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 use-
fully 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 agree-
ment 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 import-
ant 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 phraseol-
ogy 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-

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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, 1 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 deci-
sion 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 consti-
tuted 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 preli-
minarily 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 unde-
fined.

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:

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132 ARBITRAL AWARD (DISS. OP. WEERAMANTRY)

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 respec-
tively?” (Annex to the Application Instituting Proceedings of the
Government of the Republic of Guinea-Bissau, Award, p. 5; empha-
sis 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 arbitra-
tors’ responsibilities undischarged, thereby leaving major portions of the
boundary dispute unresolved. The words quoted offer the key to the reso-
lution 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 natu-
rally incapable of construction except in context — the context of the para-
graph 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 Agree-
ment was binding in regard to the subject-matter of the dispute — not any
one or more component elements thereof but the disputed boundary con-
sidered 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 boun-
dary, 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 boun-
dary 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 com-
promis. The interlinked nature of those component elements, which can-

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not fairly be determined in isolation from each other, lends strength to the
view that both Parties were clearly seeking such a comprehensive settle-
ment 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 Sen-
egal. It is true the expression “the relations” is a very simple phrase. Inter-
preted 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 | 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 bounda-
ries, 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 con-
sideration 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

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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 re-
constitute 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 pur-
pose 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 fac-
tor. 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 reali-
ties 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 para-
graph 87 of the Award that, bearing in mind its conclusions (on the appli-
cability 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 obser-
ver the impression that anxious consideration had been given to constru-
ing 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 ana-
lyses the relevant portions of the compromis in the light of accepted prin-
ciples of treaty interpretation.

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135 ARBITRAL AWARD (DISS. OP. WEERAMANTRY)

Sir Gerald Fitzmaurice, in his well-known discussion of treaty interpre-
tation |, 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 2. The term “teleological” is used by Fitz-
maurice (loc. cit.) in the sense of “aims and objects” of the treaty.

I shall in this opinion apply these approaches to the problem before us,
mindful that a hierarchy cannot be established among them 3.

Having referred to the three principal schools of interpretation and the
radically divergent results that could ensue from their application, Fitz-
maurice 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 hier-
archical order. As Judge Elias* 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 Chorzow case (P.C_LJ., Series A, No. 9, p. 24).

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.” >

The Permanent Court of International Justice has observed:

! Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. 1, p. 42.

2 See, also, T. O. Elias, The Modern Law of Treaties, 1974, p. 72.

3 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 Trea-
ties, Official Records (First and Second Sessions), 1971, p. 39, para. 8; see, also,
Myres S. McDougal, Harold Lasswell and James Miller, The Interpretation of Agree-
ments and World Public Order: Principles of Content and Procedure, 1967, p. 116.

4 Op. cit., p. 72.

5 L.CJ. Reports 1950, p. 8; see, also, Advisory Opinion on the Constitution of the Mari-
time Safety Committee of the Inter-Governmental Maritime Consultative Organization,
LCI. Reports 1960, p. 150.

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“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.” !

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 Arti-
cle 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 2 when, in commenting on the concept of
“ordinary meaning”, he observed that:

“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” 3. Though followed by some eminent international jur-
ists 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 4 and by modern linguistic studies. The impact of the latter is seen
in such studies as Schwarzenberger’s analysis of the Vienna Convention ,
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 seek-
ing 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,

! Advisory Opinion on the Competence of the ILO in Regard to International Regula-
tion of the Conditions of Labour of Persons Employed in Agriculture (P.C.1.J., Series B,
No. 2, p. 23).

2 Yearbook of the International Law Commission, 1966, Vol. I, Part II, p. 189,
para. 57.

3 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.

4 See E. S. Yambrusic, Treaty Interpretation: Theory and Reality, 1987, pp. 9 et seq.

5 “Myths and Realities of Treaty Interpretation : Articles 31-33 of the Vienna Conven-
tion on the Law of Treaties”, in S. K. Agrawala (ed.), Essays on the Law of Treaties, p.71,
at p. 86.

