with
regard solely to the areas mentioned in that Agreement, namely
the territorial sea, the contiguous zone and the continental
shelf. The 'straight· line drawn at 240°' is a loxodromie line."

Now, in your argument and the map that we have before us, you have a

line here of 200-miles· beyond what used to be, at the time of the

agreement of 1960, the extent of the territorial sea and the contiguous

zone. How is it that you extend this line to 200 miles under the Award?

Reply

The illustrative map was presented by Senegal to shed light on

statements made during the debates. It is not, needless to say, a map

annexed to the Arbitral Award.

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As regards the _length of the line, the agreement of 1960 did not

specify any end-point. Neither did the Arbitral Award. For this reason,

Senegal allowed itself to be guided by the general practice of States and

considered that the length of the frontier could justifiably be regarded

as being governed by the rules of international law relating to the

extent of the continental shelf. Thus, just as the outer limit of the

continental shelf would, as a result of the progress of technology,

extend further out to sea by application of the "exploitability" test

laid down in Article 1 of the Geneva Convention of 1958, in the same way

it would automatically extend to 200 miles by virtue of the "distance

principle" being recognized as a rule of customary law. And for this

purpose Senegal would not be required to make an express application or

declaration, its rights being ipso jure.

With rega_rd to the use of this same line, up to 200 miles, in the

context of a dispute concerning fisheries jurisdiction (that is, the

context of the illustration), Senegal wishes merely to observe that the

two Parties have at all times taken as point of departure that, whenever

the frontier may be located, there would be a single maritime frontier,

valid for all the maritime zones, including the superjacent waters.

20 February 1990

(Signed) Mr. Doudou THIAM
Agent of the Government of Senegal

Attachments

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