Arbitral Award of 31 July 1989, Case concerning (Guinea-Bissau v. Senegal) (Request for Indication of Provisional Measures and Judgment)

CASE CONCERNING THE ARBITRAL AWARD OF 31 JULY 1989 (GUINEA-BISSAU v. SENEGAL)REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES 2 March 1990

1. Whereas on 23 August 1989 a copy of the Application was transmit­ted to the Republic of Senegal; whereas pursuant to Article 40, para­graph 3, of the Statute and Article 42 of the Rules of Court, copies of the Application were transmitted to Members of the United Nations through the Secretary-General and to other States entitled to appear before the Court; and whereas by an Order dated 1 November 1989 the Court fixed time-limits for the written proceedings in the case;
2. Whereas on 18 January 1990 a request was filed in the Registry whereby the Government of Guinea-Bissau, relying on Article 41 of the Statute of the Court and Article 74 of the Rules of Court, and on the ground of actions stated to have been taken by the Senegalese Navy in a maritime area which Guinea-Bissau regards as an area disputed between the Parties, requested the Court to indicate the following provisional measures:

“In order to safeguard the rights of each of the Parties, they shall abstain in the disputed area from any act or action of any kind what­ever, during the whole duration of the proceedings until the decision is given by the Court”;

1. Whereas the Agent of Senegal was on 18 January 1990 notified by telex of the filing of the request for provisional measures and on 19 Janu­ary 1990 the text thereof was communicated to him by post;
2. Whereas pursuant to Article 31, paragraph 2, of the Statute, the Government of Guinea-Bissau chose Mr. Hubert Thierry to sit as judge ad hoc in the case;
3. Whereas the Parties were informed by communications dated 26 January 1990 that the Court would hold public hearings opening on 12 February 1990 to afford the Parties the opportunity of presenting their observations on the request for the indication of provisional measures;
4. Whereas by letter of 7 February 1990, received in the Registry on 9 February 1990, the Agent of Senegal presented to the Court written observations of Senegal on the request for the indication of provisional measures, containing the following submission:

“The Government of Senegal prays the Court, pursuant to Article 41 of its Statute and Article 73 of the Rules of Court, to declare inadmissible and subsidiarily to dismiss the request for pro­visional measures made by the Government of Guinea-Bissau”;

1. Whereas at public hearings held on 12 February 1990 oral observa­tions on the request for provisional measures were presented by the fol­lowing representatives: on behalf of the Republic of Guinea-Bissau: H.E. Mr. Fidelis Cabral de Almada, Agent, Mrs. Monique Chemillier- Gendreau, Counsel, and Mr. Miguel Galvao Teles, Counsel; on behalf of the Republic of Senegal: H.E. Mr. Doudou Thiam, Agent, and Mr. D. W. Bowett. Co-Agent;
2. Whereas during the oral proceedings questions were put to the Parties by Members of the Court, and replies in writing, with documents

in support, were subsequently transmitted to the Registry;

*

1. Whereas the events leading to the present proceedings are as fol­lows : on 26 April 1960 an agreement by exchange of letters was concluded between France and Portugal for the purpose of defining the maritime boundary between Senegal (at that time an autonomous State within the Communaute) and the Portuguese Province of Guinea; and whereas that agreement adopted as the boundary line a straight line at 240° from the intersection of the extension of the land frontier and the low-water mark, represented by the Cape Roxo lighthouse;
2. Whereas after the accession to independence of Senegal and Guinea-Bissau a dispute arose between them concerning the delimita­tion of their maritime territories, which was the subject of negotiations between them from 1977 onward; whereas on 12 March 1985 the Parties concluded an Arbitration Agreement for submission of that dispute to an Arbitration Tribunal; whereas Article 2 of the said Agreement provided that the following questions should be put to the Tribunal:

“(1) Does the agreement concluded by an exchange of letters on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal?

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

and whereas Article 9 of the Agreement provided that the decision of the Tribunal “shall include the drawing of the boundary line on a map”;

1. Whereas the Arbitration Tribunal constituted under the Agreement pronounced on 31 July 1989, by two votes (including that of the President of the Tribunal) to one, an award of which the operative clause was as follows:

“For the reasons stated above, the Tribunal decides…

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 maritime boundary, 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 loxodromic line”;

and whereas in that award the Tribunal also stated its conclusion that “it is not called upon to reply to the second question” in the Arbitration Agree­ment, and that in view of its decision it “has not thought it necessary to append a map showing the course of the boundary line”;

1. Whereas the President of the Arbitration Tribunal appended a dec­laration to the award; and whereas in the view of Guinea-Bissau it was “clearly apparent” that the position adopted by the President in that dec­laration was “incompatible with the position which he has endorsed by his vote in favour of the ‘award’ and which had given the appearance of a majority”; whereas Guinea-Bissau accordingly considers that “there was in fact no majority within the Tribunal”;
2. Whereas Guinea-Bissau contends in its Application to the Court that “A new dispute thus came into existence, relating to the applicability of the text issued by way of award on 31 July 1989”; whereas that dispute was brought before the Court by the above-mentioned Application, in which Guinea-Bissau requests the Court, in respect of the decision of the Arbitration Tribunal, to adjudge and declare:

“- that that so-called decision is inexistent in view of the fact that one of the two arbitrators making up the appearance of a majority in favour of the text of the ‘award’, has, by a declaration appended to it, expressed a view in contradiction with the one apparently adopted by the vote;