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depending on the context in which it is used !. Not without reason has this
Court had occasion to refer? to the famous observation of Mr. Jus-
tice Holmes that

“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 accord-
ing to the circumstances and the time when it is used” (Towne v. Eis-
ner, 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 3, follows linguistic insights to point out
that

“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” 4.

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 interpre-
tation of the text. It must seek the interpretation which is in harmony
with a natural and reasonable way of reading the text.” (Z.CJ. 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 com-
promis.

(i) Contextual indications

The general context yields several indications that the Agreement
between Guinea-Bissau and Senegal concerned a consolidated question

1 On linguistics and legal interpretation, see, also, C. G. Weeramantry, The Law in
Crisis: Bridges of Understanding, 1975, pp. 163-167.
2 Delimitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J. Reports 1984,
at p. 360, per Judge Gros, dissenting.
Glanville Williams, “Language and the Law”, [1945] 61 LOR 384 at 393.
4Cf., Savigny, Obligations, 1851, Vol. 2, § 71, on the need for “making the living
thought concealed in dead letters to come alive in our perception”.

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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 negotia-
tion the dispute relating to the determination of their maritime boun-
dary.

(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 rela-
tions, 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 deli-
mitation of the entire boundary.

(it) Questions I 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 them-
selves in regard to Question | —

(a) an answer that the Agreement was binding in regard to all compo-
nents;

(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

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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 situa-
tion 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 unaccom-
plished. 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 Ques-
tion 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 interpreta-
tion 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 com-
panion.

Analysed in yet another way, the untenability of the Tribunal’s interpre-
tation 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 terri-
torial 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 affirm-
ative answer in relation to a portion of the disputed areas becomes affirm-
ative 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.

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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 solu-
tion 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 | 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’étre 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

There use the “intentions” approach through textual analysis of objects
and purposes and through the positions formulated by the Parties them-
selves. An analysis according to the “intentions” approach powerfully
confirms the contextual interpretation outlined above. A strong endorse-
ment 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.” !

Indeed, intention is so significant that the importance of even text and
context in interpretation has been attributed by some 2 to the fact that the
text is the primary evidence of what the parties had intended. In McNair’s

! British Year Book of International Law, Vol. 26 (1949), p. 83.
2 See Waldock, Third Report on the Law of Treaties, Yearbook of the International
Law Commission, 1964, Vol. II, p. 56.

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words |, “the true duty of the judge is to search for the common intention
of the parties in using the language of the text”.

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 inte-
gral 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 general 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 effec-
tively achieves the intended purpose;. . .” 2

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 Con-
vention on the Prevention and Punishment of the Crime of Genocide 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.” (1.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”3), 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

1 Op. cit., 1961, p. 373.
2 Fitzmaurice, op. cit., pp. 793-794; emphasis added.
3 Op. cit., p. 793.

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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.

I am conscious that, in dealing with questions of interpretation, diffi-
culties can arise not only about the meaning of terms but also from differ-
ences 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 ! or be speaking “on different wave-
lengths” 2. 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.

(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 pre-
amble 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? and the Asylum (Colombia/Peru)
case 4, that the Court has made substantial use of it for interpretational
purposes. In the former case, a possible interpretation of the Madrid Con-
vention 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 arbitra-
tions have likewise resorted to the preamble to a treaty as guides to its
interpretation °.

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-

1 European Court of Human Rights, Ser. A, Vol. 18, p. 42.

2 Sir Humphrey Waldock’s words, quoted by Judge Fitzmaurice (ibid. ).

3 LC.J. Reports 1952, p. 176, at p. 196.

4 1.C.J. Reports 1950, p. 266, at p. 282.

$ See paras. 19 and 20, the Beagle Channel Arbitration, 1977, Wetter, The International
Arbitral Process, 1979, Vol. 1, p. 276, at pp. 318-319.

