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II. Substantive International Law - Second Part
11. DISPUTE SETTLEMENT
11.2. Judicial and Arbitral Decisions

¤ Arbitral Award of 31 July 1989,
Judgment, I.C.J. Reports 1991, p. 53

[p. 63] 28. 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.

29. 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.

[pp. 63-65] 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 inexistent, 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).

31. 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.

32. 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.

33. 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.

[p. 67] 41. The Court recognizes that the structure of the Award is in that respect, open to criticism. Article 2 of the Arbitration Agreement 1 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 2, but was also doing so for the reasons already stated in the Award and, in particular, in paragraph 87 3. 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.

[pp. 67-68] 42. Guinea-Bissau argues, secondly, that any arbitral award must, in accordance with general international law, be a reasoned one. Moreover, according to Article 9, paragraph 3, of the Arbitration Agreement, the Parties had specifically agreed that "the Award shall state in full the reasons on which it is based". Yet, according to Guinea-Bissau, the Tribunal in this case did not give any reasoning in support of its refusal to reply to the second question put by the Parties or, at the very least, gave "wholly insufficient" reasoning, which did not even make it possible to "determine the line of argument followed" and did not "reply on any point to the questions raised and discussed during the arbitral proceedings". On this ground also, it is claimed that the Award is null and void.

43. In paragraph 87 of the Award, referred to above, the Tribunal "bearing in mind the ... conclusions" that it had reached, together with "the wording of Article 2 of the Arbitration Agreement", took the view that it was not called upon to reply to the second question put to it. This reasoning is brief, and could doubtless have been developed further. But the references in paragraph 87 to the Tribunal's conclusions and to the wording of Article 2 of the Arbitration Agreement make it possible to determine, without difficulty, the reasons why the Tribunal decided not to answer the second question. By referring to the wording of Article 2 of the Arbitration Agreement, the Tribunal was taking note that, according to that Article, it was asked, first, whether the 1960 Agreement had "the force of law in the relations" between Guinea-Bissau and Senegal, and then, "in the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories" of the two countries. By referring to the conclusions that it had already reached, the Tribunal was noting that it had, in paragraphs 80 et seq. of the Award, found that the 1960 Agreement, in respect of which it had already determined the scope of its substantive validity, was "valid and can be opposed to Senegal and to Guinea-Bissau". Having given an affirmative answer to the first question, and basing itself on the actual text of the Arbitration Agreement, the Tribunal found as a consequence that it did not have to reply to the second question. That statement of reasoning, while succinct, is clear and precise. The second contention of Guinea-Bissau must also be dismissed.

[p. 69] 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.

[p. 72] 56. In short, although the two States had expressed in general terms in the Preamble of the Arbitration Agreement their desire to reach a settlement of their dispute, their consent thereto had only been given in the terms laid down by Article 2. Consequently the Tribunal did not act in manifest breach of its competence to determine its own jurisdiction by deciding that it was not required to answer the second question except in the event of a negative answer to the first. The first argument must be rejected.

[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. 74] 64. In view of the wording of Articles 2 and 9 of the Arbitration Agreement, and the positions taken by the Parties before the Arbitration Tribunal, it is open to argument whether, in the absence of a reply to the second question, the Tribunal was under an obligation to produce the map envisaged by the Arbitration Agreement. The Court does not however consider it necessary to enter into such a discussion. In the circumstances of the case, the absence of a map cannot in any event constitute such an irregularity as would render the Award invalid. The last argument of Guinea-Bissau is therefore also not accepted.

65. The submissions of Guinea-Bissau must accordingly be rejected. The Arbitral Award of 31 July 1989 is valid and binding upon the Republic of Senegal and the Republic of Guinea-Bissau, which have the obligation to apply it.

66. The Court nonetheless takes note of the fact that the Award has not brought about a complete delimitation of the maritime areas appertaining respectively to Guinea-Bissau and to Senegal. It would however observe that that result is due to the wording of Article 2 of the Arbitration Agreement.

[p. 83 S.O. Oda] 5. The contention that the Arbitral Award is inexistent for the reason spelled out in the first submission of Guinea-Bissau is groundless since Mr. Barberis, in his declaration, simply corroborated the view adopted by the vote of the Tribunal. In fact, even if the declaration had contradicted the finding for which President Barberis had voted (which is not the case), it could at most have been regarded as an example of "second thoughts", as a post facto change of mind incapable of affecting the existence of the collective judicial act to which he had given not only his vote but also his signature.

