                            INTERNATIONAL COURT OF JUSTICE

                                            YEAR 2022
                                                                                2022
                                                                                10 June 2022
                                                                                General List
                                                                                No. 183
                                            10 June 2022

 QUESTIONS OF JURISDICTIONAL IMMUNITIES OF THE STATE AND MEASURES
           OF CONSTRAINT AGAINST STATE-OWNED PROPERTY

                                     (GERMANY v. ITALY)

                                              ORDER

Present:   President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
           BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
           NOLTE, CHARLESWORTH; Registrar GAUTIER.

      The International Court of Justice,

      Composed as above,

      After deliberation,

      Having regard to Article 48 of the Statute of the Court and to Articles 31, 44, 45, paragraph 1,
and 48 of the Rules of Court,

       Having regard to the Application filed by the Federal Republic of Germany (hereinafter
“Germany”) on 29 April 2022 instituting proceedings against the Italian Republic (hereinafter
“Italy”) concerning the alleged violation by Italy of its obligation to respect Germany’s sovereign
immunity, and to the Request for the indication of provisional measures contained in the Application,

                                                   -2-

      Having regard to the letter dated 4 May 2022, whereby the Agent of Germany informed the
Court that, following certain exchanges between the Parties, his Government had decided to
“withdraw its Request for the indication of provisional measures”,

      Having regard to the Order dated 10 May 2022, whereby the President of the Court placed on
record the withdrawal by Germany of its Request for the indication of provisional measures;

       Whereas a meeting was held by the President of the Court with the representatives of the
Parties on 3 June 2022, pursuant to Article 31 of the Rules of Court, in order to ascertain their views
with regard to the time-limits for the filing of the initial written pleadings in the case; whereas at this
meeting, the representatives of both Parties referred to the fact that certain legislative, judicial and
administrative procedures relevant to the claims advanced by Germany in its Application were
underway in Italy; whereas the Agent of Germany indicated that, in light of these ongoing
developments, the Parties had agreed that a sufficiently long time period would be desirable for the
preparation of the first round of written pleadings; whereas, as agreed between the Parties, the Agent
of Germany thus requested a period of 12 months, respectively, for the preparation of a Memorial by
the Applicant and Counter Memorial by the Respondent; and whereas the Co Agent of Italy
confirmed the agreement between the Parties to request time limits of 12 months for the submission
of the initial written pleadings;

      Taking into account the agreement of the Parties,

      Fixes the following time-limits for the filing of the written pleadings:

      12 June 2023 for the Memorial of the Federal Republic of Germany;

      12 June 2024 for the Counter Memorial of the Italian Republic; and

      Reserves the subsequent procedure for further decision.

      Done in French and in English, the French text being authoritative, at the Peace Palace, The
Hague, this tenth day of June, two thousand and twenty-two, in three copies, one of which will be
placed in the archives of the Court and the others transmitted to the Government of the Federal
Republic of Germany and the Government of the Italian Republic, respectively.

                                                               (Signed)    Joan E. DONOGHUE,
                                                                                President.

                                                               (Signed)     Philippe GAUTIER,
                                                                                Registrar.

                                              ___________


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 method that it raises. It presents some particular diffi-
culties as it is the kind of case in which the solution adopted by the Court
depends upon the way in which the problems are tackled. An approach
based upon primarily technical considerations will be bound to prove
unsatisfactory in so far as it does not enable one to resolve the permanent
interactions between the norm and the methods of interpretation of that
norm. 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 validat-
ing 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 con-
tested Award. Guinea-Bissau has filed a new Application on the merits
the submissions of which have been reproduced in the text of the Judg-
ment, whereas Senegal declares that it is ready to envisage either negotia-
tions 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

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 121

States whose economies, particularly in the case of the Applicant, are
dependent upon maritime resources |.

4. Because of the nature of the Court’s jurisdiction, the present pro-
ceedings 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 respon-
sibility 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:

I. The authority of the Arbitral Award of 31 July 1989 and res judicata;

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 excès de pouvoir.

x * +

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

! A reference to Article 33, paragraph 1, of the Charter of the United Nations by ana-
logy with Article 279 of the United Nations Convention on the Law of the Sea, would
have been welcome.