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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 circum-
stances 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 inter-
ests 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 Agree-
ment extended to that entire dispute, i.e., 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 asso-
ciates itself with the comment made by Guinea-Bissau, from which it

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(b)

(c)

(d)

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ARBITRAL AWARD (DISS. OP. WEERAMANTRY)

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 sepa-
rating 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 pro-
ceedings, Annexes, Book II; emphasis added.)

In paragraph 153 of the Rejoinder of Senegal submitted to the Tribu-
nal, 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.)

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.”

Paragraph 246 of the same Rejoinder reads:

“Moreover the Government of Senegal has referred, in its Coun-
ter-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 inde-
pendence it had ‘exercised its competences, in the most varied
domains, over the maritime spaces coming within its national juris-
diction 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 boun-
dary...”
145 ARBITRAL AWARD (DISS. OP. WEERAMANTRY)

(e) Atthe 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 excep-
tion in the practice of these States and in the exercise of their respec-
tive 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 boun-
dary 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. Conse-
quently 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 con-
tending 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 spe-
cially apposite in interpreting agreements such as this, where a concentra-
tion 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 !.

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”?. The International Law Commission goes on to observe:

“When a treaty is open to two interpretations one of which does
and the other does not enable the treaty to have appropriate effects,

| Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opin-
ion, LC.J. Reports 1950, p. 221, at p. 229.
2 United Nations Conference on the Law of Treaties, op. cit., p. 39: emphasis added.

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good faith and the objects and purposes of the treaty demand that the
former interpretation should be adopted.” !

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.I.J., Series A/B, No. 43, p. 144), the Court was not pre-
pared 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 Tribu-
nal was entrusted with its heavy responsibilities. It was called upon to ren-
der 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” 2.

| United Nations Conference on the Law of Treaties, op. cit., p. 39; emphasis added.
2 Op. cit., p. 342.

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147 ARBITRAL AWARD (DISS. OP. WEERAMANTRY)

Used in this fashion, it provides through another approach a confirma-
tion 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 com-
mitted for resolution to the arbitral tribunal. As Verzijl observes, arbitra-
tion 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” !. 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.

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 Chorzow,
Jurisdiction case, in discussing Article 23 of the German-Polish Conven-
tion concluded at Geneva in 1922 (which it described as “a typical arbitra-
tion 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 func-
tion which, in the intention of the contracting Parties, is to be attri-
buted to this provision.” (Factory at Chorzéw, 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 con-
trary 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.” (/bid.,
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 phraseo-
logy, “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

! J. H. W. Verzijl, International Law in Historical Perspective, 1976, Vol. VUI, p. 143.

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settle the problem which had brought the Parties before it, or, in Verzijl’s
language, “to terminate a dispute which has arisen between sovereign
States”. That it has signally failed to do, and any interpretation which ren-
ders 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 dis-
puted 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 con-
firms 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 inter-
pretation obviates any necessity to analyse it further in the present opin-
ion. 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 |. Interpretation by reference
to the “spirit” of the treaty 2 or by reference to important values may well
receive more recognition as international law develops 3. These are ques-
tions which the jurisprudence of the future will need to address.

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 objec-
tives of the document to recede from view.

Interest reipublicae ut sit finis litium applies equally to judicial and arbi-
tral awards, and applies equally to domestic and international litigation.
A partial answer that may well result in greater confusion and uncertainty

' See the dissenting opinion of Judge Tanaka in South West Africa, Second Phase,
LC.J. Reports 1966, esp. at pp. 276-278.

2 See the dissenting opinion of Judge Alvarez in Anglo-Iranian Oil Co., 1.C.J. Reports
1952, p. 126; South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 336; cf. Lord Diplock’s observation in R v. Henn (1980) 2 All ER 166 that in interpret-
ing treaties the Court of Justice of the European Communities seeks to give effect to the
“spirit” rather than to the letter of treaties.

See Rousseau, Droit international public, I, 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 Judi-
cial Process”, (1953-1955) Sydney Law Review, pp. 363-368.