–         subsidiarily, that that so-called decision is null and void, as the Tribunal did not give a complete answer to the two-fold question raised by the Agreement and so did not arrive at a single delimi­tation line duly recorded on a map, and as it has not given the reasons for the restrictions thus improperly placed upon its juris­diction;

–         that the Government of Senegal is thus not justified in seeking to require the Government of Guinea-Bissau to apply the so-called award of 31 July 1989″;

1. Whereas Guinea-Bissau explains in its request for the indication of provisional measures that that request was prompted by

“acts of sovereignty by Senegal which prejudge both the judgment on the merits to be given by the Court and the maritime delimitation to be effected subsequently between the States”;

whereas the acts complained of by Guinea-Bissau, and alleged to have occurred in a “disputed area”, are as follows: on 9 October 1989 a fishing vessel of Japanese registry, the Hoyo Maru No. 8, holding a licence issued by the authorities of Guinea-Bissau to fish in the exclusive economic zone of Guinea-Bissau, was boarded by the Senegalese Navy in a position corresponding to geographical co-ordinates 12° 01′ North and 17° 31′ West, and escorted to a Senegalese port; legal proceedings were taken, for breach of Senegalese fishing regulations, and the vessel was released on payment of 90 million CFA francs; on 9 November 1989 a fishing vessel of Chinese registry, the Yan Yu 625, holding a similar fishing licence issued by Guinea-Bissau, was similarly boarded at 12° 08′ North and 17° 04′ West, and escorted to a Senegalese port; legal proceedings were taken, and the vessel subsequently released on payment of 50 million CFA francs;

1. Whereas Senegal has confirmed that these incidents occurred, and states that if the area where the incidents occurred was “the maritime area that is under Senegal’s jurisdiction by virtue of the agreement of 1960 (that is to say, the territorial sea, the contiguous zone and the continental shelf)”, Senegal relied on a presumption of validity of the award;
2. Whereas after the close of the oral proceedings the Agent of Guinea-Bissau, by a letter of 13 February 1990, stated that a further incident took place on 18 December 1989, when the vessel of Chinese registry Yuan Yu I was boarded by the Senegalese Navy at a position (12° 07′ 67″ North, 17° 03′ 65″ West) stated to be to the south of the 240° line from Cape Roxo, and therefore, in the view of Guinea-Bissau not in the disputed area, and in an area undisputedly within the juris­diction of Guinea-Bissau;
3. Whereas according to information supplied to the Court by both Parties, on 1 January 1990 the authorities of Guinea-Bissau arrested four fishing vessels of Senegalese registry in the area regarded by Guinea-Bis­sau as the disputed area, at positions 12° 14′ 06″ North, 17° 09′ 97″ West; 12° 14′ 69″ North, 17° 10′ 07″ West; 12° 15′ 06″ North, 17° 09′ 33″ West; and 12° 12′ 74″ North, 17° 11′ 71″ West; whereas Guinea-Bissau alleges that the captains of these vessels stated to the authorities of Guinea-Bissau that the authorities of Senegal had authorized and even encouraged them to fish in the area, which was regarded by Senegal as appertaining to it;

* *

1. Whereas the Republic of Guinea-Bissau claims to found the juris­diction of the Court to entertain the present case upon declarations made by the Parties accepting the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute of the Court; and whereas such declarations were made, by the Republic of Senegal on 22 October 1985, deposited with the Secretary-General of the United Nations on 2 Decem­ber 1985, and by the Republic of Guinea-Bissau on 7 August 1989, depos­ited the same day with the Secretary-General of the United Nations; whereas the declaration made by Guinea-Bissau is without reservations, while the declaration of Senegal is subject to reservations, but Guinea- Bissau contends that none of them is relevant to the present dispute;
2. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;
3. Whereas the Court takes note of the statement made at the hearing by the Agent of Senegal that Senegal makes every reservation at this stage as to the jurisdiction of the Court with respect to the substance of the Application, and the statement of the Co-Agent of Senegal that it is not satisfied that the Court has jurisdiction to entertain the main Application, but does not wish to broach the issue of jurisdiction over the main Appli­cation at this stage; and whereas Senegal, while contending that the Court should decline to indicate provisional measures, has accordingly not based that contention on the ground of lack of jurisdiction on the merits of the case;
4. Whereas the Court considers that the two declarations made under Article 36, paragraph 2, of the Statute appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;
5. Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the merits themselves and leaves unaffected the right of the Respondent to submit arguments against

such jurisdiction or in respect of such merits;

