| |
[p.53]
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 23 August 1989 the Ambassador of the Republic of Guinea-Bissau to the
Netherlands filed in the Registry of the Court an Application instituting
proceedings against the Republic of Senegal in respect of a dispute
concerning the existence and validity of the Arbitral Award delivered on 31
July 1989 by an arbitration tribunal established pursuant to an Arbitration
Agreement between the two States dated 112 March 1985. In order to found the
jurisdiction of the Court the Application relied on the declarations made by
the two Parties accepting the jurisdiction of the Court as provided for in
Article 36, paragraph 2, of the Statute: of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
communicated forthwith by the Registrar to the Republic of Senegal; in
accordance with paragraph 3 of that Article, all other States entitled to
appear before the Court were: notified of the Application.
3. By an Order dated 1 November 1989 the Court fixed time-limits for the
written proceedings (Memorial of Guinea-Bissau and Counter-Memorial of
Senegal).
4. Since the Court at that time included upon the Bench a judge of
Senegalese nationality, Judge Keba Mbaye, Vice-President of the Court, but
did not include a judge of the nationality of Guinea-Bissau, the Government
of Guinea-Bissau, in exercise of its right under Article 31, paragraph 2, of
the Statute of the Court, chose Mr. Hubert Thierry to sit as judge ad hoc in
the case.
5. On 18 January 1990 the Government of Guinea-Bissau filed in the Registry
of the Court a request, on the basis of Article 41 of the Statute of the
Court and Article 74 of the Rules of Court, for the indication of
provisional measures. By an Order dated 2 March 1990, the Court, after
hearing the Parties, dismissed that request.
6. The Memorial and Counter-Memorial having been duly filed within the
time-limits fixed by the Court, the case became ready for hearing in
accordance with Article 54, paragraph 1, of the Rules of Court. [p 56]
7. On 5 February 1991 the term of office of Judge Mbaye came to an end in
accordance with the Statute. The Government of Senegal thereupon became
entitled, under Article 31, paragraph 3, of the Statute of the Court, to
choose a judge ad hoc to sit in the case, and chose Judge Mbaye.
8. At public hearings held between 3 and 11 April 1991, the Court heard oral
arguments addressed to it by the following:
For the Republic of Guinea-Bissau: H.E. Mr. Fidelis Cabral de Almada,
Mrs. Monique Chemillier-Gendreau,
Mr. Miguel Galv�o Teles,
Mr. Keith Highet.
For the Republic of Senegal: H.E. Mr. Doudou Thiam,
Mr. Derek W. Bowett, Q.C.,
Mr. Francesco Capotorti.
In the course of the hearings, questions were put to both Parties by Members
of the Court; replies in writing were filed in the Registry in accordance
with Article 61, paragraph 4, of the Rules of Court.
9. During the hearings, the Agent of Guinea-Bissau requested the Court to
authorize the calling, as a witness or expert witness of a person already
included, as an adviser, in the list of those representing that State
furnished by it to the Court; the Agent of Senegal, on the basis, inter
alia, of Article 57 of the Rules of Court, objected to this being done.
After consideration, the Court decided that it would not be appropriate to
accede to the request of Guinea-Bissau.
**
10. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of the Republic of Guinea-Bissau, in the Memorial:
"For the reasons set forth above, and for any other reasons adding to or
amending them which it reserves the right to submit and elaborate on during
the subsequent written and oral proceedings, the Government of Guinea-Bissau
respectfully asks the Court to adjudge and declare:
� that the so-called 'award' of 31 July 1989 is inexistent in view of the
fact that one of the two arbitrators making up the appearance of a majority
in favour of the text of the 'award', has, by a declaration appended to it,
expressed a view in contradiction with the one apparent& adopted by the
vote;
� subsidiarily, that that so-called decision is absolutely null and void, as
the Tribunal failed to reply to the second question raised by the
Arbitration Agreement, whereas its reply to the first question implied a
need for a reply to be given to the second, as it did not comply with the
provisions of the Arbitration Agreement by which the Tribunal was asked to
decide on the delimitation of the maritime areas as a whole, to do so by a
single line and to record that line on a map, and as it has not given the
reasons for the restrictions thus improperly placed upon its jurisdiction:
[p 57]
� that the Government of Senegal is thus not justified in seeking to require
the Government of Guinea-Bissau to apply the so-called award of 31 July
1989."
On behalf of the Republic of Senegal, in the Counter-Memorial:
"Considering the facts and arguments stated above, the Government of the
Republic of Senegal requests the Court to:
1. Reject the Submissions of the Government of the Republic of Guinea-Bissau
directed at establishing the inexistence and, subsidiarily, the nullity of
the Arbitral Award of 31 July 1989.
2. Adjudge and declare that the said Arbitral Award is valid and binding for
the Republic of Senegal and the Republic of Guinea-Bissau, which have the
obligation to apply it."
11. At the conclusion of its last oral statement, each Party presented
submissions identical ta those contained respectively in the Memorial and
the Counter-Memorial.
***
12. The events leading up to the present proceedings are as follows. On 26
April 1960 an Agreement by exchange of letters was concluded between France,
on its own behalf and that of the Communaute, and Portugal for the purpose
of defining the maritime boundary between the Republic of Senegal (at that
time an autonomous State within the Communaute) and the Portuguese Province
of Guinea. The letter of France proposed (inter alia) as follows:
"As far as the outer limit of the territorial sea, the boundary shall
consist of a straight line drawn at 240' from the intersection of the
prolongation of the land frontier and the low-water mark, represented for
that purpose by the Cape Roxo lighthouse.
As regards the contiguous zones and the continental shelf, the delimitation
shall be constituted by the prolongation in a straight line, in the same
direction, of the boundary of the territorial seas."
The letter of Portugal expressed its agreement to this proposal.
13. After the accession to independence of Senegal and Guinea-Bissau a
dispute arose between them concerning the delimitation of their maritime
areas. This dispute was the subject of negotiations between them from 1977
onward, in the course of which Senegal asserted, inter alia, that the line
defined in the 1960 Agreement had been validly established, while
Guinea-Bissau disputed the validity of that Agreement and its opposability
to Guinea-Bissau, and insisted that the maritime areas in question be
delimited without reference to the Agreement.
14. On 12 March 1985 the Parties concluded an Arbitration Agreement for
submission of that dispute to an arbitration tribunal; the terms of the
Agreement, so far as relevant to the questions now before the Court, were as
follows:
"The Government of the Republic of Senegal and the Government of the
Republic of Guinea-Bissau, [p 58]
Recognizing that they have been unable to settle by means of diplomatic
negotiation the dispute relating to the determination of their maritime
boundary,
Desirous, in view of their friendly relations, to reach a settlement of that
dispute as soon as possible and, to that end, having decided to resort to
arbitration,
Have agreed as follows:
Article 1
1. The Arbitration Tribunal (hereinafter called "the Tribunal") shall
consist of three members designated in the following manner:
Each Party shall appoint one arbitrator of its choice;
The third arbitrator, who shall function as President of the Tribunal, shall
be appointed by mutual agreement of the two Parties or, in the absence of
such agreement, by agreement of the two arbitrators after consultation with
the two Parties.
2. ...
3. ...
Article 2
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?
���������������������������������������
Article 4
1. The Tribunal shall take its decisions only in its full composition.
2. The decisions of the Tribunal relating to all questions of substance or
procedure, including all questions relating to the jurisdiction of the
Tribunal and the interpretation of the Agreement, shall be taken by a
majority of its members.
��������������������������������������....
Article 9
1. Upon completion of the proceedings before it, the Tribunal shall inform
the two Governments of its decision regarding the questions set forth in
Article 2. of the present Agreement.
2. That decision shall include the drawing of the boundary line on a map. To
that end, the Tribunal shall be empowered to appoint one or more technical
experts to assist it in the preparation of such map.
3. The Award shall state in full the reasons on which it is based.
4. ...[p 59]
Article 10
1. The Arbitral Award shall be signed by the President of the Tribunal and
by the Registrar. The latter shall hand to the Agents of the two Parties a
certified copy in the two languages.
2. The Award shall be final and binding upon the two States which shall be
under a duty to take all necessary steps for its implementation.
3. ...
Article 11
1. No activity of the Parties during the course of the proceedings may be
deemed to prejudge their sovereignty over the areas the subject of the
Arbitration Agreement.
2. ...
Done in duplicate in Dakar, on 12 March 1985, in the French and Portuguese
languages, both texts being equally authentic."
15. An Arbitration Tribunal was duly constituted under the Agreement, by the
appointment first of Mr. Mohammed Bedjaoui and then of Mr. Andre Gros,
Arbitrators, and of Mr. Julio A. Barberis, President. On 31 July 1989 the
Tribunal pronounced. the Award the existence and validity of which have been
challenged in the present proceedings. According to this Award it was
adopted by the votes of the President of the Tribunal and Mr. Gros, over the
negative vote of Mr. Bedjaoui.
16. The findings of the Tribunal may for the purposes of the present
judgment be summarized as follows. The Tribunal concluded that the 1960
Agreement was valid and could be opposed to Senegal and to Guinea-Bissau
(Award, para. 80); that it had to be interpreted in the light of the law in
force at the date of its conclusion (ibid:, para. 85); that
"the 1960 Agreement does not delimit those maritime spaces which did not
exist at that date, whether they be termed exclusive economic zone, fishery
zone or whatever...",
but that
"the territorial sea, the contiguous zone and the continental shelf... are
expressly mentioned in the 1960 Agreement and they existed at the time of
its conclusion" (ibid.).
The Tribunal went on to say that:
"As regards the continental shelf, the question of determining how far the
boundary line extends can arise today, in view of the evolution of the
definition of the concept of continental shelf. In 1960, two criteria served
to determine the extent of the continental shelf: that of the 200-metre
bathymetric line and that of exploitability. The latter criterion involved a
dynamic conception of the continental shelf, since the outer limit would
depend on technological developments and could consequently move further and
further to seaward. In view of the fact that the 'continental shelf existed
in the international law in force in 1960, and that the definition of the
concept of that maritime space then included the dynamic criterion
indicated, it may be concluded that the Franco-Portuguese Agreement [p 60]
delimits the continental shelf between the Parties over the whole extent of
that maritime space as defined at present." (Award, para. 85.)
17. The Tribunal then explained that
"Bearing in mind the above conclusions reached by the Tribunal and the
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.
Furthermore, in view of its decision, the Tribunal considered that there was
no need to append a map showing the course of the boundary line." (ibid.,
para. 87.)
18. The operative clause of the Award was as follows:
"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 of
26 April 1960, and relating to the maritime boundary, has the force of law
iii 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. The
'straight line drawn at 240"' is a loxodromic line." (Para. 88.)
19. Mr. Barberis, President of the Arbitration Tribunal, appended a
declaration to the Award, and Mr. Bedjaoui, who had voted against the Award,
appended a dissenting opinion. The declaration of President Barberis read as
follows:
"I feel that the reply given by the Tribunal to the first question put by
the Arbitration Agreement could have been more precise. I would have replied
to that question as follows:
'The Agreement concluded by an exchange of letters of 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
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. The "straight line drawn at
240� " mentioned in the Agreement of 26 April 1960 is a loxodromic line.'
This partially affirmative and partially negative reply is, in my view, the
exact description. of the legal position existing between the Parties. As
suggested by Guinea-Bissau in the course of the present arbitration (Reply,
p. 248), this reply would have enabled the Tribunal to deal in its Award
with the second question put by the Arbitration Agreement. The partially
negative reply to the first question would have conferred on the Tribunal a
partial competence to reply to the second, i.e., to do so to the extent that
the reply to the first question would have been negative.
In that case, the Tribunal would have been competent to delimit the [p 61]
waters of the exclusive economic zone FN* or the fishery zone between the
two countries. The 'Tribunal thus could have settled the whole of the
dispute, because, by virtue of the reply to the first question of the
Arbitration Agreement, it would have determined the boundaries for the
territorial sea, the contiguous zone and the continental shelf, as the Award
has just done and, by its answer to the second question, the Tribunal could
have determined the boundary for the waters of the exclusive economic zone
or the fishery zone, a boundary which might or might not have coincided with
the line drawn by the 1960 Agreement.
------------------------------------------------------------------------------------------------------------
FN*
I refer to the 'waters' of the exclusive economic zone and I think it
necessary to be as specific as this, because it sometimes occurs that the
notion of this zone covers also the continental shelf as, for example, in
Article 56 of the 1982 Montego Bay Convention."
------------------------------------------------------------------------------------------------------------
20. In his dissentiing opinion, Mr. Bedjaoui referred to the declaration by
President Barberis, vvhich, he said,
"shows to what an extent the Award is incomplete and inconsistent with the
letter and spirit of the Arbitration Agreement with regard to the single
line desired by the Parties. Since it emanates from the President of the
Tribunal himself, that Declaration, by its very existence as well as by its
contents, justifies more fundamental doubts as to the existence of a
majority and the reality of the Award." (Para. 161.)
21. A public sitting of the Tribunal was held on 31 July 1989 for delivery
of the Award, at which President Barberis and Mr. Bedjaoui were present, but
not Mr. Gros. At that sitting, after the Award had been delivered, the
representative of Guinea-Bissau indicated that, pending full reading of the
documents and consultation with hi!; Government, he reserved the position of
Guinea-Bissau regarding the applicability and validity of the Award, as he
alleged that it did not satisfy the requirements laid down by agreement
between the two Parties. After contacts between the Governments of the two
Parties, in which Guinea-Bissau indicated its seasons for not accepting the
Award, the present proceedings were brought before the Court by
Guinea-Bissau.
***
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; [p 62]
� 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.
25. In this respect the Court would emphasize that, as the Parties were both
agreed, these proceedings allege the inexistence and nullity of the Award
rendered by the Arbitration Tribunal and are not by way of appeal from it or
application for revision of it. As the Court had occasion to observe with
respect to the contention of nullity advanced in the case of the Arbitral
Award Made by the King of Spain on 23 December 1906:
"the Award is not subject to appeal and . . . the Court cannot approach the
consideration of the objections raised by Nicaragua to the validity of the
Award as a Court of Appeal. The Court is not called upon to pronounce on
whether the arbitrator's decision was right or wrong. These and cognate
considerations have no relevance to the function. that the Court is called
upon to discharge in these proceedings, which is to decide whether the Award
is proved to be a nullity having no effect." (I.C.J. Reports 1960, p. 214.)
[p 63]
**
26. The Court will now consider a contention by Senegal that Guinea-Bissau's
Application is inadmissible, insofar as it seeks to use the declaration of
President Barberis for the purpose of casting doubt on the validity of the
Award (see paragraph 30 below). Senegal argues that that declaration is not
part of the Award, and therefore that any attempt by Guinea-Bissau to make
use of it for that purpose "must be regarded as an abuse of process aimed at
depriving Senegal of the rights belonging to it under the Award". Senegal
also contends that the remedies sought are disproportionate to the grounds
invoked and that the proceedings have been brought for the purpose of
delaying the final solution of the dispute.
27. The Court considers that Guinea-Bissau's Application has been properly
presented in the framework of its right to have recourse to the Court in the
circumstances of the case. Accordingly, it does not accept Senegal's
contention that Guinea-Bissau's Application, or the arguments used in
support of it, amount to an abuse of process.
**
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.
***
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 inexis-[p
64]tent, 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 vie:w, 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 re1ied 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 tribu-[p 65]nal
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.
***
35. Subsidiarily, Guinea-Bissau maintains that the Award is, as a whole,
null and void, on the grounds of exc�s de pouvoir and of insufficiency of
reasoning. Guinea-Bissau observes that the Tribunal did not reply to the
second question put in Article 2 of the Arbitration Agreement, and did not
append to the Award the map provided for in Article 9 of that Agreement. It
is contended that these two omissions constitute an exc�s de pouvoir.
Furthermore, no reasons, it is said, were given by the Tribunal for its
decision not to proceed to the second question, for not producing a single
delimitation line, and for refusing to draw that line on a map.
36. The Court aill examine Guinea-Bissau's contentions, whether presented as
of exc�s de pouvoir or as lack of reasoning, which are based on the absence
of a reply to the second question put by the Arbitration Agreement, before
dealing with those relating to the absence of a map.
**
37. On this first point, the Court would, for convenience, recall at the
outset that, acc0rdin.g to 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?"
38. The Award, after dealing with some preliminary matters, analyses the
grounds upon which Guinea-Bissau based its assertions that the 1960
Agreement did not have the force of law in its relations with Senegal
(paras. 35-79). The conclusion in paragraph 80 of the Award is that "the [p
66] 1960 Agreement is valid and can be opposed to Senegal and to
Guinea-Bissau". The Award then deals, in paragraphs 80 to 86, with "the
scope of substantive validity of the 1960 Agreement" and states that:
"the 1960 Agreement does not delimit those maritime spaces which did not
exist at .that date, whether they be termed exclusive economic zone, fishery
zone or whatever.
������������������������������������
On the other hand, the position regarding the territorial sea, the
contiguous z0n.e and the continental shelf is quite different. These three
concepts are expressly mentioned in the 1960 Agreement and they existed at
the time of its conclusion."
The Award goes on to say that, for the reasons explained in the passage
quoted in paragraph 16 above,
"the Franco-Portuguese Agreement delimits the continental shelf between the
Parties over the whole extent of that maritime space as defined at present�.
Then the Award continues, in paragraph 87:
"Bearing in mind the above conclusions 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."
Finally, 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."
39. Guinea-Bissau's complaint on the ground that the Tribunal did not give
an answer to the second question in Article 2 of the Arbitration Agreement
involves three arguments. It questions whether the Tribunal really took a
decision not to give an answer; it contends that, even if there was such a
decision, there was insufficient reasoning in support of it; and, finally,
it contests the validity of any such decision.
*
40. As to the first of these three arguments, Guinea-Bissau suggests that
what the Tribunal did was not to decide not to answer the second question [p
67] put to it; it simply omitted, for lack of a real majority, to reach any
decision at all on the issue. In this respect Guinea-Bissau stresses that
what is referred to in the first sentence of paragraph 87 of the Award as an
"opinion of the Tribunal" on the point appears in the statement of
reasoning, not in the operative clause of the Award; that the Award does not
specify the majority by which that paragraph would have been adopted; and
that only Mr. Gros could have voted in favour of this paragraph. In the
light of the declaration made by President Barberis, Guinea-Bissau questions
whether any vote was taken on paragraph 87.
41. The Court recognizes that the structure of the Award is, in that
respect, open to criticism. Article 2 of the Arbitration Agreement 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, Le., 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, but was also doing so for the reasons already
stated in the Award and, in particular, in paragraph 87. 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.
*
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 [p 68] 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.
*
44. Thirdly, Guinea-Bissau challenges the validity of the reasoning thus
adopted by the Tribunal on the issue whether it was required to answer the
second question. In this respect Guinea-Bissau presents two arguments: first
that the Arbitration Agreement, on its true construction, required an answer
to the second question whatever might have been its reply to the first;
secondly, that in any event an answer to the second question was required
because the answer to the first question was in fact partially negative.
45. Guinea-Bissau's first argument is that the Arbitration Agreement was
concluded on the basis of an agreement
"that a two-fold question should be posed to the Tribunal, in order to
ensure that whatever [the Tribunal's] reply concerning the value of the
Franco-Portuguese exchange of letters, the Tribunal would be called upon to
proceed to a comprehensive delimitation of the maritime territories".
In the view of Guinea-Bissau, even if the Tribunal upheld the validity and
opposability of the 1960 Agreement, the effect would not be to produce a
complete delimitation, and a complete delimitation by a single line was the
object and purpose of the Arbitration Agreement. Accordingly, Guinea-Bissau
is in effect contending that that Agreement required the Tribunal to answer
the second question whatever was its answer to the first.
46. In this connection the Court would first recall
"a rule consistently accepted by general international law in the matter of
international arbitration. Since the Alabama case, it has been generally
recognized, following the earlier precedents, that, in the [p 69] absence of
any agreement to the contrary, an international tribunal has the right to
decide as to its own jurisdiction and has the power to interpret for this
purpose the instruments which govern that jurisdiction." (Nottebohm,
Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 119.)
In the present case, Article 4, paragraph 2, of the Arbitration Agreement
confirmed that the 'Tribunal had the power to determine its own jurisdiction
and to interpret the Agreement for that purpose.
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 nullite. 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.
48. Such manifest breach might result from, for example, the failure of the
Tribunal properly to apply the relevant rules of interpretation to the
provisions of the Arbitration Agreement which govern its competence. An
arbitration agreement (compromis d'arbitrage) is an agreement between States
which must be interpreted in accordance with the general rules of
international law governing the interpretation of treaties. In that respect
"the first duty of a tribunal which is called upon to interpret and apply
the provisions of a treaty, is to endeavour to give effect to them in their
natural and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense in their
context, that is an end of the matter. If, on the other hand, the words in
their natural and ordinary meaning are ambiguous or lead to an unreasonable
result, then, and then only, must the Court,, by resort to other methods of
interpretation, seek to ascertain what the parties really did mean when they
used these words." (Competence of the General Assembly for the Admission of
a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8.)
The rule of interpretation according to the natural and ordinary meaning of
the words employed
"is not an absolute one. Where such a method of interpretation results in a
meaning incompatible with the spirit, purpose and context of the clause or
instrument in which the words are contained, no [p 70] reliance can be
validly placed on it." (South West Africa, Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 336.)
These principles are reflected in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties, which may in many respects be considered
as a codification of existing customary international law on the point.
49. Furthermore, when States sign an arbitration agreement, they are
concluding an agreement with a very specific object and purpose: to entrust
an arbitration tribunal with the task of settling a dispute in accordance
with the terms agreed by the parties, who define in the agreement the
jurisdiction of the tribunal and determine its limits. In the performance of
the task entrusted to it, the tribunal "must conform to the terms by which
the Parties have defined this task" (Delimitation of the Maritime Boundary
in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 266, para. 23).
50. In the present case, Article 2 of the Arbitration Agreement presented a
first question concerning the 1960 Agreement, and then a second question
relating to delimitation. A reply had to be given to the second question "in
the event of a negative answer to the first question". The Court notes that
those last words, which were originally proposed by Guinea-Bissau itself,
are categorical. The situation in the present case differs from that faced
by the Court or by arbitral tribunals when they had to reply to successive
questions which were not made conditional on each other, and to each of
which some meaning had in any event to be attributed in order for a reply to
be given thereto, as for example in the case of the Free Zones of Upper
Savoy and the District of Gex (Order of 19 August 1929, P.C.I.J., Series ,4,
No. 22, p. 13), or Corfu Channel, Merits (Judgment, I.C.J. Reports 1949, p.
24). Where, however, successive questions were put to the Court which were
made conditional on each other, the Court replied, or found no room to
reply, according to whether or not the governing condition had been
fulfilled, as, for example, in Interpretation of the Greco-Bulgarian
Agreement of 9 December 1927 (Advisory Opinion, 1932, P.C.I.J., Series A/B,
No. 45, pp. 70, 86-87); and Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania (First Phase, Advisory Opinion, I.C.J. Reports 1950, pp.
65,67-68,75,76,77; Second Phase, Advisory Opinion, ibid., pp. 225,226,230).
51. In fact in the present case the Parties could have used some such
expression as that the Tribunal should answer the second question "taking
into account" the reply given to the first, but they did not; they directed
that the second question should be answered only "in the event of a negative
answer" to that first question. In that respect, the wording was very
different from that to be found in another Arbitration Agreement to which
Guinea-Bissau is a Party, that concluded on 18 February 1983 with the
Republic of Guinea. By that Agreement, those two States asked another
tribunal to decide on the legal value and scope of another Franco-Portuguese
delimitation convention and annexed documents, and then, [p 71] "according
to the answers given" to those initial questions, to determine the "course
of the boundary between the maritime territories" of the two countries.
52. Faced with the problem presented by the prefatory words of the second
question, the Applicant stresses that, according to the Preamble of the
Arbitration Agreement, its object was to settle the dispute that had arisen
between the two countries relating to the determination of their maritime
boundary. The first sentence of Article 2 requested the Tribunal to decide
on the two questions put to it. The Tribunal was, according to Article 9, to
"inform the two Governments of its decision regarding the questions set
forth in Article 2". That decision was to "include the drawing of the
boundary line on a map". According to Guinea-Bissau, the Tribunal was
therefore required to delimit by a single line the whole of the maritime
areas appertaining to each State. As, for the reasons given by the Tribunal,
its answer to the first question put in the Arbitration Agreement could not
lead to a comprehensive delimitation, it followed, in Guinea-Bissau's view,
that, notwithstanding the prefatory words to the second question the
Tribunal was required to answer that question and to effect the overall
delimitation desired by both Parties.
53. It is useful to recall, in order to assess the weight of that line of
argument, the circumstances in which the Arbitration Agreement was drawn up.
Following various incidents, Senegal and Guinea-Bissau engaged in
negotiations, from 1977 to 1985, with regard to their maritime boundary. Two
opposing views were asserted. Senegal maintained that the Agreement
concluded in 1960 between France, on its own behalf and that of the
Communaute, and Portugal had the force of law in the relations between the
two States, by virtue of the rules relating to State succession, and that
the line defined by that Agreement defined the boundary. Guinea-Bissau
however considered that that Agreement was inexistent, null and void, and in
any case not opposable to it. From this it inferred that it would be
appropriate to proceed ex novo to a maritime delimitation between the two
States. When the time came to draft the Arbitration Agreement, Senegal
proposed that ,the Tribunal should decide solely whether the 1960 Agreement
had the force of law in the relations between the Parties. Guinea-Bissau
asked that the Tribunal should be entrusted only with the task of drawing
the line delimiting the maritime territories in dispute. After lengthy
discussions, it was agreed that there should first be put to the Tribunal
the question proposed by Senegal. Guinea-Bissau suggested in addition that,
"in the event of a negative answer to the first question", the Tribunal
should be asked to define the course of the delimitation line. That form of
words was ultimately adopted.
54. It will be apparent that the two questions had a completely different
subject matter. The first concerned the issue whether an international
agreement had the force of law in the relations between the Parties, while
the second was directed to a maritime delimitation in the event that that
agreement did not have such force. Senegal was counting on an affirmative
reply to the first question, and concluded that the straight line on a [p
72] bearing of 240�, adopted by the 1960 Agreement, would constitute the
single line separating the whole of the maritime areas of the two countries.
Guinea-Bissau was counting on a negative answer to the first question, and
concluded that a single dividing line for the whole of the maritime areas of
the two countries would be fixed ex novo by the Tribunal in reply to the
second question. The two States intended to obtain a delimitation of the
whole of their maritime areas by a single line. But Senegal was counting on
achieving this result through an affirmative answer to the first question,
and Guinea-Bissau through a negative answer to that question. No agreement
had been reached between the Parties as to what should happen in the event
of an affirmative answer leading only to a partial delimitation, and as to
what might be the task of the Tribunal in such case. The travaux
preparutoires accordingly confirm the ordinary meaning of Article 2.
55. The Court considers that this conclusion is not at variance with the
circumstance that the Tribunal adopted as its title "Arbitration Tribunal
for the Determination of the Maritime Boundary: Guinea-Bissau/Senegal", or
with its definition, in paragraph 27 of the Award, of the "sole object of
the dispute" as being one relating to "the determination of the maritime
boundary between the Republic of Senegal and the Republic of Guinea-Bissau,
a question which they have not been able to settle by means of negotiation
...". In the opinion of the Court, that title and that definition are to be
read in the light of the Tribunal's conclusion, which the Court shares,
that, while its mandate did include the making of a delimitation of all the
maritime areas of the Parties, this fell to be done only under the second
question and "in the event of a negative answer to the first question".
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.
57. The Court now turns to Guinea-Bissau's second argument. Apart from its
contention that, on a true construction, the Arbitration Agreement required
recourse to the second question whatever was the answer to the first,
Guinea-Bissau argues that the answer in fact given by the Tribunal to the
first question was a partially negative answer and that this sufficed to
satisfy the prescribed condition for entering into the second question.
Accordingly, and as was to be shown by the declaration of President
Barberis, the Tribunal was, it is said, both entitled and bound to answer
the second question.
58. It is true that the Arbitration Tribunal, when answering the first
question, in paragraph 88 of the Award, explained that the 1960 Agree-[p
73]ment had the force of law in the relations between the Parties "with
regard solely to the areas mentioned in that Agreement, namely the
territorial sea, the contiguous zone and the continental shelf'.
Consequently "the 1960 Agreement does not delimit those maritime spaces
which did not exist at that date, whether they be termed exclusive economic
zone, fishery zone or whatever" (Award, para. 85).
59. In his declaration appended to the Award reproduced in paragraph 19
above, President Barberis added that he would have preferred that, in
paragraph 88 of the Award, an affirmative answer be given with respect to
the areas delimited by the 1960 Agreement, and a negative answer with
respect; to the areas not delimited by that Agreement. In his opinion, such
a partially negative wording would have conferred on the Tribunal a partial
competence to reply to the second question, and to determine the boundary of
the waters of the exclusive economic zones or fishery zones between the two
countries.
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.
**
61. Finally, Guinea-Bissau recalls that, according to Article 9, paragraph
2, of the Arbitration Agreement, the decision of the Tribunal was to
"include the drawing of the boundary line on a map", and that no such map
was produced by the Arbitration Tribunal. Guinea-Bissau contends that the
Tribunal also did not give sufficient reasons for its decision on that
point. It is contended that the Award should, for these reasons, be
considered wholly null and void.
62. The Court observes that the Award States that the 1960 Agreement
"clearly determines the maritime boundary as regards the territorial sea,
the contiguous zone and the continental shelf' by adopting "a straight line
[p 74] drawn at 240"" (paras. 80 and 85). The Award States that this
terminology "makes it possible to rule out any geodesic line", so that the
line would have to be a loxodromic line, which, moreover is in accordance
with the "sketch included in the preparatory work of the 1960 Agreement"
(paras. 86 and 88). Then, after deciding not to answer the second question,
the Tribunal adds that: "Furthermore, in view of its decision, the Tribunal
considered that there was no need to append a map showing the course of the
boundary line."
63. The Court is unable to uphold the contention that the reasoning of the
Tribunal was insufficient on this point. The reasoning mentioned above is,
once again, brief but sufficient to enlighten the Parties and the Court as
to the reasons that guided the Tribunal. It found that the boundary line
fixed by the 1960 Agreement was a loxodromic line drawn at 240" from the
point of intersection of the prolongation of the land frontier and the
low-water line of the two countries, represented for that purpose by the
Cape Roxo lighthouse. Since it did not reply to the second question, it did
not have to define any other line. It thus considered that there was no need
to draw on a map a line which was common knowledge, and the definitive
characteristics of which it had specified.
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.
67. The Court has moreover taken note of the fact that on 12 March 1991
Guinea-Bissau filed in the Registry of the Court a second Application
requesting the Court to adjudge and declare:
"What should be, on the basis of the international law of the sea and of all
the relevant elements of the case, including the future [p 75] decision of
the Court in the case concerning the arbitral 'award' of 31 July 1989, the
line (to be drawn on a map) delimiting all the maritime territories
appertaining respectively to Guinea-Bissau and Senegal."
It has also taken note of the declaration made by the Agent of Senegal in
the present proceedings, according to which one solution
"would be to negotiate with Senegal, which has no objection to this, a
boundary for the exclusive economic zone or, should it prove impossible to
reach an agreement, to bring the matter before the Court".
68. Having regard to that Application and that declaration, and at the close
of a long and difficult arbitral procedure and of these proceedings before
the Court, the Court considers it highly desirable that the elements of the
dispute that were not settled by the Arbitral Award of 31 July 1989 be
resolved as soon as possible, as both Parties desire.
***
69. For these reasons,
The Court,
(1) Unanimously,
Rejects the submission of the Republic of Guinea-Bissau that the Arbitral
Award given on 31 July 1989 by the Arbitration Tribunal established pursuant
to the Agreement of 12 March 1985 between the Republic of Guinea-Bissau and
the Republic of Senegal, is inexistent;
(2) By eleven votes to four,
Rejects the submission of the Republic of Guinea-Bissau that the Arbitral
Award of 31 July 1989 is absolutely null and void;
In favour : Preside.nt Sir Robert Jennings; Vice-�resident Oda; Judges
Lachs, Ago, Schwebel, :Ni, Evensen, Tarassov, Guillaume, Shahabuddeen; Judge
ad hoc Mbaye.
Against: Judges Aguilar Mawdsley, Weeramantry, Ranjeva; Judge ad hoc
Thierry.