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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 dis-
pute between them rather than to have to face a second prolonged arbitral
process. The fact that an important segment of the dispute was left un-
decided 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 Tri-
bunal 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 Ques-
tion 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 com-
mand 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 Ques-
tion | 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 enter-
prise on which they were engaged — the determination of the entire mari-
time 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-

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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 aiso shows that it was well
aware that the boundaries of all five zones were before it for determina-
tion. Indeed, the Order is headed, in phraseology no doubt worked out by
the Tribunal itself, with the caption “Arbitration Tribunal for the Deter-
mination 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 agree-
ment 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 Tribu-
nal view that task?

To quote its words:

“The sole object of the dispute submitted by the Parties to the Tri-
bunal accordingly relates to the determination of the maritime boun-
dary 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.” (/bid., 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 Tribu-
nal 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 ona
legal norm other than the 1960 Agreement, such as a tacit agreement,
a bilateral custom or a general norm. It is merely seeking to determine
whether the Agreement in itself can be interpreted so as to cover the deli-
mitation 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 incontrover-
tible. 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 compromis 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.

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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 determina-
tion, 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’étre leading to its creation. Such a patent nulli-
fying 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 arbi-
tral bodies solemnly charged with the settlement of major issues of this
nature should be able, by such restrictive interpretations of their jurisdic-
tion, 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 dis-
cussion?

If. 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 prin-
ciples, 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 prin-
ciples applicable to the protection of the Award. The concepts of nullity and
excès de pouvoir will then be briefly examined, followed by an examina-
tion 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-

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ered — whether the failure to answer Question 2 was the subject of a deci-
sion and whether a negative decision cannot constitute an excès de pouvoir,
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 compétence de la
compétence 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 !, the validity of the arbi-
tral award is to be presumed.

In the Arbitral Award Made by the King of Spain (1.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 seek-
ing to uphold it is not entitled to 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 con-
tention that the award is invalid.

Protection of the Award and protection of the compromis

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 respon-
sibility thus rests upon an international tribunal which is invited to makea
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 interna-
tional 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-

l'A. Balasko, Causes de nullité de la sentence arbitrale en droit international public,
1938, p. 201.

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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 bene-
fits 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 terri-
tory 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 !). So, also, where an arbitrator, invited to choose between two
boundary lines, recommends a third line, he clearly oversteps the limit of
his authority 2. These are cases clearly travelling beyond the scope of the
arbitrator’s authority.

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 step-
ping out, so to speak, from the frame of the compromis. When this happens
the resulting decision can command no claim to validity, for itis 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 sec-
tion, as confusion is sometimes caused in the area of nullity by the some-

! A. de Lapradelle and N. Politis, Recueil des arbitrages internationaux, Vol. II, p. 404,
at p. 414.

See the Northeastern 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).

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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 distinc-
tions between the results caused by a variety of vitiating factors. The ter-
minology 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 situa-
tions.

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 author-
ity |.

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 author-
ity, 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 invalidat-
ing 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.

1See R. Y. Jennings, “Nullity and Effectiveness in International Law”, Cambridge
Essays in International Law: Essays in Honour of Lord McNair, 1965, pp. 65-67.

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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 formali-
ties. 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 funda-
mental 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 requir-
ing 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 avoid-
ance is involved in making a declaration of nullity, the role of a court mak-
ing 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 circum-
stances enhances rather than diminishes the role of the Court as a custo-
dian 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

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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 !. The foundations of interna-
tional 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.

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 2. As early as 1873 the Insti-
tute of International Law adopted a Réglement concerning the procedure
of arbitral tribunals. Article 27 of the Réglement provided that an arbitral
award is null and void in certain cases, one of which is excess of authority.

This is not to say that respected voices were not heard supporting the
opposite view. The illustrious de Martens, for example, at the Hague Con-
vention of 1899, argued strongly against the possibility of nullifying or
revising an arbitral award 3. 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).