* *

1. Whereas Guinea-Bissau has requested the Court to exercise in the present proceedings the power conferred upon it by Article 41 of the Sta­tute of the Court “to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respec­tive rights of either party”; whereas the purpose of exercising this power is to protect “rights which are the subject of dispute injudicial proceedings” (Aegean Sea Continental Shelf, I.C.J. Reports 1976, p. 9, para. 25; Diplo­matic and Consular Staff in Tehran, I.C.J. Reports 1979, p. 19, para. 36); whereas such measures are provisional and indicated “pending the final decision” (Article 41, paragraph 2, of the Statute); and whereas therefore they are to be measures such that they will no longer be required as such once the dispute over those rights has been resolved by the Court’s judg­ment on the merits of the case;
2. Whereas Guinea-Bissau recognizes in its Application that the dis­pute of which it has seised the Court is not the dispute over maritime deli­mitation brought before the Arbitration Tribunal, but a “new dispute… relating to the applicability of the text issued by way of award of 31 July 1989”; whereas however it has been argued by Guinea-Bissau that provi­sional measures may be requested, in the context of judicial proceedings on a subsidiary dispute, to protect rights in issue in the underlying dis­pute; that the only link essential for the admissibility of measures is the link between the measures contemplated and the conflict of interests underlying the question or questions put to the Court, — that conflict of interests in the present case being the conflict over maritime delimita­tion, — and that this is so whether the Court is seised of a main dispute or of a subsidiary dispute, a fundamental dispute or a secondary dispute, on the sole condition that the decision by the Court on the questions of sub­stance which are submitted to it be a necessary prerequisite for the settle­ment of the conflict of interests to which the measures relate; whereas in the present case Guinea-Bissau claims that the basic dispute concerns the conflicting claims of the Parties to control, exploration and exploitation of maritime areas, and that the purpose of the measures requested is to preserve the integrity of the maritime area concerned, and that the required relationship between the provisional measures requested by Guinea-Bissau and the case before the Court is present;
3. Whereas the Application instituting proceedings asks the Court to declare the 1989 award to be “inexistent” or, subsidiarily, “null and void”, and to declare “that the Government of Senegal is thus not justified in seeking to require the Government of Guinea-Bissau to apply the so- called award of 31 July 1989”; whereas the Application thus asks the Court to pass upon the existence and validity of the award but does not ask the Court to pass upon the respective rights of the Parties in the mari­time areas in question; whereas accordingly the alleged rights sought to be made the subject of provisional measures are not the subject of the proceedings before the Court on the merits of the case; and whereas any such measures could not be subsumed by the Court’s judgment on the merits;
4. Whereas moreover a decision of the Court that the award is inexist­ent or null and void would in no way entail any decision that the Appli­cant’s claims in respect of the disputed maritime delimitation are well founded, in whole or in part; and whereas the dispute over those claims will therefore not be resolved by the Court’s judgment;
5. Accordingly,

The Court,

by fourteen votes to one,

Dismisses the request of the Republic of Guinea-Bissau, filed in the Registry on 18 January 1990, for the indication of provisional measures.

in favour : President Ruda; Vice-President Mbaye; Judges Lachs, Elias, Oda, Ago, Schwebel, Sir Robert Jennings, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Pathak;

against : Judge ad hoc Thierry.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this second day of March, one thousand nine hundred and ninety, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Guinea-Bissau and the Government of the Republic of Senegal, respectively.

(Signed) Jose Maria Ruda, President.

(Signed) Eduardo Valencia-Ospina, Registrar.

Judges Evensen and Shahabuddeen append separate opinions to the Order of the Court.

Judge ad hoc Thierry appends a dissenting opinion to the Order of the Court.

(Initialled) J.M.R. (Initialled) E.V.O.

_________________________________

JUDGMENT

CASE CONCERNING THE ARBITRAL AWARD OF 31 JULY 1989 (GUINEA-BISSAU v. SENEGAL) – 12 November 1991

 

International arbitral award — Application based on Article 36. paragraph 2, of the Statute, requesting Court to declare inexistence or nullity of the award — Recognition by both Parties that proceedings not by way of appeal — Jurisdiction not disputed by Respondent.

Allegation of abuse ofprocess.

Possible effect of absence of arbitrator from meeting at which award delivered to Parties.

Inexistence of award attributed to lack of real majority — Declaration appended to award by President of Tribunal did not invalidate his vote.

Nullity of award on grounds of exces de pouvoir and insufficiency of reasoning

—     Second question put to Tribunal by arbitration agreement to be answered “In the event of a negative answer” to the first question — No reply given to second question — Whether lack of reply supported by sufficient reasoning — Criticism of structure of award.

Interpretation by tribunal of provisions of arbitration agreement governing its competence — Role of the Court in nullity proceedings not to determine what inter­pretation might be preferable but to ascertain whether tribunal acted in manifest breach of competence conferred by arbitration agreement — Application of relevant rules of treaty interpretation — Ordinary meaning of words confirmed by travaux preparatoires.

Argument that Tribunal required to answer both questions in any event — Absence of agreement of Parties to that effect when Arbitration Agreement drafted

—     Argument that Tribunal’s answer to first question was partially negative — Interpretation of expression “negative answer” — Tribunal’s answer to first ques­tion was complete and affirmative answer.

Provision in Arbitration Agreement for drawing of boundary line on a map — Decision not to attach map sufficiently reasoned — Absence of map not. in the cir­cumstances of the case, such an irregularity as would render award invalid.

JUDGMENT

Present: President Sir Robert Jennings; Vice-President Oda; Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillalme, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva; Judges ad hoc Thierry, Mbaye; Registrar Valencia-Ospina.

In the case concerning the Arbitral Award of 31 July 1989, between

the Republic of Guinea-Bissau, represented by

H.E. Mr. Fidelis Cabral de Almada, Minister of State attached to the Presi­dency of the Council of State of Guinea-Bissau, as Agent;

H.E. Mr. Fali Embalo, Ambassador of Guinea-Bissau to the Benelux coun­tries and the European Communities, as Co-Agent;

Mrs. Monique Chemillier-Gendreau, Professor at the University of Paris VII, Mr. Miguel Galvao Teles, Advocate and former Member of the Council of State of Portugal,

Mr. Keith Highet, Adjunct Professor of International Law at the Fletcher School of Law and Diplomacy and Member of the Bars of New York and the District of Columbia, Mr. Charalambos Apostolidis, Lecturer at the University of Bourgogne,