(3) By twelve votes to three,
Rejects the submission of the Republic of Guinea-Bissau that the Government
of Senegal is not justified in seeking to require the Government of
Guinea-Bissau to apply the Arbitral Award of 31 July 1989; and, on the
submission to that effect of the Republic of Senegal, finds that the
Arbitral [p 76] Award of 31 July 1989 is valid and binding for the Republic
of Senegal and the Republic of Guiinea-Bissau, which have the obligation to
apply it.
In favour : President Sir Robert Jennings; Vice-President Oda; Judges Lachs,
Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Ranjeva;
Judge ad hoc Mbaye.
Against : Judges Aguilar Mawdsley, Weeramantry; Judge ad hoc Thierry.
Done in French and in English, the French text being authoritative, at the
Peace Palace, Tine Hague, this twelfth day of November, one thousand nine
hundred and ninety-one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Republic of Guinea-Bissau and the Government of the Republic of Senegal,
respectively.
(Signed) R. Y. Jennings,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Tarassov and Judge ad hoc Mbaye append declarations to the Judgment of
the Court.
Vice-President Oda, Judges Lachs, Ni and Shahabuddeen append separate
opinions to the Judgment of the Court.
Judges Aguilar Mawdsley and Ranjeva append a joint dissenting opinion, and
Judge Weeramantry and Judge ad hoc Thierry dissenting opinions, to the
Judgment of the Court.
(Initialled) R.Y.J.
(Initialled) E.V.O.
[p 77]
DECLARATION OF JUDGE TARASSOV
I voted for the present Judgment bearing in mind that its sole purpose is to
solve the dispute between the Republic of Guinea-Bissau and the Republic of
Senegal, relating to the validity or nullity of the Award rendered on 31
July 1989 by the Arbitration Tribunal for the determination of the maritime
boundary established on the basis of the Arbitration Agreement between the
Parties on 12 March 1985. The Court did not examine � and was not asked by
the Parties to examine � any of the circumstances and evidence relating to
that same determination, including the delimitation line established in the
Franco-Portuguese Exchange of Letters of 26 April 1960 and applicability of
this document to the territorial dispute between two States. As was stated
in the Judgment "both Parties recognize that no aspect of the substantive
delimitation dispute is involved". Consequently, I consider the present
Judgment to be for the most part of a procedural rather than a material
character. From this point of view, I agree with the analysis and
conclusions of the Court, which has found that the submissions and arguments
of Guinea-Bissau against the existence or validity of the Award are not
convincing.
As I express this agreement, I nonetheless feel obligated to declare that,
in my opinion, the Award contains some serious deficiencies. Those
deficiencies, while not providing a formal basis for a finding that it is
null and void, call for some strong criticism which is partially reflected
in the present Judgment.
In the Award, the Arbitration Tribunal did not accomplish the main task
entrusted to it by the Parties, as it did not definitively settle the
dispute about the delimitation of all adjacent maritime territories off the
coasts of Senegal and Guinea-Bissau. The Arbitration Agreement leaves one in
no doubt that neither Party regarded their different attitudes towards the
1960 Franco-Portuguese Agreement as constituting the main subject of their
dispute. They recognized and defined their inability "to settle by means of
diplomatic negotiation the dispute relating to the determination of their
maritime boundary" and decided to resort to arbitration "to reach a
settlement of that dispute as soon as possible" (Annex to the Application of
Guinea-Bissau, Award, para. 1). The quintessence of the dispute was directly
reflected in the very title of the Tribunal, i.e., "Arbitration Tribunal for
the Determination of the Maritime Boundary: Guinea-Bissau/ Senegal" (ibid.,
p. 1).
The Tribunal itself recognized and specified in its Award that: [p 78]
"The sole object of the dispute submitted by the Parties to the Tribunal
accordingly relates to the determination of the maritime boundary between
the Republic of Senegal and the Republic of Guinea-Bissau, a question which
they have not been able to settle by means of negotiation. The case is one
of a delimitation between adjacent maritime territories . . . off the coasts
of Senegal and Guinea-Bissau." (Para. 27; emphasis added.)
Moreover, Article 9 of the Arbitration Agreement expressly requested the
Tribunal, upon completion of the proceedings, to "inform the two Governments
of its decision regarding the questions set forth in Article 2 of the
present Agreement" (Annex to the Application of Guinea-Bissau, Award, para.
1; emphasis added). The wording of this part enables one to consider that
the Tribunal had to inform the Parties of its decision regarding both
questions put in Article 2 and that, in any event, that decision � whatever
it might be � had to "include the drawing of the boundary line on a map"
with the assistance of technical experts. It is important that the form of
words employed in Article 9 is neither logically nor grammatically connected
with the character � positive or negative � of the reply to the first
question of Article 2 of the Arbitration Agreement.
I admit that the wording of the second question of Article 2 was such as to
permit the Tribunal to decline to answer it, in the event of a positive
answer to the first question � albeit on the basis of a purely formal,
grammatical interpretation of that Article. The Tribunal pursued that
course. However, in accordance with the jurisprudence of this Court, the
judicial body
"cannot base itself on a purely grammatical interpretation of the text. It
must seek the interpretation which is in harmony with a natural and
reasonable way of reading the text, having due regard to the intention [of
the Parties]" (I.C.J. Reports 1952, p. 104).
And of course, the real intention of the Parties in the present case was to
settle their dispute on the delimitation of all maritime territories,
including the economic zone. The contention of the Tribunal in paragraph 87
of the Award that it is not called upon to reply to the second question
because of "the actual wording of Article 2 of the Arbitration Agreement"
does not, in my opinion, suffice to substantiate the decision on such an
important issue.
As the Court said in the cases concerning South West Africa (Preliminary
Objections):
"This contention is claimed to be based upon the natural and ordinary
meaning of the words employed in the provision. But this rule of
interpretation is not an absolute one. Where such a method of interpretation
results in a meaning incompatible with the spirit, purpose and context of
the clause or instrument in which the words are contained, no reliance can
be validly placed on it." (I.C.J. Reports 1962, p. 336.) [p 79]
I think that there is a serious foundation for the view expressed by the
President of the Tribunal, Mr. J. Barberis, in the declaration attached to
the Award, in which he stated his conviction that the Tribunal had the
opportunity and competence to give a "partially affirmative and partially
negative reply" to the first question put in Article 2 and, on that basis,
to settle the whole of the dispute.
When it stated in the Award
"that the 1960 Agreement does not delimit those maritime spaces which did
not exist at that date, whether they be termed exclusive economic zone,
fishery zone or whatever" (Annex to the Application of Guinea-Bissau, Award,
para. 85),
the Tribunal did nothing for the delimitation of "those maritime spaces".
When it decided that the "straight line drawn at 240" mentioned by the 1960
Agreement is a loxodromic line", the Tribunal did not state whether that
line might or might not be used for the delimitation of the economic zone.
Such an omission, together with the Tribunal's refusal to append a map (in
contradiction with Article 9 of the Arbitration Agreement) did not, in my
opinion, help to solve the whole dispute between the Parties and has merely
paved the way to the new Application by Guinea-Bissau to the Court.
(Signed) Nikolai K. Tarassov.
[p 80]
DECLARATION OF JUDGE MBAYE
[Translation]
The present case is a "first". It marks the first time that a State, as an
applicant, invokes before the Court the nullity of an arbitral award on the
sole basis of declarations made by the Parties to the case under Article 36,
paragraph 2, of the Statute of the Court FN1. The Court was therefore
confronted with a serious question of jurisdiction. It situated the
question clearly and settled it prudently. The Court analysed in detail the
declarations deposited with the Secretary-General of the United Nations on
2 December 1985 by Senegal and on 7 August 1989 by Guinea-Bissau. It then
noted that, in the instant case, Guinea-Bissau had accepted its
jurisdiction and Senegal had not contested it. And it is on the basis of
these "circumstances", taken as a whole, that the Court considered its
jurisdiction to have been founded. This is a judicious attitude that in no
way pre-judges the Court's future position. For, as pointed out by Eug�ne
Borel ("Les voies de recours contre les sentences arbitrales", Collected
Courses of the Hague Academy of International Law, Vol. 52, 1935, p. 75), it
does not appear possible to consider that Article 36, paragraph 2,
subparagraphs (a) and (b), "already provides a legal basis, sound and
indisputable, for the jurisdiction of the Court". Many other authors have
asked themselves whether it does and some have responded in the negative. I
share their view. 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.
---------------------------------------------------------------------------------------------------------------------
FN1
The Application of the Government of Honduras in the case concerning the
Arbitral A ward Made by the King of Spain (I. C.J. Reports 1960, pp. 194 et
seq.) had as its object to enforce an arbitral award and Nicaragua (the
defendant) had, in particular, pleaded the nullity of the award. In that
case the Washington Agreement concluded by the two States on 21 July 1957
resolved any jurisdictional problem.
---------------------------------------------------------------------------------------------------------------------
(Signed) Keba MBAYE.
[p 81]
SEPARATE OPINION OF VICE-PRESIDENT ODA
1. I concur with the Court's decision to reject the submissions presented by
Guinea-Bissau, but my reasons for rejection are much simpler than those
expounded by the Court at some length. In my view, Guinea-Bissau simply
misinterpreted, first, the declaration appended by the President of the
Arbitration Tribunal to the Arbitral Award of 1989, in connection with its
first submission that the Award should be held inexistent; secondly, the
Arbitration Agreement itself, in connection with its second submission that
the Award should be declared null and void. Furthermore, I cannot but point
out that the whole procedure employed to settle the real issue in dispute in
the mid-1980s between Guinea-Bissau and Senegal (namely, the delimitation of
the exclusive economic zones) was, from the outset, ill-conceived. I take
these points in order.
I. Inadequate Submissions of Guinea-Bissau
1. Is the 1989 Arbitral Award Inexistent ?
2. The ground upon which Guinea-Bissau contended that the 1989 Award was
"inexistent" consisted in the alleged fact that:
"One of the two arbitrators [Mr. Barberis, the President of the Tribunal]
making up the appearance of a majority in favour of the text of the 'award'
has, by a declaration appended to it, expressed a view in contradiction with
the one apparently adopted by the vote." (First submission of Guinea-Bissau
in the written proceedings, emphasis added.)
In fact, Mr. Barberis stated in the first paragraph of his declaration that
"I feel that the reply given by the Tribunal to the first question put by
the Arbitration Agreement could have been more precise. I would have replied
to that question as follows:
'The [1960 Franco-Portuguese] Agreement has the force of law in the
relations between [Guinea-Bissau and Senegal] 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'" (emphasis added), [p 82]
while the 1989 Award itself stated that the 1960 Franco- Portuguese
Agreement
"has the force of law in the relations [between Guinea-Bissau and Senegal]
with regard solely to the areas mentioned in that Agreement, namely the
territorial sea, the contiguous zone and the continental shelf..." (1989
Award, para. 88).
The 1960 Agreement reads as follows:
"As far as the outer limit of the territorial sea, the boundary shall
consist of a straight line drawn at 240" from the intersection of the
prolongation of the land frontier and the low-water mark, ... As regards the
contiguous zones and the continental shelf, the delimitation shall be
constituted by the prolongation in a straight line, in the same direction,
of the boundary of the territorial seas."
3.What Mr. Barberis had to Say in the above-quoted part of his declaration
served simply to affirm the conclusion reached by the Award and did not
depart from it. As far as concerns the first question put to the Tribunal
under Article 2, paragraph 1, of the 1985 Arbitration Agreement (that is,
whether the 1960 Agreement had "force of law" in the relations between
Guinea-Bissau and Senegal) � a question decided by a majority vote under
paragraph 88 of the Award � there is no ground for contending, as the first
submission of Guinea-Bissau States, that Mr. Barberis "expressed a view in
contradiction with the one apparently adopted by the vote" (emphasis added).
Hence, though the Award came into existence only thanks to the votes cast by
Mr. Barberis and Mr. Gros, the contention cannot be sustained that it at
once became inexistent because Mr. Barberis's declaration (allegedly)
implied withdrawal of the agreement signified by his vote.
4. Mr. Barberis continued to state in the second and third paragraphs of his
declaration:
"This partially affirmative and partially negative reply is, in my view, the
exact description of the legal position existing between the Parties...
[This reply would have enabled the Tribunal to deal in its Award with the
second question put by the Arbitration Agreement ...
... the Tribunal would have been competent to delimit the waters of the
exclusive economic zone or the fishery zone between the two countries..."
Mr. Barberis thus seems to have construed the decision taken by the majority
vote of the Tribunal � as stated in paragraph 88 of the Award � as
potentially implying a "partially affirmative and partially negative reply"
to the first question put to it, that is, the question whether the [p
83]1960 Agreement had "force of law", and this interpretation of his own led
him to state that
"this reply would have enabled the Tribunal to deal in its Award with the
second question put by the Arbitration Agreement [that is, what is the
course of the line delimiting the maritime territories ...?]".
It may therefore be more convincingly argued that Mr. Barberis did hold a
view different from what was stated in paragraph 87 of the Award which read:
"Bearing in mind the above conclusions 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."
(Emphasis added.)
This does not mean, however, that Mr. Barberis "expressed a view in
contradiction with the one apparently adopted by the vote" (emphasis added),
as the Tribunal's decision adopted by the vote was only related to the first
question � Article 2, paragraph 1 � of the Arbitration Agreement (as
expressed in paragraph 88 of the Award) but not the second question �
Article 2, paragraph 2 � which would have required the Tribunal to decide
the course of the delimitation line. In this respect, whatever Mr. Barberis
stated in the second paragraph of his declaration cannot be considered as "a
view in contradiction with the one apparently adopted by the vote" (emphasis
added), as claimed by Guinea-Bissau.
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.
2. Is the 1989 Award Null and Void ?
6. To turn to the second submission of Guinea-Bissau in the written
proceedings, that is, the subsidiary contention by which Guinea-Bissau
claims that the 1989 Award is "absolutely null and void", Guinea-Bissau
gives the following reasons, among others, that:
"the Tribunal failed to reply to the second question raised by the
Arbitration Agreement, whereas its reply to the first question implied a
need for a reply to be given to the second" [p 84]
and
"it did not comply with the provisions of the Arbitration Agreement by which
the Tribunal was asked to decide on the delimitation of the maritime areas
as a whole, to do so by a single line and to record that line on a map".
It is of course a fact that the Tribunal did not "reply to the second
question raised by the Arbitration Agreement". Nor did it "decide on the
delimitation of the maritime areas as a whole", or "[to] do so by a single
line and [to] record that line on a map".
7. In its submissions to the Arbitration Tribunal, Guinea-Bissau requested
it to consider that:
"� The rules on the succession of States in respect of treaties ... do not
permit Senegal to invoke against Guinea-Bissau [the 1960 Franco-Portuguese
Agreement] which in any case is absolutely null and void and non-existent;
� The maritime delimitation between Senegal and Guinea-Bissau has thus never
been determined;
� For the delimitation of the continental shelves and exclusive economic
zones... the maritime delimitation between the two States should be fixed
between [azimuths 264" and 270�]",
while Senegal, in its submissions, requested the Arbitration Tribunal to
declare and adjudge:
"That by the [1960 Agreement] France and Portugal . . . have carried out the
delimitation of a maritime frontier;
That this Agreement, confirmed by the subsequent conduct of the contracting
Parties as well as by the conduct of the sovereign States which succeeded to
them, has the force of law in the relations between [Guinea-Bissau and
Senegal]."
In the light of the submissions of Guinea-Bissau presented to the
Arbitration Tribunal it is apparent that the Arbitration Agreement had not
been drafted along the lines which Guinea-Bissau found to be in its
interest.
8. The fundamental questions originally to be put to the Arbitration
Tribunal had been converted into those concerning the effect of a treaty in
a case of State succession, and the Tribunal was asked under Article 2,
paragraph 1, simply whether that 1960 Agreement would "have the force of law
in the relations between [Guinea-Bissau and Senegal]". The Arbitration
Agreement simply required the Tribunal to define "the course of the line
delimiting the maritime territories" only "in the event of a negative
answer" to the question of whether the 1960 Agreement concluded between the
two colonial States, Portugal and France, had force of law in the relations
between Guinea-Bissau and Senegal. I add "only" in this [p 85] instance,
because, though the word "only" does not appear in the Arbitration
Agreement, there is no escaping its having been implied, as the Judgment has
fully expounded (para. 50). The meaning of Article 2, paragraph 1, is so
clear that there does not seem to be any call to refer for its
interpretation to the Vienna Convention on the Law of Treaties.
9. The Arbitration Tribunal, by its majority vote (including the vote of Mr.
Barberis), answered that question categorically and unequivocally in the
affirmative. Here ended the plain task of the Tribunal, and this surely
cannot be subject to any doubt whatsoever. The consequences that would ensue
from the application of this Agreement were not within the Tribunal's
mandate. Even so, the Arbitration Tribunal in 1989 qualified its own
decision, and limited its scope, by stating that the "force of law" of the
1960 Franco-Portuguese Agreement would be limited "solely to ... the
territorial sea, the contiguous zone and the continental shelf' and Mr.
Barberis, as I stated in paragraphs 3 and 4 above, affirmed and strengthened
the Tribunal's position by stating that the "force of law" would not apply
to "the waters of the exclusive economic zone or the fishery zone".
10. The Award could have been delivered without either of the phrases as
quoted above, thus leaving room for different interpretations. Yet the
Tribunal tried to avoid such ambiguity, and Mr. Barberis further spelled out
the already unequivocal decision of the Tribunal in his declaration. Well
may he have argued therein for an interpretation whereby the Tribunal's
reply to the first question above could be seen as "partially negative". The
very fact that, to support this argument, he had to rephrase the Tribunal's
findings serves to underline the exclusively affirmative character of the
actual reply. In any case, his personal interpretation could not have
affected the Tribunal's categorical decision, taken by the majority vote (in
which Mr. Barberis's vote was naturally included) on paragraph 88 of the
Award. that the 1960 Agreement had "force of law" in the relations between
Guinea-Bissau and Senegal. In sum, the second submission of Guinea-Bissau
does not stand, because the Award fully responded in the affirmative by the
majority vote to the question concerning the "force of law" of the 1960
Franco-Portuguese Agreement, and no reply to the second question was thus
called for.
II. Errors in Referral of the Dispute to the Dispute-Settlement Procedure
11. From the outset, owing to inadequate handling by the diplomatic
authorities of Guinea-Bissau and Senegal of the real issues and problems
between these two countries, the whole procedure for bringing their dis-[p
86]pute to the Arbitration Tribunal in 1985 and then the present case before
this Court in 1989 was ill-starred.
1. Background to the Dispute
12. The delimitation of the exclusive economic zones, in view of the fishery
interests of both States, has been at issue since the late 1970s. Senegal
and Guinea-Bissau had gained independence from France and Portugal in 1960
and 1973 respectively. Senegal, by its Act of 2 July 1976, establishing a
sea fishery code, as amended by the Law of 8 February 1985, claimed "the
right to fish... in an exclusive economic zone of 200 nautical miles in
breadth,... waters under Senegalese jurisdiction". On 19 May 1978
Guinea-Bissau enacted Law on the extension of the territorial sea and
exclusive economic zone, under which the exclusive economic zone was claimed
as extending "within the national maritime borders to 200 miles" where
Guinea-Bissau claimed "exclusive rights over exploration and exploitation of
the living and natural resources of the sea". The same claim was restated by
Guinea-Bissau in the Act of 17 May 1985 concerning the delimitation of the
continental shelf: The line of the delimitation of the exclusive economic
zone with the neighbouring States was not specified in the domestic
legislation of either State. Yet it was clear that the claims of Senegal and
Guinea-Bissau to exclusive economic zones were overlapping in some areas,
and various incidents involving conflicts between the fishery interests of
the two States occurred. Diplomatic negotiations were continued between the
two States.
2. The Inappropriate Drafting of the 1985 Arbitration Agreement
13. In March 1985 Guinea-Bissau and Senegal, having been unable to settle
their dispute by negotiation, decided to refer to arbitration "the dispute
relating to the determination of their maritime boundary" (Preamble to the
Arbitration Agreement). It is obvious that both Parties, when referring to
"the maritime boundary", meant to include in that definition the
delimitation of the exclusive economic zones. Yet the matter of the
determination of maritime boundaries was not even referred to in the primary
and basic question which was actually asked of the Arbitration Tribunal. The
Tribunal was in fact simply requested to decide, in accordance with the
norms of international law, whether the 1960 Agreement between the colonial
powers (Portugal and France) which related to the delimitation of the
territorial seas, the contiguous zones and the continental shelf had force
of law in the relations between the two States which had gained
independence. Only in the event of a negative answer to that question was
the[p 87] Tribunal requested to decide what would be the course of the line
delimiting the maritime territories appertaining to both States
respectively. In view of the real issue in dispute between the two States,
it is obvious that the Agreement was drafted in an inappropriate manner. The
Parties should have asked a question to cover the situation of a positive
answer to the first question being given by the Arbitration Tribunal.
14. In the diplomatic negotiations between Guinea-Bissau and Senegal, their
representatives were certainly aware of the 1960 Agreement which, if it
possessed force of law, had defined the delimitation of the continental
shelf as the 240" azimuth line. They seem also to have proceeded on the
premise that there ought to be a single line of delimitation for both the
exclusive economic zone and the continental shelf, a line which might be
called the maritime boundary. They must further have taken for granted, it
would appear, a second premise: namely that a line of delimitation for the
exclusive economic zones (a new concept of international law) ought to
coincide with any existing line of delimitation for the continental shelf (a
concept which had been in existence for several decades). The combination of
these two premises apparently induced Guinea-Bissau to believe that, if it
wished to secure a line of delimitation for the exclusive economic zones
with a bearing between 270" and 264", it had first to make sure that the
240" line stipulated in 1960 was precluded through negation of the 1960
Franco-Portuguese Agreement. Senegal, on the other hand, satisfied that the
240" line would also apply to a line of delimitation for the exclusive
economic zones, seems to have concluded that it had simply to depend on the
force of law of that Agreement. It was thus natural and inevitable for both
Parties to highlight the question of the validity of the 1960 Agreement. But
the actual terms of the Arbitration Agreement only make sense on the
assumption that, whether a continental shelf line already existed or not,
the above premises underlay � expressly or implicitly � the two Governments'
negotiating positions intended to achieve the drawing of a delimitation line
for the exclusive economic zones.
15. In any event, while having clearly rendered its Award in response to the
actual terms of the Arbitration Agreement, the Arbitration Tribunal in 1989
did not settle the real issue between the two States. That is to say, it did
not define the course of the line delimiting the exclusive economic zones
appertaining to Guinea-Bissau and Senegal respectively. The failure of the
Award to refer to this line should certainly not be held against the
Arbitration Tribunal. It would rather seem, in brief, that the deplorable
aspects of the present case are traceable to the fact that the
representatives of the two countries who were responsible for drafting the
Arbitration Agreement embarked upon their task without sufficient grasp of
what they had taken for granted as premises in the light of some essential
concepts of the law of the sea, particularly those concerning the
interrelation between the exclusive economic zone and the continental [p 88]
shelf. They put to the Arbitration Tribunal a question which drifted away
from the genuine issues, which concerned the law of the sea, in order to
focus upon a narrow preliminary issue of treaty interpretation.
3. Insufficient Object of the Present Proceedings before the Court
16. Guinea-Bissau may have assumed too hastily that it was, as counsel for
Guinea-Bissau defined it, the "losing party" at the Arbitration Tribunal. In
fact Guinea-Bissau was certainly not the "losing party", even though it did
not, as it clearly wished to do, secure a line between the bearings of 270"
and 264" for the delimitation of the exclusive economic zones; Senegal
(certainly not to be considered the "winning party") was not, for its part,
assured that the 240" line, as defined in the 1960 Agreement for the
continental shelf, would apply to the exclusive economic zone. Having viewed
the Arbitral Award as an outright defeat, the competent authorities of
Guinea-Bissau were further misguided in bringing a case in 1989 before this
Court asking for a ruling on the validity of the Award. 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.
17. It seems to me therefore that, from the time of its presentation to the
present Court, this litigation lacked any meaningful object. The past
six-year period since the break-up of diplomatic negotiations for drawing a
line of delimitation of the exclusive economic zones, the object of which
had been primarily to settle the fishery disputes between them, seems to
have simply been wasted. The issues in dispute between these two
neighbouring States left unsettled were sent back to the starting point and
remain in 1991 the same as they were in 1985. One should not, however,
overlook the fact that one positive element was clarified in the Award, that
is, that there now exists between Guinea- Bissau and Senegal a loxodromic
line of 240� azimuth for the delimitation of the continental shelf and that
this point is upheld in the present Judgment. The present issue between the
two States, unlike the issue in 1985, should be concerned with the drawing
of a line of delimitation for the exclusive economic zones in a situation
where a line of 240� for the continental shelf has been confirmed as already
in existence. [p 89]
III. Conclusions
1. Dualism of the Exclusive Economic Zone and the Continental Shelf
18. The new concept of the exclusive economic zone gives to the coastal
State
"sovereign rights for the purpose of exploring and exploiting... the natural
resources, whether living or non-living... of the sea-bed and its subsoil"
(1982 United Nations Convention on the Law of the Sea, Art. 56, para. 1),
while under the already established existing concept of the continental
shelf, the coastal State exercises "sovereign rights for the purpose of
exploring [the continental shelf and exploiting its natural resources" (1958
Convention on the Continental Shelf, Art. 2, para. 1; 1982 United Nations
Convention, Art. 77, para. 1). Bearing in mind that the subject (that is,
the exploring of the sea-bed and its subsoil and the exploitation of its
natural resources, covered by the concept of the continental shelf) is now
completely superseded by or even absorbed in the new concept of the
exclusive economic zone, a uniform maritime area for the exclusive economic
zone and the continental shelf may certainly be desirable, and it is to be
recommended that a single line of delimitation between the neighbouring
States be institutionalized in order to avoid conflicts in the exercise of
jurisdiction by different coastal States over the same maritime area,
depending on whether this is the exclusive economic zone or the continental
shelf. However, the question concerning the uniform regime for the exclusive
economic zone and the continental shelf certainly did not receive an
affirmative answer in the 1982 United Nations Convention on the Law of the
Sea, as reflected in the provisions of that Convention allowing the
CO-existence of the parallel regimes of the exclusive economic zone and the
continental shelf. It should be noted that the Arbitration Tribunal
constituted in 1985 by Guinea-Bissau and Senegal preferred, as implied in
the Arbitral Award and directly expressed in Mr. Barberis's declaration, not
to depart from the basic concept entertaining parallel regimes for the
exclusive economic zone and the continental shelf.
19. Much controversy still surrounds the question de lege ferenda whether
the delimitation of exclusive economic zones ought to be identical to that
of the continental shelf or, more fundamentally, whether the new concept of
the exclusive economic zone ought to take the place of or to absorb the
traditional concept of the continental shelf (except for the offshore
distance, it being impermissible for an exclusive economic zone to extend
beyond 200 miles from the shore, whereas a State's continental shelf,
depending on the interpretation of the famous "exploitability" criterion in
the 1958 Convention on the Continental Shelf, may extend fur-[p 90]ther), or
whether the two regimes of the exclusive economic zone and the continental
shelf would remain existing in parallel between neighbouring States, but
with different lines of delimitation. If the two regimes are to be merged in
a case where the regime of the continental shelf has already effectively
existed, a further question will still have to be answered, that is, whether
or not an existing line of delimitation for the continental shelf should
dictate the line for the new regime of the exclusive economic zone, or a new
line of delimitation to be agreed upon for exclusive economic zones should
automatically entail reconsideration of the existing line for the
continental shelf. A uniform regime covering both the exclusive economic
zone and the continental shelf will remain to be settled.
20. Without taking any position on the question whether the United Nations
Convention on the Law of the Sea is already to be regarded as existing
international law or not, I must point out that that Convention separately
provides practically identical provisions concerning the delimitation of the
areas concerned between the neighbouring States for both the exclusive
economic zone and the continental shelf in parallel, stating that
"[t]he delimitation of [the exclusive economic zone] [the continental shelf
between States with . . . adjacent coasts shall be effected by agreement on
the basis of international law, as referred to in Article 38 of the Statute
of the International Court of Justice, in order to achieve an equitable
solution" (United Nations Convention on the Law of the Sea, Arts. 74 and
83).
One is led to conclude that the delimitation of the line of the exclusive
economic zones or of the continental shelf between neighbouring States, or
both, is, in the first place, a matter for negotiation between the States
concerned. What would be an equitable solution may well be different for the
respective delimitations of the exclusive economic zones and of the
continental shelf.
2. Alternatives Now Faced by Guinea-Bissau and Senegal
21. Guinea-Bissau and Senegal are certainly free to follow, as a basis for
their negotiations, the thesis (which was entertained in the 1982 United
Nations Convention and followed by the 1989 Arbitral Award) that a separate
regime for the exclusive economic zone can exist in parallel with that of
the continental shelf, and that a line of delimitation for their exclusive
economic zones may be drawn in the light of various factors leading to an
equitable solution for that purpose, independently of the existing line of
240" azimuth for the continental shelf.
22. Yet they are also free jointly to prefer another thesis, namely that [p
91] there should be a single line for the exclusive economic zones and the
continental shelf. In that event, it should first be understood that, if a
line to delimit the exclusive economic zones is to be identical to the
existing line for the continental shelf, there will remain little or no room
for negotiation. In the framework of this thesis, negotiation on a new line
for the exclusive economic zones would be meaningful only on the
understanding that the existing continental shelf line may be subject to
alteration or adjustment, depending on the new line agreed for the exclusive
economic zones. Guinea-Bissau and Senegal should be aware that they now face
a situation which is quite different from those in the North Sea Continental
Shelf cases (1969) (in which "principles and rules of international law...
applicable to the delimitation as between [Germany and the Netherlands;
Germany and Denmark] of the areas of the continental shelf . . ." were
sought) and the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case
(1982) (in which the delimitation of "the area of the continental shelf
between these two States was sought), or the situation in the case of
Delimitation of the Maritime Boundary in the Gulf of Maine Area (1984) (in
which Canada and the United States gave a Chamber of the Court carte blanche
to provide them with an equitable "course of the single maritime boundary"
where there did not exist any line of delimitation for the continental
shelf).
23. That being understood, and without prejudice to the interpretation of
the new Application to the present Court of 12 March 1991, I hope that
Guinea-Bissau and Senegal eventually engage in a definitive attempt to draw
a line of delimitation of their respective exclusive economic zones with a
clear picture of every element to be taken into account, and bearing in mind
that the line for the continental shelf already exists. To repeat, it falls
within the matters to be negotiated by the Parties whether parallel regimes
for the exclusive economic zones and the continental shelf will prevail,
thus producing two co-existent lines or, in the case of drawing a single
line, what influence upon it the existing line for the continental shelf
should retain, or whether the latter should even be adjusted or
renegotiated.
(Signed) Shigeru Oda.
[p 92]
SEPARATE OPINION OF JUDGE 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.
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.
Among the elements subjected to analysis is a document which the Court found
could not be ignored, namely the declaration of the President [p 93] 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. As was
wisely said some eighty years ago: [p 94]
"The mouth of the judge is sealed; he is not permitted to deny or refute the
allegations made against him, whatever may be their falsity or whatever his
reputation as a just and impartial judge...!" (State of Delaware v. Glascow,
US District Court, 1912.)
(How incomparably more serious was the situation of a judge once blamed � by
some alleged authorities � not for what he had done, or even for what he
could not have done, but simply for the policy of the then government of his
country! Faced with such an attack, a judge may be helpless.)
Nevertheless, despite the unusual relationship between the Award and the
presidential declaration, the fact remains that the latter is simply an
appendix added after the Award had come into being with the casting of
votes. It cannot be regarded as controlling or modifying the sense of the
Award. It is reasonable to assume that judicial declarations or opinions may
shed some light on aspects of the cases considered. They may sometimes help
in the interpretation of the decisions to which they are attached. However,
while the appended text may prompt a doubt and even a challenge, it cannot
undo the decision itself.
The arguments of Guinea-Bissau disclose, however, a more general
dissatisfaction with the treatment given by the Tribunal to the dispute
between the Parties, and it is indeed difficult to avoid the impression that
the result was not commensurate with the time spent in arriving at it. The
expectations of Guinea-Bissau were clearly aroused by the presentation of
the Tribunal as one concerned to deal with "the determination of the
maritime boundary", a comprehensive expression encompassing, it might be
thought, the whole scope of the dispute which had been the object of
negotiations between the two States for a considerable number of years.