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

' Grotius, De Jure Belli ac Pacis, Book III, Chap. XX (xLvi), in The Classics of Interna-
tional Law, ed. J. B. Scott, Vol. II, p. 823.

2 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.

3 See Proceedings of the Hague Peace Conferences : Conference of 1899, p. 186.

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treated as final even if found to be morally unacceptable or practi-
cally unenforceable.” !

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 abso-
lute nullity either in whole, or in part, as the case may be” 2.

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 prin-
ciple 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 3.

Excès 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 excés 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 4
to see the numerous major cases where the plea of excés de pouvoir has
been raised over a long historical period. Within the rubric of excés de
pouvoir, infra petita covers the case where a tribunal runs counter to its
compromis in not addressing issues it was required to address.

Excès 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-

! Yearbook of the International Law Commission, 1958, Vol. 2, p. 11.

2 G. Spencer Bower and A. K. Turner, Res Judicata, 2nd ed., p. 102.

3 Vattel, Le droit des gens, 1758 (para. 329), in The Classics of International Law,
ed. J. B. Scott, Carnegie Institution of Washington, 1916, Vol. 3, p. 224, translated by
G. Fenwick.

4 J. H.W. Verzijl, op. cit., p. 577.

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ferred to couch their arguments in terms of excés de pouvoir, similar con-
cepts of total nullity find a place in the jurisprudence of other legal sys-
tems, including the common law, where the concept of ultra vires has
recently received extended development in the context of administrative !
and arbitral ? 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 bind-
ing as to the people they affected, save to the extent that they were consist-
ent with the law. The basic notion of the nullity of an act performed
without the requisite authority thus enjoys wide recognition in the world’s
legal systems.

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, produ-
cing 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 4,
pointed out that it results from the co-existence of three rules of interna-
tional law, each of which individually seems to be inherently sound.

1 See H. W. R. Wade, Administrative Law, 1988, pp. 39-48.

2M. J. Mustill and S. C. 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).

30. 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.

4“The Legal Remedy in Case of Excess of Jurisdiction”, BYBIL, 1928, p. 118.

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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 opportu-
nity 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 Inter-
national Justice “which is pre-eminently qualified to decide legal ques-
tions 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 ! describes such a view ? 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 Conven-
tions. He cites among others Hall, Oppenheim, Fauchille and Nys.
Among these authors, Hall says:

“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. . .” 3

| “The Hague Conventions and the Nullity of Arbitral Awards”, BYBIL, 1928, p. 115.

2 As expressed by Professor A. de Lapradelle in Revue de droit international, 1928,
No. 5, pp. 5-64.

3 W_E. Hall, International Law, 8th ed. (by Pearce Higgins), 1924, p. 420.

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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.” !

Among the prominent publicists who support the view that, where the
arbitrators have proceeded without authority, their awards would carry
no weight, are Vattel ? and Phillimore 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 refer-
ence takes place... the complainant party is without remedy . . .” +.

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, itis 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 prin-
ciple. 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 authori-
tative 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-

1 L. Oppenheim, International Law, 4th ed., Vol. I], pp. 27-28.

2 Op. cit., pp. 223-224.

3R. J. Phillimore, Commentaries upon International Law, 3rd ed., Vol. 3 [1885], p. 3.
4 Op. cit. p. 116.

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vidual opinion in the Effect of Awards of Compensation Made by the
United Nations Administrative Tribunal case UI.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 exist-
ing in all law: not only a judgment, but any act is incapable of produ-
cing legal effects if it is legally null and void.” !

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 declar-
ation. Indeed such a declaration made in appropriate circumstances by a
court possessed of the necessary jurisdiction is a powerful means of ensur-
ing 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 Ques-
tion 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 wan-
der 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 (1.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

1 W. Michael Reisman, Nullity and Revision : The Review and Enforcement of Interna-
tional Judgments and Awards, 1971, p. 423.