[p. 92 S.O. Lachs] I would like to stress at the outset that, despite the Court's dismissal of the Applicant's submissions, there can be no suggestion that Guinea-Bissau committed an abuse of procedure in challenging the 1989 Award before this Court. It is the inherent right of any party to proceedings, let alone a government with a nation's permanent interests to defend, to seek to have the result declared a nullity if it is convinced that the decision taken is basically flawed. This is so even in respect of decisions characterized as final, inasmuch as a decision so vitiated can be viewed as stillborn, a mere semblance of a decision or, to use the term employed by the present Applicant, as inexistent. In any case Guinea-Bissau stressed, and Senegal concurred, that the present proceedings had not been instituted by way of appeal.

The Court, in order to avoid any suggestion of acting like a court of appeal, has limited itself to establishing whether there was any basis for Guinea-Bissau's submissions, by taking the Applicant's specific criticisms quite separately, one by one.
Yet an application asserting that a judgment or award is "inexistent" or "absolutely null and void" implies a claim that all the efforts of the court or tribunal in question to administer justice and resolve a dispute have come to nothing. Such a claim can only be directed at some alleged flaw or flaws of a vital character, since it is no mere challenge to a decision, but amounts to a repudiation of the entire process traversed by the tribunal in its deliberations. As such, it calls for exceptional scrutiny.

[pp. 92-93 S.O. Lachs] Among the elements subjected to analysis is a document which the Court found could not be ignored, namely the declaration of the President of the Arbitration Tribunal. However correct it may be to conclude that this declaration did not undo the vote by which President Barberis enabled a majority to be created for the operative clause, it certainly expresses an approach to the competence of the Tribunal which is at variance with that enshrined in the Award itself. This approach is couched in cautious terms of what the Tribunal "could" rather than "should" have done, but the sole motive behind the negative corollary attached to the Award's operative provision in the President's reformulation was clearly to convey his opinion that the Tribunal's competence had been broader than the Award allowed. This is particularly clear from the second half of the declaration. One can only note that the Award does not disclose whether any vote was taken on the important issues covered in paragraph 87 of the Award.

Now the Court could enter into the scope of the Tribunal's competence to the extent required to determine whether the Tribunal's own interpretation of it, as disclosed by the Award, was not manifestly untenable. For that purpose it had to rely on the wording of the Special Agreement and of paragraph 87 of the Award, there lying the focus of the matter. But, analytically speaking, there is no doubt that, far from being manifestly untenable, what the Tribunal said contains nothing to sustain an assertion of invalidity, even supposing that failure to exhaust jurisdiction would be sufficient to justify a finding in that sense.

The declaration of President Barberis therefore casts doubt on whether paragraph 87 really is "the opinion of the Tribunal". Had that paragraph in fact, rather than just formally, belonged exclusively to the reasoning of the Award, this would not have been a crucial matter: as instanced by the very opinions appended to the present Judgment, there is no necessity for the member of a tribunal to agree with every part of the reasoning before he can vote in favour of the decision. But paragraph 87 undeniably contains not merely reasoning but two decisions, including one of major importance. Hence it is an understatement for the Court merely to have pointed out that the structure of the Award was "open to criticism".

By appending his declaration, Mr. Barberis ensured that he would appear to the reader in two distinct personalities: the arbitrator who voted for the decision as it stood, and the arbitrator who would have preferred, not an entirely different decision, but the inclusion of a further decision or decisions on matters concerning which the Award had remained silent. Mr. Barberis was consequently faced with a serious dilemma, and one can sincerely sympathize with him in that respect; but as a distinguished jurist he must have realized the difficulties in store for him, and the risk of his being, as a judge, in no position to justify himself if criticized.

[pp. 112-113 S.O. Shahabuddeen] For practical purposes, the difference between the Court's view and that offered here may well be one of approach, rather than one of result. But perhaps some importance may be attached to the approach. I agree with the view, underlying the Court's decision, that its authority to review the Tribunal's interpretation of the compromis is limited, but I differ as to the basis of the limitation. I regard the limitation not as one which in principle precludes the Court from pronouncing on the correctness of the Tribunal's interpretation, but as one which requires a certain measure of caution on the part of the Court when so pronouncing: I would link the limitation directly and firmly to considerations of stability of the arbitral process with respect to finality of awards, and to the consequential need for the Court to observe appropriate standards of cogency in determining whether its own interpretation of the compromis is so convincingly clear as to warrant displacement of the Tribunal's, should the two be different. I believe this view conforms to the tendency of such jurisprudence as there is on the point. I do not see the limitation as being linked to any idea that, as seems implied by paragraphs 47 and 60 of the Judgment of the Court, because these are not appeal proceedings, the Tribunal should be regarded by the Court as having an unreviewable freedom to select any of a number of possibly different interpretations of the compromis as to the substance of its mission, provided they are interpretations which could be made "without manifest breach of its competence".

With respect, then, I am not persuaded that it is a satisfactory approach to a challenge of nullity to seek to determine it by merely asking whether the tribunal's interpretation of the compromis as to its powers was one which could have been made without manifest breach of its competence. More particularly, I consider that there was nothing in law to prevent the Court from pronouncing on the issue whether the Tribunal in this case was correct in interpreting the Arbitration Agreement to mean that it was not called upon to reply to the second question put to it.

