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World Court Digest

Summaries of the Decisions

Arbitral Award of 31 July 1989

(Guinea-Bissau v.Senegal)

On August 23, 1989, Guinea-Bissau instituted proceedings against Senegal in respect of a dispute concerning the existence and validity of an arbitral award delivered by a tribunal consisting of three arbitrators and established pursuant to an Arbitration Agreement concluded by the two States in 1985.

The arbitral tribunal had to decide whether an agreement concluded by an exchange of letters on April 26, 1960 between France and Portugal, relating to the maritime boundary between Senegal (which at that time was a French dependent territory) and Guinea-Bissau (which at that time was still a Portuguese colony), had the force of law in the relations between Guinea-Bissau and Senegal. In the event of a negative answer to this question, the tribunal was asked to determine the course of the line delimiting the maritime territories appertaining to Guinea-Bissau and Senegal. Under Art. 9, para. 2 of the compromis, the tribunal was asked to include in its decision the drawing of the boundary line on a map.

On July 31, 1989, the tribunal, by a two to one majority, rendered its decision to which the president, Mr. Barberis, who had voted with the majority, appended a declaration. The tribunal found that the Agreement of 1960 was valid and controlled the relations between Senegal and Guinea-Bissau. The arbitral tribunal then gave its interpretation of the Agreement of 1960, finding that, since the wording of the Agreement mentioned only the territorial sea, the contiguous zone and the continental shelf, it did not delimit the exclusive economic zone between the two parties, especially since the concept of such a maritime area had only developed after the conclusion of the Agreement. The tribunal also found that the maritime boundary as regards the territorial sea, the contiguous zone and the continental shelf is determined by a straight line at 240o. The award did not contain a map.

In a declaration joined to the award, the president of the tribunal expressed regret that, in regard to the exclusive economic zone, the tribunal did not explicitly answer the question of the binding force of the Agreement in the negative, which would have allowed the tribunal to give a partial answer to the second question put to it. The dissenting arbitrator, Mr. Bedjaoui, found that the Agreement had no binding force in regard to the parties and therefore proposed a line be drawn in accordance with principles of customary law. He further stated that the declaration made by the president of the tribunal raised "fundamental doubts as to the existence of a majority and the reality of the award". The award was delivered at a public sitting of the tribunal at which, however, the third arbitrator was not present.

In the aftermath of the rendering of the arbitral award, Guinea-Bissau disputed the validity and the very existence of the arbitral award and instituted proceedings against Senegal in the International Court of Justice, requesting the Court to declare the arbitral award non-existent and subsidiarily null and void.

Request for the Indication of Provisional Measures

Order of 2 March 1990

While the case was pending, several incidents took place in the disputed area involving fishing boats from third countries, holding fishing licences issued by Guinea-Bissau, which were boarded and searched by the Senegalese navy. Guinea-Bissau requested the International Court of Justice to order the parties, by way of interim measures, to abstain from any acts in the disputed area pending the judgment of the Court.

The Court, by fourteen votes to one, found that the main proceedings related solely to the existence and validity of the arbitral award, whereas the request for provisional measures requested the Court to determine the rights of the parties in the disputed area, which were not the subject of the proceedings before the Court. Thus, since any judgment would not concern the questions which formed the subject of the request for provisional measures, the Court, in accordance with its own jurisprudence, denied the request of Guinea-Bissau by an order of March 2, 1990.

Judgment of the Court of 12 November 1991

In its judgment, the Court rejected the submission of Guinea-Bissau that the above-mentioned arbitral award was inexistent. The Court also rejected the further submission that the award was null and void.

In a first step, the Court found that it had jurisdiction to decide the problem submitted, since both parties had previously made matching declarations under Art. 36(2) of the ICJ Statute. In that respect, the Court had to deal with the problem that Senegal had made several reservations to its declaration, which provided inter alia that it may reject the Court's jurisdiction over disputes in regard to which the parties have agreed to have recourse to some other method of settlement; a further reservation stated that the declaration was applicable only to disputes arising after the date of the declaration, i.e. after December 2, 1985. The Court, found that it did not have to deal with the substantive questions underlying the dispute but only with the question regarding the validity of the arbitral award. As the parties in this respect had not agreed to a different method of settlement, and the dispute arose after Senegal's declaration was made, the Court considered itself competent to decide the case.

As to the merits, the Court stated that the absence of the third arbitrator when the award was read was irrelevant as he had participated in the voting and in the adoption of the award. In relation to the claim of Guinea-Bissau that the award was not supported by a real majority and was thus non-existent, the Court reached the conclusion that there was no contradiction between the award itself and the declaration made by the president, since he had only indicated a more preferable solution. The Court also reiterated the view that the validity of the vote of any member of an international tribunal remains unaffected by the fact that he expresses differences in a declaration or a separate opinion.

Guinea-Bissau also claimed that the award was void due to the fact that the tribunal had allegedly not reached a decision as to the second question put to it in Art. 2 of the compromis. The Court criticized the arbitrators for not having included in the operative part of the award their decision not to answer the second question. It, nevertheless, found that the context of the award made clear that the majority of the tribunal took the view that it did not have to answer the second question given its affirmative answer to the first question.

Guinea-Bissau's claim that the award was void because it was not reasoned in regard to the denial of an answer to the second question was also rejected by the Court. The Court held that the reference in the award to the wording of Art. 2 of the compromis, although succinct, was still a sufficient form of reasoning.

Another challenge brought forward against the validity of the reasoning of the award was based on the view that the tribunal, according to Guinea-Bissau, had not fulfilled its obligation to answer the second question put to it. The Court stressed that, according to the natural and ordinary meaning of the compromis, the arbitral tribunal had been asked to answer the second question only if the answer to the first was negative. Furthermore, the Court pointed to the fact that the arbitral tribunal under Art. 4, para. 2 of the arbitration agreement had the power to determine its own jurisdiction and to interpret the compromis for that purpose. According to the Court, the arbitral tribunal had given not even a partly negative answer to the first question and had thus been under no obligation whatsoever to answer the second question.

The last challenge was based on the fact that the award did not contain a map as required by Art. 9 of the arbitration agreement. The Court decided, however, that there was no such requirement because the eventual line to be drawn was common knowledge and the tribunal had specified the definite characteristics of this line. Therefore, the Court reached the conclusion that the award was valid and binding upon the parties.

The request by Guinea-Bissau of March 12, 1991

for a settlement of the whole maritime area

After the request for provisional measures had been dismissed, Guinea-Bissau filed a second application requesting the International Court of Justice to determine on the basis of international law and all relevant elements of the case, including the decision of the Court in the case concerning the arbitral award, the line delimiting all the maritime areas appertaining to Guinea-Bissau and Senegal 1. After the Court had rendered its decision in the Arbitral Award of July 31, 1989 Case, negotiations were held between the parties with a view to settling the case. In March 1994, the parties submitted to the Court the text of an agreement done at Dakar on 14 October 1993 entitled 'Accord de gestion et de coopération entre le Gouvernement de la République de Guinée-Bissau et le Gouvernement de la République du Sénégal', which provided for a common administration of the disputed part of the exclusive economic zone. In November 1995, the parties furnished a copy of an additional agreement entitled 'Protocole d'accord ayant trait à l'organisation et au fonctionnement de l'Agence de gestion et de coopération entre la République du Sénégal et la République de Guinée-Bissau instituée par l'accord du 14 octobre 1993" and notified their intention to discontinue the case. On November 8, 1995, the Court removed the case from the Court's list.

1Case concerning Maritime Delimitation between Guinea-Bissau and Senegal.