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Administrative Tribunal (1.C.J. Reports 1987, p. 18) where, even in the
absence of an express decision specifically rejecting or upholding the rele-
vant contention, this Court found that the Tribunal clearly made a deci-
sion, 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 deci-
sional process involved, however terse the language used to describe it.
The Tribunal has brought its mind to bear upon two factors — the conclu-
sions 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 mat-
ters 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 excés 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.” | Consequently, the compromis becomes the constant point of ref-
erence for the tribunal on every matter concerning its powers, duties and
scope of action.

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 are 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.

'K.S. Carlston, The Process of International Arbitration, 1946, p. 64.

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Senegal urged before us (public sitting of 5 April 1991, CR 91/4,
pp. 60-61) that the omission to act, far from being an excès de pouvoir, 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 excés de pouvoir 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 excés de pouvoir in public international law as follows:

“Tl est bien entendu que l’excès de pouvoir du tribunal peut être
commis non seulement par action, mais par omission, par inaction, par
abstention, par manquement aux règles prescrites dans le compromis
ou par la nature et le but de la fonction juridictionnelle. Ainsi le tribu-
nal doit juger tout point prévu au compromis, fût-il d’avis qu’il n’y a pas
lieu de l’examiner.” !

A negative decision is thus clearly within the categories of decisions which
can attract the principles of excès de pouvoir.

In the words of a detailed treatise on nullity and revision of interna-
tional awards:

“There can be little doubt that review competence extends to nega-
tive 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...” 2

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? have shown how
semantic variations in the formulation of the self-same issue produce dif-

! A. Balasko, op. cit., p. 200; emphasis added.
2 Reisman, op. cit., pp. 441-442.
3 Legal System and Lawyers’ Reasonings, 1964, pp. 241 et seq.

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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.

The proposition that a decision not to act cannot constitute a usurpa-
tion 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 sub-
stantive 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 deci-
sions 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.”

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There have been occasional instances of major international arbitra-
tions 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 with-
out reasons immediately attracted criticism from learned publicists even
at that early stage in the evolution of international arbitral law. The Port-
endick arbitration was criticized by Fauchille ! and in 1897 when Presi-
dent Cleveland failed to give reasons for his decision in the Cerruti
arbitration between Colombia and Italy, this was criticized by Darras 2.

Scelle, the eminent Special Rapporteur to the International Law Com-
mission, referred in his report to the rule that a judgment should be
accompanied by a statement of the reasons on which it is based. Describ-
ing 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 state-
ment of reasons. A judgment unaccompanied by a statement of
reasons is not a judgment, but a mere opinion.” 3

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.

Tn 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 circum-
stances 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 fora
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.

! Doctrinal note in de Lapradelle and Politis, Recueil des arbitrages internationaux,
Vol. 1, pp. 543-544.

2 Revue générale de droit international public, 1899, Vol. 6, p. 547.

3 Scelle, Report on Arbitration Procedure, A/CN.4/18, 21 March 1950, p. 67.

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The principle of compétence de la compétence

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 compétence de la compétence.

This principle, which is in tension with the principle extra compromis-
sum arbiter nihil facere potest', evolved at an early stage of the develop-
ment of international arbitration as a necessary attribute of the indepen-
dence of arbitrators. Though they were nominees of the contending
parties they needed to shake themselves clear of any appearance of con-
tinuing dependence on their principals in regard to matters concerning
the scope of their arbitral powers. When a dispute arose as to the interpre-
tation of the clause conferring jurisdiction upon them, this was there-
fore treated as a matter entirely for the arbitrators, and rightly so.

The rule of compétence de la compétence, now well recognized in inter-
national 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 2.

The rule was clearly enunciated by the Permanent Court of Interna-
tional 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 jurisdic-
tion — 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_LJ., 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 proceed-
ings 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.”

1 Jennings, op. cit., pp. 83-84.

2 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.

