| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.9. | Review of Arbitral Awards |
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Arbitral Award of 31 July 1989,
Judgment, I.C.J. Reports 1991, p. 53
[pp. 61-62] 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 ..."
23. 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.
24. 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.
[p. 80 Decl. Mbaye] I fail to see why the International Court of
Justice should automatically constitute itself as a cour de cassation
for all States having made declarations under Article 36, paragraph 2, of its
Statute, with respect to all arbitral awards in cases to which those States are
parties, even if the Court were each time to take care not to act as a court of
appeal or as one revising the award. That the need to decide a "question of
international law" has been raised is surely not sufficient justification
for such an inroad into another means of settlement of disputes between States.
To deny this would be to embark on an adventure which would have disastrous
consequences not confined to arbitral decisions. The Court has fortunately
refused to take this path.
[p. 88 S.O. Oda] Guinea-Bissau found it appropriate to put to the
Court a question as to whether the 1989 Award (which in any event did not settle
the dispute) was existent or not, valid or null and void. But whatever judgment
might have been given by the Court in the present case (in fact the submissions
of Guinea-Bissau are rejected in the present Judgment) - in other words, even if the Court had declared the Arbitral Award
nonexistent or null and void -, the positions of Guinea-Bissau and Senegal, or
their interests and rights relating to the boundary of the exclusive economic
zones, could not have been affected.
[p. 92 S.O. Lachs] In this regard, the Court's exercise of its
competence to deal with the specific submissions did not, in my view, prevent it
from proceeding to closer analysis, without in any way encroaching upon the
substance of the issues which it had been for the Arbitration Tribunal alone to
decide. A complaint of nullity does not in itself debar the court dealing with
it from lifting the veil on matters of competence and substance, provided they
are germane to the issue of validity, since the handling of such matters, as
distinct from procedural issues of a purely formal nature, may in fact lie at
the heart of the complaint. The Court was not precluded from making comments in
keeping with its position as a guardian of the standards of judicial
decision-making, and thus performing a signal service to the sister institution
of arbitration.