Those negotiations having failed, they proceeded to draw up the Arbitration
Agreement. But it was in the drafting of this treaty that diplomacy appears
to have nodded, by conferring upon the tribunal to be formed a competence
which, in certain conditions, might not be found adequate to the object and
purpose of settling the whole dispute. Hence I agree with the present
Judgment in finding that the germ of the problem lay less in the Award
itself than in the Arbitration Agreement under which it was given.
However, the way the reply was framed is open to serious objections. The
Court finds that the reasoning of the Award was "brief, and could doubtless
have been developed further". I would add, that while brevity is a virtue,
excessive brevity may suggest lack of adequate consideration, hence the
imperative need to explain the decision: it is not a flood of words which is
called for but convincing reasoning and adequate explanations. A clear
exposition of the grounds of the decision constitutes an indispensable part
of any judgment or award. As has been pointed out, once submitted to a court
or to arbitration a dispute becomes a "persua-[p 95]sive conflict", hence
requires a 'persuasive decision". Not necessarily one which will persuade
everybody, but one sufficiently plausible.
Moreover, there is one other point to which I wish to address myself, namely
the Applicant's claim that Article 9, paragraph 2, of the Arbitration
Agreement imposed upon the Tribunal an obligation in any circumstances to
"include the drawing of a boundary line on a map".
The Tribunal was not, in my opinion, relieved of this obligation by its
decision not to reply to the second question put to it. The language of the
Agreement is clear and imperative: the implementation of Article 9,
paragraph 1, is not conditioned nor is it irrational. If the possibility of
limiting the reply to one question only was envisaged, it is difficult to
conclude that this released the Tribunal from the obligation enshrined in
the Article. Admittedly, from a common-sense point of view, it is arguable
that, as "a loxodromic line", the boundary was clear and required no graphic
illustration. I can therefore agree with the Judgment that the absence of a
chart did not constitute "such an irregularity as would render the Award
invalid". Yet it was not proper to belittle the obligation as the Tribunal
did. Elementary courtesy required that the matter be dealt with in a
different way.
Arbitration as a secure means of settling with finality difficult disputes
has from time immemorial enjoyed great prestige in the setting of municipal
law. Long before the existence of any permanent international judiciary,
arbitration between States had likewise become one of the most highly
respected, valued and effective means for the peaceful settlement of
international disputes. A heavy responsibility rests upon arbitral tribunal~
to contribute towards the maintenance of this status and assist the
institution to develop more effectively in a world where the changing
relationship of States and the ever-increasing areas of contact between
their interests are bound to create new problems. Thus one cannot but regret
that the Tribunal did not succeed in producing a decision with the cogency
to command respect.
(Signed) Manfred Lachs.
[p 96]
SEPARATE OPINION OF JUDGE NI
I agree with the decision of the Court that the Application of Guinea-Bissau
should be rejected. I also agree generally with the line of reasoning
contained in the Judgment. I feel, however, that certain aspects of the
Judgment might call for further elaboration.
The present case involves the following two questions, which will be dealt
with successively. They are: (1) whether the Award of 31 July 1989 should be
considered inexistent because of the declaration made by the President of
the Arbitration Tribunal, Mr. Barberis; and (2) subsidiarily whether the
Award should be considered a nullity because the Tribunal failed to answer
the second question in Article 2 of the Arbitration Agreement and also
failed to append the map provided for in Article 9 of that Agreement,
without giving reasons therefor.
1. Alleged Inexistence of the Award
It is to be noted that, of the three members of the Arbitration Tribunal,
Mr. Barberis and Mr. Gros voted for the Award, while Mr. Bedjaoui voted
against it. If Mr. Barberis's declaration is to be viewed as a dissent from
the Award, as alleged by Guinea-Bissau, the Award should, Guinea-Bissau
contends, be considered as inexistent because it would no longer be
supported by a majority. The declaration of Mr. Barberis has been quoted in
extenso in paragraph 19 of the Judgment and will not be reproduced here.
On reading Mr. Barberis's declaration one notes that it contains a number of
verbal forms in conditional tenses, such as "could have", "would have",
"might have", etc. To a large extent it merely sets forth a series of
doubts, reservations, suppositions or suggested variations without
expressing any clear and decisive opposition to or contradiction with any
part of the operative clause of the Award that would enable one to view the
declaration 21s manifesting dissent.
On the contrary, the declaration affirms in substance, as does the Award,
that the Agreement concluded by Exchange of Letters in 1960 has the force of
law in the relations between the Republic of Guinea-Bissau and the Republic
of Senegal. The declaration likewise affirms, as does the Award, that the
Agreement is binding on the Parties with respect to the territorial sea, the
contiguous zone and the continental shelf. It also indicates, as does the
Award, that the Agreement does not bind the Parties with respect to the
waters of the exclusive economic zone or the fishery zone. [p 97]
The declaration, however, diverges from the operative part of the Award
concerning the phrase "with regard solely to the areas mentioned in that
Agreement,, namely the territorial sea, the contiguous zone and the
continental shelf" (emphasis added) in paragraph 88 of the Award. This
implies that the exclusive economic zone is left out. According to the view
expressed by Mr. Barberis in his declaration, to this phrase of the
operative part of the Award there should have been added "but does not have
the force of law with respect to the waters of the exclusive economic zone
or the fishery zone". In the view of Mr. Barberis, this "partially
affirmative and partially negative reply" would have enabled the Tribunal to
deal with the second question and thus settle "the whole of the dispute"
concerning maritime boundaries between the two States.
But at this point there arises the question whether the reply given to
Article 2, paragraph 1, of the compromis, either explicitly or impliedly,
can be characterized as a "partially affirmative and partially negative
reply". The question put in Article 2, paragraph 1, of the compromis is
about the validity of the 1960 Agreement, which could only have referred to
the territorial sea, the contiguous zone and the continental shelf, the only
maritime spaces that existed at the time of the conclusion of the Agreement.
Therefore no question of exclusive economic zone or fishery zone could have
arisen. mien the Tribunal answered the first question in Article 2,
paragraph 1, of the compromis, it could only give an answer in respect of
the territorial sea, the contiguous zone and the continental shelf, to the
exclusion of any other space. By answering that question in the affirmative,
the Tribunal performed its task fully. The answer cannot be presented as a
"partially affirmative and partially negative reply".
In paragraph 88 of the Award the word "solely" is explanatory rather than
exclusionary. It does not mean that when the validity of the 1960 Agreement
was raised before the Tribunal for decision, the Tribunal admitted that the
Agreement had the force of law with respect to the territorial sea, the
contiguous zone and the continental shelf, but denied its having force of
law with respect to the exclusive economic zone or the fishery zone. Nor
does it mean that the Tribunal gave an affirmative answer with respect to
the first three spaces, but a negative answer with respect to the fourth,
i.e., the exclusive economic zone or the fishery zone. In making the Award,
the Tribunal simply could not have taken this space into account, inasmuch
as the concept of exclusive economic zone did not exist at the time of
conclusion of the 1960 Agreement. The validity or lack of validity of the
Agreement with respect to the exclusive economic zone or fishery zone
constituted no part of the object of the arbitration. Since the question of
the exclusive economic zone or fishery zone was not before the Tribunal, it
stands to reason that it could not have been passed upon by the Tribunal.
Such being the case, the Tribunal's answer to the first question in Article
2, paragraph 1, of the compromis is a reply in full, not a partial one. [p
98] Since it is an affirmative reply to the first question, the Tribunal was
not called upon to answer the second question in Article 2, paragraph 2, of
the compromis; the reason is the express condition: "In the event of a
negative answer to the first question." It was in fact impossible for Mr.
Barberis to set off on a quest for the solution of a question which did not
arise, for the Tribunal was not confronted with the question of the validity
of the 1960 Agreement with respect to the exclusive economic zone or the
fishery zone.
Mr. Barberis suggested that the Tribunal would have been competent to
delimit the waters of the exclusive economic zone or the fishery zone so as
to settle the whole dispute. But the Tribunal could not go beyond its
mandate, which only concerned the territorial sea, the contiguous zone and
the continental shelf. In fact, Mr. Barberis went no further. He merely
suggested a more comprehensive solution, as is clear from his use of the
phrase "would have been". But his suggestion stopped there. His declaration
cannot therefore be taken to record his dissent, thereby overriding or
invalidating his vote. The vote is the most reliable indication as to
whether or not he concurred with the Award.
The declaration is not part of the Award. The practice whereby judges attach
separate opinions, dissenting opinions or declarations is well established
since the days of the Permanent Court of International Justice. The practice
is at present embodied in Article 95, paragraph 2, of the Rules of Court,
which provides that:
"Any judge may, if he so desires, attach his individual opinion to the
judgment, whether he dissents from the majority or not; a judge who wishes
to record his concurrence or dissent without stating his reasons may do so
in the form of a declaration ..."
From the wording of this provision, it is clear that since individual
opinions or declarations are attached to the judgment, they cannot be a part
of it. Since they are individual opinions, whether or not they concur with
the judgment (or, in this case, with the Award), they cannot be considered
to represent the opinion of the body (whether a court or tribunal) as a
whole. They can only represent the views of the individual authors. They are
thus attached to the judgment or award, but do not form an integral part
thereof. They can explain, interpret, Vary, criticize or even differ in
certain respects from the judgment or award. But to criticize or to propose
variations does not necessarily import dissent. It is the operative part,
and in particular the voting, that counts. Unless the operative part is in
turn divided into parts and voted upon separately, it is the whole of the
operative part that is voted upon.
In fact, this is the only sensible way to look at a judgment or award which
is rendered, not by one judge or arbitrator alone, but by a panel. If [p 99]
the parties were at liberty to assess an individual opinion or declaration
by their own viewpoints and thus disregard the voting, the legal order would
be thrown into great confusion. Nor can one consider that since the Court
has, in the present case, jurisdiction with respect to the Award it is free
to disregard the vote by giving its own evaluation of what a declaration by
an individual judge or arbitrator amounts to, unless there is clear and
unmistakable proof that the facts are such that the declaration can be
regarded as a statement of dissent and the voting was flawed by mistake or
compulsion. But such is not the case here.
Guinea-Bissau has criticized Senegal for "taking refuge behind legal
formalism". But judges or arbitrators do not vote as a mere matter of
formality. They do so in order to express their precise position. They are
fully aware of the substantive implications of their vote. The vote is not
just a formal gesture. The vote indicates their final decision. If the
declaration, as in this case, raises an uncertainty as to whether a judge or
arbitrator concurs with or dissents from a judgment or an award, it is the
vote that constitutes the authentic expression of his attitude.
For these reasons, Guinea-Bissau's assertion that there was no majority in
support of the Arbitral Award of 31 July 1989 and that the Award should be
adjudged and declared to be inexistent cannot be accepted.
2. Alleged Nullity of the Award
Guinea-Bissau asks the Court to adjudge and declare, subsidiarily, that the
so-called decision is absolutely null and void, as the Tribunal failed to
reply to the second question put in the Arbitration Agreement, as it did not
decide on the delimitation of the maritime areas, as a whole, by a single
line and did not record that delimitation on a map, and as it has not given
the reasons on which the Award is based.
Arbitration has been useful in the peaceful settlement of disputes between
States. But there have also been abuses which can result in nullities. What
is crucial is to have a list of the causes of nullity and also to make
provision for the kind of international organ which will be entrusted with
deciding on alleged causes of nullity.
It was in 1929 that the Government of Finland made a proposal to examine the
question and recommended that the power to pronounce nullities should be
vested in the Permanent Court of International Justice. A committee of
specialists was appointed by the Council of the League of Nations to study
the proposal. In the same year, the Institute of International Law decided
to include on the agenda the possible constitution of a body to hear appeals
in cassation against decisions of international arbi-[p 100]tration
tribunals. It was the International Law Commission of the United Nations
which drafted and submitted in 1958 a set of "Model Rules on Arbitral
Procedure", to which the attention of States was drawn.
In the "Model Rules", the following two Articles are pertinent:
"Article 35
The validity of an award may be challenged by either party on one or more of
the following grounds:
(a) that the tribunal has exceeded its powers;
(b) that there was corruption on the part of a member of the tribunal;
(c) that there has been a failure to state the reasons for the award or a
serious departure from a fundamental rule of procedure;
(d) that the undertaking to arbitrate or the compromis is a nullity.
Article 36
1. If, within three months of the date on which the validity of the award is
contested, the parties have not agreed on another tribunal, the
International Court of Justice shall be competent to declare the total or
partial nullity of the award on the application of either party."
The concept of nullity has been considered broad enough to cover all serious
irregularities in arbitration. However, most publicists are agreed that an
arbitral award can be held to be null and void only in cases where the
tribunal in question has "manifestly and in a substantial manner passed
beyond the terms of submission" (K. S. Carlston, The Process of
International Arbitration, p. 81, and the authorities quoted by him on pp.
81-84). After citing a number of eminent authorities such as Vattel,
Bluntschli, Bonfils, Fauchille, Calvo, Oppenheim, Hall, Hyde, Castberg,
Schatzel, Stoykovitch, Weiss, etc., Carlston concluded that
"Claims of nullity should not be captiously raised. Writers who have given
special study to the problem of nullity are agreed that the violation of the
compromis should be so manifest as to be readily established. In order that
a tribunal's decision or a jurisdictional issue shall be considered null, it
must, in general, be arbitrary, not merely doubtful or arguable." (Ibid., p.
86.)
In the present case, Guinea-Bissau alleged that the Arbitral Award of 31
July 1989 is a nullity because it fails to reply to the second question in
Article 2, paragraph 2, of the compromis. Guinea-Bissau raises a number of
arguments to prove that this was an exc�s de pouvoir and the Award is
therefore a nullity. Before going into the merits of this claim, certain
points should first be mentioned. [p 101]
To begin with, the term exc�s de pouvoir means that the Tribunal has
exceeded or overstepped the powers which have been attributed to it by the
Parties. What Guinea-Bissau now complains of is that the Tribunal has failed
to exercise, not that it has exceeded, the powers vested in it (compare the
wording of Article 11, paragraph 2, of the Statute of the United Nations
Administrative Tribunal). The term "exc�s de pouvoir by omission" is a
self-contradictory one. It is also questionable whether, if the Tribunal
fails, in whole or in part, to exercise the powers vested in it, the
appropriate remedy is to apply for nullification of the Award.
Secondly, the ground of Guinea-Bissau's complaint is the Tribunal's failure
to reply to the second question, in Article 2, paragraph 2, of the
compromis. But Guinea-Bissau makes no reference to the reply of the Award in
respect of the first question, in Article 2, paragraph 1, of the compromis.
No satisfactory reason is given as to why the whole Award must be nullified.
Be that as it may, the thrust of Guinea-Bissau's thesis is that,
irrespective of the Tribunal's response concerning the value of the
Franco-Portuguese Exchange of Letters, the Tribunal was called upon to
proceed to a complete delimitation of the maritime territories. This
interpretation is, however, in clear contradiction with the ordinary meaning
to be given to the terms of the compromis. In the present case, a reply to
the second question in Article 2, paragraph 2, of the compromis would have
been mandatory only if the first question had been answered "in the
negative". The obligation to reply to the second question is alternative,
not simultaneous. Since the first question was replied to in the
affirmative, the Tribunal was not called upon to reply to the second
question. This follows from the ordinary and natural meaning of the relevant
words. Such an interpretation is in perfect harmony with Article 31,
paragraph 1, of the Vienna Convention on the Law of Treaties.
Guinea-Bissau, however, argues that the Tribunal's reply to the first
question is partially in the affirmative and partially in the negative; a
partially negative reply is nevertheless a negative reply; the Tribunal was
therefore under an obligation to give a reply to the second question. It
should be recalled that, in the present case, there cannot be any such thing
as a "partially affirmative and partially negative answer", since the
question put in the compromis relates to the maritime boundary, as it
existed at the time of conclusion of the Agreement in 1960, not thereafter.
Indeed, the Award, in paragraph 85, clearly indicated that the Agreement had
to be interpreted in the light of the law in force at the date of its
conclusion. Therefore the Tribunal's reply to the first question with
respect to the territorial sea, the contiguous zone and the continental
shelf is a complete reply to the question put to the Tribunal. The word
"solely" merely explains the scope of its decision. It cannot, therefore, be
taken as a rejection of a part of the Parties' request and thus as a reason
for characterizing the reply to the first question as a partially negative
or even as an altogether negative answer. [p 102]
Guinea-Bissau further argues that since the entire dispute concerns the
maritime boundary and since the title of the 1960 Agreement and the Preamble
of the compromis both refer to the determination of the maritime boundary,
it follows that whatever the reply given to the first question, the Tribunal
should have proceeded to the second.
It must be pointed out that, in interpreting a treaty, such as the compromis
in the present instance, whose text is clear and unambiguous, no attempt
should be made to change the ordinary and natural meaning of the language
used in the text by resorting to other elements and to interpret them as
requiring under any circumstance the overall delimitation of the maritime
boundary between the two States. It is primarily and clearly in the text of
Article 2 of the compromis that the objective of the Parties is located.
Here the Parties agreed that a reply to the second question is conditioned
on a negative answer to the first. It cannot be envisaged that a mention of
the delimitation of the maritime boundary in the title of the 1960 Agreement
and in the Preamble of the compromis can have the effect of changing the
meaning of the clear and unambiguous language of the text in Article 2 of
the compromis.
Guinea-Bissau persistently maintained that it was the intention of the
Parties that whatever the answer to the first question (in Article 2 of the
Arbitration Agreement) the Tribunal was called upon to delimit the entire
maritime boundary between the two States. But this contention does not find
any support in the clear language of the compromis.
On the contrary, a passage in Guinea-Bissau's own Memorial submitted to the
Tribunal reads:
"The representatives of Senegal ended by sharing this way of thinking[my
emphasis] and accordingly the Tribunal is requested to carry out a dual
task: in the first place, to pronounce itself on the validity of the
Franco-Portuguese Exchange of Letters of 16 April 1960 as a means of
determining the maritime boundary between Guinea-Bissau and Senegal; and,
should this validity not be recognized [Senegal's emphasis], to lay down the
course of the line delimiting the maritime territories between the two
States in accordance with the pertinent norms of positive international
law." (Page 35 of Guinea-Bissau's Memorial before the Tribunal; quoted by
Senegal on page 34 of its Counter-Memorial before the Tribunal.)
The above passage clearly affirms that it was Guinea-Bissau which proposed
that the Tribunal be asked to pronounce on the validity of the 1960 Exchange
of Letters and, should this validity not be recognized, to lay down the
course of the line delimiting the maritime territories between the two
States. And this way of thinking was shared by Senegal. Such has been the
result of the negotiations between the two States and they well knew what
they were agreeing to.
Although the passage quoted above was followed by a sentence, "In any event,
at the conclusion of the arbitration the maritime delimitation between
Guinea-Bissau and Senegal will have been effected", this can [p 103] only
mean the delimitation of those maritime spaces which existed at the time of
the conclusion of the 1960 Agreement, because it was the 1960 Agreement
which was in dispute. If the Parties had intended that there should be an ex
novo delimitation of the entire maritime boundary, irrespective of the
result of the examination of the validity of the Franco-Portuguese Exchange
of Letters of 1960, they would have said so in the compromis. Since this was
not only a relevant, but a crucial point, they could not have neglected to
do so. Negotiations had been carried on for eight years. How could a point
of such substance and significance have been overlooked? There is no
evidence of any dispute having arisen between the Parties on this point
during their negotiations. On the contrary, the 11 prefatory words in
Article 2, paragraph 2, were proposed by Guinea-Bissau itself (Senegalese
Counter-Memorial in the present proceedings, pp. 29,33,38 and 44; also
public Sitting of 5 April 1991, CR91 /4, p. 45).
Guinea-Bissau also asserts that the various components of the maritime areas
are indivisible. But this alleged indivisibility, even if the Parties had so
intended would not have removed the condition which the Parties expressly
laid down in Article 2, paragraph 2, of the compromis. Whether or not the
line is divisible is a question of how the line is to be drawn, arising if
the first question is answered in the affirmative. It does not change the
fundamental relationship between the two questions put in Article 2, which
is that the reply to the second one is conditioned on the first question
being answered in the negative.
It is to be noted that both Parties emphasized that they wanted a single
line of delimitation, but they viewed this concept differently. For its
part, Guinea-Bissau wished to have the continental shelf and the exclusive
economic zone re-aligned, by means of a synthetic line, on the basis of
equitable principles. As for Senegal, it wished to have the existing 240"
line raised to divide the exclusive economic zone. The argument of
indivisibility, which seeks to identify the various components of the
maritime boundary and make them coincide, cannot therefore be used to
support Guinea-Bissau's thesis that whatever the reply to the first
question, the Tribunal should have proceeded to the ex novo delimitation in
accordance with the second question.
Nor can it be said that the Tribunal's task is indivisible. The Tribunal was
asked to determine, if it answered the first question in the negative, the
course of the line forming the maritime boundary. The first question was
answered in the affirmative, and there the task of the Tribunal ended.
Guinea-Bissau cannot now claim that something was left undone. This
"something" did not and cannot form the object of arbitration because it did
not exist at the time of the conclusion of the 1960 Agreement.
It is true that in the preambular part of Article 2 and also in Article 9,
[p 104] paragraph 1, of the compromis, the word "question" was used in the
plural. But such details of drafting cannot be relied upon to contradict the
meaning of the instrument as a whole, since at the time of its conclusion it
was not known whether both questions might have to be answered or not.
Guinea-Bissau has further contended that the Tribunal failed to exercise its
power under the compromis to make a decision on the course of a single line
delimiting all the maritime spaces and to indicate the boundary line on a
map. Since, as has been said before, the Tribunal was not called upon to
answer the second question, there was no occasion to delimit such a boundary
line and it naturally followed that no map could have been appended.
As to the question of whether or not there has been sufficiency of
reasoning, it is important not to base oneself solely on paragraph 87 of the
Award. Paragraph 87 only reaches a reasoned conclusion from what has been
discussed. The reasons in support of the conclusion arrived at in paragraph
87 were, to a large extent, given earlier in the Award. The principal point
is the affirmation of the validity of the 1960 Agreement, as a consequence
of which the second question did not have to be answered. And since no ex
novo delimitation of the maritime boundary was to take place, a map could
not have been produced. All these points are interrelated. The reason is
self-evident. There is no basis for regarding the question of the map as an
independent matter and saying that no adequate reason is given for its
omission.
The line of reasoning that led the Tribunal to the conclusion in paragraph
87 is clear. After analysing the question of the validity of the 1960
Agreement, the Tribunal, in paragraph 80 of the Award, observes that "the
1960 Agreement is valid and can be opposed to Senegal and to Guinea-Bissau".
In paragraph 85 of the Award, the Tribunal states that the 1960 Agreement
must be interpreted in the light of the law in force at the date of its
conclusion. Then it concludes in the same paragraph that the Agreement does
not delimit the maritime spaces which did not exist at that date, whether
they be termed "exclusive economic zone", "fishery zone" or whatever.
It is also to be noted that paragraph 87 and paragraph 88 are intimately
linked to each other. In paragraph 88 the Tribunal found that the 1960
Agreement had the force of law in the relations between Guinea-Bissau and
Senegal with regard to the areas mentioned in that Agreement. Consequently,
by the terms of Article 2 of the Arbitration Agreement, the Tribunal did not
have to answer the second question. Such was the conclusion of paragraph 87
of the Award. When the Tribunal adopted paragraph 88 by two votes to one, it
necessarily endorsed the reasoning behind paragraph 87.
On the basis of such analysis and conclusions, the Tribunal then concluded
that it was not called upon to reply to the second question. The decision on
the question of the map follows that on delimitation of the maritime
boundary. Since the first question put in Article 2 of the compro-[p 105]
mis was answered in the affirmative, no ex novo delimitation took place.
Consequently, no map was called for. The reasoning is succinct, but it is
sufficiently clear for the purposes of the Award.
For the foregoing reasons, Guinea-Bissau's subsidiary submission that the
Award of 31 July 1989 should be declared a nullity cannot be sustained.
(Signed) NI Zhengyu.
[p 106]
SEPARATE OPINION OF JUDGE SHAHABUDDEEN
I agree with the decision reached by the Court. My thought is that, on some
aspects, it could have been stronger than it is. On the main issue as to
whether the Tribunal should have answered the second question put to it by
the Arbitration Agreement, the Court sustains the Award on the ground that,
in holding that it was not competent to reply to that question, the Tribunal
interpreted the Agreement in a way in which it could have been interpreted
without manifest breach of its competence. The Court did not go on to
consider whether the Tribunal's interpretation was indeed correct. The
explanation lies in the view which the Court took of the scope of its own
authority in these proceedings. I give my reasons below for holding, first,
that, subject to considerations of security of the arbitral process with
respect to finality of awards, the scope of the Court's authority did not
preclude it from pronouncing on the correctness of the Tribunal's
interpretation; and, second, that the latter was in fact the correct
interpretation.
I. Whether It Was Competent for the Court to Pronounce on the Correctness of
the Tribunal's Interpretation of the Compromis
Guinea-Bissau's chief complaint is that the Arbitration Tribunal failed to
accomplish its mission, in that it was required to answer the second
question put to it by the Arbitration Agreement but did not do so, and that
on this account the Award is a nullity. It appears to me that, the Court
having held that it had jurisdiction, the appropriate course was for it to
determine, in accordance with the applicable principles of treaty
interpretation, whether the Arbitration Agreement did require the Tribunal
to answer that question. If the Court's interpretation differed from that of
the Tribunal, the next step was to see if the latter was equally plausible
with the former. If the two were equally plausible, as being each justified
by some legitimate process of interpretation, considerations of security of
the arbitral process with respect to finality of awards would suggest that
the Court should refrain from substituting its own interpretation for that
of the Tribunal. The Court would be justified in making a substitution only
where it was satisfied that the Tribunal's interpretation disclosed a
compellingly clear and substantial error as to its powers. A marginal or
debatable case would not suffice.
I should have thought, with respect, that this approach was reasonably
straightforward; that it had the advantage of enabling the Court to resolve
[p 107] the point of substance, and of obvious concern to Guinea-Bissau, as
to whether the Tribunal's interpretation was right or wrong; and that it
provided all the safeguards fairly needed to ensure the stability of the
international arbitral process.
That has not however been the course followed by the Court. The drift of the
Court's reasoning moves, indeed, in the direction of a finding that the
Tribunal was right in holding that it was not competent to answer the second
question, and the reader of the Judgment (particularly paragraph 56) may
well think that this is the natural result. The Court, however, stops short
of making a finding to that effect, limiting itself to a holding in these
terms:
"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." (Judgment, para.
60.)
The Judgment thus stands arrested at the threshold of the issue whether the
Tribunal was correct in its interpretation of the compromison the specific
point as to whether it was competent to answer the second question. The
reason is to be found in the Court's use of the distinction between nullity
and appeal in relation to decisions made in exercise of la competence de la
competence. Referring to Guinea-Bissau's argument on the point in question,
the Judgment reads:
"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 nullite. 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." (Judgment, para.
47.)
The problem with this approach is that, apart from leaving undetermined a
question of importance to one of the litigants as to whether the Tribunal's
interpretation was in fact correct, it, at least theoretically, leaves open
the possibility that the interpretation was not. For, to characterize the
Tribunal's interpretation as being merely one which could be placed on the
Arbitration Agreement "without manifest breach of its competence" is to
leave open the possibility that some other interpretation could also be
placed on it "without manifest breach of its competence"; [p 108] paragraph
47 of the Judgment, quoted above, accepts as much. All of such possible
interpretations could not be right.
The foundation of the Court's approach lies in the concept of la competence
de la competence. Certain aspects of the scope and basis of this power may
be briefly noticed for present purposes.
First, as to the scope of the power. This is indeed wide. But, wide as is
the power, its exercise is, of course, limited by the consideration that its
purpose is to ensure that the mission authorized by the compromis does not
fail for want of power to interpret the latter, as historically it was once
feared possible; the purpose is not to permit the Tribunal, through possible
misinterpretations, to endow itself with an original jurisdiction materially
different from that contemplated by the Parties. This, if it happened, would
be ruinous to the older and even more fundamental principle extra
compromissum arbiter nihil facere potest. As observed by one commentator,
recalling the position taken by the United States commissioner in The
Betsey, "La r�gle de la competence de la competence et l'exc�s de pouvoir ne
se concevaient pas l'un sans l'autre: mieux ils s'expliquaient l'un par
l'autre" (Georges Berlia, ''Jurisprudence des tribunaux internationaux en ce
qui concerne leur competence", Collected Courses of the Hague Academy of
International Law, Vol. 88, p. 109, at p. 129). In the words of another, "si
l'arbitre est juge de sa competence, il n'en est pas le ma�tre" (Charles
Rousseau, Droit international public, Vol. 5, 1983, p. 326, para. 312). That
the two principles referred to are in tension has been noticed in the
literature (R. Y. Jennings, "Nullity and Effectiveness in International
Law", in Cambridge Essays in International Law, Essays in Honour of Lord
McNair, 1965, p. 64, at p. 83). In the present case, that general tension
surfaces as a specific legal problem needing to be addressed and resolved by
the Court. In short, la competence de la competence being not absolute but
qualified, the question here, as in all cases, is not whether the Tribunal
has exercised the competence simpliciter, but whether the Tribunal has
exercised it within the bounds to which it is always and necessarily
subject.
Next, as to the basis of the power. The question has been discussed in the
books as to whether the finality of an arbitral award rests on the treaty of
submission or on the authority which international law attaches to decisions
of tribunals vested with jurisdiction to decide with obligatory force, or
indeed on both (see, inter alia, Louis Cavare, "L'arr�t de la CIJ du 18
novembre 1960 et les moyens d'assurer l'execution des sentences arbitrales",
in Melanges offerts � Henri Rolin, 1964, p. 39, at pp. 41-42; and J. C.
Witenberg, L 'organisation judiciaire, la procedure et la sentence
internationales, 1937, pp. 352-353). That the treaty of submission does have
a role is, however, generally admitted. Hertz connected the two ideas this
way:[p 109]
"La source du caract�re obligatoire de la sentence arbitrale ne vient pas
d'en haut, d'une autorite superieure, mais d'en bas, d'un traite concliu par
les parties, qui se soumettent ainsi a la norme du droit coutumier
international bacta sunt servanda�, qui est en m�me temps la norme
fondamentale du droit des gens conventionnel." (Wilhelm Gr. Hertz, "Les
'fondements' de la nullite dans la justice internationale", Revue
internationale de la theorie du droit, 1938, Vol. 12, p. 327, at p. 331.)
Carlston gave his understanding of the position in these words:
"By entering into the arbitration agreement and participating in the
proceedings before the tribunal, the parties impliedly engage to execute the
award when rendered." (K. S. Carlston, The Process of International
Arbitration, 1946, p. 205.)
The finality of an arbitral award is a well-settled part of customary
international law; but it is a part of the law which leans on the actual or
presumed will of the parties.
It is likewise the case that "[t]he competence of an arbitral tribunal to
decide questions. of its own jurisdiction is unquestionably firmly
established as a principle of international arbitral law" (ibid., p. 74).
Many authorities attest to the principle and rightly proclaim its
importance. But it seems to me that the law on the point, clear and settled
as it is, is itself founded on the theory of such competence being
ultimately derived from a grant presumed by law to have been made to the
tribunal by the parties, who are always competent to do so expressly. This
is illustrated by Article 14 of the 1875 draft Arbitral Procedure of the
Institut de droit international, reading:
"Dans le cas o� le doute sur la competence depend de I'interpreta-tion d'une
cllause du compromis, les parties sont censees avoir donne aux arbitres la
faculte de trancher la question, sauf clause contraire." (Ernest Lehr,
Tableau general de l'organisation, des travaux et du personnel de
l'irnstitut de droit international pendant les deux premi�res periodes
decennales de son existence (1873-1892), 1893, p. 127.)
Some 80 years later, this significant "clause contraire" was reflected in
the Court's statement in the Nottebohm case (cited in paragraph 46 of the
Judgment in the present case) to the effect
"that, in the absence of any agreement to the contrary, an international
tribunal has the right to decide as to its own jurisdiction and has the
power to interpret for this purpose the instruments which govern that
jurisdiction" (I.C.J. Reports 1953, p. 119; emphasis added; and see Berlia,
loc. cit., p. 117).
