II. | Substantive International Law - Second Part |
11. | DISPUTE SETTLEMENT |
11.2. | Judicial and Arbitral Decisions |
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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?" |
2 | Paragraph 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." |
3 | Paragraph 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." |
4 | A. 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. |