Mr. Paulo Canelas de Castro, Assistant Lecturer at the Law Faculty of the

University of Coimbra, Mr. Michael B. Froman, Harvard Law School, as Counsel;

Mr. Mario Lopes, Procurator-General of the Republic, Mr. Feliciano Gomes, Chief of Staff of the National Navy, as Advisers,

and

the Republic of Senegal, represented by

H.E. Mr. Doudou Thiam, Advocate, former Batonnier, Member of the Inter­national Law Commission,

as Agent;

Mr. Birame Ndiaye, Professor of Law,

Mr. Tafsir Malick Ndiaye, Professor of Law,

as Co-Agents;

Mr. Derek W. Bowett, Q.C., Queens’ College, Cambridge; Whewell Professor of International Law, University of Cambridge,

Mr. Francesco Capotorti, Professor of International Law, University of Rome,

Mr. Ibou Diaite, Professor of Law,

Mr. Amadou Diop, Legal Adviser, Embassy of Senegal to the Benelux coun­tries,

Mr. Richard Meese, Legal Adviser, partner in Frere Cholmeley, Paris,

as Counsel,

The Court,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 23 August 1989 the Ambassador of the Republic of Guinea-Bissau to the Netherlands filed in the Registry of the Court an Application instituting proceedings against the Republic of Senegal in respect of a dispute concerning the existence and validity of the Arbitral Award delivered on 31 July 1989 by an arbitration tribunal established pursuant to an Arbitration Agreement between the two States dated 12 March 1985. In order to found the jurisdiction of the Court the Application relied on the declarations made by the two Parties accepting the jurisdiction of the Court as provided for in Article 36, para­graph 2, of the Statute of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was communicated forthwith by the Registrar to the Republic of Senegal; in accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.
3. By an Order dated 1 November 1989 the Court fixed time-limits for the written proceedings (Memorial of Guinea-Bissau and Counter-Memorial of Senegal).
4. Since the Court at that time included upon the Bench a judge of Sen­egalese nationality, Judge Keba Mbaye, Vice-President of the Court, but did not include a judge of the nationality of Guinea-Bissau, the Government of Guinea-Bissau, in exercise of its right under Article 31, paragraph 2, of the Statute of the Court, chose Mr. Hubert Thierry to sit as judge ad hoc in the case.
5. On 18 January 1990 the Government of Guinea-Bissau filed in the Regis­try of the Court a request, on the basis of Article 41 of the Statute of the Court and Article 74 of the Rules of Court, for the indication of provisional measures. By an Order dated 2 March 1990, the Court, after hearing the Parties, dismissed that request.
6. The Memorial and Counter-Memorial having been duly filed within the time-limits fixed by the Court, the case became ready for hearing in accordance with Article 54, paragraph 1, of the Rules of Court.
7. On 5 February 1991 the term of office of Judge Mbaye came to an end in accordance with the Statute. The Government of Senegal thereupon became entitled, under Article 31, paragraph 3, of the Statute of the Court, to choose a judge ad hoc to sit in the case, and chose Judge Mbaye.
8. At public hearings held between 3 and 11 April 1991, the Court heard oral arguments addressed to it by the following:

For the Republic of Guinea-Bissau: H.E. Mr. Fidelis Cabral de Almada,

Mrs. MoniqueChemillier-Gendreau, Mr. Miguel Galvao Teles, Mr. Keith Highet.

For the Republic of Senegal:                   H.E. Mr. Doudou Thiam,

Mr. Derek W. Bowett,Q.C., Mr. Francesco Capotorti.

In the course of the hearings, questions were put to both Parties by Members of the Court; replies in writing were filed in the Registry in accordance with Article 61, paragraph 4, of the Rules of Court.

1. During the hearings, the Agent of Guinea-Bissau requested the Court to authorize the calling as a witness or expert witness of a person already included, as an adviser, in the list of those representing that State furnished by it to the Court; the Agent of Senegal, on the basis, inter alia, of Article 57 of the Rules of Court, objected to this being done. After consideration, the Court decided that it would not be appropriate to accede to the request of Guinea- Bissau.

* *

1. In the course of the written proceedings, the following submissions were presented by the Parties:

On behalf of the Republic of Guinea-Bissau,

in the Memorial:

“For the reasons set forth above, and for any other reasons adding to or amending them which it reserves the right to submit and elaborate on during the subsequent written and oral proceedings, the Government of Guinea-Bissau respectfully asks the Court to adjudge and declare:

—     that the so-called’award’of 31 July 1989 is inexistent in view of the fact that one of the two arbitrators making up the appearance of a majority in favour of the text of the ‘award’, has, by a declaration appended to it, expressed a view in contradiction with the one apparently adopted by the vote;

—     subsidiarily, that that so-called decision is absolutely null and void, as the Tribunal failed to reply to the second question raised by the Arbi­tration Agreement, whereas its reply to the first question implied a need for a reply to be given to the second, as it did not comply with the provi­sions of the Arbitration Agreement by which the Tribunal was asked to decide on the delimitation of the maritime areas as a whole, to do so by a single line and to record that line on a map, and as it has not given the reasons for the restrictions thus improperly placed upon its jurisdic­tion;

— that the Government of Senegal is thus not justified in seeking to require the Government of Guinea-Bissau to apply the so-called award of 31 July 1989.”

