81

SEPARATE OPINION OF VICE-PRESIDENT ODA

1. I concur with the Court’s decision to reject the submissions pre-
sented 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 Presi-
dent of the Arbitration Tribunal to the Arbitral Award of 1989, in
connection with its first submission that the Award should be held inexis-
tent; secondly, the Arbitration Agreement itself, in connection with its
second submission that the Award should be declared null and void. Fur-
thermore, 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

I. 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 Tri-
bunal] 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, empha-
sis added.)

In fact, Mr. Barberis stated in the first paragraph of his declaration
that

“T 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),

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82 ARBITRAL AWARD (SEP. OP. ODA)

while the 1989 Award itself stated that the 1960 Franco- Portuguese Agree-
ment

“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 delimita-
tion 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 declar-
ation 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 Tri-
bunal 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 contend-
ing, 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. Bar-
beris’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 . . .[T]his reply would have enabled the Tribunal to deal in its
Award with the second question put by the Arbitration Agree-
ment...

... 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

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83 ARBITRAL AWARD (SEP. OP. ODA) |

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 holda
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 con-
tradiction 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”

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84 ARBITRAL AWARD (SEP. OP. ODA)

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”.

Itis 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 delimita-
tion 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 Arbi-
tration Agreement simply required the Tribunal to define “the course of
the line delimiting the maritime territories” on/y “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

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85 ARBITRAL AWARD (SEP. OP. ODA)

instance, because, though the word “only” does not appear in the Arbitra-
tion Agreement, there is no escaping its having been implied, as the Judg-
ment has fully expounded (para. 50). The meaning of Article 2, para-
graph 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 Tribu-
nal’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 fish-
ery 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 Tribu-
nal’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 Tribu-
nal’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.

TI. 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-

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86 ARBITRAL AWARD (SEP. OP. ODA)

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. Sen-
egal and Guinea-Bissau had gained independence from France and Portu-
gal 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 over-
lapping 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 dis-
pute relating to the determination of their maritime boundary” (Preamble
to the Arbitration Agreement). It is obvious that both Parties, when refer-
ring to “the maritime boundary”, meant to include in that definition the
delimitation of the exclusive economic zones. Yet the matter of the deter-
mination 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 inde-
pendence. Only in the event of a negative answer to that question was the

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87 ARBITRAL AWARD (SEP. OP. ODA)

Tribunal requested to decide what would be the course of the line delimit-
ing 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 Sen-
egal, 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 pro-
ceeded 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 interna-
tional 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 fail-
ure 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 deplor-
able aspects of the present case are traceable to the fact that the represen-
tatives 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 essen-
tial concepts of the law of the sea, particularly those concerning the
interrelation between the exclusive economic zone and the continental

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88 ARBITRAL AWARD (SEP. OP. ODA)

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 Tribu-
nal. 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 bear-
ings 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 Agree-
ment for the continental shelf, would apply to the exclusive economic
zone. Having viewed the Arbitral Award as an outright defeat, the compe-
tent 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 dis-
pute) 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 sub-
missions of Guinea-Bissau are rejected in the present Judgment) — in
other words, even if the Court had declared the Arbitral Award non-
existent 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. Itseems 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 neigh-
bouring 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.

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89 ARBITRAL AWARD (SEP. OP. ODA)

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 conti-
nental 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 desir-
able, 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 régime 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 régimes of the exclu-
sive 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 entertain-
ing parallel régimes 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 identi-
cal 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” cri-
terion in the 1958 Convention on the Continental Shelf, may extend fur-

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90 ARBITRAL AWARD (SEP. OP. ODA)

ther), or whether the two régimes 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 régimes are to be
merged in a case where the régime 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 régime 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 régime covering both the exclusive econ-
omic 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 deli-
mitation 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 sep-
arate régime 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

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91 ARBITRAL AWARD (SEP. OP. ODA)

there should be a single line for the exclusive economic zones and the con-
tinental 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 negotia-
tion. In the framework of this thesis, negotiation on a new line for the
exclusive economic zones would be meaningful only on the understand-
ing 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 Deli-
mitation 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 con-
tinental 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
régimes 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 renego-
tiated.

(Signed) Shigeru Opa.

42