The theory, it would seem, is that, where they abstain from exercising their
right to exclude the power, the parties "sont censees avoir donne aux
arbitres la faculte de trancher la question". [p 110]
From the point of view of the scope and basis of la competence de la
competence, the juridical problem which arises may therefore be expressed
thus: when the parties invest an arbitrator, whether expressly or by
implication of law, with competence to interpret the compromis, within what
limits, if any, are they to be understood as thereby engaging to be bound by
an exercise of the competence by the arbitrator which results in a
misinterpretation by him of the compromis concerning his powers ? In the
present case, the question would be whether it was the will of the Parties
that they should be bound by a misinterpretation � if there was any � of the
compromis on the important and major issue as to whether the second question
was required to be answered. Conceivably, in the larger interests of
securing a resolution of their dispute, the Parties might be understood as
having undertaken to be bound by decisions made within some tolerable margin
of appreciation as to competence in minor matters even though erroneous.
Should they be understood as having undertaken to be likewise bound by
erroneous decisions as to the powers of the Tribunal going to the substance
of its mission ? Scarcely so. But then, when such a question arises, as it
in effect arises here, how is it to be answered unless the Court can say
whether, as a matter of treaty interpretation, the Tribunal's decision was
indeed correct? It is not clear why the Court must instead regard the matter
as concluded by the fact that the Tribunal has placed on the compromis an
interpretation which could have been placed on it without manifest breach of
its competence. That way of putting it leaves open the possibility that,
while such an interpretation might well be right, it could, at least in
theory, be also wrong.
It may be useful to consider two cases involving contentions of nullity of
an arbitral award, namely, the Orinoco Steamship Co. case and the case of
the Arbitral Award Made by the King of Spain on 23 December 1906.
In the Orinoco Steamship Co. case the Permanent Court of Arbitration made
the point that "the appreciation of the facts of the case and the
interpretation of the documents were within the competence of the umpire"
and that �
"his decisions, when based on such interpretation, are not subject to
revision by this tribunal, whose duty it is not to say if the case has been
well or ill judged, but whether the award must be annulled; that if an
arbitral decision could be disputed on the ground of erroneous appreciation,
appeal and revision, which the Conventions of the Hague of 1899 and 1907
made it their object to avert, would be the general rule" (The Hague Court
Reports, ed. J. B. Scott, 1916, p. 226, at p. 231).
These remarks, particularly about "the appreciation of the facts of the case
and the interpretation of the documents" being "within the competence of the
umpire", related to decisions made by him on the merits of the case, not to
decisions made by him in exercise of la competence de la [p 111] competence,
the point being that a challenge of nullity against a decision of the latter
kind does not entitle the reviewing forum to revise the Tribunal's
appreciation of the facts and documents leading to its decision on the
merits. As to decisions made in exercise of la competence de la competence
(relating in the particular case to a duty under the compromis to apply
absolute equity), it would seem that the Permanent Court of Arbitration
proceeded directly to consider whether the decision made by the umpire as to
his powers, or the way they should be exercised, was correct.
The decision of this Court in the case concerning the King of Spain's Award
likewise did point out "that the Award is not subject to appeal and that the
Court cannot approach the consideration of the objections raised by
Nicaragua to the validity of the Award as a Court of Appeal" (Z.C.J. Reports
1960, p. 214, and paragraph 25 of the Judgment in this case). However, it is
difficult to see this consideration at work when the Court came to deal with
what appeared to be a challenge to an exercise of the arbitrator's
competence de la competence. The Court did dispose of one branch of the
arguments by taking the view that certain possible interpretations of the
articles of the G�mez-Bonilla Treaty relating to the procedure for
appointing the arbitrator were interpretations which could have been placed
on those provisions in exercise of the power of the two national arbitrators
to interpret them; but this concerned the constituent "power of the [two
national] arbitrators to interpret and apply the articles in question in
order to discharge their function of organizing the arbitral tribunal"
(ibid., p. 206), and not the functions of the tribunal after it had been set
up. As regards these functions, one question which did arise was whether the
adjudicating arbitrator misconstrued the compromis in assuming that it gave
him power to grant compensations in order to establish a well-defined
natural boundary line. It does not appear that the Court approached the
problem on the basis that the only question before it was whether the
interpretation made by the arbitrator was one which could have been made by
him without manifest breach of competence; it determined that the
interpretation made by him was in fact correct, and it did so after carrying
out its own "examination of the Treaty" and making its own interpretation
(ibid., p. 215). My understanding is that when the Court said that it was
not a Court of Appeal and added that it "is not called upon to pronounce on
whether the arbitrator's decision was right or wrong" (ibid., p. 214), the
decision of the arbitrator to which it was there referring was his decision
on the merits of the case, not his decision interpreting the compromis as to
his powers when dealing with the merits. As mentioned above, my impression
is similar as regards the corresponding remark by the Permanent Court of
Arbitration in the Orinoco Steamship Co. case.
In both of the two cases mentioned, the references by the reviewing forum to
the distinction between appeal and nullity seemed intended by it as a
reminder to itself that in a case of nullity it should not stray into a
re-assessment of the merits of the decision being challenged, the only issue
before it being whether the decision resulted from a valid exercise of [p
112] adjudicating power, not whether, if it did, it was correct on the
merits. Without dogmatically excluding the possibility of other
interpretations, I do not understand either of the two cases to be
suggesting that, where a case of nullity is based on a challenge to the
correctness of an interpretation made by the tribunal of the compromis
concerning its powers, the reviewing forum is confined to asking merely
whether the interpretation made by the tribunal was one which could have
been made by it without manifest breach of its competence and is excluded
from pronouncing on the correctness of the interpretation where this is held
to be one which could have been so made. In the exercise of such powers of
adjudication as it may in fact have, a tribunal undeniably has powers of
appreciation over the factual and documentary material laid before it for
evaluation and decision. So also, to some extent, where the competence of
the tribunal depends on its appreciation of some matter in its relationship
to the jurisdictional provisions of the compromis (Interpretation of the
Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV),
Advisory Opinion, 1928, P.C.I.J., Series B, No. 16, pp. 19-22; and J. L.
Simpson and Hazel Fox, International Arbitration, Law and Practice, 1959, p.
252). But such powers of appreciation are of a significantly different order
from powers of appreciation as to what powers of adjudication are in the
first instance conferred on the tribunal by the compromis itself.
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 compromise 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 [p
113] 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.
II. Whether the Tribunal Was Correct in Interpreting the Compromis to Mean
That It Was Not Called Upon to Answer the Second Question
I am of opinion that the Tribunal was correct in interpreting the compromis
to mean that it was not called upon to reply to the second question.
Guinea-Bissau's contention that recourse should have been had to the second
question is based on its argument that the overriding object and purpose of
the Arbitration Agreement, particularly as suggested by the Preamble, was
that there should in any event be a delimitation by a single line of all the
maritime spaces of the Parties which were the subject of the dispute between
them. This was the premise on which learned counsel for Guinea-Bissau put
its case when he said:
"the first and second questions asked in Article 2 were the parts of an
overall question: what is the maritime boundary, namely the boundary of all
the maritime spaces ? If it derived from the exchange of letters, the reply
to the overall question would stem from that to the first question;
otherwise, it would stem from the reply to the second." (Public sitting of 9
April 1991 (afternoon), CR 91/7, p. 58, Professor Galv�o Teles.)
This interpretation of the two questions, founded on the desideratum of a
comprehensive delimitation, is attractive; some support for it may indeed be
claimed from the jurisprudence which, in several well-known cases, warns of
the limitations of a narrow grammatical approach which, by inhibiting the
Court from ascertaining what the parties really did mean when they used the
words falling to be construed, could result in the defeat of the true object
and purpose of a treaty.
But, taking full account of the flexibility of that jurisprudence, is
Guinea-Bissau's reading of the two questions reasonably reconcilable with
their actual formulation? Without any necessity to call upon the travaux
preparatoires, I would grant that the Arbitration Agreement itself does
indicate a general desire of the Parties for a comprehensive settlement of
their dispute. Yet, it appears to me that the operative provisions of the
Agreement demonstrate a specific intention not fully congruent with that
general desire, in the sense that the intention, as so demonstrated, was
indeed to realize that desire, and to realize it through the arbitration
provided for, but only subject to a condition precedent which, as it turned
out, [p 114] was not satisfied. It is this partial discrepancy between
apparent wish and specific machinery which constitutes the special legal
problem in this case. How is the problem to be resolved ?
The key provisions of the Arbitration Agreement, as set out in Article 2,
put two questions to the Tribunal, stated in such a way as to make it clear
that, while the first question had to be answered in any event, the second
had to be answered only "[i]n the event of a negative answer to the first
question ...". Thus, the very structure of the provision contemplated the
distinct possibility that only the first of the two questions might require
to be answered. This being so, to make good the argument that the Tribunal
was obliged to produce a comprehensive delimitation in any event, it would
have to be shown that the Tribunal was both competent and bound to produce
such a delimitation by way of answer to the first question if, for any
reason, that question alone fell to be answered. However, it seems clear
(and this aspect is revisited below) that a comprehensive delimitation could
in no circumstances be produced by way of answer to the first question. It
being also clear that that question could nevertheless be the only question
requiring to be answered, it follows that the argument that the Tribunal was
obliged in any event to produce a comprehensive delimitation fails. With
that failure, the conceptual foundation of Guinea-Bissau's case is removed.
And the case ends.
What, however, is the position if this conclusion is wrong? As has been
seen, Guinea-Bissau's argument was this � that a comprehensive delimitation
was necessary in any event, and that, accordingly, if the answer of the
Tribunal to the first question did not in fact produce such a delimitation,
it was necessary to pass to the second question in search of one. This
argument might seem to imply that Guinea-Bissau was taking the position that
the first question did embrace the possibility of establishing a
comprehensive delimitation under it. However, it has to be recalled that, in
the arbitral proceedings, Guinea-Bissau resisted, and successfully resisted,
a contention by Senegal that an answer to the first question, upholding the
1960 Agreement, could produce a comprehensive delimitation. Senegal, for its
part, accepted the Tribunal's decision on this point. Before this Court
neither side took the position that it was possible, even theoretically, for
a comprehensive delimitation of any kind to be produced by any conceivable
answer to the issue raised in that question as to whether the 1960 Agreement
had the force of law in the relations between the Parties. That question was
simply not directed to the establishment of a comprehensive delimitation of
any kind. Thus, although it is perfectly true, as repeatedly emphasized by
Guinea-Bissau, that the Tribunal's answer to the first question did not in
fact produce a comprehensive delimitation, there is no point in saying so
if, to begin with, that question was not directed to the establishment of
any such delimitation. There would be no point in saying so because the
statement would be based on a non-existent premise. Accordingly, the fact
that no such delimitation was effected [p 115] under the first question did
not in logic provide a reason for having recourse to the second question.
It may be argued that, although, for the reasons given by the Tribunal, the
1960 line could not constitute a comprehensive delimitation, this did not
mean that the first question could not be construed as asking the Tribunal
to Say whether that line, if upheld, constituted such a delimitation, and
that the answer which the Tribunal gave amounted to a partially negative
answer to the question thus understood. It is difficult, however, to
discover in the wording of the question the ingredients of such a
construction. A possible argument is that the reference in the question to
"the relations" between the Parties was a reference to their relations in
respect of the boundary throughout all of the existing maritime spaces, and
not merely those maritime spaces which existed in 1960, with the result that
the Tribunal, if it upheld the 1960 Agreement, would be required to consider
whether the Agreement governed all of their relations in this comprehensive
sense. My difficulty with the argument is that it seems necessary to
distinguish "the relations" between the Parties from the subject-matter of
the relations. The word "relations" by itself means the "various modes in
which one country, state, etc., is brought into contact with another by
political or commercial interests" (The Shorter Oxford English Dictionary,
3rd ed., 1984, p. 1796), or "the connections between . . . nations"
(Webster's New Dictionary and Thesaurus, Concise Edition, 1990, p. 459). It
appears to me that these "connections" may concern a variety of interests
and that a reference to the former does not by itself suffice to identify
the latter. Accordingly, the reference in the first question to "the
relations" between the Parties does not by itself identify the particular
maritime spaces which those relations concern. These are to be collected
from the reference in the question to the 1960 Agreement, which of course
concerned only some of the existing maritime spaces of the Parties. In
effect, in asking whether the 1960 Agreement had the force of law in the
relations between the Parties, the first question was asking whether the
Agreement had such force as regards the boundary delimiting the maritime
spaces referred to in the Agreement, and not also as regards maritime spaces
not therein referred to. There is nothing in the question which supports the
view that it was asking the Tribunal to Say whether the 1960 line, if
upheld, was to have an extended application throughout all of the existing
maritime spaces of the Parties.
It may be said that this conclusion does not represent the Tribunal's own
interpretation of the first question. Having held that the 1960 Agreement
had the force of law in the relations between the Parties, the Tribunal
passed on to consider the spatial application of the Agreement. Senegal had
contended that, by reason of certain factors, the line laid down by the 1960
Agreement applied to all of the maritime spaces of the Parties as now known
to international law, and was accordingly no longer restricted to the spaces
specified in the Agreement itself. Speaking in this connection, the Tribunal
said: [p 116]
"The Tribunal is not attempting to determine at this point whether there
exists a delimitation of the exclusive economic zones based on a legal nom
other than the 1960 Agreement, such as a tacit agreement, a bilateral custom
or a general nom. It is merely seeking to determine whether the Agreement in
itself can be interpreted so as to cover the delimitation of the whole body
of maritime areas existing at present." (Award, para. 83.)
Do these remarks mean that the Tribunal understood the first question to be
asking it to Say whether the delimitation effected by the 1960 Agreement, if
upheld, governed all of the maritime areas existing at present? If so, the
answer which it gave � that the Agreement applied only to the territorial
sea, the contiguous zone and the continental shelf � may well be regarded as
a negative answer to the first question and as therefore requiring recourse
to the second.
However, reading the quoted statement in context, I do not think it shows
that the Tribunal understood the first question to be asking it to say
whether the 1960 line applied comprehensively. In response to Senegal's
contention, the Tribunal carefully differentiated between the delimitation
effected by the 1960 Agreement itself and any possible additional
delimitation subsequently effected on the basis of "a legal nom other than
the 1960 Agreement, such as a tacit agreement, a bilateral custom or a
general nom". The Tribunal held that the first question was confined to the
1960 delimitation and raised no issue about any other possible delimitation.
Consequently, the Tribunal was concerned under the first question only with
the spatial application of the delimitation effected by the 1960 Agreement
itself, and not also with the spatial application of any possible additional
delimitation subsequently effected on a basis other than that Agreement. It
was precisely because the Tribunal understood the first question in this
limited way that it rejected Senegal's contention that the 1960 Agreement
applied to all existing maritime spaces. That was a negative answer to a
question raised by Senegal; it was not a negative answer to the first
question presented by the Arbitration Agreement.
Nor could the Tribunal's answer be regarded as a partial answer to the first
question. The non-applicability of the 1960 Agreement to maritime spaces not
referred to in it does not mean that the Agreement was not wholly in force.
How far the Agreement had the force of law in the relations between the
Parties was to be measured by reference to the maritime spaces to which it
referred, not by reference to maritime spaces to which it did not refer. The
Agreement was in force between the Parties to the entire extent visualized
by its own terms; it was fully in force.
There could be argument � and such argument was in fact advanced by Senegal
� that the Tribunal's task was merely to Say whether the [p 117] 1960
Agreement had the force of law "in the relations between the" Parties, and
that it was not required to determine the field of application of the
Agreement, if upheld. I do not pursue that question, because even if the
Tribunal was so required, the answer which it gave, both as to the
applicability and the scope of the Agreement, could not, in my opinion, be
regarded as a negative answer so as to require recourse to the second
question.
For the reasons given, it appears to me that the two questions were not
directed to the achievement of the same thing. They were both concerned with
the same general subject, but they were addressed to different aspects of
it. I agree with the Court that the first question was concerned with the
issue whether the 1960 Agreement had the force of law in the relations
between the Parties, while the second was directed to the making of a
maritime delimitation in the event that the Agreement did not have such
force. The Tribunal was indeed required to undertake a delimitation of all
the maritime areas of the Parties, but only on condition that it first found
that the 1960 Agreement did not have the force of law in the relations
between them. As this condition � a condition precedent � was not satisfied,
the duty to undertake such a delimitation was never triggered off. To hold
otherwise is effectively to say that the Tribunal was bound to answer the
second question whatever was its answer to the first � a proposition needing
only to be stated to be dismissed.
It may be said that there is little to recommend a method of interpretation
which is so strict as to lead to a construction of the Arbitration Agreement
"according to which it would . . . fail entirely to enunciate the question
really in dispute ..." (see remarks of the Permanent Court of International
Justice in the Free Zones of Upper Savoy and the District of Gex, P.C.I.J.,
Series A/B, No. 46, p. 96, at p. 139). Since the actual dispute between the
Parties in this case extended to all of their existing maritime spaces, it
may be contended that any interpretation which excluded the possibility of a
comprehensive settlement through recourse to the second question is an
interpretation which fails to enunciate the question really in dispute. On
the other hand, to require recourse to be had to the second question
notwithstanding the Tribunal's affirmative answer to the first is so
palpable a disregard of the preclusive words with which the second question
begins as to invite attention to other applicable considerations.
In his earlier capacity as a Member of this Court, Judge Andre Gros, one of
the two arbitrators who voted for the Award, had occasion, first in 1974 and
then again in 1984, to refer to the following passage from Charles De
Visscher (Probl�mes d'interpretation judiciaire en droit international
public, 1963, at pp. 24 and 25):
"The function of interpretation is not to perfect a legal instrument with a
view to adapting it more or less precisely to what one may be tempted to
envisage as the full realisation of an objective which was logically
postulated, but to shed light on what was in fact the will of the Parties."
(Fisheries Jurisdiction (United Kingdom v. Iceland), [p 118] I.C.J. Reports
1974, dissenting opinion, p. 149; and, Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland), I.C.J. Reports 1974, dissenting opinion,
pp. 238-239. See likewise the Delimitation of the Maritime Boundary in the
Gulf of Maine Area, I.C.J. Reports 1984, dissenting opinion, p. 388, where
the English translation is slightly different.)
Judge Anzilotti is on record as observing that, were the Permanent Court of
International Justice to confine itself to answering only part of the
question "which has been put to it", the Court would be committing "an abuse
of its powers" (Customs Regime between Germany and Austria, Advisory
Opinion, 1931, P.C.I.J., Series A/B, No. 41, p. 37, at p. 69). However, to
avoid a petition principii, it must first be determined what is the question
requiring to be answered (Free Zones of Upper Savoy and the District of Gex,
P.C.I.J., Series C, No. 58, at pp. 445, 610-613, Professor Logoz, for
Switzerland, arguendo). Thus, although a compromis may show that the parties
desire an answer to all of certain questions, the way in which the questions
are actually framed can conceivably prevent the tribunal from dealing with
all of them. Treating of a case of this kind, in which it held that one of
certain questions could not be answered because of the way it was
constructed, the Permanent Court of International Justice seemed unmoved by
the circumstance that the Court was expressly required by the compromis to
answer all of the questions "by a single judgment". Nor did it yield to
argument that �
"the conclusion of the Special Agreement represented a compromise between
the opposing views of the Parties � one of the two States being particularly
interested in the legal question submitted to the Court in Article 1, and
the other in the subjects dealt with in Article 2 � and that to give
judgment only on the question of law submitted by Article 1 was unjust, as
it destroyed the balance between the two Parties" (Free Zones of Upper Savoy
and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p.
96, at p. 163).
That argument, it may be thought, carries a certain analogical force in this
case. However, without entering into the reasons why it failed in that case,
I take the view that it would fail equally in this case; reflections about
possible difficulties created by the Award for the completion of a
comprehensive delimitation, though deserving of consideration, are not
decisive. Referring to the way the particular question had been formulated
in the Free Zones case, the Permanent Court of International Justice said:
"If the obstacle to fulfilling part of the mission which the Parties
intended to submit to the Court results from the terms of the Special
Agreement itself, it results directly from the will of the Parties ..."
(Ibid.) [p 119]
It seems to me that in the case at bar such an obstacle is presented by the
will of the Parties themselves as expressed by them in the prefatory words
of the second question. Moreover, those words having been introduced at the
instance of Guinea-Bissau itself, there is a sense in which it is apposite
to bear in mind that, as was once said by Judge Anzilotti, "it is only fair
that a government should bear the consequences of the wording of a document
for which it is responsible" (Polish Agrarian Reform and German Minority,
P.C.I.J., Series A/B, No. 58, p. 175, dissenting opinion, at p. 182). The
controlling words in this case are clear. Every effort to put a gloss on
them founders on Professor Rolin's remark, "la Cour estimera sans doute
qu'il faut lire ce qui est ecrit" (I.C.J. Pleadings, Anglo-Iranian Oil Co.,
p. 486).
The international arbitral process provides a useful procedure of peaceful
settlement. The international community rightly values the process. Clearly,
its utility must be protected against open-ended challenges to the finality
of awards. Equally clearly, it would be misconceived to seek to protect the
system by suffering any serious fault in its operation to remain remediless:
the preservation of the system and the vindication of its credibility are
interlinked. In my opinion, however, the complaint in this case has not been
made out. True, the Award of the Tribunal did not result in a delimitation
of all the maritime areas in dispute. However, this is a comment not on the
Award, but on the way the Parties chose to frame the questions put to the
Tribunal. As to why they framed the questions in the way they did, a court
of law need not look beyond the words of Charles De Visscher:
"Il n'est pas rare qu'il faille considerer comme adequate une interpretation
qui n'assigne au traite qu'une efficacite restreinte, � premi�re vue peu
conforme a ce qui, en bonne logique, pourrait appa-ra�tre comme son but.
Cette inefficacite partielle peut s'expliquer, en fait, par la volonte
reflechie des contractants de ne pas s'engager au-del� d'un certain point."
(De Visscher, op. cit., p. 77.)
(Signed) Mohamed Shahabuddeen.
[p 120] JOINT DISSENTING OPINION OF JUDGES AGUILAR MAWDSLEY AND RANJEVA
[Translation]
1. While endorsing the decisions and analysis of the Court with respect to
both inexistence and the "abuse of legal process", we feel we should explain
Our disagreement with the interpretation that the Court, by the vote of the
majority of its Members, is giving to the rules of law whose application has
occasioned the dismissal of the Application alleging the nullity of the
contested Award. We are convinced that the Court should have declared the
contested Award of 31 July 1989 to be an absolute nullity, as shown by our
vote on paragraph 2 of the Operative Part of the Judgment in this case. But
since the Court did not share this conviction, nothing stood in the way of
an affirmative or a negative vote on paragraph 3, concerning the effects of
the validity of the Award.
2. The case is of ,a particular significance because of the problems of
judicial and arbitral rnethod that it raises. It presents some particular
difficulties as it is the kind of case in which the solution adopted by the
Court depends upon the Wray in which the problems are tackled. An approach
based upon primarily technical considerations will be bound to prove
unsatisfactory in so Car as it does not enable one to resolve the permanent
interactions between the nom and the methods of interpretation of that nom.
Indeed, an examination of the nullity/validity or even invalidity of an
arbitral award involves a decision on the epistemological validity of the
interpretation adopted by the arbitration tribunal.
3. In the present case, it will be seen from the outset that, while
validating the Arbitral Award, the Court has quite rightly shown no
hesitation about stressing the lacunae and weaknesses of that Award.
Moreover, the Parties to the dispute, going beyond their declarations of
principle, have announced that they were disposed to make judicial and/or
conventional arrangements to cope with the effects of any finding of nullity
of the contested Award. Guinea-Bissau has filed a new Application on the
merits the submissions of 7which have been reproduced in the text of the
Judgment, whereas Senegal declares that it is ready to envisage either
negotiations or recourse to this Court. This convergent will of the Parties
to arrive at a definitive solution of the whole of the dispute, on the basis
of law, should be approved and given full support. However, from a strictly
legal standpoint, one cannot be certain of a definitive solution of the
dispute between Guinea-Bissau and Senegal, in spite of proceedings that have
already proved unduly lengthy, very complex and excessively costly for [p
121] States whose econoimies, particularly in the case of the Applicant, are
dependent upon maritime resources FNl.
---------------------------------------------------------------------------------------------------------------------
FN1
A reference to Article 33, paragraph 1, of the Charter of the United Nations
by analogy with Article 279 of the United Nations Convention on the Law of
the Sea, would have been welcome.
---------------------------------------------------------------------------------------------------------------------
4. Because of the nature of the Court's jurisdiction, the present
proceedings being neither an appeal nor application for cassation but an
application for annulment, we shall abstain from criticizing the substance
of the findings of the Arbitration Tribunal which are the collective
responsibility of that Tribunal. Moreover, because of the new Application
filed by Guinea-Bissau, certain questions must, in petto, be seen as pending
before the Court.
5. However, the International Court of Justice, as the principal judicial
organ of the international community, has in our view a specific mission,
that of securing the promotion of international peace and security and the
development of friendly relations between States � or, in other words, the
peaceful settlement, by judicial means among others, of such disputes as
arise between the States. On that score, the Court is naturally inclined,
because of the way in which judges are recruited and the representation of
the principal legal systems, to lend support to arbitral solutions, even
though it may be led to cast a critical eye upon arbitral awards, once there
has been any question about the arbitrators' respect for procedural law, and
to prove exacting with respect to the evident character of authority of an
award. This is the price of providing a sounder basis for legal security in
international relations and of consolidating the trust placed by States,
more particularly by developing States, in this mode of dispute settlement.
6. Three points linked to the problem of the authority of the Arbitral Award
of 31 July 1989 lead us to make some critical comments:
1. The authority of the Arbitral Award of 31 July 1989 and resjudicata;
II. The question of the definitive settlement of the whole of the dispute
between Guinea-Bissau and Senegal;
III. The shortcomings of the Arbitration Tribunal and exc�s de pouvoir.
***
I. The Authority of the Arbitral Award of 31 July 1989 AND RES JUDICATA
7. The failure to resort to the legal concept of res judicata is worthy of
note. Indeed, the irrebuttable presumption of legal truth that attaches to a
judicial decision once it has become final is an institution common to all
systems of law and serves as a basis for the binding character of judicial
[p 122] decisions. In our preliminary observations, we mentioned that the
Court has criticized the Award. Moreover, the arbitral proceedings were
punctuated by various regrettable facts. We refer, in particular, to the
method and excessively lengthy duration of the arbitral proceedings, the
Tribunal's technique of work, the unjustified absence of one arbitrator, the
declaration made by the President of the Tribunal, and the incomplete
character of the delimitation after the Tribunal had done its work. Taken
separately, these criticisms may not suffice to justify, in strict law, a
finding of nullity. However, if considered cumulatively, those objections do
constitute a set of facts which, on the one hand, are such as to give rise
to a very serious doubt directly affecting the intrinsic value of a judicial
decision while, on the other hand, producing effects that undermine the very
authority of the Award and its capacity to serve as a basis for dispute
settlement.
8. As a matter of legal technique, the Court would have had no difficulty in
rejecting the Applicant's request by invoking against it, firstly, the
provisions of Article: 10 of the Arbitration Agreement and, secondly, the
rule of res judicata with its consequences in law. Such a response would
have been acceptable from the standpoint of legal formalism and would have
had the virtue of simplicity. However, the approach adopted is open to
criticism on the grounds that the Court, having observed that the Tribunal
had correctly accomplished its mission, then proceeds to its own analysis of
the nature of the relationship between the first and second questions in
Article :2 of the Arbitration Agreement.
In our view, the Court should have followed up on that approach by giving
prominence to the interaction between the complaints against the Award and
its attendant circumstances, on the one hand, and the authority of res
judicata, on the other. Indeed, the value of the Tribunal's decision does
not depend solely upon the intrinsic qualities of its arguments; account
must also be taken of the whole set of elements surrounding the contested
Award.
9. We would maintain that the concept of res judicata which underlies the
very authority of any judicial decision, goes beyond the framework of the
axiomatic bases of the law. It is a consequence of a whole set of phenomena
(acts, rules, conduct, attendant circumstances ...) which have to be taken
into consideration as they contribute to the reinforcement of the convictio
juris. The judicial approach and technique should not be exposed to
criticism derived from a strategy conditioned by mistrust. We accordingly
consideu it necessary for an arbitration tribunal, while adopting a specific
form of procedure, to use, in order to develop its reasoning, a number of
different ,techniques of argument so as to support and validate its own
method and conclusions. In the absence of an enforcement mechanism, judicial
conclusions can only command intellectual support, convictio juris, if they
rely at once upon what is likely, what is plausible, and what is probable.
Indeed, in a different sphere, logic was able to undergo a significarit
development when, abandoning purely scholastic [p 123] techniques, it
resorted to other methods of demonstration and argument and, more
particularly, to mathematics.
10. A judicial discussion is in fact a confrontation between two formal
systems of logic, with a view to showing that one's adversary's logic is
incompatible with the norm and rule of law. Under those circumstances, the
judge has to go beyond the techniques of formal logic in order to settle the
dispute, as that technique of argument is bound to lead, in the end, to "the
ridiculous and the terrifying". Only the intervention of factual
considerations such as the experience of daily life, the sense of the
uncertain, provisional or aleatory, can break the vicious circle of this
universe of forms. This means that dialectical logic is invaluable in
judicial argument, as the solution thus arrived at may more reasonably be
accepted as the least unsatisfactory of possible solutions, even if it is
not the best. It is indeed highly desirable that a judicial decision may be
seen as reasonable and just, thanks to a. pedagogical comprehension of the
way in which it has been reached. Unfortunately it is unusual for formal
logic to respond immediately to those considerations.
11. While an arbitration tribunal is bound to act on that imperative need of
authority, account must also be taken of the parties' right to expect
justice to be properly administered. Indeed, international adjudication
derives the whole of its authority from the trust placed in it by the
parties, and it is only fair that that trust should be neither shaken nor
impaired.
12. These considerations are sources of obligations for the tribunal and the
arbitrators. By way of an enunciation, some of them may be called to mind in
the context of this case: Le., courtesy of the members of the tribunal;
transparency of the judicial method adopted; reflexive and demonstrative
approach; definitive settlement of the whole of the dispute submitted for
adjudication, in accordance with the terms, object and purpose of the
Arbitration Agreement; celerity of the deliberation. The arbitration
tribunal and its members are imperatively required to ensure that the
decision has the full authority of res judicata. This is why we are
convinced that a decision whose authority is strongly contested loses a very
large measure of its legal value; its being "called into question" deprives
it of the authority of res judicata.
II. The Question of the Definitive Settlement of the Whole of the Dispute
between Guinea-Bissau and Senegal
13. In paragraph 66 of the Judgment, the Court makes a point of fundamental
importance for the practice and the future of arbitration. The exercise of
its jurisdiction led the Tribunal to forgo a complete settlement of the
dispute that, at the time of signature of the Arbitration Agreement, existed
between the Parties with respect to the delimitation of the maritime areas
appertaining to each one of them. We shall not dwell on the particularly
serious consequences of such a result for two developing [p 124] countries.
The Arbitration Tribunal was under an obligation to settle the dispute
submitted to it definitively and completely, in accordance with the terms of
the Arbitration Agreement in general, of which Article 2 is no more than one
element. By way of a mere reference to various national legal systems, we
would mention the system known as that of procedural economy, which is more
compelling. This principle requires that judges to whom a problem has been
submitted should seek for the means enabling the whole of the dispute to be
resolved, at the earliest possible date and at the lowest possible cost to
the parties. Given the very complex nature of international litigation, it
appears to us advisable that the international judge should take these
practical ideas into consideration.
14. For the Court the result of the Award contested is directly linked to
the drafting of the Arbitration Agreement. We believe that it is not for the
Court to confirm or reject the reasoning of the Arbitration Tribunal as to
the quality of the drafting of the Agreement the Parties concluded: it is
the duty of the Court to ascertain that the Tribunal has made a correct and
satisfactory application of the rules concerning the interpretation of
treaties, in this instance of the Arbitration Agreement. Consequently, the
question is whether an interpretation based exclusively on a literal
analysis of the prefatory words of the second question put to the Tribunal
suffices to bring out the content of the common will of the Parties. We
subscribe fully to the points made by Judge Weeramantry with respect to the
rules governing the interpretation of international conventions. It is
incumbent on the court seised of a dispute to take simultaneously into
account the three constitutive elements of an international agreement: the
letter, the object and the purpose of the agreement. The difficulty inherent
in the interpretation of the Arbitration Agreement results from the dual
nature of this instrument: as a diplomatic act, that Agreement is an element
introducing new factors into the negotiations between the Parties; but, as a
legal act, it determines the elements structuring the object of the dispute.
For these reasons we consider a mere literal analysis to be insufficient.