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 122

decisions. In our preliminary observations, we mentioned that the Court
has criticized the Award. Moreover, the arbitral proceedings were punctu-
ated by various regrettable facts. We refer, in particular, to the method
and excessively lengthy duration of the arbitral proceedings, the Tribu-
nal’s technique of work, the unjustified absence of one arbitrator, the dec-
laration 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 find-
ing 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 deci-
sion 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 diffi-
culty in rejecting the Applicant’s request by invoking against it, firstly, the
provisions of Article 10 of the Arbitration Agreement and, secondly, the
tule 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 Tribu-
nal had correctly accomplished its mission, then proceeds to its own ana-
lysis 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 author-
ity of res judicata, on the other. Indeed, the value of the Tribunal’s deci-
sion 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 pheno-
mena (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 consider it necessary for an arbitration tribunal, while adopt-
ing 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 significant development when, abandoning purely scholastic

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 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 con-
siderations 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 adjudi-
cation 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: i.e., courtesy of the members of the tribu-
nal; transparency of the judicial method adopted; reflexive and demon-
strative approach; definitive settlement of the whole of the dispute
submitted for adjudication, in accordance with the terms, object and pur-
pose of the Arbitration Agreement; celerity of the deliberation. The arbi-
tration tribunal and its members are imperatively required to ensure that
the decision has the full authority of res judicata. This is why we are con-
vinced that a decision whose authority is strongly coniested loses a very
large measure of its legal value; its being “called into question” deprives it
of the authority of res judicata.

IT. 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 funda-
mental importance for the practice and the future of arbitration. The exer-
cise 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 mari-
time areas appertaining to each one of them. We shall not dwell on the
particularly serious consequences of such a result for two developing

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 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 trea-
ties, in this instance of the Arbitration Agreement. Consequently, the
question is whether an interpretation based exclusively on a literal analy-
sis 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 ele-
ment 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 interpreta-
tion 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. Inthe 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 toa
question of State succession: maintenance in force of the Franco-Portu-
guese 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

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 125

the course of the boundary from BP 91 to the shore and beyond” (Interna-
tional Legal Materials, Vol. 27, No. 4, p. 82). But, without having to substi-
tute 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 DETERMINAGAO
DE LA FRONTIÈRE 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 co-
herence. 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 fact 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 frame-
work 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

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 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 omis-
sion and the failure of which it took note.

III. THE SHORTCOMINGS OF THE ARBITRATION TRIBUNAL
AND EXCES 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 ques-
tion underlines the importance of the problem raised. The doctrinal posi-
tion is that “the Tribunal must adjudicate every point referred to in the com-
promis, even if in its opinion it does not arise to be considered” (cf. A. Bal-
asko, Causes de nullité de la sentence arbitrale en droit international public,
Paris, Pedone, 1938, p. 200, whose opinion is shared by P. Fauchille, Traité
de droit international public, Paris, 1926, Part I, Vol. III, p. 548). This is
supported by the following observations of the International Court
of Justice in its Judgment 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 explo-
sions 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 declar-
ation 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-

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 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 compe-
tence now pending, it may suffice to observe that the Court, in deter-
mining 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 them-
selves to have appropriate effects’.” (Corfu Channel, Merits,
LCJ. 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 para-
graph 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 condi-
tion 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 excès de pouvoir were its decision to be substituted for
the will of the Parties (1.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 did 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.CLJ. 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 excés 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 Arbi-
tration Agreement as a whole were passed over in silence by the arbitra-
tors, 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 (1.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 clarifica-
tions of a legal nature .. .” (ibid., p. 70). This difference in nature makes

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clear the limits of the transposition of the advisory procedure into the set-
ting 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 excés de
pouvoir through omission and did so without stating its reasons.

20. In exercising the compétence de la compétence, 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 jus-
tified 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 con-
clusion 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 dec-
laration of the President of the Tribunal, calls into question the conclu-
sions 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 conclu-
sion is easily conceivable in relationships of causality. But legal logic has
more to do with relations of imputability. This being so the logical conclu-
sion 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 sim-
ply 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 equiva-
lent 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 excés 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 excès de pouvoir on the part of the tribunal constitutes
a ground of nullity of an arbitral award. To put the matter simply, the excès
de pouvoir can be described as the transgression committed by a compe-

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ARBITRAL AWARD (DISS. OP. AGUILAR MAWDSLEY AND RANJEVA) 129

tent tribunal of the legal framework of its mission. It “consists in any viola-
tion, any disregard, any overstepping of or non-compliance with the
provisions of the Arbitration Agreement . . .” (Balasko, op. cit., p. 153). In
an arbitration the compromis sets forth the decisions and acts that the tri-
bunal must take or decree. The provisions of the compromis, its preamble
and its body, determine in a mandatory manner the jurisdiction of the
arbitral tribunal; on the other hand, the latter enjoys discretionary powers
to ascertain, in an explicit fashion, the modalities by which the arbitrator
reaches those decisions, and that in order to guard against any suspicion
which might impair the authority of the award. This being so, excés 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 excés de pouvoir infra petita. The present case of the Award of
31 July 1989 involves one of these exceptional cases.