On behalf of the Republic of Senegal. in the Counter-Memorial:

“Considering the facts and arguments stated above, the Government of the Republic of Senegal requests the Court to:

1. Reject the Submissions of the Government of the Republic of Guinea-Bissau directed at establishing the inexistence and, subsidiarily, the nullity of the Arbitral Award of 31 July 1989.
2. Adjudge and declare that the said Arbitral Award is valid and bind­ing for the Republic of Senegal and the Republic of Guinea-Bissau, which have the obligation to apply it.”

11. At the conclusion of its last oral statement, each Party presented sub­missions identical to those contained respectively in the Memorial and the Counter-Memorial.

1. The events leading up to the present proceedings are as follows. On 26 April 1960 an Agreement by exchange of letters was concluded between France, on its own behalf and that of the Communaute, and Portugal for the purpose of defining the maritime boundary between the Republic of Senegal (at that time an autonomous State within the Communaute) and the Portuguese Province of Guinea. The letter of France proposed (inter alia) as follows:

“As far as the outer limit of the territorial sea, the boundary shall consist of a straight line drawn at 240° from the intersection of the prolongation of the land frontier and the low-water mark, represented for that purpose by the Cape Roxo lighthouse.

As regards the contiguous zones and the continental shelf, the delimita­tion shall be constituted by the prolongation in a straight line, in the same direction, of the boundary of the territorial seas.”

The letter of Portugal expressed its agreement to this proposal.

1. After the accession to independence of Senegal and Guinea-Bissau a dis­pute arose between them concerning the delimitation of their maritime areas. This dispute was the subject of negotiations between them from 1977 onward, in the course of which Senegal asserted, inter alia, that the line defined in the 1960 Agreement had been validly established, while Guinea-Bissau disputed the validity of that Agreement and its opposability to Guinea-Bissau, and insisted that the maritime areas in question be delimited without reference to the Agreement.
2. On 12 March 1985 the Parties concluded an Arbitration Agreement for submission of that dispute to an arbitration tribunal; the terms of the Agree­ment, so far as relevant to the questions now before the Court, were as follows:

“The Government of the Republic of Senegal and the Government of the Republic of Guinea-Bissau,

Recognizing that they have been unable to settle by means of diplomatic negotiation the dispute relating to the determination of their maritime boundary,

Desirous, in view of their friendly relations, to reach a settlement of that dispute as soon as possible and, to that end, having decided to resort to arbitration,

Have agreed as follows:

Article I

1. The Arbitration Tribunal (hereinafter called “the Tribunal”) shall consist of three members designated in the following manner:

Each Party shall appoint one arbitrator of its choice;

The third arbitrator, who shall function as President of the Tribunal, shall be appointed by mutual agreement of the two Parties or, in the absence of such agreement, by agreement of the two arbitrators after con­sultation with the two Parties.

2. …

3. …

Article 2

The Tribunal is requested to decide in accordance with the norms of international law on the following questions:

1. Does the Agreement concluded by an exchange of letters on 26 April I960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal ?
2. In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal respectively?

Article 4

1. The Tribunal shall take its decisions only in its full composition.
2. The decisions of the Tribunal relating to all questions of substance or procedure, including all questions relating to the jurisdiction of the Tribu­nal and the interpretation of the Agreement, shall be taken by a majority of its members.

Article 9

1. Upon completion of the proceedings before it, the Tribunal shall inform the two Governments of its decision regarding the questions set forth in Article 2 of the present Agreement.
2. That decision shall include the drawing of the boundary line on a map. To that end, the Tribunal shall be empowered to appoint one or more technical experts to assist it in the preparation of such map.
3. The Award shall state in full the reasons on which it is based.
4. …

Article 10

1. The Arbitral Award shall be signed by the President of the Tribunal and by the Registrar. The latter shall hand to the Agents of the two Parties a certified copy in the two languages.
2. The Award shall be final and binding upon the two States which shall be under a duty to take all necessary steps for its implementation.
3. …

Article 11

1. No activity of the Parties during the course of the proceedings may be deemed to prejudge their sovereignty over the areas the subject of the Arbi­tration Agreement.

2. …

Done in duplicate in Dakar, on 12 March 1985, in the French and Portu­guese languages, both texts being equally authentic.”

           An Arbitration Tribunal was duly constituted under the Agreement, by the appointment first of Mr. Mohammed Bedjaoui and then of Mr. Andre Gros, Arbitrators, and of Mr. Julio A. Barberis, President. On 31 July 1989 the Tribunal pronounced the Award the existence and validity of which have been challenged in the present proceedings. According to this Award it was adopted by the votes of the President of the Tribunal and Mr. Gros, over the negative vote of Mr. Bedjaoui.

           The findings of the Tribunal may for the purposes of the present judg­ment be summarized as follows. The Tribunal concluded that the 1960 Agree­ment was valid and could be opposed to Senegal and to Guinea-Bissau (Award, para. 80); that it had to be interpreted in the light of the law in force at the date of its conclusion (ibid., para. 85); that

“the 1960 Agreement does not delimit those maritime spaces which did not exist at that date, whether they be termed exclusive economic zone, fishery zone or whatever …”,

but that

“the territorial sea, the contiguous zone and the continental shelf… are expressly mentioned in the 1960 Agreement and they existed at the time of its conclusion” (ibid.).