To recall to the Tribunal the rule of syncretic or symbiotic interpretation
of the three above-mentioned elements does not amount to an attempt to give
the Agreement another meaning; all it does is to respect fully the will of
the Parties, a difficult exercise if ever there was one.
15. In the present: case of the Arbitral Award, the Court notes, as did the
President of the Arbitration Tribunal, Mr. Barberis, that the Award did not
delimit the whole of the maritime areas appertaining respectively to
Guinea-Bissau and Senegal. Moreover, the Court accepted the line of argument
of the Tribunal whereby it reduced the terms of the problem to a question of
State succession: maintenance in force of the Franco-Portuguese Exchange of
Letters of 1960. To be sure, we have no difficulty in subscribing to the
principle that there does not exist for the international judge an
obligation analogous to that laid down by Article 4 of the French Civil
Code, a principle recalled by the Arbitral Tribunal set up by Egypt and
Israel in the Taba case: "The Tribunal has not the task to determine [p 125]
the course of the boundary from BP 91 to the shore and beyond"
(International Legal Materials; Vol. 27, No. 4, p. 82). But, without having
to substitute its own reasons for those of the Arbitration Tribunal, the
Court has, from our point of view, an obligation to take into account the
silence of the Arbitration Tribunal over the obvious and immediate
contradiction between the results of the Award and a number of observations
of a literal, unquestionable nature, such as:
(1) The title of the Tribunal
TRIBUNAL ARBITRAL TRIBUNAL ARBITRAL
POUR LA DETERMINATION PARA A DETERMINA��O
DE LA FRONTI�RE MARITIME DA FRONTEIRA MAR�TIMA
GUINEE-BISSAU/SENEGAL GUINE-BISSAU/SENEGAL
(2) The Preamble of the Arbitration Agreement of 12 March 1985 � the purpose
of the Treaty:
"Recognizing that they have been unable to settle by means of diplomatic
negotiation the dispute relating to the determination of their maritime
boundary,
Desirous, in view of their friendly relations, to reach a settlement of that
dispute as soon as possible and, to that end, having decided to resort to
arbitration".
(3) The object of the dispute according to the Arbitration Tribunal in the
Award :
"27. The sole: object of the dispute submitted by the Parties to the
Tribunal accordingly relates to the determination of the maritime boundary
between the Republic of Senegal and the Republic of Guinea-Bissau, a
question which they have not been able to settle by means of negotiation."
The silence the Tribunal observed with regard to these simple elements is
open to criticism and one can without requiring another interpretation of
the convention call the Award into question over the validity of the linear,
and additionally unilateral mode of reasoning and its intrinsic coherence.
Contrary to the view expressed by the Court in paragraph 55, we consider
that it is the conclusion that must be read in the light of the title of the
Tribunal, the purpose of the treaty and the definition of the dispute, not
the other way round.
16. That the conditional proposition of Question 2 should have been a source
of difficulties for the interpretation of the convention is perfectly
obvious; but the fat2 appears to have been forgotten that the prefatory
words are the diplomatic price paid for the settlement of the dispute by
arbitration. Furthermore, it was incumbent upon the Tribunal to ensure a
coherent presentation of all the elements of the dispute within the
framework of a correct and complete interpretation of the treaty. Moreover,
all that is required in order that the work of the Tribunal should result in
a [p 126] frontier line is said and given in the Arbitration Agreement. The
failure of the Arbitration Tribunal to perform its mission is a sufficiently
serious factor prejudicial to arbitration as an institution. We therefore
consider that the Court should have taken it upon itself to carry its
analysis to its conclusion by drawing the appropriate legal conclusion from
the omission and the failure of which it took note.
III. The Shortcomings of the Arbitration Tribunal and Exc�s de Pouvoir
17. Contrary to the majority of the Members of the Court, we believe that
the Arbitration Tribunal was under a legal obligation to give an explicit
answer, and to do so by a separate vote, to the second question of Article 2
of the Arbitration Agreement, on the basis of a full statement of its
reasons.
18. The observations of the Court concerning the normal practice of arbitral
tribunals disregard the legal nature of that practice by confining it within
the area of facts. In law a judge seriously fails to perform his mission
whenever he decides not to answer a question. For the question lays down the
terms of the difficulty that the judge is asked to resolve; the question
thus constitutes the legal cause of the litigation, whether it be judicial
or arbitral. On the diplomatic plane the formulation of the question
underlines the importance of the problem raised. The doctrinal position is
that "the Tribunal must adjudicate every point referred to in the
cormpromis, even if in its opinion it does not arise to be considered" (cf.
A. Balasko, Causes de nullite de la sentence arbitrale en droit
international public, Paris, Pedone, 1938, p. 200, whose opinion is shared
by P. Fauchille, Traite de droit international public, Paris, 1926, Part 1,
Vol. III, p. 548). This is supported by the following observations of the
International Court of Justice in its Judgrnent on the Merits in the Corfu
Channel case:
"In the first question of the Special Agreement the Court is asked:
(i) Is Albania under international law responsible for the explosions and
for the damage and loss of human life which resulted from them, and
(ii) is there any duty to pay compensation ?
This text gives rise to certain doubts. If point (i) is answered in the
affirmative, it follows from the establishment of responsibility that
compensation is due, and it would be superfluous to add point (ii) unless
the Parties had something else in mind than a mere declaration by the Court
that compensation is due. It would indeed be incompatible with the generally
accepted rules of interpretation to admit that a provision of this sort
occurring in a special agreement should be devoid of purport or effect. In
this connection, the Court refers to the views expressed by the Permanent
Court of Interna-[p 127]tional Justice with regard to similar questions of
interpretation. In Advisory Opinion No. 13 of July 23rd, 1926, that Court
said (Series B, No. 13, p. 19): 'But, so far as concerns the specific
question of competence now pending, it may suffice to observe that the
Court, in determining the nature and scope of a measure, must look to its
practical effect rather than to the predominant motive that may be
conjectured to have inspired it.' In its Order of August 19th, 1929, in the
Free Zones case, the (Court said (Series A, No. 22, p. 13): 'in case of
doubt, the clauses of a special agreement by which a dispute is referred to
the Court must... be construed in a manner enabling the clauses themselves
to have appropriate effects'." (Corfu Channel, Merits, I.C.J. Reports 1949,
pp. 23-24.)
This obligation to give a reply to each question put weighs, in Our view,
more heavily on an arbitral tribunal than on a judicial one to the extent
that the latter is subjected to a pre-codified procedural corpus, whereas
the arbitral judge is, on the contrary, bound body and soul to the will of
the States Parties to the dispute.
The observations made by the Court and the case-law it cites in paragraph 50
of the Judgment are inadequate to justify the decision not to reply to the
second question, even though certain factual elements can be considered to
have a bearing on the present case: the existence of a condition precedent
to the reply to a subsequent question. In the first place, before deciding,
in its Advisory Opinion on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, Second Phase, not to reply to the second
question, the Court noted a default; for it observed that it would commit an
exc�s de pouvoir were its decision to be substituted for the will of the
Parties. (I.C.J. Reports 1950, p. 230), while, in the case of the
Interpretation of the Greco-Bulgarian Agreement of 9 December 1927, the
Permanent Court ddl not fail to note the possible incidence of a failure to
reply to the second question on the questionnaire before it, as a whole
(P.C.I.J., Series A/B, No. 45, p. 87). Now we have noted lacunae of this
nature in the Award: the possibility of there being, regard being had to the
reply to the first question, an exc�s de pouvoir in the event of a reply to
the second one, should have been the subject of explanatory comments by the
Tribunal, whereas the effects of the reply to the first question on the
Arbitration Agreement as a whole were passed over in silence by the
arbitrators, which we do not. consider proper. But, in the second place, as
regards the obligation to answer each question, the case-law cited by the
Court is of scant relevance. The three cases cited are advisory, not
contentious ones. Article 65 of the Statute of the Court is permissive. It
gives the Court the power to examine whether the circumstances of the case
are such as should lead it to decline to answer the request (I.C.J. Reports
1950, p. 72), and that in so far as '"the object of the Request is ... more
limited. It [the Request] is directed :solely to obtaining from the Court
certain clarifications of a legal nature ..." (ibid., p. 70). This
difference in nature makes [p 128] clear the limits of the transposition of
the advisory procedure into the setting of a contentious one, the object of
which is to sanction a right.
19. Contrary to the position of the majority of the Members of the Court, we
are convinced that by deciding infra petita and opting for not replying to
the second question, the Tribunal committed an exc�s de pouvoir through
omission and did so without stating its reasons.
20. In exercising the competence de la competence, did the Tribunal, which,
in our opinion, failed to justify fully its refusal to reply to the second
question, effectively perform, in a lawful manner, the mission entrusted to
it? The Court declares itself satisfied with the statement of reasoning,
succinct but judged to be sufficient, by which the Tribunal justified its
decision. Concision and clarity are indeed rare qualities, but the problem
is not quantitative � it is not a question of appreciating the length and
the literary and artistic qualities of a line of reasoning � but
epistemological. What is the validity of recourse to the logical conclusion
to justify the absence of a reply to the second question, a decision which
did not take explicit shape in a vote or an express operative provision?
21.The argument based on the logical conclusion is conceivable if the causal
relationship between the two propositions is ineluctable in nature. But, in
the present case, this is by no means clearly established. Taken in
isolation, the dissenting opinion of the third Arbitrator, as well as the
declaration of the President of the Tribunal, calls into question the
conclusions that may be drawn from the proposition adopted by the Tribunal.
For Mr. Barberis's declaration is in contradiction with the text of the
Award in so far as the declaration recognizes that the Tribunal failed to
exercise its jurisdiction even though it was under an obligation to perform
its task fully.
22. Generally speaking, the demonstrative value of the logical conclusion is
easily conceivable in relationships of causality. But legal logic has more
to do with relations of imputability. This being so the logical conclusion
may appear to be pertinent whenever in law the object is to ensure the
effectivity, the consolidation of a right already created. On the contrary,
it is altogether insufficient to justify the rejection of an application
that aims to bring about respect for a right; in as much as it refuses
purely and simply to pay due regard to other premises, it constitutes an
affirmation of principle and does not appear to be a technique for
demonstrating. In the case of the rejection of an application, the logical
conclusion is the equivalent of a failure to give reasons. This is why we
consider that the absence of a reply to Question 2 of the Arbitration
Agreement and the refusal to annex a map to the Award reflect an absence of
reasons. Does this default on the part of the Tribunal constitute an exc�s
de pouvoir through omission?
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 exc�s de pouvoir on the part of the tribunal constitutes a ground of
nullity of' an arbitral award. To put the matter simply, the exc�s de
pouvoir can be described as the transgression committed by a compe-[p
129]tent tribunal of the legal framework of its mission. It "consists in any
violation, any disregard, any overstepping of or non-cornpliance with the
provisions of the Artbitration Agreement..." (Balasko, op. cit., p. 153). 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, detemiine 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, exc�s 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 exc�s 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 exc�s 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
d<:limitation 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.
(Signed) Andres Aguilar Mawdsley.
(Signed) Raymond Ranjeva.
[p 130]
DISSENTING OPINION OF JUDGE WEERAMANTRY
This case arises out of an arbitration which has followed a most unusual
course, thereby throwing up a fascinating range of legal issues. Among them
are issues concerning the interpretation of arbitral agreements and the
nullity of arbitral awards.
Apart from the two issues mentioned, I am in agreement with the Court on the
numerous issues which have been argued before us at some length. To the
Court's lucid exposition of these issues, there is nothing I can usefully
add. Among the matters on which I respectfully share the Court's opinion are
its rejection of Senegal's contentions of lack of jurisdiction and of abuse
of process by Guinea-Bissau. Likewise, I am in full agreement with the
Court's rejection of Guinea-Bissau's contentions that the absence of
Arbitrator Gros at the delivery of the Award lessened its authority and that
the Award was invalidated by the Tribunal's failure to state its reasons in
full and to produce a map showing the boundary line. I associate myself with
the Court's succinct and cogent rejection of these contentions.
I regret, however, that the view I have taken on the two matters set out at
the commencement of this opinion leads me to a different conclusion on the
overall result. The questions on which I differ are sufficiently important
in my view to warrant extended consideration.
I shall not burden this opinion with a recital of the facts, which are set
out in the Judgment of the Court. I only note the unusual course followed by
this arbitration, in that there was a declaration by the President stating
his own preference for a form of words "more precise" than the phraseology
adopted in the majority decision to which he was a party. He goes on to
state that if this "more precise" phraseology had been used, this would have
enabled the Tribunal to deal with the second question, which the Tribunal,
by a majority decision to which he was again a party, had decided it was not
called upon to address. The President also observed that a reply of the kind
suggested by him would have enabled the Tribunal to delimit the waters of
the exclusive economic zone and the fishery zone, and thus settle the whole
of the dispute. The failure to address Question 2 and to settle the whole
dispute constitute the gravamen of Guinea-Bissau's complaint. Indeed, the
President's declaration so troubled the third arbitrator, Mr. Bedjaoui, as
to prompt him to state in his dissenting opinion that the declaration "by
its very existence as well as by its con-[p 131]tents, justifies more
fundamental doubts as to the existence of a majority and the reality of the
Award" (para. 161).
Despite these features which cause concern, I am prepared, with the Court,
to take the view that it is the President's vote we must have regard to
rather than his somewhat inconsistent declaration. We must presume that that
vote was cast after due deliberation. I therefore agree that the Award must,
for the reasons set out in the Judgment of the Court, be treated in law as a
majority award and that the plea of "inexistence" taken by Guinea-Bissau
should fail. I would agree further that, despite the President's apparent
view that a more precise formulation of the Award would have opened the way
for a consideration of Question 2, the decision not to address Question 2
was a majority decision by reason of the President being a party to it.
Weakened though it may be by the declaration, that decision is still a
majority decision and cannot in law be described as "inexistent" on the
basis that the President's declaration destroys his vote.
However, for reasons which will be evident from this opinion, the decision
so given is fundamentally flawed by reason of other defects, and is
therefore in my view a nullity.
This opinion is structured in two main segments. The first deals with the
interpretation of Article 2 of the compromis and the second examines whether
the findings thus reached result in the nullity of the Arbitral Award. For
the reasons set out, I conclude upon the first matter that a proper
interpretation of Article 2 did not permit the Tribunal to leave a major
portion of its responsibilities undischarged. On the second matter, my
conclusion is that the failure to discharge those responsibilities
constituted a non-compliance with the compromis which was so serious as to
nullify the resulting award.
Before entering upon these major questions of law, I should state
preliminarily as a matter of fact that the dispute between the two countries
was a dispute in relation to their maritime boundary and that there were
five maritime spaces which needed to be demarcated � the territorial sea,
the contiguous zone, the continental shelf, the exclusive economic zone and
the fishery zone. The dispute between the two States would not be at an end
so long as any of these important maritime spaces remained undefined.
1. Interpretation of Article 2 of the Compromis
The particular clause which arises for interpretation is Article 2 of the
Arbitration Agreement of 12 March 1985, which reads as follows:
"The Tribunal is requested to decide in accordance with the norms of
international law on the following questions: [p 132]
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?" (Annex
to the Application Instituting Proceedings of the Government of the Republic
of Guinea-Bissau, Award, p. 5; emphasis added.)
The crucial words are "In the event of a negative answer to the first
question", on the interpretation of which considerable effort was expended
by both Parties at the hearing before us. On the interpretation of those
words depends the issue whether the Arbitration Tribunal was under an
obligation to proceed to answer Question 2. If the Tribunal was entitled to
leave Question 2 unanswered, the matter is at an end and we need enquire no
further. If, on the other hand, the Tribunal was obliged to answer Question
2 and failed to do so, grave issues arise. They touch the status and
validity of an award which left major portions of the arbitrators'
responsibilities undischarged, thereby leaving major portions of the
boundary dispute unresolved. The words quoted offer the key to the
resolution of this central question.
Focusing even more finely on the clause under consideration, what is the
meaning of the phrase "negative answer" ? Those two words are naturally
incapable of construction except in context � the context of the paragraph
in which they occur and the context of the entire document. The conclusion,
which to me seems inevitable on any of the available methods of
interpretation as set out in this opinion, is that the "negative answer"
referred to was a negative answer to the question whether the 1960 Agreement
was binding in regard to the subject-matter of the dispute � not any one or
more component elements thereof but the disputed boundary considered as one
integral problem, the desire to settle which was the driving force leading
the Parties to the Arbitration Tribunal.
An incomplete settlement, dealing only with discrete parts of that boundary,
would only compound problems and was clearly not the object and purpose of
the Arbitration Agreement, in the total context of which alone particular
clauses are to be construed. The different elements of the boundary question
were not, on any reasonable construction, to be the subject of a later
arbitration or arbitrations aimed at mopping up the component elements left
undetermined by the first arbitration. Partial answers and piecemeal
solutions were furthest from the object and purpose of the compromis. The
interlinked nature of those component elements, which can-[p 133]not fairly
be determined in isolation from each other, lends strength to the view that
both Parties were clearly seeking such a comprehensive settlement of their
common problem in one arbitration.
I proceed to set out the reasons for my view that a complete delimitation
was the subject-matter of Question 1.
Question 1 � to which it was crucial whether the answer was negative or not
� asked whether the Agreement of 26 April 1960 had the force of law in the
relations (dans les relations) between Guinea-Bissau and Senegal. It is true
the expression "the relations" is a very simple phrase. Interpreted in
isolation, it can be given many meanings, extending from all relations
between the States to maritime boundary relations and, within the latter
category, to a wide spectrum of relations ranging from all the disputed
maritime boundary questions to any one or more components of them or,
indeed, to any portion of any one component. Context and objects and
purposes will tell us where in that vast spectrum our choice will fall.
Indeed, without reference to these factors, we cannot give the phrase a
meaning sufficiently intelligible or definite for the momentous legal
consequences to ensue which follow inevitably from our choice.
Question 1 was not, in my view, a theoretical question referring only to the
binding nature of the 1960 Agreement. It was a question on which grave
practical issues turned � namely whether the boundary followed the line
determined in that Agreement. The boundary line lay at the heart of that
question as it lay at the heart of Question 2 which, together with Question
1, I have described in this opinion as an interlocking pair.
We can straightaway dismiss the wider construction extending "the relations"
to all relations between the States, for clearly the document was set firmly
in the context of the relations concerning the maritime boundaries, as the
internal evidence even within Question 1 indicates. The crucial question is
however whether the expression relates to all the maritime boundary
questions or to any one or more constituent elements of this group. On this
matter it seems clear that, whether one regards the context of the document
or its objects and purposes, it was never in doubt that "the relations"
covered all five elements of the maritime boundary.
If the view is correct that the question was whether the Agreement was
binding in regard to the entire maritime boundary, an answer that it was
binding, not in regard to the entirety but only in regard to parts of it,
was clearly a negative answer, upon which the door to Question 2 immediately
swung open. This made it obligatory for the Tribunal to enter upon a
consideration of the important issues awaiting it under that question �
issues that represented a substantial part of the Tribunal's total
undertaking. The failure by the Tribunal to address a crucial part of its
responsibilities [p 134] 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.
It is vitally important that when arbitrators examine, as in every case they
must, with the utmost care, the substance of their mandate and the limits of
their authority, their interpretation must be anchored to the realities of
the context. Words and phrases in the compromis are not to be treated as
though they exist in isolation, to be given a meaning they are literally
capable of bearing but which is unrelated to the exercise in which the
arbitrators are engaged.
In this case, the phrase "negative answer" was of the utmost importance and
called for anxious scrutiny. Yet there is nothing to indicate that the
Tribunal has given to this key phrase the scrutiny its importance demanded,
and all we have on this matter is the observation in paragraph 87 of the
Award that, bearing in mind its conclusions (on the applicability of the
1960 Agreement) and "the actual wording" of Article 2, "in the opinion of
the Tribunal it is not called upon to reply to the second question". What
factors weighed with them we are not told, beyond the fact that this was
their opinion. It would not be unreasonable to describe this as inadequate �
certainly inadequate to convey to an objective observer the impression that
anxious consideration had been given to construing this profoundly important
question in its contextual and practical setting.
The analysis of this phrase, which assumes a pivotal role in the matter
before us, takes us into the realm of treaty interpretation, the compromis
being of course a treaty. The discussion which immediately follows analyses
the relevant portions of the compromis in the light of accepted principles
of treaty interpretation. [p 135]
Sir Gerald Fitzmaurice, in his well-known discussion of treaty
interpretation FN1, refers to the existence of three principal schools of
thought upon the subject � the "intentions of the parties" school, the
"textual" school and the "teleological" school FN2. The term "teleological"
is used by Fitzmaurice (loc. cit.) in the sense of "aims and objects" of the
treaty.
---------------------------------------------------------------------------------------------------------------------
FN1
Fitzmaurice, The Law and Procedure of the International Court of Justice,
Vol. 1, p.42.
FN2 See, also, T. O. Elias, The Modem Law of Treaties, 1974, p. 72.
---------------------------------------------------------------------------------------------------------------------
I shall in this opinion apply these approaches to the problem before us,
mindful that a hierarchy cannot be established among them FN3.
---------------------------------------------------------------------------------------------------------------------
FN3
Commentary on the Draft Articles on the Law of Treaties by the International
Law Commission at its Eighteenth Session � United Nations Conference on the
Law of Treaties, Official Records (First and Second Sessions), 1971, p. 39, para. 8; see, also, Myres S. McDougal, Harold Lasswell and James Miller, The
Interpretation of Agreements and World Public Order: Principles of Content
and Procedure, 1967, p. 116.
---------------------------------------------------------------------------------------------------------------------
Having referred to the three principal schools of interpretation and the
radically divergent results that could ensue from their application,
Fitzmaurice observes (at p. 43) that "all three approaches are capable, in a
given case, of producing the same result in practice". In this case we are,
in my view, in the happy situation alluded to by Fitzmaurice, where all
three approaches concur in leading us to the same conclusion. I shall use
these three methods in the ensuing discussion without placing them in any
hierarchical order. As Judge Elias FN4 points out, none of these by itself
may be sufficient to supply the solution to a problem of treaty
interpretation and there may sometimes be a simultaneous resort to all three
factors, as indicated by the Permanent Court of International Justice in the
Factory at Chorz�w case (P.C.Z.J., Series A, No. 9, p. 24).
---------------------------------------------------------------------------------------------------------------------
FN4
Op. cit., p. 72.
---------------------------------------------------------------------------------------------------------------------
A. The "Textual" Approach
That words should be given their ordinary meaning is of course a much-used
rule of interpretation. As this Court stated in its Advisory Opinion in
Competence of the General Assembly for the Admission of a State to the
United Nations:
"The Court considers it necessary to Say that the first duty of a tribunal
which is called upon to interpret and apply the provisions of a treaty, is
to endeavour to give effect to them in their natural and ordinary meaning in
the context in which they occur." FN5
------------------------------------------------------------------------------------------------------------
FN5
I. C.J. Reports 1950, p. 8; see, also, Advisory Opinion on the Constitution
of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization, I.C.J. Reports 1960, p. 150.
------------------------------------------------------------------------------------------------------------
The Permanent Court of International Justice has observed: [p 136]
"In considering the question before the Court upon the language of the
Treaty, it is obvious that the Treaty must be read as a whole, and that its
meaning is not to be determined merely upon particular phrases which, if
detached from the context, may be interpreted in more than one sense." FN1
------------------------------------------------------------------------------------------------------------
FN1 Advisory Opinion on the Competence of the IL0 in Regard to International
Regulation of the Conditions of Labour of Persons Employed in Agriculture
(P.C.I.J., Series B. No. 2, p. 23).
------------------------------------------------------------------------------------------------------------
Since then, the Vienna Convention on Treaties has given this principle more
explicit form in Article 31.
Words and phrases cannot be understood by themselves, and, as Article 31
makes clear, their "ordinary meaning" must be understood not in isolation
but in their context and in the light of the document's object and purpose.
Judge Ago emphasized this aspect in the deliberations of the International
Law Commission FN2 when, in commenting on the concept of "ordinary meaning",
he observed that:
---------------------------------------------------------------------------------------------------------------------
FN2
Yearbook of the International Law Commission, 1966, Vol. 1, Part II, p. 189, para. 57.
---------------------------------------------------------------------------------------------------------------------
"a term in isolation had no meaning; terms had no meaning except in a
sentence or in a set of sentences and articles, in other words, in their
context".
We have moved far from the Vattelian principle that "the first general rule
of interpretation is that it is not permissible to interpret what has no
need of interpretation" FN3. Though followed by some eminent international
jurists even into the early years of this century, the need for even the
simplest words to require some interpretation has been highlighted both by
legal scholars FN4 and by modem linguistic studies. The impact of the latter
is seen in such studies as Schwarzenberger's analysis of the Vienna
Convention FN5, in which, in reliance on linguistic studies, he points out
that the very word "meaning" can have up to sixteen meanings and that the
difficulty in seeking to give words their "ordinary meaning" is that "almost
any word has more than one meaning" (citing in support such well-known
authorities as C. K. Ogden, The Meaning of Meaning). Hence, as McNair points
out in his Law of Treaties (1961, p. 367), even the best understood of
"plain terms" such as "mother" can depart very widely from its normal
meaning, [p 137] depending on the context in which it is used '. Not without
reason has this Court had occasion to refer2 to the famous observation of
Mr. Justice Holmes that
---------------------------------------------------------------------------------------------------------------------
FN3
Emmerich de Vattel, The Law of Nations or the Principles of Natural Law,
Vol. III, Bk. II, Chap. XVII, in The Classics of International law, ed. J.
B. Scott, p. 199; emphasis added.
FN4 See E. S. Yambrusic, Treaty Interpretation: Theory and Reality, 1987,
pp. 9 et seq.
FN5"Myths and Realities of Treaty Interpretation: Articles 31-33 of the
Vienna Convention on the Law of Treaties", in S. K. Agrawala (ed.), Essays
on the Law of Treaties, p. 71, at p. 86.
FN1 On linguistics and legal interpretation, see, also, � G. Weeramantry,
The Law in Crisis: Bridges of Understanding, 1975, pp. 163-167.
FN2 Delimitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J.
Reports 1984, at . 360, per Judge Gros, dissenting.
---------------------------------------------------------------------------------------------------------------------
"A word is not a crystal, transparent and unchanged, it is the skin of a
living thought and may Vary greatly in color and context according to the
circumstances and the time when it is used" (Towne v. Eisner, 245 US
418,425).
It is clear therefore that the expressions "the relations" and "negative
answer" cannot be understood by themselves but only in strict relation to
their context. One cannot give a meaning to these expressions without
subjecting them to rigorous contextual scrutiny. Professor Glanville
Williams, in a noted scholarly analysis of legal interpretation in the wider
context of Language and the Law FN3, follows linguistic insights to point
out that
---------------------------------------------------------------------------------------------------------------------
FN3
Glanville Williams, "Language and the Law", [1945] 61 LQR 384 at 393.
---------------------------------------------------------------------------------------------------------------------
"it is always the duty of the Court, within the limits set by the law of
evidence, to go behind the dehumanized dictionary-meaning to what the
assertor was actually trying to express" FN4.
------------------------------------------------------------------------------------------------------------
FN4
Cf., Savigny, Obligations, 1851, Vol. 2, 8 71, on the need for "making the
living thought concealed in dead letters to come alive in our perception".
------------------------------------------------------------------------------------------------------------
I may also refer to the Anglo-Iranian Oil Co. case, where this Court
observed, in relation to the declaration by the Government of Iran, under
Article 36 (2) of the Statute of this Court:
"But the Court cannot base itself on a purely grammatical interpretation of
the text. It must seek the interpretation which is in harmony with a natural
and reasonable way of reading the text." (I.C.J. Reports 1952, p. 93, at p.
104.)
We must thus go further in examining the two phrases in question than
grammatical meanings or dictionary definitions, and give the words a
meaningful nexus with the real dispute reflected in the terms of the
compromis.
(i) Contextual indications
The general context yields several indications that the Agreement between
Guinea-Bissau and Senegal concerned a consolidated question [p 138] and not
a series of discrete questions. That question is compendiously described in
the Preamble to the compromis as "the dispute", which is not the language
one would expect if the intention was to treat this as a series of disparate
questions which may or may not be answered at the discretion of the
Tribunal. Internal evidence to this effect from the text of the treaty can
be gathered from at least five sources:
(a) Paragraph 2 of the Preamble speaks of the recognition by the Parties
that they have been unable to settle by means of diplomatic negotiation the
dispute relating to the determination of their maritime boundary.
(b) Paragraph 3 of the Preamble follows up this reference to "the dispute"
by speaking of the desire of the Parties, in view of their friendly
relations, to reach a settlement of that dispute, as soon as possible.
(c) Article 2, in its formulation of Question 1, speaks of the maritime
boundary.
(d) Article 2, in its formulation of Question 2, speaks of the line
delimiting the maritime territories.
(e) Article 9 requires the drawing of the boundary line on the map. One
boundary line for all five disputed areas is one of the clearest pointers in
the direction I have indicated.
There was thus a clear understanding on the part of the contracting Parties
that the Agreement they were entering into was one seeking a delimitation of
the entire boundary.
(ii) Questions 1 and 2 viewed in the context of each other
The two questions constituted an interlocking pair set within a common
context � the resolution of the entire dispute. Indeed, one could even look
at the questions together as a composite question in bifurcated form, with a
clear end result � the resolution of the entire dispute.
Question 2 implicitly indicates that, whatever the answer to Question 1, the
result should be one boundary line. Three possibilities present themselves
in regard to Question 1 �
(a) an answer that the Agreement was binding in regard to all components ;
(b) an answer that it was not binding in regard to any component; and
(c) an answer that it was binding only in regard to some.
Whatever the answer, the mutually desired result of a single boundary line
was achieved through the juxtaposition of the two questions.
In eventuality (a) described above there was no problem in reaching the [p
139] desired result, for the answer to Question 1 would, in that event,
settle the entire problem which was to be resolved. Question 2 would in that
situation become a superfluous appendage denuded of practical purpose and
content. However, in eventualities (b) and (c), Question 2 remained a live
and meaningful part of the entire exercise � indeed a part without which the
exercise would remain fruitless and its object languish unaccomplished. The
vast amount of expense, time and trouble which the entire operation had
absorbed would then turn sterile unless Question 2 was addressed. It thus
remained a vital part of the Tribunal's commitment and obligation if it was
to address itself truly to the object for which it was constituted � an
object which could not fail to receive attention if the Tribunal's mandate
was to be interpreted in accordance with the norms of international law as
stipulated in the opening line of the clause under reference.
In eventualities (b) and (c) work remained to be done through Question 2 to
achieve the desired complete single boundary implicit in that question, by
demarcating all zones in eventuality (b) and the remaining zones in
eventuality (c).
There are thus no two parts of the document more closely grappled to each
other than these two questions and neither question is capable of being
viewed in isolation from the other. The rule of contextual interpretation
requires not merely the picking out of isolated indicia such as are
identified earlier in this opinion, but also the reading of different parts
of the document consistently with each other. Sitting side by side in the
compromis, each question supplementing and complementing the other, each
defies proper interpretation except in the context of its paired companion.
Analysed in yet another way, the untenability of the Tribunal's
interpretation of the phrase "negative answer" becomes apparent if one
reduces hypothetically the extent of the supposedly affirmative answer given
to Question 1. Would it be an affirmative answer if the Tribunal's finding
had been that the Agreement was binding only in regard to, say, the
territorial sea? Would it still be an affirmative answer if the Tribunal had
found, for some reason, that the Agreement was binding only in regard to the
first mile of the territorial sea ? There comes a point at which an
affirmative answer in relation to a portion of the disputed areas becomes
affirmative in name but not in substance, in form but not in reality.
Affirmative to however inconsequential an extent, it would be negative for
purposes contemplated by the Parties. We cannot therefore assume that the
mere fact of the answer being partially affirmative lifted it out of the
category of the "negative answer" contemplated by the question. To accept
such a proposition would be to miss the object and purpose of the exercise
which was to delimit boundaries whose uncertainty as a whole was the cause
of tension between two States desiring very much to have this uncertainty
resolved. [p 140]
A view which left the Tribunal free, on the basis of such supposedly
affirmative answers, to shut the door on the vital issues awaiting it under
Question 2, would reduce the whole concept of this solemn international
arbitration to an empty exercise, by leaving the Parties with a partial
solution and sending them to all the expense, inconvenience and delay of
another determination. As will be seen later in this opinion, it even throws
doubts upon the validity of the partial solution. It illustrates the danger
of reading words picked out of Question 2 in isolation, rather than of
looking upon Questions 1 and 2 as an integrally related entity aimed at a
resolution of the matters in issue between the Parties.
