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