24. A contrario, we consider that it was incumbent on the Tribunal to
demonstrate how an excès de pouvoir could result from its completion of
the determination of the single line of the maritime boundary between
Guinea-Bissau and Senegal, regard being had in this respect to the reply
to the first question put in Article 2. This omission is, in our opinion, a
serious failure by the Tribunal to perform its mission.

25. The refusal to include a map manifestly constitutes another viola-
tion of the provisions of the Arbitration Agreement, for the same reasons
as in respect of the decision not to reply to the second question. If the
Tribunal did in fact consider it unnecessary to prepare a map in the
absence, on the one hand, of a reply to the second question and, on the
other, of a global delimitation of the maritime spaces as a whole by a
single boundary line, the Court should, in our opinion, having regard to
this omission, have called into question the soundness of the Award inas-
much as the necessary respect for the right of the Parties to a proper
administration of international justice was at stake.

(Signed) Andrés AGUILAR MAWDSLEY.
(Signed) Raymond RANJEVA.

80


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA vy. NETHERLANDS)

ORDER OF 8 SEPTEMBER 2000

2000

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. PAYS-BAS)

ORDONNANCE DU 8 SEPTEMBRE 2000
Official citation:

Legality of Use of Force (Yugoslavia v. Netherlands),
Order of 8 September 2000, L.C.J. Reports 2000, p. 164

Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Pays-Bas),
ordonnance du 8 septembre 2000, C.I.J. Recueil 2000, p. 164

Sales number
ISSN 0074-4441 N° de vente: 797

ISBN 92-1-070873-3

8 SEPTEMBER 2000

ORDER

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. NETHERLANDS)

LICEITE DE L’EMPLOI DE LA FORCE
(YOUGOSLAVIE c. PAYS-BAS)

8 SEPTEMBRE 2000

ORDONNANCE
2000
8 September
General List
No. 110

164

INTERNATIONAL COURT OF JUSTICE

YEAR 2000

8 September 2000

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. NETHERLANDS)

ORDER

The Vice-President of the International Court of Justice, Acting Presi-
dent,

Having regard to Article 48 of the Statute of the Court and to
Articles 31 and 79 of the Rules of Court,

Having regard to the Order of 30 June 1999, whereby the Court fixed
5 January 2000 and 5 July 2000 as the time-limits for the filing, respec-
tively, of a Memorial by the Federal Republic of Yugoslavia and of a
Counter-Memorial by the Kingdom of the Netherlands;

Whereas on 5 July 2000 the Netherlands filed certain preliminary
objections to jurisdiction and to admissibility;

Whereas accordingly, by virtue of Article 79, paragraph 3, of the Rules
of Court, the proceedings on the merits are suspended and a time-limit
has to be fixed for the presentation by the other Party of a written state-
ment of its observations and submissions on the preliminary objections;

Whereas, at a meeting between the Vice-President, Acting President,
and the Agents of the Parties, held on 6 September 2000, Yugoslavia
indicated that it would require nine months for the preparation of that
written statement; and whereas the Netherlands did not object to such a
time-limit being fixed, but stressed that it expected that Yugoslavia would
provide specific answers to the preliminary objections made by the
Netherlands Government,
165 LEGALITY OF USE OF FORCE (ORDER 8 IX 00)

Taking account of the views of the Parties and the special circum-
stances of the case,

Fixes 5 April 2001 as the time-limit within which the Federal Republic
of Yugoslavia may present a written statement of its observations and
submissions on the preliminary objections made by the Kingdom of the
Netherlands; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighth day of September, two thou-
sand, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Federal
Republic of Yugoslavia and the Government of the Kingdom of the
Netherlands, respectively.

(Signed) Sut Jiuyong,
Vice-President.

(Signed) Philippe COUVREUR,
Registrar.