Such restricted views of the obligations attendant on arbitration cannot
constitute a true discharge of arbitral responsibilities and are so far a
departure from their very raison d'�tre that I do not think they can be
viewed as even a prima facie discharge of arbitral duty. Where this Court
has the opportunity to register its concern at such an attenuation of the
arbitral process, I believe it should do so. Else, not only in this case but
in important arbitrations yet unconceived, literal interpretations of
arbitral responsibility unrelated to context may cause the vast effort and
expense involved in complex proceedings to trickle away into futility. This
will involve not only great cost to the parties but also damage to the
prestige and authority of the international arbitral process.
B. The "Intentions"Approach
I here use the "intentions" approach through textual analysis of objects and
purposes and through the positions formulated by the Parties themselves. An
analysis according to the "intentions" approach powerfully confirms the
contextual interpretation outlined above. A strong endorsement of this
approach by Sir Hersch Lauterpacht bears repetition in this context:
"It is the intention of the authors of the legal rule in question � whether
it be a contract, a treaty or a statute � which is the starting point and
the goal of all interpretation." FN1
------------------------------------------------------------------------------------------------------------
FN1
British Year Book of International Law, Vol. 26 (1949), p. 83.
------------------------------------------------------------------------------------------------------------
Indeed, intention is so significant that the importance of even text and
context in interpretation has been attributed by some FN2 to the fact that
the text is the primary evidence of what the parties had intended. In
McNair's words FN1, "the true duty of the judge is to search for the common
intention of the parties in using the language of the text".
---------------------------------------------------------------------------------------------------------------------
FN2
See Waldock, Third Report on the Law of Treaties, Yearbook of the
International Law Commission, 1964, Vol. II, p. 56.
FN1 Op. at., 1961, p. 373.
---------------------------------------------------------------------------------------------------------------------
Sir Gerald Fitzmaurice's succinct summary of the general principles deriving
from the major theories of treaty interpretation also emphasizes this
aspect:
"(i) The basic purpose of treaty interpretation ... is to give effect to the
intentions of the parties.
(ii) These intentions are presumed, prima facie, to be expressed in, and
represented by, the terms of the treaty itself, read as an integral whole,
on a basis of reason and common sense, and with due regard to the
circumstances of its conclusion; but if this is not the case, or if the
intention cannot be gathered from the terms with adequate certainty or
sufficiency, recourse may then be had to extraneous circumstances or
means...
(iii) There is an underlying genera/presumption that the intention of the
parties includes the intention effectively to achieve the intended purpose
of the treaty. Hence there is warrant, if that purpose is clear, ...
(a) for interpreting the treaty in such a way as will achieve that purpose
rather than not achieve it;
(b) if more than one equally valid interpretation of the text is reasonably
possible, for adopting that which most effectively achieves the intended
purpose;. . ." FN2
------------------------------------------------------------------------------------------------------------
FN2
Fitzmaurice, op. cit., pp. 793-794; emphasis added.
------------------------------------------------------------------------------------------------------------
Points (iv) and (v) deal with general multilateral conventions and do not
concern us here.
The jurisprudence of the Court also supports the "intentions" approach as
when, in the Advisory Opinion in the Reservations to the Convention on the
Prevention and Punishment of the Crime ofGenocide case, this Court stated
that:
"The high ideals which inspired the Convention provide, by virtue of the
common will of the parties, the foundation and measure of all its
provisions." (I.C.J. Reports 1951, p. 15, at p. 23.)
The principles set out by Fitzmaurice, distilled as they are from the major
theories of interpretation (and "in a form which might very possibly have
been concurred in by Lauterpacht" FN3), all have applicability here. There
can be no doubt of the intention of the Parties, the meaning of the treaty
read as an integral whole and the interpretation that would achieve the
purpose of the treaty. That interpretation is the interpretation which[p
142] looks upon the treaty as embodying the will of the contracting States
to secure the settlement once and for all of the maritime boundary dispute
that had troubled them for so many years.
---------------------------------------------------------------------------------------------------------------------
FN3
Op. cit., p. 793.
---------------------------------------------------------------------------------------------------------------------
I am conscious that, in dealing with questions of interpretation,
difficulties can arise not only about the meaning of terms but also from
differences of attitude or frame of mind. Parties may then "be travelling
along parallel tracks that never meet" to use the expressive language of
Judge Fitzmaurice in the Golder case FN1 or be speaking "on different
wavelengths" FN2. In the present case, as the ensuing analysis will show,
the frame of mind of both Parties, in desiring a settlement of the entire
dispute, was clearly the same. To use the language of contract, they were
clearly ad idem.
---------------------------------------------------------------------------------------------------------------------
FN1
European Court of Human Rights. Ser. A, Vol. 18, p. 42.
FN2 Sir Humphrey Waldock's words, quoted by Judge Fitzmaurice (ibid.).
---------------------------------------------------------------------------------------------------------------------
(i) The Preamble
An obvious internal source of reference is the preamble to the treaty. The
preamble is a principal and natural source from which indications can be
gathered of a treaty's objects and purposes even though the preamble does
not contain substantive provisions. Article 31 (2) of the Vienna Convention
sets this out specifically when it states that context, for the purpose of
the interpretation of a treaty, shall comprise in addition to the text, the
preamble and certain other materials. The jurisprudence of this Court also
indicates, as in the case concerning Rights of Nationals of the United
States of America in Morocco FN3 and the Asylum (Colombia/Peru) case FN4,
that the Court has made substantial use of it for interpretational purposes.
In the former case, a possible interpretation of the Madrid Convention was
rejected for its lack of conformity with the preamble's specific formulation
of the purposes of the Convention. In the latter case the Court used the
objects of the Havana Convention, as indicated in its preamble, to interpret
Article 2 of the Convention. Important international arbitrations have
likewise resorted to the preamble to a treaty as guides to its
interpretation FN5.
---------------------------------------------------------------------------------------------------------------------
FN3
I.C.J. Reports 1952, p. 176, at p. 196.
FN4 I.C.J. Reports 1950, p. 266. at p. 282.
FN5 See paras. 19 and 20, the Beagle Channel Arbitration, 1977, Wetter, The
International Arbitral Process, 1979, Vol. 1, p. 276, at pp. 318-319.
---------------------------------------------------------------------------------------------------------------------
The Preamble to the present compromis makes it transparently clear that the
object of the instrument was the settlement of the entire boundary question.
The two Governments, having been unable to settle by means of diplomatic
negotiation the dispute relating to the determination of their maritime
boundary, express their desire, in view of their friendly rela-[p 143]tions,
to reach a settlement as soon as possible of that dispute. To that end, they
have decided to resort to arbitration. They were not resorting to
arbitration for a partial settlement of their dispute, which possibly was
furthest from the objects and purposes of the agreement.
(ii) Parties 'positions during the negotiations
Article 32 of the Vienna Convention provides that, as a supplementary means
of interpretation, recourse may be had inter alia to the circumstances of
the conclusion of the treaty "in order to confirm the meaning resulting from
the application of article 31" (emphasis added). Using such material as is
before us on this matter, but only as a supplementary means of
interpretation, it is clear that this material confirms the results flowing
from the contextual and the "objects and purposes" methods set out in
Article 31(1).
It is not necessary to make detailed references to the course of affairs
leading to the compromis. It will suffice to observe that the entire course
of negotiations between the Parties was conducted with the end in view that
all aspects of the maritime boundary questions would be settled. The long
history of disputes between the Parties ranging from 1977 to 1985 was not
confined to any one aspect of the maritime boundary. It was in the interests
of neither Party that the determination of the boundary or any part of it
should remain in abeyance. These were the circumstances in which the
agreement was reached that the matter be referred to arbitration and they
strongly confirm the interpretation reached by the other approaches.
(iii) Parties' positions before the Tribunal
I do not need to elaborate here on the attitude of Guinea-Bissau whose
position on this matter was never in contention. I shall concentrate rather
on that of Senegal. It is clear that Senegal's position before the Tribunal
was that the entire maritime dispute was before it and that the 1960
Agreement extended to that entire dispute, Le., that it was not confined to
the territorial sea, the contiguous zone and the continental shelf, but
extended to the exclusive economic zone and fishery zone as well.
The following are among the indications of this position which can be
gathered from the documents before the Court:
(a) In paragraph 53 of its Counter-Memorial submitted to the Tribunal,
Senegal explains the scope of Article 2 of the Arbitration Agreement, and
its contention regarding the applicability of the principles of
intertemporal law to the 1960 Agreement. It then goes on to say:
"Having made these two points, the Government of Senegal associates itself
with the comment made by Guinea-Bissau, from which it [p 144] emerges: (1)
that if it is accepted that the 1960 Agreement was validly concluded and is
binding on the Parties, it is that Agreement alone which has the force of
law concerning the maritime boundary separating all the maritime areas
appertaining to each State, a conclusion borne out by the fact that the
Parties desire a single dividing line; and (2) that the Tribunal is required
itself to draw a line of separation in the sole event of a negative answer
to the first question. That is what the Parties desired; the GBM
[Guinea-Bissau Memorial] rightly emphasizes this." (Memorial of
Guinea-Bissau in the present proceedings, Annexes, Book II; emphasis added.)
(b) In paragraph 153 of the Rejoinder of Senegal submitted to the Tribunal,
Senegal avers that subsequent practice:
"has also complemented the 1960 Agreement, giving it, as it were, an
additional dimension. For it has enriched it on the 'vertical' plane, with
respect to the delimitation of the superjacent water column ... The
Government of Senegal intends, indeed, to demonstrate that subsequent
practice has widened the initial area of application of the
Franco-Portuguese Exchange of Letters of 1960 and that the 240" maritime
boundary from Cape Roxo is valid not only as limit of the sea-bed and its
subsoil but also with respect to the superjacent waters." (Memorial of
Guinea-Bissau in the present proceedings, Annexes, Book III.)
(c) In paragraph 245 of the same Rejoinder Senegal re-emphasizes this
position:
"In other words, while the maritime boundary established by the 1960
Agreement related, beyond the outer limit of the territorial waters, only to
the continental shelves, thereby reflecting the state of the international
law of the sea at the time, a considerable subsequent practice thereafter
enriched and complemented the 1960 Agreement by, as it were, raising the
240" limit to the level of the surface of the superjacent waters."
(d) Paragraph 246 of the same Rejoinder reads:
"Moreover the Government of Senegal has referred, in its Counter-Memorial,
to this extension of the area of application of the 1960 Agreement, on both
the spatial and the substantive plane. It has observed, in particular, that
ever since Senegal's accession to independence it had 'exercised its
competences, in the most varied domains, over the maritime spaces coming
within its national jurisdiction and located to the north of [the 240"
line]' (SCM, para. 9). It added that apart from petroleum-related
activities, it had been led to 'exercise its police powers' by reference to
this 240" maritime boundary ..." [p 145]
(e) At the hearing before the Tribunal Senegal put its position thus:
"We observe that a dividing line � one single line and no other � comes up
not just once, by chance, but constantly without any exception in the
practice of these States and in the exercise of their respective
jurisdictions. And what, Mr. President, is that dividing line? It is
invariably the line drawn at 240" from Cape Roxo." (Memorial of
Guinea-Bissau in the present proceedings, Annexes, Book IV, Part II,
Verbatim Record of Oral Arguments of Senegal before the Tribunal, Record No.
9, p. 83.)
These submissions can leave no doubt that the matter which Senegal looked
upon as the subject of the arbitration was the entire maritime boundary and
no less. Its contention was that the 1960 Agreement referred to the entire
maritime boundary and no less. The object of the arbitration was the
determination of the entire maritime boundary and no less. Consequently
Question 1, as read in its context as well as in the light of the object and
purpose of the Agreement, related to the binding nature of the 1960
Agreement over the entire maritime boundary and no less.
Just as Senegal was urging the acceptance of the 1960 demarcation in regard
to the whole of the maritime boundary, Guinea-Bissau was contending that it
was without force in regard to the whole of the boundary.
Ut res magis valeat quam pereat, sometimes described as the rule of
effectiveness, is another general principle of interpretation which may be
invoked under the head of intention. It embodies a wisdom which is specially
apposite in interpreting agreements such as this, where a concentration on
the literal meaning of particular phrases may not only stifle the spirit of
an agreement but also damage the harmony which that agreement was meant to
promote. There is considerable warrant in the jurisprudence of this Court
for applying the rule of effectiveness, though of course this principle
cannot be pressed so far as to attribute to treaty provisions a meaning
which would be contrary to their letter and spirit FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Advisory Opinion, I.C.J. Reports 1950, p. 221, at p. 229.
---------------------------------------------------------------------------------------------------------------------
It should also be noted that the International Law Commission has taken the
view that, in so far as this maxim reflects a true general rule of
interpretation, it is embodied in Article 31, paragraph 1, "which requires
that a treaty shall be interpreted in good faith and "in the light of its
object and purpose� FN2. The International Law Commission goes on to
observe:
---------------------------------------------------------------------------------------------------------------------
FN2
United Nations Conference on the Law of Treaties, op. cit., p. 39; emphasis
added.
---------------------------------------------------------------------------------------------------------------------
"When a treaty is open to two interpretations one of which does and the
other does not enable the treaty to have appropriate effects, [p 146]good
faith and the objects and purposes of the treaty demand that the former
interpretation should be adopted." FN1
------------------------------------------------------------------------------------------------------------
FN1
United Nations Conference on the Law of Treaties, op. cit., p. 39; emphasis
added.
------------------------------------------------------------------------------------------------------------
An analysis according to the "intentions" approach thus shows that a partial
resolution of the dispute was clearly beyond the contemplation of both
Parties. Indeed, it was so far from their intentions that one could
reasonably postulate that neither Party would have gone to arbitration had
it visualized such an inconclusive outcome, for it would only have
compounded their problems and left them further from resolution than when
they began.
One must, of course, in applying the "intentions" approach, always be on
one's guard lest one use it to read into a treaty a stipulation which is not
contained in the text. As the Permanent Court of International Justice
warned in the Access to, or Anchorage in, the Port of Danzig, of Polish War
Vessels case (P.C.Z.J., Series A/B, No. 43, p. 144), the Court was not
prepared to hold that the text of a treaty "can be enlarged by reading into
it stipulations which are said to result from the proclaimed intentions of
the authors of the Treaty, but for which no provision is made in the text
itself'. The present case involves no such introduction into the document of
that which was not already there. The entire document was instinct with this
meaning from its very Preamble.
The determination of the dispute was thus the basis on which the Tribunal
was entrusted with its heavy responsibilities. It was called upon to render
certain a boundary obscured by the opposing contentions of Parties and to
provide a firm basis on which they could henceforth order their affairs.
They could not read their mandate any differently in the light of the norms
of international law as set out in the Vienna Convention in particular.
C. The "Teleological" Approach
I do not here use the teleological approach, as it is sometimes used in its
more extreme forms, for setting an external object or purpose for a treaty
which may not coincide with the intentions of the parties. The object or
purpose I seek is firmly anchored in the text of the treaty and the parties'
own views thereof. To that extent, it is linked to the approaches under the
other two heads.
The only extent to which I have invoked a purpose going beyond this is when
I refer to accepted principles regarding the underlying purpose of
arbitration agreements. Used in this limited manner, there is legitimate
scope for the teleological method. As Fitzmaurice observes, "there is no
doubt that an element of teleology does enter into interpretation and finds,
within limits, a legitimate place there" FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
Op. cit., p. 342.
---------------------------------------------------------------------------------------------------------------------
[p 147]
Used in this fashion, it provides through another approach a confirmation of
the conclusions reached through the other two approaches.
With those prefatory remarks, and subject to the limitations indicated, I
may observe that the underlying purpose of an arbitration agreement is
clearly the amicable settlement of the issues which the parties have
committed for resolution to the arbitral tribunal. As Verzijl observes,
arbitration is "a procedure of international law destined to terminate a
dispute which has arisen between sovereign States by the decision, vested
with binding force, of one or more third persons" FNl. This purpose derives
added strength from the fact that it accords with one of the high objectives
of international law � the harmonious resolution of international disputes
so as to eliminate continuing frictions that endanger peace.
---------------------------------------------------------------------------------------------------------------------
FN1
J. H. W. Verzijl, International Law in Historical Perspective, 1976, Vol.
VIII, p. 143.
---------------------------------------------------------------------------------------------------------------------
The Permanent Court of International Justice had occasion to use the
teleological method, in the context of arbitration, and to pronounce upon
the end which arbitration treaties should serve. In the Factory at Chorz�w,
Jurisdiction case, in discussing Article 23 of the German-Polish Convention
concluded at Geneva in 1922 (which it described as "a typical arbitration
clause"), it observed:
"For the interpretation of Article 23, account must be taken not only of the
historical development of arbitration treaties, as well as of the
terminology of such treaties, and of the grammatical and logical meaning of
the words used, but also and more especially of the function which, in the
intention of the contracting Parties, is to be attributed to this
provision." (Factory at Chorz�w, Jurisdiction, Judgment No. 8,1927,
P.C.I.J., Series A, No. 9, p. 24.)
The Court went on to add:
"An interpretation which would confine the Court simply to recording that
the Convention had been incorrectly applied or that it had not been applied,
without being able to lay down the conditions for the re-establishment of
the treaty rights affected, would be contrary to what would, prima facie, be
the natural object of the clause; for a jurisdiction of this kind, instead
of settling a dispute once and for all, would leave open the possibility of
further disputes." (Ibid., p. 25.)
These considerations have strong relevance to the case before us having
regard to the Tribunal's restrictive interpretation of the clause spelling
out its function � an interpretation which, to borrow the Court's
phraseology, "instead of settling a dispute once and for all, would leave
open the possibility of further disputes".
In the context of the present case these considerations lead to the view
that the Arbitral Tribunal was under the compromis charged with a duty to [p
148] settle the problem which had brought the Parties before it, or, in
Venijl's language, "to terminate a dispute which has arisen between
sovereign States". That it has signally failed to do, and any interpretation
which renders possible the course the Tribunal took, would not be in
consonance with the principle of interpretation under discussion.
In the event of two equally acceptable interpretations, one leaving disputed
issues still unsettled and one resolving all issues, the teleological
approach would weight the balance in favour of the latter. In the present
case, the "textual" approach and the "intentions� approach have already led
to the latter interpretation and the teleological approach only confirms it.
When, as in the present case, the parties have broken through years of
disagreement to reach the stage of referring their dispute to arbitration,
the protection of the compromis in all its integrity becomes specially
important. The Court needs to be vigilant to safeguard the compromis and the
arbitration against interpretations which defeat their central purpose.
The limited extent to which I have used the teleological method of
interpretation obviates any necessity to analyse it further in the present
opinion. Looking forward to the future it may be that the teleological
method of interpretation, in contrast to strict juristic formalism, may play
a greater role in the development of international law FN1. Interpretation
by reference to the "spirit" of the treaty FN2 or by reference to important
values may well receive more recognition as international law develops FN3.
These are questions which the jurisprudence of the future will need to
address.
---------------------------------------------------------------------------------------------------------------------
FN1
See the dissenting opinion of Judge Tanaka in South West Africa. Second
Phase, I.C.J. Reports 1966, esp. at pp. 276-278.
FN2 See the dissenting opinion of Judge Alvarez in Anglo-Iranian Oil Co.,
I.C.J. Reports 1952. v. 126: South West Africa. Preliminarv Obiections.
Judgment. I.C.J. Reports 1962. p. 336: cf. Lord Diplock�s observation in R
v. Henn (1980) 2 All ER 166 that in interpreting treaties the Court of
Justice of the European Communities seeks to give effect to the "spirit"
rather than to the letter of treaties.
FN3 Se, Rousseau, Droit international public, 1, p. 29; M. S. McDougal, H.
D. Lasswell and J. L. Miller, The Interpretation of Agreements and World
Public Order, 1967, pp. 39-45; Richard Falk, The Status of Law in
International Society, 1970, pp. 368-377; id.. "On Treaty Interpretation and
the New Haven Approach: Achievements and Prospects", (1967-1968) 8 Virginia
Journal of International Law, p. 323; Julius Stone, "Fictional Elements in
Treaty Interpretation � A Study in the International Judicial Process",
(1953-1955) Sydney Law Review, pp. 363-368.
---------------------------------------------------------------------------------------------------------------------
For present purposes it will suffice to observe that the insights to be
gained from the teleological method could guard the interpreter from so
close an adherence to literal meanings as to cause the fundamental
objectives of the document to recede from view.
Interest reipublicae ut sit finis litium applies equally to judicial and
arbitral awards, and applies equally to domestic and international
litigation. A partial answer that may well result in greater confusion and
uncertainty [p 149]than prevailed before is not in keeping with this maxim
which supplies the principal rationale for the finality of awards.
Article 34 of the Model Rules on Arbitral Procedure adopted by the
International Law Commission declares that the arbitral award "shall settle
the dispute definitively and without appeal". It can only do so if it
settles the dispute substantially. If it settles part of the dispute,
leaving a gaping void yet to be filled by further arbitral determination,
one finds it difficult to see how the quality of definitiveness can attach
to such an award.
Another facet of the same principle, expressed from the standpoint of the
individual litigants rather than the community � nemo debet bis vexari pro
una et eadem causa (its counterpart in criminal law being nemo debet bis
vexari pro uno et eodem delicto) � also has relevance here, for, after all
the trouble and years of delay involved in getting this arbitration off the
ground, both Parties were entitled to expect a final resolution of the
dispute between them rather than to have to face a second prolonged arbitral
process. The fact that an important segment of the dispute was left
undecided had an effect precisely the opposite of that contemplated by these
maxims.
If I am correct in the principles of interpretation I have applied, it seems
to me that there is only one conclusion the Tribunal could have arrived at
in regard to Question 2 had it applied the rules of treaty interpretation
recognized alike by customary international law and in its codification in
the Vienna Convention on Treaties. These rules were binding on the Tribunal
and left it with no alternative. Unless it strayed far from the real dispute
by giving a literal meaning to phrases such as "negative answer" picked out
of their context in violation of those rules of interpretation, it had
necessarily to reach the result that it was its duty to enter into Question
2.
It will be noticed that, in this analysis, I have used well-accepted
theories of interpretation which may be said to represent the mainstream
view as opposed to other theories of interpretation which still do not
command general acceptance. I have refrained from using other theories, as a
finding which needs to be so definite as to provide a basis for a
declaration of nullity requires to be approached along well-trodden ground.
The preceding analysis has made it clear that the one interpretation pointed
to by the contextual, "intentions" and teleological methods is that the
entire dispute was the subject of the arbitration in general and of Question
1 in particular. It is also clear that the duty of the arbitrators was to
have had constantly before them the main object and purpose of the
enterprise on which they were engaged � the determination of the entire
maritime boundary and the resolution of the acute dispute that had arisen
between the Parties.
The conclusions thus arrived at through the use of principles of inter-[p
150]pretation are in fact fortified even further by the Tribunal's own view
of the question before it.
The Tribunal was well aware that "the relations" were not confined to the
territorial sea, the contiguous zone and the continental shelf, but extended
also to the exclusive economic zone and the fishery zone. The ambit of the
dispute as extending to all five zones was never in dispute before the
Tribunal. The Order of the Tribunal also shows that it was well aware that
the boundaries of all five zones were before it for determination. Indeed,
the Order is headed, in phraseology no doubt worked out by the Tribunal
itself, with the caption "Arbitration Tribunal for the Determination of the
Maritime Boundary" (emphasis added).
The Tribunal, having decided that the Agreement was � "valid, wholly valid"
(Award, para. 82) had to move on to the interpretation of that agreement in
the context of the practical dispute that had surfaced between the Parties
and was dominating their concern. It was no question of academic
interpretation to which the Tribunal was asked to address itself but one
firmly embedded in the real world of practical affairs. How did the Tribunal
view that task?
To quote its words:
"The sole object of the dispute submitted by the Parties to the Tribunal
accordingly relates to the determination of the maritime boundary between
the Republic of Senegal and the Republic of Guinea-Bissau, a question which
they have not been able to settle by means of negotiation." (Ibid., para.
27; emphasis added.)
If there were still any doubt regarding the Tribunal's understanding of the
question which it was addressing, such doubt is dispelled by the Tribunal
itself. It says in paragraph 83 of its Award:
"The Tribunal is not attempting to determine at this point whether there
exists a delimitation of the exclusive economic zones based on a legal norm
other than the 1960 Agreement, such as a tacit agreement, a bilateral custom
or a general nom. It is merely seeking to determine whether the Agreement in
itself can be interpreted so as to cover the delimitation of the whole body
of maritime areas existing at present." (Emphasis added.)
If that was the question the Tribunal was seeking to address, the answer it
gave was clearly in the negative.
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 compromise 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. [p 151]
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'�tre 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.
What follows in law from the principles outlined in the preceding
discussion?
II. Is the Award a Nullity ?
A consideration of the legal effect on the Award of the circumstances
outlined thus far necessitates the examination of a number of legal
principles, all of which were the subject of detailed submissions to this
Court. The central question to be addressed is whether the manifestly
incorrect interpretation of the compromis and of the Tribunal's mandate,
followed by the Tribunal's consequent course of action, results in the
nullity of the Award. If this result follows in law, the further question
must be examined whether the Award is a nullity in its entirety or only in
regard to the decision not to examine the issues remaining for examination
under Question 2.
The ensuing enquiry deals first with the legal presumptions and principles
applicable to the protection of the Award. The concepts of nullity and exc�s
de pouvoir will then be briefly examined, followed by an examination of the
question whether the nullity of an international arbitral award takes effect
of its own force or depends on the existence of a Tribunal competent so to
declare. Two conceptual questions will then be consid-[p 152]ered � whether
the failure to answer Question 2 was the subject of a decision and whether a
negative decision cannot constitute an exc�s depouvoir, as submitted by
Senegal. A brief examination follows of Guinea-Bissau's contention that the
decision is nullified in consequence of absence of reasons and of Senegal's
submission that the principle of competence de la competence places
questions of interpretation within the exclusive domain of the Tribunal. The
enquiry concludes with a somewhat more extended discussion of the principle
of severability as applied to the issues already decided and those awaiting
decision.
Burden of proof of invalidity of Arbitral Award
As Balasko has written in his celebrated work FN1, the validity of the
arbitral award is to be presumed.
---------------------------------------------------------------------------------------------------------------------
FN1
A. Balasko, Causes de nullite de la sentence arbitrale en droit
international public, 1938, p. 201.
---------------------------------------------------------------------------------------------------------------------
In the Arbitral Award Made by the King of Spain (Z.C.J. Reports 1960, p.
192, at p. 206), this Court acted on the principle that the burden lay upon
the party contending that the award is invalid. The ensuing enquiry is
undertaken on this basis and with due deference to the presumption of
validity. The burden of displacing that presumption lies on Guinea-Bissau
and that burden, having regard to the importance of the finality of arbitral
awards, is a heavy one. Moreover, the contention of Guinea-Bissau (public
sitting of 4 April 1991, CR 91/3, pp. 85-87) that, in the case of a patent
flaw, the burden of proof of validity lies upon the parties seeking to
uphold it is not entitled 6 succeed. This opinion proceeds upon the basis
that the party impugning the award is at all times under the burden of
proving that sufficiently weighty circumstances exist to support its
contention that the award is invalid.
Protection of the Award and protection of the compromise
The Republic of Senegal has urged before us, and rightly so, that we should,
when invited to pronounce upon the validity of an award, bear in mind that
the institution of arbitration represents one of the major achievements of
the international legal order. A heavy burden of responsibility thus rests
upon an international tribunal which is invited to make a declaration that
an arbitral award, entered under a valid compromis freely contracted between
the parties, is null and void. Such a declaration is not one to be lightly
sought or lightly granted by any court.
At the same time it should be observed that a proper respect for
international arbitration involves not only respect for the award but also
respect for the compromis which provides the foundation on which the award
stands. While, therefore, one must respect the integrity and finality of the
arbitral award, the principle of deference to the award cannot entrench
awards regardless of major discrepancies between the conduct of the arbi-[p
153]tration and the course charted out for it by the compromis. Far from
preserving respect for the arbitral institution, such an approach would
undermine the proper respect the institution should command. Absolute
finality can only be bought at the cost of detriment to arbitration as an
institution.
There is a natural tension between the two principles outlined, and the
demarcation of the borderline between them is hence a task calling for
anxious consideration. In that task we are called upon to weigh the benefits
of certainty against the danger of departures from the compromis and there
is no set formula that will match these considerations against each other.
The Court's task is not an easy one. Yet, as with so many instances in the
law where opposing principles compete for supremacy, there are cases where
the one consideration is present in so strong a measure that the other must
clearly recede. This case is one such.
The jurisprudence of international law offers us many examples where the
principle of the integrity of the compromis has prevailed over that of the
integrity of the award. For example, where a tribunal, invited to decide
whether one party or the other should be awarded sovereignty over a
territory does not decide this question but examines rather whether there
should be a servitude over the territory, the award clearly cannot stand (as
happened in the Aves Island case of 1865 where the Queen of Spain was
arbitrator FN1). So, also, where an arbitrator, invited to choose between
two boundary lines, recommends a third line, he clearly oversteps the limit
of his authority FN2. These are cases clearly travelling beyond the scope of
the arbitrator's authority.
---------------------------------------------------------------------------------------------------------------------
FN1
A. de Lapradelle and N. Politis, Recueil des arbitrages internationaux, Vol.
II, p. 404, at p. 414.
FN2 See the Northeastem Boundary: Arbitration under the Convention of
September 29, 1827, where the King of the Netherlands, invited to choose
between the boundary lines, recommended, in his award of 1831, a third line
(Moore, International Arbitrations, Vol. I, pp. 133-136).
---------------------------------------------------------------------------------------------------------------------
As will be discussed later, decisions can take a positive or negative form.
One can take a decision to act when the compromis clearly requires one not
to act, just as one can take a decision not to act where the compromis
clearly requires one to act. In both cases alike the decision is one beyond
the scope of the arbitrator's authority and involves the arbitrator in
stepping out, so to speak, from the frame of the compromis. When this
happens the resulting decision can command no claim to validity, for it is
not based on that bedrock of mutual consent which is a prerequisite to
arbitral authority. The award, lacking that foundation, cannot sustain
itself or command recognition.
The concept of nullity
A brief prefatory note will clarify the terminology adopted in this section,
as confusion is sometimes caused in the area of nullity by the some-[p
154]what different connotations which different legal systems attach to some
of the expressions used.
Contract, matrimonial law and, more recently, administrative law are
traditionally areas where domestic legal systems have had to make
distinctions between the results caused by a variety of vitiating factors.
The terminology of international law in regard to nullity has its
antecedents in those concepts of domestic law. The common law and the civil
law have differing approaches to the categorization of the resulting
juristic situations.
The civil law differentiates at least three distinct types of legal status
resulting from a vitiating factor while the common law, broadly speaking,
contents itself with two. The word "nullity" as used in the one system is
not therefore identical with the word as used in the other. The language of
international law in this field seems in general to have followed the
phraseology of the civil law.
The three principal types of nullity, as referred to in the literature of
international law, are
(i) inexistence;
(ii) absolute nullity; and
(iii) nullity resulting from the act of annulment by a competent authority
FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
See R. Y. Jennings, "Nullity and Effectiveness in International Law",
Cambridge Essays in International Law: Essays in Honour of Lord McNair,
1965, pp. 65-67.
---------------------------------------------------------------------------------------------------------------------
The term "inexistence" is not a term of the common law. Rather, the common
law distinguishes between acts which are:
(i) void; and
(ii) voidable, i.e., those which retain their validity and are productive of
legal effects unless and until they are set aside by competent authority, in
which case the nullity may operate retrospectively.
Category (iii) in the first group of terms would be classified as voidable
in the common law, and when the term "nullity" is used in international law
it may well be to describe a situation which is only voidable under the
common law.
When the term "nullity" is used in this opinion it will not be used in sense
(iii) � i.e., not in the sense of voidability � for this Court is not
sitting in appeal or review and is not engaged in the exercise of
invalidating an order that would otherwise be valid. It is engaged rather in
the task of making a pronouncement in relation to the existing status of the
Award made by the Arbitration Tribunal.
A word needs to be said to clarify the distinction between categories (i)
and (ii) in the first classification.[p 155]
The inexistent order is one which is no order at all. A person with no
judicial authority who purports to make a judicial order would produce an
"order" which could be described as non-existent. In no circumstance can
this so-called "order" produce any legal consequences whatsoever. It was
never a juristic act at all. If, in this case, there was not in fact a
majority in favour of the Tribunal's decision by virtue of the President's
vote being vitiated by his declaration, that would have been a case of
inexistence, which of course is not the position here.