[pp. 128-129 D.O. Mawdsley and Ranjeva] 23. Article 35 of the Model Rules on Arbitral Procedure elaborated by the International Law Commission brought to an end the theoretical debate as to whether excès de pouvoir on the part of the tribunal constitutes a ground of nullity of an arbitral award. To put the matter simply, the excès de pouvoir can be described as the transgression committed by a competent tribunal of the legal framework of its mission. It "consists in any violation, any disregard, any overstepping of or non-compliance with the provisions of the Arbitration Agreement ..." (Balasko, op. cit., p. 153). 4 In an arbitration the compromis sets forth the decisions and acts that the tribunal must take or decree. The provisions of the compromis, its preamble and its body, determine in a mandatory manner the jurisdiction of the arbitral tribunal; on the other hand, the latter enjoys discretionary powers to ascertain, in an explicit fashion, the modalities by which the arbitrator reaches those decisions, and that in order to guard against any suspicion which might impair the authority of the award. This being so, excès de pouvoir can be committed by the arbitrators through acts or omissions. If the tribunal fails to adjudicate on a point referred to in the compromis, there is excès de pouvoir infra petita. The present case of the Award of 31 July 1989 involves one of these exceptional cases.

24. A contrario, we consider that it was incumbent on the Tribunal to demonstrate how an excès de pouvoir could result from its completion of the determination of the single line of the maritime boundary between Guinea-Bissau and Senegal, regard being had in this respect to the reply to the first question put in Article 2. This omission is, in our opinion, a serious failure by the Tribunal to perform its mission.

25. The refusal to include a map manifestly constitutes another violation of the provisions of the Arbitration Agreement, for the same reasons as in respect of the decision not to reply to the second question. If the Tribunal did in fact consider it unnecessary to prepare a map in the absence, on the one hand, of a reply to the second question and, on the other, of a global delimitation of the maritime spaces as a whole by a single boundary line, the Court should, in our opinion, having regard to this omission, have called into question the soundness of the Award inasmuch as the necessary respect for the right of the Parties to a proper administration of international justice was at stake.

[pp. 133-134 D.O. Weeramantry] The failure by the Tribunal to address a crucial part of its responsibilities under the compromis raises the further issue whether the Award is vitiated for non-compliance with the compromis.

Bearing in mind throughout this exercise that we are not entitled to reconstitute the questions formulated by the Parties, but only to interpret them exactly as formulated, we must satisfy ourselves further that, in all the circumstances, this is the necessary and only interpretation at which the arbitrators could reasonably arrive when examining them for the purpose of determining their arbitral responsibilities.

These considerations are important as we are not sitting as a Court of Appeal seeking to determine whether to nullify an award that would otherwise be valid. We have jurisdiction only for the purpose of making a declaration as to whether the award is null and void from its inception in consequence of some fundamental flaw. An interpretation manifestly contrary to accepted principles of interpretation and leading to action manifestly contrary to the compromis would constitute such a vitiating factor. This opinion proceeds on the basis that no less a standard than this would be required if the Court is to grant to Guinea-Bissau the declaration of nullity which it seeks.

[pp. 150-151 D.O. Weeramantry] That the dispute related to the entire boundary was thus incontrovertible. That fact, firmly set in concrete, so to speak, provided the mould within which the arbitration was conceived and the compromis took its eventual shape - a mould which no interpretation of the compromis was free to break through. That was the setting in which Questions 1 and 2 require to be read and if, as we are obliged by Article 31 of the Vienna Convention on Treaties to do, we take into account the object and purpose of the Agreement, that is the conclusion to which we are inexorably led.

It was of course open to the Tribunal to reject the contentions of both Parties in regard to the scope of applicability of the 1960 Agreement and to answer as it did that it applied only to some sectors of the boundary. However, consistently with the object and purpose of the Arbitration Agreement, it could then only read Question 2 as throwing on it the burden of determining that which Question 1 had left undetermined and to complete the task entrusted to it. To settle part of the boundary dispute and leave other matters in a state of suspense, awaiting later determination, was to abdicate its function and defeat its purpose.

The Tribunal has thus failed to interpret the Agreement consistently with its own understanding of the question before it. It has also failed to give effect to its mandatory duty under the Vienna Convention and to accepted rules of interpretation. It has thereby left an important portion of its commitment dangling unresolved. It has increased the problems of the Parties rather than discharged its duty of resolving them. In short, it has lost sight of the raison d'être leading to its creation. Such a patent nullifying factor entitles this Court, for reasons set out later in this opinion, to declare that the Award was undermined at its foundations and therefore cannot stand. Having regard to the widespread and increasing reliance on international arbitration as a means for peaceful resolution of disputes, it would have a damaging influence upon this commendable trend if arbitral bodies solemnly charged with the settlement of major issues of this nature should be able, by such restrictive interpretations of their jurisdiction, to avoid the onus and responsibility of deciding the issues committed to their care.

