| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.8. | Interpretation |
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Arbitral Award of 31 July 1989,
Judgment, I.C.J. Reports 1991, p. 53
[p. 69-71] 47. By its argument set out above, Guinea-Bissau is in
fact criticizing the interpretation in the Award of the provisions of the
Arbitration Agreement which determine the Tribunal's jurisdiction, and proposing
another interpretation. However, the Court does not have to enquire whether or
not the Arbitration Agreement could, with regard to the Tribunal's competence,
be interpreted in a number of ways, and if so to consider which would have been
preferable. By proceeding in that way the Court would be treating the request as
an appeal and not as a recours en nullité. The Court could not
act in that way in the present case. It has simply to ascertain whether by
rendering the disputed Award the Tribunal acted in manifest breach of the
competence conferred on it by the Arbitration Agreement, either by deciding in
excess of, or by failing to exercise, its jurisdiction.
48. Such manifest breach might result from, for example, the failure of the
Tribunal properly to apply the relevant rules of interpretation to the
provisions of the Arbitration Agreement which govern its competence. An
arbitration agreement (compromis d'arbitrage) is an agreement between
States which must be interpreted in accordance with the general rules of
international law governing the interpretation of treaties. In that respect
"the first duty of a tribunal which is called upon to interpret and
apply the provisions of a treaty, is to endeavour to give effect to them in
their natural and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense in their
context, that is an end of the matter. If, on the other hand, the words in their
natural and ordinary meaning are ambiguous or lead to an unreasonable result,
then, and then only, must the Court, by resort to other methods of
interpretation, seek to ascertain what the parties really did mean when they
used these words." (Competence of the General Assembly for the
Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports
1950, p. 8.)
The rule of interpretation according to the natural and ordinary meaning of
the words employed
"is not an absolute one. Where such a method of interpretation, results
in a meaning incompatible with the spirit, purpose and context of the clause or
instrument in which the words are contained, no reliance can be validly placed
on it." (South West Africa, Preliminary Objections, Judgment, I.C.J.
Reports 1962, p. 336.)
These principles are reflected in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties, which may in many respects be considered as a
codification of existing customary international law on the point.
49. Furthermore, when States sign an arbitration agreement, they are
concluding an agreement with a very specific object and purpose: to entrust an
arbitration tribunal with the task of settling a dispute in accordance with the
terms agreed by the parties, who define in the agreement the jurisdiction of the
tribunal and determine its limits. In the performance of the task entrusted to
it, the tribunal "must conform to the terms by which the Parties have
defined this task" (Delimitation of the Maritime Boundary in the Gulf
of Maine Area, Judgment, I.C.J. Reports 1984, p. 266, para. 23).
50. In the present case, Article 2 of the Arbitration Agreement presented a
first question concerning the 1960 Agreement, and then a second question
relating to delimitation. A reply had to be given to the second question "in
the event of a negative answer to the first question". The Court notes that
those last words, which were originally proposed by Guinea-Bissau itself, are
categorical. The situation in the present case differs from that faced by the
Court or by arbitral tribunals when they had to reply to successive questions
which were not made conditional on each other, and to each of which some meaning
had in any event to be attributed in order for a reply to be given thereto, as
for example in the case of the Free Zones of Upper Savoy and the District of
Gex (Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13), or Corfu
Channel, Merits (Judgment, I.C.J. Reports 1949, p. 24). Where, however,
successive questions were put to the Court which were made conditional on each
other, the Court replied, or found no room to reply, according to whether or not
the governing condition had been fulfilled, as, for example, in Interpretation
of the Greco-Bulgarian Agreement of 9 December 1927 (Advisory Opinion, 1932,
P.C.I.J., Series A/B, No. 45, pp. 70, 86-87); and Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania (First Phase, Advisory
Opinion, I.C.J. Reports 1950, pp. 65, 67-68, 75, 76, 77; Second Phase,
Advisory Opinion, ibid., pp. 225, 226, 230).
51. In fact in the present case the Parties could have used some such
expression as that the Tribunal should answer the second question "taking
into account" the reply given to the first, but they did not; they directed
that the second question should be answered only "in the event of a
negative answer" to that first question. In that respect, the wording was
very different from that to be found in another Arbitration Agreement to which
Guinea-Bissau is a party, that concluded on 18 February 1983 with the Republic
of Guinea. By that Agreement, those two States asked another tribunal to decide
on the legal value and scope of another Franco-Portuguese delimitation
convention and annexed documents, and then, "according to the answers given"
to those initial questions, to determine the "course of the boundary
between the maritime territories" of the two countries.