The Tribunal went on to say that :

“As regards the continental shelf, the question of determining how far the boundary line extends can arise today, in view of the evolution of the definition of the concept of’continental shelf. In 1960, two criteria served to determine the extent of the continental shelf : that of the 200-metre bathymetric line and that of exploitability. The latter criterion involved a dynamic conception of the continental shelf, since the outer limit would depend on technological developments and could consequently move fur­ther and further to seaward. In view of the fact that the ‘continental shelf’ existed in the international law in force in 1960, and that the definition of the concept of that maritime space then included the dynamic criterion indicated, it may be concluded that the Franco-Portuguese Agreement

delimits the continental shelf between the Parties over the whole extent of that maritime space as defined at present.” (Award, para. 85.)

         The Tribunal then explained that

“Bearing in mind the above conclusions reached by the Tribunal and the wording of Article 2 of the Arbitration Agreement, in the opinion of the Tribunal it is not called upon to reply to the second question.

Furthermore, in view of its decision, the Tribunal considered that there was no need to append a map showing the course of the boundary line.” (Ibid., para. 87.)

         The operative clause of the Award was as follows:

“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 of 26 April 1960, and relating to the maritime boundary, 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 loxodromic line.” (Para. 88.)

         Mr. Barberis, President of the Arbitration Tribunal, appended a declar­ation to the Award, and Mr. Bedjaoui, who had voted against the Award, appended a dissenting opinion. The declaration of President Barberis read as follows:

“1 feel that the reply given by the Tribunal to the first question put by the Arbitration Agreement could have been more precise. I would have replied to that question as follows:

‘The Agreement concluded by an exchange of letters of 26 April 1960, and relating to the maritime boundary, has the force of law in the rela­tions between the Republic of Guinea-Bissau and the Republic of Sen­egal with respect to the territorial sea, the contiguous zone and the continental shelf, but does not have the force of law with respect to the waters of the exclusive economic zone or the fishery zone. The “straight line drawn at 240° ” mentioned in the Agreement of 26 April 1960 is a loxodromic line.’

This partially affirmative and partially negative reply is, in my view, the exact description of the legal position existing between the Parties. As sug­gested by Guinea-Bissau in the course of the present arbitration (Reply, p. 248), this reply would have enabled the Tribunal to deal in its Award with the second question put by the Arbitration Agreement. The partially negative reply to the first question would have conferred on the Tribunal a partial competence to reply to the second, i.e., to do so to the extent that the reply to the first question would have been negative.

In that case, the Tribunal would have been competent to delimit the waters of the exclusive economic zone* or the fishery zone between the two countries. The Tribunal thus could have settled the whole of the dispute, because, by virtue of the reply to the first question of the Arbitration Agreement, it would have determined the boundaries for the territorial sea, the contiguous zone and the continental shelf, as the Award has just done and, by its answer to the second question, the Tribunal could have determined the boundary for the waters of the exclusive economic zone or the fishery zone, a boundary which might or might not have coincided with the line drawn by the 1960 Agreement.

* I refer to the ‘waters’ of the exclusive economic zone and I think it necessary to be as specific as this, because it sometimes occurs that the notion of this zone covers also the continental shelf as, for example, in Article 56 of the 1982 Montego Bay Convention.”

           In his dissenting opinion, Mr. Bedjaoui referred to the declaration by President Barberis, which, he said,

“shows to what an extent the Award is incomplete and inconsistent with the letter and spirit of the Arbitration Agreement with regard to the single line desired by the Parties. Since it emanates from the President of the Tribunal himself, that Declaration, by its very existence as well as by its contents, justifies more fundamental doubts as to the existence of a majority and the reality of the Award.” (Para. 161.)

           A public sitting of the Tribunal was held on 31 July 1989 for delivery of the Award, at which President Barberis and Mr. Bedjaoui were present, but not Mr. Gros. At that sitting, after the Award had been delivered, the representative of Guinea-Bissau indicated that, pending full reading of the documents and consultation with his Government, he reserved the position of Guinea-Bissau regarding the applicability and validity of the Award, as he alleged that it did not satisfy the requirements laid down by agreement between the two Parties. After contacts between the Governments of the two Parties, in which Guinea- Bissau indicated its reasons for not accepting the Award, the present proceed­ings were brought before the Court by Guinea-Bissau.

22. The Court will first consider its jurisdiction. In its Application, Guinea-Bissau founds the jurisdiction of the Court on “the Declarations by which the Republic of Guinea-Bissau and the Republic of Senegal have respectively accepted the jurisdiction of the Court under the condi­tions set forth in Article 36, paragraph 2, of the Statute” of the Court. These declarations were deposited with the Secretary-General of the United Nations, in the case of Senegal on 2 December 1985, and in the case of Guinea-Bissau on 7 August 1989. Guinea-Bissau’s declaration contained no reservation; Senegal’s declaration, which replaced a previ­ous declaration of 3 May 1985, provided that

“Senegal may reject the Court’s competence in respect of: — Disputes in regard to which the parties have agreed to have recourse to some other method of settlement;

— Disputes with regard to questions which, under international law, fall exclusively within the jurisdiction of Senegal.”

That declaration was also expressed as being applicable solely to “all legal disputes arising after the present declaration ..