[p. 164 D.O. Weeramantry] The proposition that a decision not to act cannot constitute a usurpation of power is clearly untenable. The crucial question for decision is not whether there was action or inaction but whether the course followed, be it positive or negative, was so far out of alignment with the compromis as to constitute a serious departure therefrom.

[p. 165 D.O. Weeramantry] In the present case, the Tribunal has set out rather scantily the factors which weighed with it in reaching its decision not to answer Question 2. No reason has been given in respect of its decision not to append a map, beyond a reliance on its decision not to address Question 2.

This seems unsatisfactory. Yet it does not follow that these circumstances by themselves are sufficient to ground a finding of nullity. The Tribunal has, however scantily, set out some reasons for its decision and it is not necessary to consider this matter further, as other grounds exist for a finding of nullity. However, it is to be hoped, in the interests of proper arbitral practice, that such inadequate statements of reasons will not be looked upon in the future as adequate foundations on which to rest important portions of an award.

[pp. 173-174 D.O. Weeramantry] The reasons set out in this opinion lead to the conclusion that the burden of proof of invalidity, which at all times lay upon Guinea-Bissau, has been discharged and that the entire Arbitral Award is null and void. Guinea-Bissau is therefore entitled to a declaration to this effect.

The ground on which a declaration of nullity should issue is the ground that the Tribunal had no competence to decide that it would not decide a principal part of the matter entrusted to it and which, by its acceptance of its mandate, it had undertaken to decide. Its decision not to decide Question 2 was without jurisdiction. That decision was incompatible with the compromis, thus vitiating the Award from its very commencement. Moreover, the impossibility of obtaining a full and fair determination of the remaining portions of the boundary, so long as the portions of the boundary already determined remained valid, rendered it impossible to preserve even the determined portion of the boundary, thus undermining the answer to Question 1 as well, and resulting in the nullity of the total Award.

[pp. 175-176 D.O. Thierry] To my deep regret I am unable to associate myself with the Court's decision in the present case concerning the Arbitral Award of 31 July 1989. I hereby give the reasons for my dissent, which essentially relate to the legal consequences of the fact, explicitly recognized by the Court, that that Award: "has not brought about a complete delimitation of the maritime areas appertaining respectively to Guinea-Bissau and Senegal" (paragraph 66 of the Judgment of the Court).
It follows that the dispute has not been fully settled and the Court notes that there are "elements of the dispute that were not settled by the Arbitral Award" (para. 68).
The omission is nonetheless seen as ascribable to the Parties rather than to the Tribunal inasmuch as, according to the Judgment: "that result is due to the wording of Article 2 of the Arbitration Agreement" (para. 66).

Accordingly, and in spite of that "result", the Award is found to be valid and binding for the Parties and the submissions of Guinea-Bissau are consequently rejected.
It seems to me, on the contrary, that

(1) what the Court refers to as "elements of the dispute that were not settled by the... Award" were in fact the essential part of that dispute. Having failed to bring about a comprehensive settlement of the dispute submitted to it, relating to the determination of the maritime boundary between Senegal and Guinea-Bissau, the Tribunal failed to accomplish its jurisdictional mission - as can be seen from the fact that that maritime boundary has still not been delimited. The Tribunal did not do its job and it is that failure which should, in my opinion, have led the Court to find the Award to be null and void;
(2) contrary to the line of argument developed by the Court, that failure was not justified by the terms of Article 2 of the Arbitration Agreement. That provision did not stand in the way of a comprehensive settlement of the dispute provided it was interpreted in its context and in the light of the object and purpose of the Arbitration Agreement, in application of the rules of international law relating to the interpretation of treaties that have their origin in the jurisprudence of the Court itself. This means that the dispute could - and thus should - have been completely and comprehensively settled in accordance with the common will of the Parties, as expressed in the Arbitration Agreement, and with the essential purpose of the institution of arbitration;
(3) paragraphs 66 and 67 of the Court's Judgment should, on the other hand, be approved, as they open the way to the necessary settlement of the long-standing dispute between Senegal and Guinea-Bissau, for which there is still no equitable solution, relating to the determination of their maritime boundary.

1 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?"
2Paragraph 88 of the Award declares in its first sentence that:
"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 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."
3Paragraph 87 of the Award:
"Bearing in mind the above conclusion 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."
4A. Balasko, Causes de nullité de la sentence arbitrale en droit international public, Paris, Pedone, 1938, p. 200, whose opinion is shared by P. Fauchille, Traité de droit international public, Paris, 1926, Part I, Vol. III, p. 548.