[p. 73] 60. The Court would first observe that the Tribunal did not,
in paragraph 88 of its Award, adopt the form of words that President Barberis
would have preferred. Guinea-Bissau thus cannot base its arguments upon a form
of words that was not in fact adopted by the Tribunal. The Tribunal found, in
reply to the first question, that the 1960 Agreement had the force of law in the
relations between the Parties, and at the same time it defined the substantive
scope of that Agreement. Such an answer did not permit of a delimitation of the
whole of the maritime areas of the two States, and a complete settlement of the
dispute between them. It achieved a partial delimitation. But that answer was
nonetheless both a complete and an affirmative answer to the first question; it
recognized that the Agreement of 1960 had the force of law in the relations
between Senegal and Guinea-Bissau. The Tribunal could thus find, without
manifest breach of its competence, that its answer to the first question was not
a negative one, and that it was therefore not competent to answer the second
question. In this respect also, the contention of Guinea-Bissau that the entire
Award is a nullity must be rejected.
[p. 78 Decl. Tarassov] I admit that the wording of the second
question of Article 2 was such as to permit the Tribunal to decline to answer
it, in the event of a positive answer to the first question - albeit on the
basis of a purely formal, grammatical interpretation of that Article.
The Tribunal pursued that course. However, in accordance with the jurisprudence
of this Court, the judicial body
"cannot base itself on a purely grammatical interpretation of the text.
It must seek the interpretation which is in harmony with a natural and
reasonable way of reading the text, having due regard to the intention [of the
Parties]" (I.C.J. Reports 1952, p. 104).
And of course, the real intention of the Parties in the present case was to
settle their dispute on the delimitation of all maritime territories,
including the economic zone. The contention of the Tribunal in paragraph 87 of
the Award that it is not called upon to reply to the second question because of
"the actual wording of Article 2 of the Arbitration Agreement" does
not, in my opinion, suffice to substantiate the decision on such an important
issue.
[p. 102 S.O. Ni] It must be pointed out that, in interpreting a
treaty, such as the compromis in the present instance, whose text is
clear and unambiguous, no attempt should be made to change the ordinary and
natural meaning of the language used in the text by resorting to other elements
and to interpret them as requiring under any circumstance the overall
delimitation of the maritime boundary between the two States. It is primarily
and clearly in the text of Article 2 of the compromis that the objective
of the Parties is located. Here the Parties agreed that a reply to the second
question is conditioned on a negative answer to the first. It cannot be
envisaged that a mention of the delimitation of the maritime boundary in the
title of the 1960 Agreement and in the Preamble of the compromis can
have the effect of changing the meaning of the clear and unambiguous language of
the text in Article 2 of the compromis.
[p. 142 D.O. Weeramantry] An obvious internal source of reference is
the preamble to the treaty. The preamble is a principal and natural source from
which indications can be gathered of a treaty's objects and purposes even though
the preamble does not contain substantive provisions. Article 31(2) of the
Vienna Convention sets this out specifically when it states that context, for
the purpose of the interpretation of a treaty, shall comprise in addition to the
text, the preamble and certain other materials. The jurisprudence of this Court
also indicates, as in the case concerning Rights of Nationals of the United
States of America in Morocco 1 and the Asylum (Colombia/Peru) case 2, that the Court has made substantial use of it for interpretational purposes. In the former case, a possible interpretation of the Madrid Convention was rejected for its lack of conformity with the preamble's specific formulation
of the purposes of the Convention. In the latter case the Court used the objects
of the Havana Convention, as indicated in its preamble, to interpret Article 2
of the Convention. Important international arbitrations have likewise resorted
to the preamble to a treaty as guides to its interpretation 3.
| 1 | I.C.J. Reports 1952, p. 176, at p. 196. |
| 2 | I.C.J. Reports 1950, p. 266, at p. 282. |
| 3 | See paras. 19 and 20, the Beagle Channel Arbitration, 1977, Wetter, The International Arbitral Process, 1979, Vol. 1, p. 276, at pp. 318-319. |