On the other hand, one may have to deal with an order or juristic act which,
though regular on the face of it, is rendered illegal by a factor extraneous
to the procedural regularity of its creation. For example, a treaty which
offends against a rule of jus cogens, though complying fully with all the
requirements of procedural regularity in its creation, can still be null and
void owing to a factor lying outside those procedural formalities. As
Jennings points out:
"the treaty may fulfil all the requirements for a valid treaty and is void
not because it lacks an essential ingredient of a valid treaty but because
it offends against the general rule of the jus cogens... The treaty that
offends against a rule of the jus cogens is not so because it lacks an
essential ingredient but, on the contrary, precisely because it is a
treaty." (Op. cit., pp. 66-67.)
In other words an act which is a nullity because it offends some fundamental
principle is in a different category from an act which was never a juristic
act at all.
Inexistence and absolute nullity are thus distinguishable one from the other
although they have this in common that they are nullities from their very
inception and do not require the declaration of a competent tribunal or a
court to render them devoid of legal consequences.
This case has been presented solely on the basis that the act in question,
namely the Award of the Tribunal, is inexistent or a nullity ab initio
requiring no invalidation from this Court, but only a declaration that such
act is and has been a nullity from the commencement. The Applicant itself
has stressed that it is not addressing any argument to this Court as though
it were sitting in appeal or review. This rules out from our consideration
the question of voidability.
Senegal has advanced the argument that, inasmuch as no act of avoidance is
involved in making a declaration of nullity, the role of a court making such
a declaration is reduced to that of a mere mechanical endorser of a
pre-existing state of affairs. This contention of Senegal cannot be upheld.
Declarations of nullity have an important juristic significance, and the
jurisdiction to make such declarations in appropriate circumstances enhances
rather than diminishes the role of the Court as a custodian of international
law and its principles. Indeed, through the exercise of this jurisdiction,
the Court can play a role in imparting a dynamic nature to this developing
department of international jurisprudence and [p 156] help to mould it in a
manner which will protect the integrity and prestige of the arbitral
process.
Development of the concept of nullity
International law, though still an infant science, has made remarkable
progress since the days of Grotius who, at a very rudimentary stage of its
evolution, perceived the need to clothe the international arbitral decision
with finality and unquestioned validity FN1. The foundations of
international arbitration had then to be solidly laid. Yet the law could not
remain static and after early inroads upon the principle of finality, made
by such writers as Pufendorf, later writers have built upon those
foundations a structure increasingly responsive to the varied situations for
which it must cater in a changing world.
---------------------------------------------------------------------------------------------------------------------
FN1
Grotius, De Jure Belli ac Pacis, Book III, Chap. XX (XLVI), in The Classics
of International Law, ed. J. B. Scott, Vol. II, p. 823.
---------------------------------------------------------------------------------------------------------------------
In the developing jurisprudence that has ensued there appear the names of a
galaxy of writers who analyse in great detail the circumstances in which an
award can be considered a nullity FN2. As early as 1873 the Institute of
International Law adopted a R�glement concerning the procedure of arbitral
tribunals. Article 27 of the R�glement provided that an arbitral award is
nuIl and void in certain cases, one of which is excess of authority.
---------------------------------------------------------------------------------------------------------------------
FN2
Guinea-Bissau in its Memorial in the present proceedings (para. 63,
footnote) cites an array of publicists including A. Balasko, F. Bondil, E.
Borel, F. Castberg, A. El Ouali, P. Guggenheim, W. G. Hertz, M. A.
Pierantoni, G. Salvioli, M. Reisman, J. H. W. Verzijl, J. G. Wetter and J.
C. Witenberg. To this list may be added Hall, Oppenheim, Brierly, Hyde,
Fauchille, Nys, Heffter, Bluntschli, Fiore, Twiss and Rolin among others.
---------------------------------------------------------------------------------------------------------------------
This is not to say that respected voices were not heard supporting the
opposite view. The illustrious de Martens, for example, at the Hague
Convention of 1899, argued strongly against the possibility of nullifying or
revising an arbitral award FN3. So, also, the Hague Conventions of 1899 and
1907 in their articles relating to arbitration speak of arbitration orders
as being final and without appeal and do not specify causes of nullity (see
Articles 48 and 54 of 1899 and Articles 73 and 81 of 1907).
---------------------------------------------------------------------------------------------------------------------
FN3
See Proceedings of the Hague Peace Conferences: Conference of 1899, p. 186.
107
---------------------------------------------------------------------------------------------------------------------
Yet the weight of opinion has long swung in favour of the view that the
validity of arbitral awards is not absolute. The Report of the International
Law Commission, 1958, states in regard to the annulment of the award that:
"Neither the Special Rapporteur nor the Commission itself has accepted the
categorical theory that an arbitral award should be [p 157]treated as final
even if found to be morally unacceptable or practically unenforceable." FN1
------------------------------------------------------------------------------------------------------------
FN1
Yearbook of the International Law Commission, 1958, Vol. 2, p. 11.
------------------------------------------------------------------------------------------------------------
Further developments and refinements of the bases of nullity must
necessarily ensue, and this Court will no doubt be called upon to play an
important role in evolving the principles that will enable the balance to be
held true, between the principle of finality and the due recognition of
vitiating factors.
The nullity of an award given without jurisdiction is moreover a
well-accepted proposition in domestic legal systems. In the common law one
of the classic texts on the finality of judgments and awards states:
"it is quite clearly established that, wherever the arbitral tribunal has
exceeded the jurisdiction with which it has been invested by the agreement
of the parties, or by the order of the court, or by the statute, the award,
so far from operating as res judicata, is deemed an absolute nullity either
in whole, or in part, as the case may be" FN2.
------------------------------------------------------------------------------------------------------------
FN2
G. Spencer Bower and A. K. Turner, Res Judicata, 2nd ed., p. 102.
------------------------------------------------------------------------------------------------------------
In the civil law the principle that an arbitrator cannot exceed the terms of
his authority is a time-honoured one going all the way back to the Roman
maxim arbiter nihil extra compromissum facere potest. The principle that
arbitrators cannot exceed their powers and decide points which have not
really been submitted to them was adopted by international law at a very
early stage FN3.
---------------------------------------------------------------------------------------------------------------------
FN3
Vattel, Le droit des gens, 1758 (para. 329), in The Classics of
International Low, ed. J. B. Scott, Carnegie Institution of Washington,
1916, Vol. 3, p. 224, translated by G. Fenwick.
---------------------------------------------------------------------------------------------------------------------
Exc�s de pouvoir and infra petita
The doctrine has been continuously developed since its formulation by early
writers such as Vattel (op. cit.), especially under the rubric of exc�s de
pouvoir, and numerous cases have built around it a considerable body of
jurisprudence. One has only to look at treatises such as that of Dr. Verzijl
FN4 to see the numerous major cases where the plea of exc�s de pouvoir has
been raised over a long historical period. Within the rubric of exc�s de
pouvoir, infra petita covers the case where a tribunal runs counter to its
compromis in not addressing issues it was required to address.
---------------------------------------------------------------------------------------------------------------------
FN4
J. H. W. Verzijl, op. cit., p. 577.
---------------------------------------------------------------------------------------------------------------------
Exc�s de pouvoir is one of the most invoked rubrics of nullity and one of
the areas where arbitral law will continue to face challenges and require
development. Although the Parties, both of civil law jurisdictions, pre-[p
158]ferred to couch their arguments in terms of exc�s depouvoir, similar
soncepts of total nullity find a place in the jurisprudence of other legal
systems, including the common law, where the concept of ultra vires has
recently received extended development in the context of administrative FN1
and arbitral FN2 law. In Islamic jurisprudence, likewise, a similar notion
of nullity existed under the well-recognized principle of legitimacy. Under
this principle, all acts, procedures, dispositions and final decisions of
the public authorities at any level were held to be invalid and not legally
binding as to the people they affected, Save to the extent that they were
consistent with the law FN3. The basic notion of the nullity of an act
performed without the requisite authority thus enjoys wide recognition in
the world's legal systems.
---------------------------------------------------------------------------------------------------------------------
FN1
See H. W. R. Wade, Administrative Law, 1988, pp. 39-48.
FN2 M. J. Mustill and S. � Boyd, Commercial Arbitration, 1989, pp. 554-555.
This work states that non-compliance with certain essential requisites
constitutes a patent flaw which could invalidate an award. Among these
requisites is the following: "The award must be complete in that it contains
an adjudication upon all the issues submitted to arbitration" (p. 556).
FN3 O.A. al-Saleh, "The Rights of the Individual to Personal Security in
Islam", in M. C. Bassiouni, The Islamic Criminal Justice System, 1982, p.
85.
---------------------------------------------------------------------------------------------------------------------
In the present case, the infra petita doctrine perhaps encapsulates the
relevant principle even more neatly, for the Tribunal has fallen short of
performing that which it should have performed and in this way acted as it
was not entitled to act.
Is nullity automatic or dependent on the existence of a competent tribunal?
The next stage of enquiry is into the question whether such nullity is
restricted to cases where a tribunal with necessary authority exists to make
such a pronouncement or whether the nullity is automatic, producing an
instant effect irrespective of the existence or absence of a tribunal
competent so to declare.
The latter position is not free of difficulty. One logical consequence of
recognizing the concept of automatic nullity is that it gives to
dissatisfied parties a legal rubric under which they can unilaterally
repudiate an inconvenient award. Parties can then become judges in their own
cause and the finality that should attend arbitral awards would
theoretically be gravely impaired.
The difficulty was analysed by Sir Hersch Lauterpacht, who, in 1928 FN44,
pointed out that it results from the co-existence of three rules of
international law, each of which individually seems to be inherently sound.
---------------------------------------------------------------------------------------------------------------------
FN4
"The Legal Remedy in Case of Excess of Jurisdiction", BYBIL, 1928, p. 118.
---------------------------------------------------------------------------------------------------------------------
[p 159] Lauterpacht lists these three rules as follows:
(a) The arbitrator is competent to interpret the instrument conferring
jurisdiction upon him and that is virtually to determine the scope of his
competence.
(b) In so doing, he must not disregard the terms of reference under which
the tribunal has been created.
(c) Owing to the deficiencies of judicial organization of the international
community and the absence of an appropriate tribunal no sanction is attached
to the disregard of the second principle in consequence of which, as a rule,
the awards of arbitral tribunals are final and without appeal.
Though each rule taken by itself is apparently sound, in combination they
produce conflicts which, as Lauterpacht points out, are a fruitful source of
discredit for the whole institution of international arbitration.
Lauterpacht observes that the possibility of the defeated party disobeying
an adverse award exposes a sound juridical principle
"to legal inefficacy and to abuse, inasmuch as it affords an opportunity for
cloaking with the garb of legality an essentially law-defying disposition"
(op. cit.).
However, he goes on to observe that the remedy is easily supplied by the
exercise of a simple and strictly judicial function and that the existence
of a judicial tribunal with authority to determine whether the arbitrator
had exceeded the terms of reference could be a solution. That judicial
tribunal he points out is now existent in the shape of the Permanent Court
of International Justice "which is pre-eminently qualified to decide legal
questions bearing upon the interpretation of treaties".
The weight of juristic authority is against the view that an award must
stand as binding in the absence of a tribunal competent to set it aside.
Thus Professor J. L. Brierly FN1 describes such a view 2 as a "startling
thesis" and points out that such an interpretation does not appear to have
occurred to most authors writing on the subject of awards since the Hague
Conventions. He cites among others Hall, Oppenheim, Fauchille and Nys. Among
these authors, Hall says:
---------------------------------------------------------------------------------------------------------------------
FN1"The
Hague Conventions and the Nullity of Arbitral Awards", BYBIL, 1928, p. 115.
FN2 As expressed by Professor A. de Lapradelle in Revue de droit
international, 1928, No. 5, pp. 5-64.
---------------------------------------------------------------------------------------------------------------------
"An arbitral decision may be disregarded in the following cases: viz. when
the tribunal has clearly exceeded the powers given to it by the instrument
of submission ..." FN3
------------------------------------------------------------------------------------------------------------
FN1
W. E. Hall, International Law, 8th ed. (by Pearce Higgins), 1924, p. 420.
------------------------------------------------------------------------------------------------------------
[p 160] and Oppenheim:
"it is obvious that an arbitral award is only binding provided that the
arbitrators have in every way fulfilled their duty as umpires . . . Should
they have been bribed, or not followed their instructions ... the award
would have no binding force whatever." FN1
------------------------------------------------------------------------------------------------------------
FN1
L. Oppenheim, International Law, 4th ed., Vol. II, pp. 27-28.
------------------------------------------------------------------------------------------------------------
Among the prominent publicists who support the view that, where the
arbitrators have proceeded without authority, their awards would carry no
weight, are Vattel FN2 and Phillimore FN3.
---------------------------------------------------------------------------------------------------------------------
FN2
Op. cit., pp. 223-224.
FN3 R. J. Phillimore, Commentaries upon International Law, 3rd ed., Vol. 3
[1885], p. 3.
---------------------------------------------------------------------------------------------------------------------
Brierly points out that, although "it is undesirable that the complainant
state should assume to decide the question of nullity for itself, and
although agreements for a further reference to arbitration have sometimes
been made by states in such a case" (for example, the Orinoco Steamship Co.
case), "there is no warrant in law for saying that unless such a reference
takes place... the complainant party is without remedy..." FN4.
---------------------------------------------------------------------------------------------------------------------
FN4
Op. cit., p. 116.
---------------------------------------------------------------------------------------------------------------------
Further, although the Hague Conference, being unable to propose a
satisfactory procedure for adjudicating on questions of nullity, thought it
best to say nothing about the substantive law of nullity, it is to be noted
that the report of chevalier Descamps showed that it hoped that when the
Permanent Court of Arbitration came to be established States would come to
use it for deciding allegations of nullity.
Although inconveniences and practical difficulties can result from the
principle of absolute nullity there can thus be no theoretical difficulty in
accepting the concept, even in the absence of a tribunal with competence to
make the requisite declaration.
It would be difficult for a country to take it upon itself unilaterally to
disregard a solemn international arbitration and to act in defiance of the
presumption that the arbitral award is binding. As Brierly observes:
"In practice also the fact that the appreciation of a cause of nullity is
left to the state affected is not so grave a defect as it seems in
principle. It is not easy for a state to refuse execution of an award on the
ground of nullity, and instances where it has done so have been rare."
In this case Guinea-Bissau has very properly sought to have an authoritative
declaration of what it states is the legal position and has not chosen to
act unilaterally on the basis of its own view.
Reference may also be made in this context to Judge Winiarski's indi-[p
161]vidual opinion in the Effect of Awards of Compensation Made by the
United Nations Administrative Tribunal case (I.C.J. Reports 1954, p. 65).
That opinion, which has been described as the traditional view, was as
follows:
"An arbitral award, which is always final and without appeal, may be
vitiated by defects which make it void; in this event, a party to the
arbitration will be justified in refusing to give effect to it. This is not
by virtue of any rule peculiar to ordinary arbitration between States; it is
a natural and inevitable application of a general principle existing in all
law: not only a judgment, but any act is incapable of producing legal
effects if it is legally null and void." FN1
------------------------------------------------------------------------------------------------------------
FN1
W. Michael Reisman, Nullity and Revision: The Review and Enforcement of
International Judgments and Awards, 1971, p. 423.
------------------------------------------------------------------------------------------------------------
There does not therefore seem to be any logical difficulty in the concept of
a court declaring a state of nullity to have existed prior to its
declaration. Indeed such a declaration made in appropriate circumstances by
a court possessed of the necessary jurisdiction is a powerful means of
ensuring the integrity of international arbitration.
Was the failure to answer Question 2 the subject of a decision ?
The Tribunal took the view that it was not called upon to reply to Question
2. Paragraph 87, which contains this information, is very tersely expressed:
"Bearing in mind the above conclusions 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."
(Emphasis added.)
Does this constitute a decision? Did the Tribunal just happen to wander into
a course of inaction or was there a considered decision not to act ?
A decision is by definition the process of making up one's mind. One reaches
thereby a conclusion which may or may not be formally expressed.
In Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal(I.C.J. Reports 1973, p. 166), this Court dealt with
the question whether an omission by a tribunal to exercise jurisdiction with
respect to a certain submission made to it constituted a decision. The Court
held (at p. 193) that the test was whether the Tribunal had addressed its
mind to the matters on which the plea was based, and not the merely formal
one of verifying whether the plea had been mentioned eo nominein the
substantive part of the judgment.
The question of failure to exercise jurisdiction came before this Court
again in Application for Review of Judgement No. 333 of the United Nations
[p 162]Administrative Tribunal (I.C.J. Reports 1987, p. 18) where, even in
the absence of an express decision specifically rejecting or upholding the
relevant contention, this Court found that the Tribunal clearly made a
decision, though by implication (at p. 45). What was important was whether
"the Tribunal addressed its mind" to the matters on which the contention was
based "and drew its own conclusions therefrom" (at p. 44).
It thus seems clear beyond argument that there was a conscious decisional
process involved, however terse the language used to describe it. The
Tribunal has brought its mind to bear upon two factors � the conclusions it
has already reached and the wording of Article 2. It has considered the
bearing of one upon the other. It has formed an opinion. It has made up its
mind that it will not decide the issue raised in Question 2. It has reached
a decision.
The absence of amplified reasons does not take away from the fact that it is
a decision. Whether ill- or well-considered, the decision not to answer an
important question addressed to it � a decision not to act � was as much a
decision as its converse.
That decision was one fraught with far-reaching consequences, for both the
Parties and the Tribunal were aware that the disputes regarding the
exclusive economic zone and the fishery zone were a vital part of the
matters in contention between the Parties. The disputes would continue
unabated if the arbitration left them unresolved. Hence the decision was not
a decision only in the formal or semantic sense but one on which grave
practical consequences turned. The step of not deciding Question 2 was
indeed a decision and a momentous one at that.
A negative decision can constitute an exc�s de pouvoir
To quote Carlston, "the tribunal... derives its life and vitality from the
compromis. Respect for its constitutive treaty is its cardinal rule of
action." FN1 Consequently, the compromise becomes the constant point of
reference for the tribunal on every matter concerning its powers, duties and
scope of action.
---------------------------------------------------------------------------------------------------------------------
FN1
K. S. Carlston, The Process of International Arbitration, 1946, p. 64.
---------------------------------------------------------------------------------------------------------------------
We have here a situation where a compromis calls upon the arbitrators to
resolve a certain dispute. It maps out for them the area in which their
determination is required. Its object and purpose are clear. The Parties to
it have committed to the Tribunal the resolution of their entire dispute.
The terms of the compromis �� so drafted as to entitle the Parties to expect
an order which will settle this troublesome matter finally and definitively.
The essential outcome represents a clear conflict between the course mapped
out in the compromis and that chosen by the Tribunal. [p 163]
Senegal urged before us (public sitting of 5 April 1991, CR 9114, pp. 60-61)
that the omission to act, far from being an exc�s depouvoir, is rather the
non-exercise of a power which has been conferred and that "an omission is
the very opposite of a usurpation".
This submission is not entitled to succeed. The negative fact of inaction
ensues from and connotes an affirmative decision. Affirmative decisions
attract the tests of exc�s depouvoir and do not repel them or render them
irrelevant merely because the decision is a decision not to act.
This is a conclusion confirmed both by high juristic authority and by the
insights of modern analytical jurisprudence. Balasko enumerates the
categories of exc�s depouvoir in public international law as follows:
''Il est bien entendu que l'exc�s de pouvoir du tribunal peut �tre commis
non seulement par action, mais par omission, par inaction, par abstention,
par manquement aux r�gles prescrites dans le compromis ou par la nature et
le but de la fonction juridictionnelle, Ainsi le tribunal doit juger tout
point prevu au compromis, f�t-il d'avis qu'il n'y a pas lieu de
l'examiner."FN1
------------------------------------------------------------------------------------------------------------
FN1 A. Balasko, op. cit., p. 200: emphasis added.
------------------------------------------------------------------------------------------------------------
A negative decision is thus clearly within the categories of decisions which
can attract the principles of exc�s de pouvoir.
In the words of a detailed treatise on nullity and revision of international
awards:
"There can be little doubt that review competence extends to negative
decisions: a decision either to disseise jurisdiction initially (for reasons
of defective jurisdiction, inadmissibility, or lack of a showing of adequate
'legal interest') or to reject on grounds of the merits. In terms of value
allocation, these decisions are indistinguishable from positive decisions;
hence their grounds are equally susceptible to nullification. Indeed, the
Orinoco case and the Caracas arbitrations were nullified because too little,
and in some claims nothing at all, was decreed.
From the standpoint of policy, no distinction should be drawn between
positive and negative decisions. The conditions which necessitate review can
obtain for both ..." FN2
------------------------------------------------------------------------------------------------------------
FN2
Reisman, op. cit., pp. 441-442.
------------------------------------------------------------------------------------------------------------
Much light is thrown on problems such as this by the insights of modern
analytical jurisprudence especially in its researches on the semantics of
legal language. Such studies as that of Julius Stone FN3 have shown how
semantic variations in the formulation of the self-same issue produce dif-[p
164]ferent legal answers if one permits the form of the question to
overshadow its underlying meaning. One is not here asking whether the
Tribunal acted affirmatively or did not act but whether the decision it took
was one which it was or was not entitled to take. Following in the wake of
research by distinguished jurists of both the common law and the civil law
traditions, these explorations of the meaning of meaning stress the
importance of the referent behind the form of words, rather than the words
themselves.
---------------------------------------------------------------------------------------------------------------------
FN3
Legal System and Lawyers' Reasonings, 1964, pp. 241 et seq.
---------------------------------------------------------------------------------------------------------------------
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.
Reisman in his study of nullity reflects this thinking when he observes:
"Non-decision is simply a different form for articulating a substantive
decision. A decision � a controlling value allocation � can, obviously, be
articulated in many forms. Once an organized arena has been seised of a
matter, however, it cannot escape decision. Its culminating behavior,
whatever the manifest purport and form, will have value consequences ... In
particular, students should consider the full range of effects caused by
clothing a substantive decision in the form of a non-decision ...
'Decisions refusing to decide' � or 'nondecisions' � are real decisions no
matter how they are characterized..." (Op. cit., pp. 625-626.)
The decision not to answer Question 2 meant that the Tribunal was of its own
accord releasing itself from a major portion of the task entrusted to it by
the compromis. It departed from its terms, context and object. It also
defeated the main purpose of arbitration in general, which is to resolve
disputes, for it left even more unsettled than before the contentions
between the Parties. It was not a decision the Tribunal was entitled to make
under the treaty which was its charter of authority.
The absence or insufficiency of reasons
The necessity for reasons in an arbitral award is of course obvious as it
removes any appearance of arbitrariness in the Tribunal's decision. It is a
long-established and well-respected rule.
Article 31 of the International Law Commission's Model Rules on Arbitral
Procedure, adopted by the Commission in 1958, states that, "The award shall
state the reasons on which it is based for every point on which it rules."
[p 165]
There have been occasional instances of major international arbitrations in
which no reasons have been given for the award, as for instance in the
Portendick arbitration of 1843 between France and Great Britain in which the
arbitrator was the King of Prussia. However, such award without reasons
immediately attracted criticism from learned publicists even at that early
stage in the evolution of international arbitral law. The Portendick
arbitration was criticized by Fauchille FN1 and in 1897 when President
Cleveland failed to give reasons for his decision in the Cerruti arbitration
between Colombia and Italy, this was criticized by Darras FN2.
---------------------------------------------------------------------------------------------------------------------
FN1
Doctrinal note in de Lapradelle and Politis, Recueil des arbitrages
internationaux, Vol. 1, pp. 543-544.
FN2 Revue generale de droit infernational public, 1899, Vol. 6, p. 547.
---------------------------------------------------------------------------------------------------------------------
Scelle, the eminent Special Rapporteur to the International Law Commission,
referred in his report to the rule that a judgment should be accompanied by
a statement of the reasons on which it is based. Describing this as a firmly
established principle which had acquired the force of law, he added:
"There would appear to be no point in stressing these undisputed principles
here, and it is enough to emphasize the need for a statement of reasons. A
judgment unaccompanied by a statement of reasons is not a judgment, but a
mere opinion." FN3
------------------------------------------------------------------------------------------------------------
FN3
Scelle, Report on Arbitration Procedure, A/CN.4/18,21 March 1950, p. 67.
------------------------------------------------------------------------------------------------------------
In the case of the King of Spain�s Award, one of the grounds of nullity
urged by Nicaragua was that there was an inadequacy of reasons given by the
arbitrator in support of his conclusions. However the Court held that the
award dealt in logical order and in some detail with all the relevant
considerations and that it contained ample reasoning and explanations in
support of the arbitrator's conclusions. The allegation was therefore
rejected.
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. [p 166]
The principle of competence de la competence
It has been argued in this case that questions of interpretation of the
compromis are a matter for the Tribunal itself and that questions of its
powers and jurisdiction are within its exclusive domain. The principle
invoked is the principle of competence de la competence.
This principle, which is in tension with the principle extra compromissum
arbiter nihil facere potest FN1, evolved at an early stage of the
development of international arbitration as a necessary attribute of the
independence of arbitrators. Though they were nominees of the contending
parties they needed to shake themselves clear of any appearance of
continuing dependence on their principals in regard to matters concerning
the scope of their arbitral powers. When a dispute arose as to the
interpretation of the clause conferring jurisdiction upon them, this was
therefore treated as a matter entirely for the arbitrators, and rightly so.
---------------------------------------------------------------------------------------------------------------------
FN1
Jennings, op. cit., pp. 83-84.
---------------------------------------------------------------------------------------------------------------------
The rule of competence de la competence, now well recognized in
international law, is embodied in Article 6, paragraph 6, of the Statute of
this Court and in Article 10 of the Model Rules on Arbitral Procedure, 1958,
of the International Law Commission FN2.
---------------------------------------------------------------------------------------------------------------------
FN2
See also J. H. Ralston, International Arbitral Law and Procedure, 1910, pp.
21 et seq.; and C. Rousseau, Droit international public, Vol. V: Les
rapports conflictuels, 1983, No. 311, p. 323.
---------------------------------------------------------------------------------------------------------------------
The rule was clearly enunciated by the Permanent Court of International
Justice in its Advisory Opinion in the Interpretation of the Greco-Turkish
Agreement of 1 December 1926:
"it is clear � having regard amongst other things to the principle that, as
a general rule, any body possessing jurisdictional powers has the right in
the first place itself to determine the extent of its jurisdiction � that
questions affecting the extent of the jurisdiction of the Mixed Commission
must be settled by the Commission itself without action by any other body
being necessary" (P.C.I.J., Series B, No. 16, p. 20).
Yet there must naturally be limits upon this principle as Senegal itself has
so properly recognized in its Counter-Memorial in the present proceedings in
paragraph 64 of which it states:
"It is nevertheless true � and Guinea-Bissau is right on this point � that a
court's jurisdiction over its own competence is not unlimited: the court may
thus not usurp powers which manifestly do not follow from the text of the
jurisdictional clause, interpreted in the light of the relevant principles
of international law. If a court were thus to exceed its powers, the result
would be to render its decision null and void in whole or in part." [p 167]
A standard work on international arbitration FN1 explains that the principle
would not apply to an award based on an assumption of powers which clearly
could not be justified on any legitimate process of interpretation of the
compromis. Nor would it apply if it could be shown for example that the
Tribunal had not directed its mind to the question on which its jurisdiction
depended. The authors conclude:
---------------------------------------------------------------------------------------------------------------------
FN1
J. L. Simpson and Hazel Fox, International Arbitration: Law and Practice,
1959, p. 252.
---------------------------------------------------------------------------------------------------------------------
"The rule that a tribunal has jurisdiction to decide its jurisdiction
therefore does not mean that its decision is conclusive. There is no
conflict between the two rules; the first rule has to be read as subject to
the second. In practice difficulty arises, not from the alleged conflict
between the two rules, but from the lack of any generally available means of
determining objectively whether the conduct of the tribunal has been such as
to justify the application of the second rule." FN2
------------------------------------------------------------------------------------------------------------
FN2
Ibid.; see also Lauterpacht, op. cit., p. 117.
------------------------------------------------------------------------------------------------------------
These considerations go to the very heart of the compromis. What was the
matter which was committed to the Tribunal for decision ? Was it the entire
maritime dispute or only a part thereof? Did it accord with the object and
purpose of the compromis that the Tribunal should address only part of this
question and leave a major part unanswered ? These issues clearly touch the
very fundamentals of the Tribunal's authority. A decision which manifestly
goes beyond the authority conferred by Article 2 is not in my view saved by
the principle of competence de la competence.
The principle of severability
The preceding discussion has led to the conclusion that the Award is so
fundamentally flawed as to be a nullity. One question yet remains for
examination and that is whether such nullity applies only to the decision
not to demarcate the boundaries of the exclusive economic zone and the
fishery zone or whether it applies also to the decision in regard to the
three zones which the Tribunal did in fact demarcate.
There is more than one reason why every endeavour should be made to preserve
the integrity of that latter decision. In the first place, it was within the
subject-matter committed to the Tribunal for decision and, from the point of
view of formal jurisdiction, was untouched by the taint of exc�sde pouvoir.
Secondly, in the interests of achieving an end to litigation, it can be
urged that it determines at least some contentious issues and clears the
decks so to speak for the future determination of the remaining issues. In
the third place, a duty lies upon the court making the declaration of
nullity to keep to a minimum the scope of that nullity. [p 168]
These are powerful considerations moving the Court in the direction of
upholding the Tribunal's determination of the territorial sea, the
contiguous zone and the continental shelf.
Yet, there is an overriding principle which prevents the Court from giving
effect to the considerations just mentioned and that is the principle that
serious prejudice must not be caused to either party in consequence of the
erroneous decision to make only a partial determination. Much though a court
should strive to uphold the decisions made within the tribunal's formal
authority, this result should not be achieved at the cost of substantial
damage to the interests which the parties had submitted to the tribunal for
decision.
The principle of severability holds the key to the determination of this
question of prejudice. Can the issues already decided be severed from those
awaiting determination without prejudice to the interests of one party or
the other? Are the issues involved so intrinsically connected that the known
answer will cramp the free determination of the unknown by wielding a
significant influence upon it? If so, this course of salvage of the partial
solution becomes unacceptable and difficult to square with principles of
justice and equity. The later decision may then be said to be pre-empted in
whole or in part by the earlier.
One could of course visualize a case where, though the various questions are
interrelated, the substantial dispute is answered but some inconsequential
portions of the dispute remain unanswered. One would not be justified in
such a situation in treating the minor omission as invalidating the entire
decision. However, that is clearly not the case in the matter before us.
There are also cases, including boundary disputes, where different segments
of the total matter in dispute can be decided as separate and discrete
problems, the answers to which can stand independently of each other. In
such cases the segments of the dispute that have been properly determined
can maintain their integrity though the findings on other segments are
assailed or do not exist. Such was the position in the Argentine-Chile
Frontier Award case of 1902 and the Orinoco Steamship Co. case of 1910 FNl.
In the former, a portion of the boundary between two boundary posts needed
further determination while the findings in regard to the rest of the
boundary could still remain intact. In the latter a series of separable and
discrete claims could be separately adjudicated upon without the findings on
one of them being interlinked with those on the others.
---------------------------------------------------------------------------------------------------------------------
FN116
Reports of International Arbitral Awards 109 and 11 ibid. 237, at p. 238,
respectively.
---------------------------------------------------------------------------------------------------------------------
If, on the other hand, the different component elements of the
subject-matter are inextricably interlinked, we face difficulties in
attempting to [p 169] uphold a partial award. One test would be to examine
the practicalities of the later decisional process. With a line already
drawn and unalterable, would the later tribunal be as free as it would be in
the absence of such a line to take into consideration all relevant facts and
make an equitable order determining the exclusive economic zone and the
fishery zone ? Are all the factors relevant to the different zones a
composite group whose subtle interaction upon each other cannot take place
if the zones are compartmentalized and separately determined? If the overall
result is to prevent a free and untrammelled resolution of the remaining
areas of the dispute, the option of preserving the existing decision ceases
to be available.
Needless to say, the task of delimitation of maritime boundaries as
important as those of the exclusive economic zone and the fishery zone, is a
delicately balanced one involving a plethora of factors � geological,
geomorphological, ecological and economic, among others � which must be
taken into account. Special circumstances such as islands, rocks and
coastline irregularities have to be considered. Developing principles of law
and equity FN1, fine-tuned to meet the needs of the particular case, have to
be sensitively applied. Thus alone can a fair and equitable result be
achieved. The possible interlinkages are too numerous to be visualized or
itemized in advance.