1. Senegal observed that if Guinea-Bissau were to challenge the deci­sion of the Arbitration Tribunal on the merits, it would be raising a ques­tion excluded from the Court’s jurisdiction by the terms of Senegal’s declaration. According to Senegal, the dispute concerning the maritime delimitation was the subject of the Arbitration Agreement of 12 March 1985 and consequently fell into the category of disputes “in regard to which the parties have agreed to have recourse to some other method of settlement”. Furthermore, in the view of Senegal, that dispute arose before 2 December 1985, the date on which Senegal’s acceptance of the compulsory jurisdiction of the Court became effective, and is thus excluded from the category of disputes “arising after” that declaration.
2. However, the Parties were agreed that there was a distinction between the substantive dispute relating to maritime delimitation, and the dispute relating to the Award rendered by the Arbitration Tribunal, and that only the latter dispute, which arose after the Senegalese declaration, is the subject of the present proceedings before the Court. Guinea-Bissau also took the position, which Senegal accepted, that these proceedings were not intended by way of appeal from the Award or as an application for revision of it. Thus, both Parties recognize that no aspect of the sub­stantive delimitation dispute is involved. On this basis, Senegal did not dispute that the Court had jurisdiction to entertain the Application under Article 36, paragraph 2, of the Statute. In the circumstances of the case the Court regards its jurisdiction as established.
3. In this respect the Court would emphasize that, as the Parties were both agreed, these proceedings allege the inexistence and nullity of the Award rendered by the Arbitration Tribunal and are not by way of appeal from it or application for revision of it. As the Court had occasion to observe with respect to the contention of nullity advanced in the case of the Arbitral A ward Made by the King of Spain on 23 December / 906:

“the Award is not subject to appeal and … the Court cannot approach the consideration of the objections raised by Nicaragua to the validity of the Award as a Court of Appeal. The Court is not called upon to pronounce on whether the arbitrator’s decision was right or wrong. These and cognate considerations have no relevance to the function that the Court is called upon to discharge in these proceedings, which is to decide whether the Award is proved to be a

nullity having no effect.” (I.CJ. Reports 1960, p. 214.)

1. The Court will now consider a contention by Senegal that Guinea- Bissau’s Application is inadmissible, insofar as it seeks to use the declara­tion of President Barberis for the purpose of casting doubt on the validity of the Award (see paragraph 30 below). Senegal argues that that declara­tion is not part of the Award, and therefore that any attempt by Guinea- Bissau to make use of it for that purpose “must be regarded as an abuse of process aimed at depriving Senegal of the rights belonging to it under the Award”. Senegal also contends that the remedies sought are dispropor­tionate to the grounds invoked and that the proceedings have been brought for the purpose of delaying the final solution of the dispute.
2. The Court considers that Guinea-Bissau’s Application has been properly presented in the framework of its right to have recourse to the Court in the circumstances of the case. Accordingly, it does not accept Senegal’s contention that Guinea-Bissau’s Application, or the arguments used in support of it, amount to an abuse of process.

* *

1. Guinea-Bissau contends that the absence of Mr. Gros from the meeting of the Arbitration Tribunal at which the Award was pronounced amounted to a recognition that the Tribunal had failed to resolve the dis­pute. Guinea-Bissau accepts that at this meeting

“it was not intended that a ‘decision’ should be taken, and by a formal and strict interpretation it would be possible to avoid applying to it Article 4, paragraph 1 [of the Arbitration Agreement], requiring that the Tribunal be in its full composition …”.

Guinea-Bissau however takes the view that this was a particularly im­portant meeting of the Tribunal and that the absence of Mr. Gros lessened the Tribunal’s authority.

1. The Court notes that it is not disputed that Mr. Gros participated in the voting when the Award was adopted. Thereafter the Award had to be delivered to the Parties. In this respect Article 10, paragraph 1, of the Arbi­tration Agreement provided that the Award having been signed by the President and the Registrar, the Registrar was to “hand to the Agents of the two Parties a certified copy in the two languages”. This was done. A meeting was held at which the Award was read. The absence of Mr. Gros from that meeting could not affect the validity of the Award which had already been adopted.

30. The Court will now examine the submissions of Guinea-Bissau that the Arbitral Award is inexistent, or subsidiarily that it is absolutely null and void. In support of its principal contention, that the Award is inexis- tent, the Applicant claims that the Award was not supported by a real majority. Guinea-Bissau does not dispute the fact that the Award was expressed to have been adopted by the votes of President Barberis and Mr. Gros; it contends however that President Barberis’s declaration con­tradicted and invalidated his vote, thus leaving the Award unsupported by a real majority. The Tribunal, having concluded, in reply to the first ques­tion in the Arbitration Agreement, that the 1960 Agreement “has the force of law in the relations between” the Parties, held that that was so “with regard solely to the areas mentioned in that Agreement, namely, the terri­torial sea, the contiguous zone and the continental shelf. . .” (Award, para. 88). However, Guinea-Bissau drew attention to the fact that, in his declaration, President Barberis stated that he would have replied to the effect that the Agreement had the force of law in the relations between the Parties “with respect to the territorial sea, the contiguous zone and the continental shelf, but does not have the force of law with respect to the waters of the exclusive economic zone or the fishery zone . . .” (para­graph 19 above).