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A standard work on international arbitration! explains that the prin-
ciple would not apply to an award based on an assumption of powers
which clearly could not be justified on any legitimate process of inter-
pretation 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:

“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 con-
flict between the two rules, but from the lack of any generally avail-
able means of determining objectively whether the conduct of the
tribunal has been such as to justify the application of the second
rule.”

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 compétence de la
compétence.

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 excès de
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.

1 J, L. Simpson and Hazel Fox, International Arbitration: Law and Practice, 1959,
p. 252.
2 Ibid.; see also Lauterpacht, op. cit., p. 117.

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These are powerful considerations moving the Court in the direction of
upholding the Tribunal’s determination of the territorial sea, the conti-
guous zone and the continental shelf.

Yet, there is an overriding principle which prevents the Court from giv-
ing 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 prin-
ciples 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 ques-
tions are interrelated, the substantial dispute is answered but some incon-
sequential 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 seg-
ments 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 Fron-
tier Award case of 1902 and the Orinoco Steamship Co. case of 1910 !. Inthe
former, a portion of the boundary between two boundary posts needed
further determination while the findings in regard to the rest of the boun-
dary could still remain intact. In the latter a series of separable and dis-
crete claims could be separately adjudicated upon without the findings on
one of them being interlinked with those on the others.

If, on the other hand, the different component elements of the subject-
matter are inextricably interlinked, we face difficulties in attempting to

116 Reports of International Arbitral Awards 109 and 11 ibid. 237, at p. 238, respec-
tively.

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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 com-
partmentalized and separately determined ? If the overall result is to pre-
vent a free and untrammelled resolution of the remaining areas of the dis-
pute, 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 !, 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.

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, 1CJ. Reports 1984, p. 339,
para. 230.)

Far from the complex mix of decisional factors blending into a harmoni-
ous 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 sal-
vaging 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

1 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.

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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 parti-
cular 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 part-
ies 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 con-
text 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 deter-
mine 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 afford-
ing 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 !, 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.

1 As opposed to indicating the applicable principles and rules of international law as
in the North Sea Continental Shelf, .C.J. Reports 1967, pp. 3 and 6, and Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), 1.C.J. Reports 1982, p. 18.

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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, LC.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 determi-
nations, 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 dis-
advantages 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 com-
mitted if she were to be sent to another decisional process while preserving
the demarcation of the continental shelf. As Judge Jiménez de Aréchaga
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

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have to coincide. The reason is that both of these delimitations are
governed by the same rules ...” (.C.J. Reports 1982, pp. 115-116,
para. 56.)

So, also, Judge Evensen referred in the same case, to “the obvious advis-
ability 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 pro-
cesses, suffice it merely to note them for the limited purposes of this opin-
ion. Some understanding of the extent of these complexities appears also
from a perusal of the dissenting opinion of Judge Gros in the Gulfof Maine
case, and from the writings of Judge Oda !. Having regard to these com-
plexities, it is clear that it would be prejudicial to the vital national inter-
ests 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.

It is to be noted finally that the exercise of fixing separate boundaries
for separate zones through two or more discrete determinations is con-
ceptually 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 import-
ance 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 preju-
dice. 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

' See “Delimitation of a Single Maritime Boundary: The Contribution of Equi-
distance to Geographical Equity in the Interrelated Domains of the Continental Shelf
and the Exclusive Economic Zone”, in International Law at the Time of Its Codifica-
tion, Essays in Honour of Roberto Ago, 1987, Vol. II, p. 349.

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economic zone and its fishery zone, which was among the principal pur-
poses 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 con-
tinental 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 con-
fines 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 man-
ner 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 unim-
paired. 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 juris-
diction 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 ener-
vating effect of the lack, or near lack, of courts with compulsory jurisdic-
tion 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.

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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 Ques-
tion 2 was without jurisdiction. That decision was incompatible with the
compromis, thus vitiating the Award from its very commencement. More-
over, the impossibility of obtaining a full and fair determination of the
remaining portions of the boundary, so long as the portions of the boun-
dary 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 provi-
sions 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 Govern-
ment 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.

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