---------------------------------------------------------------------------------------------------------------------
FN1
See P. Bravender-Coyle, "The Emerging Legal Principles and Equitable
Criteria Governing the Delimitation of Maritime Boundaries between States"
[1988], 19 Ocean Development and International Law, pp. 171 -227.
---------------------------------------------------------------------------------------------------------------------
We should remind ourselves in this connection that:
"The fundamental rule of general international law governing maritime
delimitations . . . requires that the delimitation line be established while
applying equitable criteria to that operation, with a view to reaching an
equitable result." (Delimitation of the Maritime Boundary in the Gulf of
Maine Area, I.C.J. Reports 1984, p. 339, para. 230.)
Far from the complex mix of decisional factors blending into a harmonious
and equitable result, we will have the second tribunal functioning within a
straitjacket imposed upon it by a fixed and unalterable boundary governing
the territorial sea, the contiguous zone and the continental shelf. For
these reasons, this Court cannot conclude with any degree of assurance that
the interests of Guinea-Bissau would not be prejudiced by the piecemeal
process that will take the place of the composite process both parties had
in mind.
Is that prejudice substantial or can we overlook it in the interests of
salvaging that part of the boundary determination that has already been
made? From a practical point of view, it can hardly be said that the riches
of the sea in such key areas as the exclusive economic zone and the fishery
zone are anything but a most vital resource for any country, developed [p
170] and developing alike. The determination of their boundaries within the
framework of such pre-set constraints clearly causes a degree of prejudice
too great to be overlooked in the interests of salvaging the Award. Indeed,
it would be pertinent to note that the maritime wealth of the exclusive
economic zone and the fishery zone would, for both Parties to this
particular dispute, constitute a far greater proportion of their total
national asset than the disputed maritime zones would have involved, for
example, for the United States of America and Canada in the Gulf of Maine
case or for the Federal Republic of Germany, Denmark and the Netherlands in
the North Sea Continental Shelf cases, to quote just two examples of cases
of significant importance in the jurisprudence of the Court. For the parties
concerned, the issues were momentous and any interference with their fair
determination a matter of grave concern. The prejudice involved, by
determining the later issues within the framework of the first decision, is
thus too great to be overlooked in the interests of preserving the partial
award.
A consideration of the question of severability would be incomplete without
examining the possibility of different lines being drawn in regard to
different boundaries. This in itself is a vast question, the complexities of
which cannot at this point be envisaged. It is relevant to note in this
context that in more than one place the compromis speaks of the boundary
line which the Tribunal will draw, thus showing no contemplation of more
than one. One line drawn at 240' for the zones already determined and
another at another angle for those yet to be determined does not seem to
accord with this language. Else there could be a resulting situation, for
example, of the continental shelf following the 240" line and the exclusive
economic zone following another. Whether such a situation, even if it is
possible in law, is feasible in reality, this Court is not called upon to
determine here. All that is possible at this stage is to make a brief
reference to the jurisprudence of this Court. Such a reference will reveal a
problem so complex that it is not possible to point to a later determination
as affording Guinea-Bissau a way out of the impasse in which it finds itself
if the territorial sea, the contiguous zone and the continental shelf are to
be treated as already fixed and determined.
The Gulf of Maine case, the first in which the Court was asked to draw a
delimitation line itself FNl, was also of special significance as the Court
was asked to delimit both the continental shelf and the exclusive fishery
zone by a single boundary.
---------------------------------------------------------------------------------------------------------------------
FN1
As opposed to indicating the applicable principles and rules of
international law as in the North Sen Continental Shelf: I.C.J. Reports
1967. pp. 3 and 6, and Continental Shell (Tunisia/Libyan Arab Jarnahiriya).
I.C.J. Reports 1982; p. 18.
---------------------------------------------------------------------------------------------------------------------
[p 171]The problems attendant on treating each separate boundary as a matter
for separate enquiry become apparent from the Judgment, for, after
acknowledging that separate criteria may be appropriate and equitable for
the determination of the two areas involved, the Chamber goes on to state:
"In other words, the very fact that the delimitation has a twofold object
constitutes a special aspect of the case which must be taken into
consideration even before proceeding to examine the possible influence of
other circumstances on the choice of applicable criteria. It follows that,
whatever may have been held applicable in previous cases, it is necessary,
in a case like the present one, to rule out the application of any criterion
found to be typically and exclusively bound up with the particular
characteristics of one alone of the two natural realities that have to be
delimited in conjunction." (Delimitation of the Maritime Boundary in the
Gulf of Maine Area, Z.C.J. Reports 1984, p. 326, para. 193; emphasis added.)
The fact that the determination of separate boundaries in hermetically
sealed compartments produces different results from those that follow when
they are dealt with as a collectivity thus receives authoritative
endorsement.
The Chamber goes on to observe that:
"it can be foreseen that with the gradual adoption by the majority of
maritime States of an exclusive economic zone and, consequently, an
increasingly general demand for single delimitation, so as to avoid as far
as possible the disadvantages inherent in a plurality of separate
determinations, preference will henceforth inevitably be given to criteria
that, because of their more neutral character, are best suited for use in a
multi-purpose delimitation" (p. 327, para. 194; emphasis added).
This judicial confirmation of the differences between a composite
determination and a plurality of separate determinations, and of the
disadvantages of the latter, further establishes the necessary interlinkage
between the partial award that has been made and the residual award yet to
come. The second can scarcely be effected in isolation from the first.
The tendency to make the determination of the exclusive economic zone
coincide with that of the continental shelf is another factor crippling
freedom of decision in the course to which Guinea-Bissau would be committed
if she were to be sent to another decisional process while preserving the
demarcation of the continental shelf. As Judge Jimenez de Arechaga observed
in the case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya):
"At least in the large majority of normal cases, the delimitation of the
Exclusive Economic Zone and that of the continental shelf would [p 172] have
to coincide. The reason is that both of these delimitations are governed by
the same rules ..." (I.C.J. Reports 1982, pp. 115-116, para. 56.)
So, also, Judge Evensen referred in the same case, to "the obvious
advisability of having identical lines of delimitation for the continental
shelf and the 200-mile Exclusive Economic Zone" (at p. 319).
It is not necessary to enter here into all the complexities of these
processes, suffice it merely to note them for the limited purposes of this
opinion. Some understanding of the extent of these complexities appears also
from a perusal of the dissenting opinion of Judge Gros in the Guif of Maine
case, and from the writings of Judge Oda FN1. Having regard to these
complexities, it is clear that it would be prejudicial to the vital national
interests of Guinea-Bissau in its exclusive economic zone and fishery zone
to commit it to a decisional process clouded by so many obscurities and
hampered by so many restraints.
---------------------------------------------------------------------------------------------------------------------
FN1
See "Delimitation of a Single Maritime Boundary: The Contribution of
Equidistance to Geographical Equity in the Interrelated Domains of the
Continental Shelf and the Exclusive Economic Zone", in International Law at
the Time of Its Codification, Essays in Honour of Roberto Ago, 1987, Vol.
II, p. 349.
---------------------------------------------------------------------------------------------------------------------
It is to be noted finally that the exercise of fixing separate boundaries
for separate zones through two or more discrete determinations is
conceptually and methodologically different from the combined operation of
evaluating them as a totality. The interplay of factors relevant to more
than one boundary is immaterial to the former enquiry but central to the
latter. The production of inconsistent boundary lines is possible under the
first method but is unavailable under the second. Practical considerations
of achieving a workable overall demarcation are of immediate importance to
the second method but not necessarily to the first.
Needless to say, the compartmentalized enquiry can thus lead to vastly
different results from the consolidated one. The result which is equitable
in the context of any one or more boundaries viewed by themselves may well
be inequitable in the context of a total determination.
It is not difficult to see why the agreement laid so much store by the
concept of one demarcation line and why that factor assumes such central
importance in this case.
In all these circumstances, one cannot conclude, unless compelled thereto by
obligatory juristic principle, that an interpretation is legitimate which
commits one party or the other to a situation so fraught with prejudice.
Such a course neither offers a real solution to the problem before the Court
nor ensures a fair determination for Guinea-Bissau of its exclusive [p 173]
economic zone and its fishery zone, which was among the principal purposes
of the document under examination.
Without any intrusion into the question of the merits in relation to the
Award concerning the territorial sea, the contiguous zone and the
continental shelf, the conclusion seems irresistible that the failure of the
Tribunal to address the entire question posed to it undermines the validity
of even the partial answer it has rendered.
III. Conclusion
Reference was made at the commencement of this opinion to the importance of
maintaining the integrity of international arbitration as one of the
cardinal procedural achievements of international law. This involves the
twin considerations of respecting the finality of arbitral awards once made
and of holding arbitral proceedings within the confines of the compromis on
which they are based. As international law matures it will be necessary,
without impairing the integrity of the first principle, to develop the
second so as to make it more responsive to the demands of juristic
principle.
The case before us juxtaposes these competing considerations in a manner
highlighting the importance of each. It would be tempting to adopt the
stance that an unassailably valid compromis followed by a procedure enjoying
all the appearances of regularity should be left intact and unimpaired. It
is evident, however, that other considerations are involved, too important
to the future of international arbitration to be ignored. A court invited to
declare on the validity of the order, and with undoubted jurisdiction to
make a pronouncement thereon, would, in my respectful view, be in error if
it should fail to give to important vitiating factors the weight which they
deserve.
It has been observed that the lack of courts with jurisdiction to examine
questions of nullity and effectiveness is damaging to the development of
international law in this field (see Jennings, op. cit., p. 86). While "the
enervating effect of the lack, or near lack, of courts with compulsory
jurisdiction is nowhere more damaging than in this aspect of international
law..." (ibid.), we have here a situation where a court seised of the matter
is eminently in a position to give some guidance on the substantive law
relating to nullity. Deference to arbitral awards is important but deference
in the presence of significant deviations from the compromis may damage the
institution which it is intended to protect.
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. [p 174]
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.
For the reasons set out in this opinion, the second declaration sought by
Guinea-Bissau in its Memorial should be granted, but only on the ground that
failure to reply to the second question did not comply with the provisions
of the Arbitration Agreement, and not on the ground of failure to draw a
single line and record that line on a map, or on the ground of failure to
give reasons.
The third declaration sought by Guinea-Bissau, to the effect that the
Government of Senegal is not justified in seeking to require the Government
of Guinea-Bissau to apply the Award, should also be granted.
The first declaration sought by Guinea-Bissau, to the effect that the Award
is inexistent, should be refused.
(Signed) Christopher Gregory Weeramantry.
[p 175]
DISSENTING OPINION OF JUDGE THIERRY
[Translation]
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 [p
176] 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.
I
The Tribunal, constituted under the Arbitration Agreement between Senegal
and Guinea-Bissau dated 12 March 1985, was, as can be seen from the first
page of the Award, officially entitled in French: Tribunal arbitral pour la
determination de la fronti�re maritime, Guinee-Bissau/Senegal ["Arbitration
Tribunal for the Determination of the Maritime Boundary:
Guinea-Bissau/Senegal"] (and in Portuguese: Tribunal arbitral para a
detennina��o da fronteira mar�tima, Guine-Bissau/Senegal). The mission of
that Tribunal, like every judicial body, was to settle the dispute submitted
to it. The subject of that dispute followed from the name given to the
Tribunal, but also from the Preamble to the Arbitration Agreement, which
expressed the intention and the purpose of the Parties, by virtue of which
that Agreement had been reached. That Preamble States that:
"The Government of the Republic of Senegal and the Government of the
Republic of Guinea-Bissau,
Recognizing that they have been unable to settle by means of diplomatic
negotiation the dispute relating to the determination of their maritime
boundary,
Desirous, in view of their friendly relations, to reach a settlement of that
dispute as soon as possible and, to that end, having decided to resort to
arbitration,
Have agreed as follows ..."
These terms are perfectly clear. The dispute submitted to the Tribunal by
the two States was the dispute "relating to the determination of their
maritime boundary". (The term "determination" is significant and does not
mean the same thing as "delimitation", which occurs more frequently in the
Judgment of the Court. The word "determination" applies to a boundary line
that is not yet known and which remains to be defined. "Delimitation"
applies to known areas, whose extent needs to be specified.)
However, the Arbitration Agreement did not merely define the dispute in that
way; it also provided guidelines for the ways in which it was to be settled
by the Tribunal. In relation to the determination of the maritime boundary,
it was stated that this should be effected by the definition of a "boundary
line", i.e., by a single line. Article 2, paragraph 2, of the Arbitration
Agreement refers in that regard to: "the line delimiting the maritime
territories appertaining to the Republic of Guinea-Bissau and the Republic
of Senegal respectively".[p 177]
Need one stress that, in this text, the "maritime territories" are in the
plural and the word "line" is singular, and that it is therefore one single
line, rather than several, that is contemplated?
In the same way, Article 9, paragraph 2, of the Arbitration Agreement, which
provides that the Award "shall include the drawing of the boundary line on a
map", is fully explicit both with respect to the obligation implied by the
word "shall" and with respect to the concept of the boundary line.
There was therefore no uncertainty surrounding the mission of the Tribunal
as defined by the Arbitration Agreement. It was required, not to delimit
this or that maritime area appertaining to the Parties respectively, but to
bring about a comprehensive settlement of their dispute by the determination
of their maritime boundary.
This is the mission that the Tribunal has not accomplished. As we know, it
confined itself to finding that the Franco-Portuguese Agreement of 26 April
1960, concluded prior to the independence of the two litigant States, "has
the force of law" in the relations between them. By so doing, the Tribunal
applied, to the maritime areas, the principle known as uti possidetis juris
or, in other words, the principle of respect for frontiers inherited from
the colonial period. The Tribunal nonetheless specified that that Agreement
related exclusively to the only areas that existed in international law at
the time of its conclusion and that, as a consequence, only those areas had
been delimited, i.e., the territorial sea, the contiguous zone and the
continental shelf. What is more the Award, in its statement of reasoning,
makes the paradoxical suggestion that: "it may be concluded that the
Franco-Portuguese Agreement delimits the continental shelf between the
Parties over the whole extent of that maritime space as defined at present"
(text quoted in paragraph 16 of the Judgment).
The vagueness of this statement derives from the words "it may be concluded"
and the paradox results from the reference to the continental shelf as
defined at present, i.e., to its definition on the day on which the Award
was handed down, although the Tribunal had accepted, in accordance with the
"principles of intertemporal law", that the Agreement of 1960 should be
interpreted in the light of the law in force at the time of its conclusion.
The definition of the extent of the continental shelf did of course evolve
very markedly between 1960 and 1989, because of the development of the means
whereby its resources could be exploited and as a result of the work done at
the Third United Nations Conference on the Law of the Sea.
However, having made that finding on the applicability of the 1960 Award,
the Tribunal did not pass on the delimitation of the exclusive economic
zone, which was not covered by that Agreement, as that concept was not
incorporated into international law until a later date, in relation to the
work of the Third United Nations Conference on the Law of the Sea.
Nor did the Tribunal determine the single maritime boundary delimiting the
whole of the maritime areas (including the exclusive economic [p 178]zone)
that appertained to the two States; it did not even sketch out the process
of that determination. Nor did it include in its decision a map showing the
course of the maritime boundary, as it was obliged to do by virtue of
Article 9, paragraph 2, of the Arbitration Agreement. In fact, that omission
was the consequence of the Tribunal's failure to accomplish its mission with
respect to the determination of the maritime boundary. As that line had not
been determined, it was clearly impossible to show it on a map included in
the decision of the Tribunal! There was thus a cumulation of failures by the
Tribunal to fulfil its obligations.
The result of these failures was that the Tribunal did not accomplish its
mission. In that regard, the Court has accepted � as I said at the very
beginning of this opinion � that "the Award has not brought about a complete
delimitation of the maritime areas appertaining respectively to
Guinea-Bissau and to Senegal".
It nonetheless appears that, because of its failure to settle the dispute in
a complete and above all comprehensive manner, the Tribunal did not settle
it at ail, seeing that it related to the determination of a maritime
boundary, Le., a single boundary line. The delimitation of certain maritime
areas by virtue of the provisions of the 1960 Agreement and by reference to
that Agreement, does not constitute a partial settlement needing to be
completed by the delimitation of other areas and, more particularly, by that
of the economic zone � leading, by successive strokes, to a plurality of
lines. Seeing that the delimitation of the maritime areas appertaining to
each of the two States was to lead to the determination of a single maritime
boundary, in accordance with the common will of the Parties, it is clear
that the course of that boundary depended upon the taking into consideration
of the extent of all the maritime areas, not just some of them. The Tribunal
had therefore to take account of the delimitation of the economic zone, to
the same extent as that of the other areas, in order to determine the
maritime boundary.
It is as well to point out, in that regard, that the Parties' desire for a
single maritime boundary, as expressed in the Arbitration Agreement,
corresponds to the development of the law and the practice in relation to
delimitation. Professor Weil has pointed out that the Judgment of a Chamber
of the Court in the Delimitation of the Maritime Boundary in the Gulf of
Maine Area case (Judgment of 12 October 1984) made
"a significant contribution to the trend towards a single boundary,
determined by the application of the same 'neutral' criteria of coastal
geography and recourse to the same 'neutral' geometric methods"
(Perspectives du droit de la delimitation maritime, Pedone, 1988, p. 135).
In the current legal situation resulting from the Court's validation of the
Award of 31 July 1989, the boundaries of certain maritime areas are legally
established by virtue of the 1960 Agreement and with reference to it, but
the maritime boundary between the two States, as referred to in the [p 179]
1985 Arbitration Agreement, remains undetermined. That uncertainty is
naturally detrimental to good neighbourly relations between the two States.
In other words, the "elements of the dispute that were not settled" which
feature in the Judgment of the Court are the essence of the dispute, its
true subject. The incomplete settlement of the dispute is tantamount to an
absence of a settlement. It is a proverbial truth that doing things by
halves is the same as not doing them at all.
It is that omission and the corresponding failure of the Tribunal to
accomplish its judicial mission, that should have led the Court to find that
the Award was null and void. By so doing, the Court would not in any way
have acted as a court of appeal in relation to the Tribunal, and would not
have subjected the Award to a reformation. It would not have exceeded its
jurisdiction as explained in its Judgment in the case concerning the
Arbitral Award Made by the King of Spain on 23 December 1906, of which the
relevant passage is quoted in paragraph 25 of the Court's decision in the
present case. It would, on the contrary, have pointed to the derelictions of
the Tribunal, as those derelictions together constituted the "exc�s de
pouvoir� even though that expression, generally employed to designate cases
in which a court exceeds its jurisdiction and, by so doing, decides ultra
petita, is rather inappropriate in the context of this case. It is
nonetheless generally accepted that an exc�s depouvoir may result both from
a situation in which a judicial body exceeds its mission and from any
failure to accomplish that mission. However, those terminological
considerations apart, an award which does not achieve the settlement of the
dispute should be found to be null and void, by virtue of a well-established
jurisprudence from which the Judgment of the Court does not depart.
For by saying that
"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" (para. 47),
the Court admits that an award incompatible with the agreement for the
arbitration should be annulled. However, in the present case, the Court has
found that the Award was compatible with the Arbitration Agreement although
in my opinion, based upon the reasons I have given, it is incompatible with
it.
Was the Court concerned to preserve the institution of international
arbitration by validating the Award of 31 July 1989, even though that Award
leaves the dispute essentially unsettled ? Not to encourage States to
contest awards for no good reason is, of course, a legitimate concern, and
it is understandable that the Court should be affected by it. However, one
may also fear that such an important and respectable institution as
arbitration may suffer from a jurisprudence too exclusively inspired by that
concern, leading to the confirmation of awards that are seriously flawed. If
the presumption of validity of awards, which is in itself legitimate, were
[p 180] ever to assume the character of an irrefutable presumption because
of the line of conduct followed by the Court, States � and in particular
those with no more than a limited experience of international procedures �
would, in the absence of any appropriate recourse or safeguard against exc�s
de pouvoir or deficiencies of arbitration tribunals, be discouraged from
referring their disputes to those tribunals.
In the present case, the Court displays a very perceptible inclination
towards a very strong and very absolute presumption of validity of awards.
This can be seen from what I have just said, and is also apparent from its
reasoning on the interpretation of Article 2 of the Arbitration Agreement,
whereby the Tribunal's failure to accomplish its mission was nonetheless
found to be compatible with the terms of that Agreement.
II
Is it a tenable view, on the lines of the Court's reasoning, that the
Tribunal's approach, and accordingly the incomplete nature of the Award, was
justified by the terms of Article 2 of the Arbitration Agreement?
Argument before the Court centred on this provision and it was fundamentally
on it that the Court based its conclusion that the Award is consistent with
that Agreement. It is, on the contrary, my opinion that Article 2 did not
prevent the Tribunal from accomplishing the mission which was its raison
d'�tre and the purpose of its establishment, and, therefore, from fulfilling
the Tribunal's primary, primordial obligation to perform its task with
respect to the determination of the maritime boundary between the two
States.
The text of this Article 2, which sets out the questions the Tribunal was to
decide with a view to a settlement of the dispute, is as follows:
"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?"
The history of the negotiations that led to this provision has been outlined
by the Court in support of its opinion that it was not the Tribunal's task
in any event to delimit the whole of the two States' maritime areas by a
single line. I have set out above the reasons, based on the provisions of
the Arbitration Agreement, for which I feel that this view is not well
founded; [p 181] but the history of the negotiations, as outlined by the
Court, sheds light on the language of Article 2 and, particularly, the way
its two paragraphs mesh.
As the Court has pointed out (paras. 53 et seq. of the Judgment), in the
course of the negotiation of the Arbitration Agreement, Senegal laid
particular emphasis on the Franco-Portuguese Agreement of 1960, which was
advantageous to it, and wanted the line laid down by this Agreement (a
straight line at 240") to be perpetuated so that it would constitute the
sole delimitation for all the maritime areas, present and future, over which
the two States would respectively be called upon to exercise exclusive
rights. Senegal therefore expected that recognition of the validity of the
1960 Agreement would suffice for the complete settlement of the dispute in
such a way that the single maritime boundary would be the 240" line. On the
other hand Guinea-Bissau, which considered itself disadvantaged by the 1960
Agreement (which is indeed the case, as is abundantly clear from the most
cursory inspection of the map � not produced by the Tribunal � showing the
240" line) wanted an ex novo delimitation taking account of the evolution of
the law of the sea, particularly as regards the continental shelf and the
exclusive economic zone. However, both Parties were agreed as to the need
for a single line, although it was not the same line they had in mind.
Thus, the language of the Arbitration Agreement was, as is often the case,
the result of a compromise (i.e., an intermediate solution accepted at the
price of mutual concessions). Article 2 set forth two questions, one
reflecting the wishes of Senegal as to the applicability of the 1960
Agreement and a second one reflecting those of Guinea-Bissau, which strove
for an ex novo delimitation of the boundary line. That the second question
was to be subordinated to the first was nevertheless accepted and made clear
by the phrase "In the event of a negative answer to the first question", at
the beginning of the second question. But both Parties considered that in
any event the dispute would be completely settled whatever the reply of the
Tribunal to the first question (whether an affirmative reply to it effected
a complete settlement of the dispute, or a negative one enabled the Tribunal
to deal with the second question). Moreover, both Parties, Senegal as well
as Guinea-Bissau, referred, throughout the proceedings before the Tribunal,
to a single line and therefore to a global settlement of the dispute, as can
be seen from the final submissions of Senegal formulated at the close of
those proceedings. (Annexes to the Memorial of Guinea-Bissau, Book IV, Part
2, Hearing of 29 March 1988 (afternoon), p. 281.)
But it was not possible to meet the common desire of the Parties by
answering only the first question once the Tribunal, being bound by the
principle of intertemporal law, had held that the 1960 Agreement applied to
certain areas (territorial sea, contiguous zone and continental shelf) but
not to others and particularly not to the economic zone. Thus the principle
[p 182] of intertemporal law prevented an affirmative answer to the first
question of Article 2 of the Arbitration Agreement from being sufficient for
the settlement of the dispute.
The Tribunal was therefore faced with the following alternatives: either it
would not go beyond a literal interpretation of Article 2, and thus refrain
from answering the second question and hence from determining the frontier
line, thereby failing to settle the dispute and leaving unperformed the
mission entrusted to it by the Arbitration Agreement; or, on the contrary,
the Tribunal might seek to interpret Article 2 in the light of the object
and purposes of the Arbitration Agreement and, by answering the second
question, perform its jurisdictional mission by determining, in keeping with
that mission, the maritime boundary between the two States.
It was the former of the two solutions that the Tribunal adopted, without
taking steps to justify its decision, except implicitly, and without stating
its choice in the operative part of the Award. The decision taken by the
Tribunal in this connection appears only in the statement of reasoning, and
the Tribunal's grounds are set out in four lines (paragraph 87 of the Award,
quoted in paragraph 17 of the Court's Judgment). It was these defects, due
no doubt to the chaotic character of proceedings that lasted four years
(1985-1989) and to the very pronounced disagreements that arose within the
Tribunal (and were revealed by the declaration of its President and the
dissenting opinion of Mr. Bedjaoui), which prompted the Court to state that
"the structure of the Award is, in that respect, open to criticism" (para.
41) and that "this reasoning is brief, and could doubtless have been
developed further", but that the statement of reasoning, while succinct, "is
clear and precise" (para. 43). These expressions were no doubt carefully
chosen, but the Court's Judgment appears to be, in a number of respects, a
collection of euphemisms: elements of the dispute that were not settled;
award so structured as to be open to criticism; reasoning that was brief
but...!
However, the reasoning that led the Court to declare the Award valid is,
fortunately, more fully worked out than that of the Tribunal. The Court held
that, given the language of Article 2, it was not the Tribunal's task to
delimit the whole of the maritime spaces appertaining to the two States, by
a single line, in any event. The Parties had only "expressed in general
terms in the Preamble of the Arbitration Agreement their desire to reach a
settlement of their dispute" but "their consent thereto had only been given
in the terms laid down by Article 2" (para. 56).
That provision � Article 2 � was accordingly the only one in which the will
of the Parties had been manifested, since the Preamble was merely optative
and Article 9 was subordinated to Article 2.
As a result, since the comprehensive settlement of the dispute was not seen
by the Court as the primary task of the Tribunal, there was nothing to stand
in the way of a literal interpretation of paragraph 2 of the Arbitration
Agreement and that interpretation was the one most consistent with the rules
of interpretation of treaties. By answering the first question in the
affirmative and deciding, though implicitly, not to answer the second, the
[p 183] Tribunal had, in the opinion of the Court, in no way failed to
exercise jurisdiction. Moreover, there would have been no need to produce
the map required by Article 9 of the Arbitration Agreement, given the
Tribunal's decision not to answer the second question and, in any event,
that omission could not "constitute such an irregularity as would render the
Award invalid" (para. 64).
Thus the Court's conclusions rest essentially on the premise that the
Tribunal was not necessarily required to determine the boundary line.
The reasoning of the Court can be analysed as a syllogism having the
following form:
(1) the Tribunal was not under an obligation to settle the dispute
completely in any event;
(2) the Tribunal settled the dispute in part;
(3) the Award is therefore valid.
I have, earlier in this opinion, challenged the premise of this syllogism,
showing that, on the contrary, it was clear from the Arbitration Agreement
(from its Preamble, from Article 2, from Article 9, paragraph 2), and also
from the history of the negotiations that led to the conclusion of this
instrument, as outlined by the Court, as well as from the submissions of the
Parties in the proceedings before the Tribunal, that the common desire of
the Parties was to bring about the delimitation of a single maritime
boundary and that such was the essential task they entrusted to the
Tribunal.
Now if, as I believe is the case, the premise of the Court's reasoning is
incorrect, it necessarily follows that the conclusion is also incorrect.
But in order to refute the reasoning of the Court fully, it is also
necessary to show that the Tribunal could answer the second question without
committing an exc�s depouvoir � in the more usual meaning of the term, Le.,
without exceeding its competence under the Arbitration Agreement.
The Court has recalled two fundamental rules of interpretation of treaties,
applicable to the interpretation of the Arbitration Agreement; the first,
known as that "of the ordinary meaning of terms", was formulated, for
example, in the Court's opinion in the case concerning the Competence of the
General Assembly for the Admission of a State to the United Nations, in
which the Court made the following observations :
"the first duty of a tribunal which is called upon to interpret and apply
the provisions of a treaty, is to endeavour to give effect to them in their
natural and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense in their
context, that is the end of the matter." (Advisory Opinion, I.C.J. Reports
1950, p. 8, quoted in paragraph 48 of the present Judgment.)
The second rule is the one requiring the object and the purpose of the [p
184] treaty to be taken into account. This rule, often applied by the
Permanent Court of International Justice (Polish Postal Service in Danzig,
1925, P.C.I.J., Series B. No. II, p. 39; Interpretation of the Convention of
1919 concerning Employment of Women during the Night, 1932, P.C.I.J., Series
A/B, No. 50, p. 373), has been formulated in the following terms :
"Where such a method of interpretation [the one based on the ordinary
meaning of terms] results in a meaning incompatible with the spirit, purpose
and context of the clause or instrument in which the words are contained, no
reliance can be validly placed on it." (South West Africa, Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 336.)
This implies that whenever the result is incompatible with the object of the
agreement (in the present case the Arbitration Agreement) that object should
be taken into account for purposes of interpretation.
Article 31 of the Vienna Convention on the Law of Treaties, which, as the
Court has observed, can be regarded as a codification of existing customary
law, provides in this respect that:
"A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose."
If, as the Court States, the Tribunal was not bound to arrive at a
comprehensive and complete settlement of the dispute submitted to it, it is
conceivable that a literal interpretation of Article 2 would have been
appropriate, although it would also have been necessary to take account of
the context, that is, of the definition of the dispute in the Preamble and
Article 9.
If, on the other hand, as I maintain, the Tribunal was bound to settle the
dispute by determining a boundary line, it is clear that the "ordinary
meaning" method led to a result incompatible with the spirit and the object
of the Arbitration Agreement, as well as with the context of Article 2,
since failure to reply to the second question resulted in the dispute not
being settled.
In other words, it was for the Tribunal to take into account, in accordance
with the jurisprudence of the Permanent Court of International Justice and
of this Court with regard to the interpretation of treaties, the spirit of
the Arbitration Agreement and above all its object, which was to ensure the
settlement of the dispute by the determination of a boundary line. The
Tribunal would thus have concluded that the terms of Article 2 only
prevented the second question from being answered if the answer to the first
one allowed the dispute to be settled. As this was not the case, the
Tribunal was to answer the second question to the full extent that its
answer to the first one left the dispute virtually unresolved. No exc�s
depouvoir would have been committed since this interpretation of Article 2
would have been not only consistent with the provisions of the Arbitration
Agreement but required in the light of its object. Accordingly, in
conclusion, the [p 185] Court should have held that the Tribunal had not
accomplished its task even though no legal obstacle prevented it from so
doing, and should have drawn the appropriate consequences from this
shortcoming.
III
In paragraphs 66 to 68 of its Judgment, the Court, after observing that the
Award "has not brought about a complete delimitation of the maritime areas
appertaining respectively to Guinea-Bissau and to Senegal", took note of the
fact that Guinea-Bissau had filed in the Registry of the Court a second
Application requesting the Court to adjudge and declare "what should be ...
the line (to be drawn on a map) delimiting all the maritime territories
appertaining respectively to Guinea-Bissau and Senegal". It also took note
of the declaration made by the Agent of Senegal that one solution:
"would be to negotiate with Senegal, which has no objection to this, a
boundary for the exclusive economic zone or, should it prove impossible to
reach an agreement, to bring the matter before the Court".
The Court, finally, considered it
"highly desirable that the elements of the dispute that were not settled by
the Arbitral Award of 31 July 1989 be resolved as soon as possible, as both
Parties desire".
This observation corresponds to the interest of both countries and one
should associate oneself with it. But it is also necessary to arrive at an
understanding on the meaning of the phrase "the elements of the dispute that
were not settled by the Arbitral Award of 31 July 1989". In my opinion, as
expressed above, these unsettled elements of the dispute are its essential
part, that is to say the determination of the maritime boundary between the
two States, delimiting the whole of the maritime areas appertaining
respectively to each of them, a boundary which will fall to be determined
equitably in accordance with the principles and norms of international law
accepted by Senegal and Guinea-Bissau.
(Signed) Hubert Thierry. |
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