1. The Court considers that, in putting forward this formulation, what President Barberis had in mind was that the Tribunal’s answer to the first question “could have been more precise” — to use his own words —, not that it had to be more precise in the sense indicated in his formulation, which was, in his view, a preferable one, not a necessary one. In the opin­ion of the Court, the formulation discloses no contradiction with that of the Award.
2. Guinea-Bissau also drew attention to the fact that President Bar­beris expressed the view that his own formulation “would have enabled the Tribunal to deal in its Award with the second question put by the Arbi­tration Agreement” and that the Tribunal would in consequence “have been competent to delimit the waters of the exclusive economic zone or the fishery zone between the two countries”, in addition to the other areas. The Court considers that the view expressed by President Barberis, that the reply which he would have given to the first question would have enabled the Tribunal to deal with the second question, represented, not a position taken by him as to what the Tribunal was required to do, but only an indication of what he considered would have been a better course. His position therefore could not be regarded as standing in contradiction with the position adopted by the Award.
3. Furthermore, even if there had been any contradiction, for either of the two reasons relied on by Guinea-Bissau, between the view expressed by President Barberis and that stated in the Award, such contradiction could not prevail over the position which President Barberis had taken when voting for the Award. In agreeing to the Award, he definitively agreed to the decisions, which it incorporated, as to the extent of the mari­time areas governed by the 1960 Agreement, and as to the Tribunal not being required to answer the second question in view of its answer to the first. As the practice of international tribunals shows, it sometimes hap­pens that a member of a tribunal votes in favour of a decision of the tribu­nal even though he might individually have been inclined to prefer another solution. The validity of his vote remains unaffected by the expression of any such differences in a declaration or separate opinion of the member concerned, which are therefore without consequence for the decision of the tribunal.

34. Accordingly, in the opinion of the Court, the contention of Guinea- Bissau that the Award was inexistent for lack of a real majority cannot be accepted.

1. Subsidiarily, Guinea-Bissau maintains that the Award is, as a whole, null and void, on the grounds of exces de pouvoir and of insuffi­ciency of reasoning. Guinea-Bissau observes that the Tribunal did not reply to the second question put in Article 2 of the Arbitration Agreement, and did not append to the Award the map provided for in Article 9 of that Agreement. It is contended that these two omissions constitute an exces de pouvoir. Furthermore, no reasons, it is said, were given by the Tribunal for its decision not to proceed to the second question, for not producing a single delimitation line, and for refusing to draw that line on a map.
2. The Court will examine Guinea-Bissau’s contentions, whether presented as of exces de pouvoir or as lack of reasoning, which are based on the absence of a reply to the second question put by the Arbitration

Agreement, before dealing with those relating to the absence of a map.

* *

1. On this first point, the Court would, for convenience, recall at the outset that, according to Article 2 of the Arbitration Agreement:

“The Tribunal is requested to decide in accordance with the norms of international law on the following questions:

1. Does the Agreement concluded by an exchange of letters on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal?
2. In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal respec­tively?”
3. The Award, after dealing with some preliminary matters, analyses the grounds upon which Guinea-Bissau based its assertions that the 1960 Agreement did not have the force of law in its relations with Senegal (paras. 35-79). The conclusion in paragraph 80 of the Award is that “the 1960 Agreement is valid and can be opposed to Senegal and to Guinea- Bissau”. The Award then deals, in paragraphs 80 to 86, with “the scope of substantive validity of the 1960 Agreement” and states that:

“the 1960 Agreement does not delimit those maritime spaces which did not exist at that date, whether they be termed exclusive economic zone, fishery zone or whatever.

On the other hand, the position regarding the territorial sea, the contiguous zone and the continental shelf is quite different. These three concepts are expressly mentioned in the I960 Agreement and they existed at the time of its conclusion.”

The Award goes on to say that, for the reasons explained in the passage quoted in paragraph 16 above,

“the Franco-Portuguese Agreement delimits the continental shelf between the Parties over the whole extent of that maritime space as defined at present”.

Then the Award continues, in paragraph 87:

“Bearing in mind the above conclusions reached by the Tribunal and the actual wording of Article 2 of the Arbitration Agreement, in the opinion of the Tribunal it is not called upon to reply to the second question.”

Finally, paragraph 88 of the Award declares in its first sentence that:

“Forthe 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 maritime boundary, 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.”

1. Guinea-Bissau’s complaint on the ground that the Tribunal did not give an answer to the second question in Article 2 of the Arbitration Agreement involves three arguments. It questions whether the Tribunal really took a decision not to give an answer; it contends that, even if there was such a decision, there was insufficient reasoning in support of it; and,

finally, it contests the validity of any such decision.

*

1. As to the first of these three arguments, Guinea- Bissau suggests that what the Tribunal did was not to decide not to answer the second question put to it; it simply omitted, for lack of a real majority, to reach any decision at all on the issue. In this respect Guinea-Bissau stresses that what is referred to in the first sentence of paragraph 87 of the Award as an “opin­ion of the Tribunal” on the point appears in the statement of reasoning, not in the operative clause of the Award; that the Award does not specify the majority by which that paragraph would have been adopted; and that only Mr. Gros could have voted in favour of this paragraph. In the light of the declaration made by President Barberis, Guinea-Bissau questions whether any vote was taken on paragraph 87.

41. The Court recognizes that the structure of the Award is, in that respect, open to criticism. Article 2 of the Arbitration Agreement put two questions to the Tribunal; and the Tribunal was, according to Article 9, to “inform the two Governments of its decision regarding the questions set forth in Article 2”. Consequently, it would have been normal to include in the operative part of the Award, i.e., in a final paragraph, both the answer given to the first question and the decision not to answer the second. It is to be regretted that this course was not followed. However, when the Tribu­nal adopted the Award by two votes to one, it was not only approving the content of paragraph 88, but was also doing so for the reasons already stated in the Award and, in particular, in paragraph 87. It is clear from that paragraph, taken in its context, and also from the declaration of Presi­dent Barberis, that the Tribunal decided by two votes to one that, as it had given an affirmative answer to the first question, it did not have to answer the second. By so doing, the Tribunal did take a decision: namely, not to answer the second question put to it. The Award is not flawed by any failure to decide.