INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR

(PAKISTAN v. INDIA)

REQUEST FOR THE INDICATION OF INTERIM MEASURES
OF PROTECTION

ORDER OF 13 JULY 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU PROCÈS DE
PRISONNIERS DE GUERRE PAKISTANAIS

(PAKISTAN c. INDE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 13 JUILLET 1973
Official citation:

Trial of Pakistani Prisoners of War, Interim Protection,
Order of 13 July 1973, LCA. Reports 1973, p. 328.

Mode officiel de citation:

Procés de prisonniers de guerre pakistanais, mesures conservatoires,
ordonnance du 13 juiller 1973, C.J. Recueil 1973, p. 328,

Sales number 386
N° de vente:

13 JULY 1973

ORDER

CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR

(PAKISTAN v. INDIA)

REQUEST FOR THE INDICATION OF INTERIM
MEASURES OF PROTECTION

AFFAIRE RELATIVE AU PROCÈS DE PRISONNIERS
DE GUERRE PAKISTANAIS

(PAKISTAN c. INDE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

13 JUILLET 1973

ORDONNANCE
328

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1973 1973
13 juillet
Rôle général
13 juillet 1973 n° 60

AFFAIRE RELATIVE AU PROCÈS DE

PRISONNIERS DE GUERRE PAKISTANAIS
(PAKISTAN c. INDE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE

Présents: M. Lacus, Président; MM. FORSTER, GROS, BENGZON, PETREN,
ONYEAMA, IGNACIO-PINTO, MOROZOV, JIMÉNEZ DE ARÉCHAGA,
sir Humphrey WALDOCK, MM. NAGENDRA SINGH, RUDA, juges;
M. AQUARONE, Greffier.

La Cour internationale de Justice,

Ainsi composée,

Aprés délibéré en chambre du conseil,

Vu les articles 41 et 48 du Statut de la Cour,
Vu Particle 66 du Règlement de la Cour,

Vu la requête enregistrée au Greffe de la Cour le 11 mai 1973, par
laquelle le Pakistan a introduit une instance contre l’Inde au sujet d’un
différend concernant des accusations de génocide portées contre 195
Pakistanais, prisonniers de guerre et internés civils, détenus en Inde,

Rend l’ ordonnance suivante:

1. Vu la demande datée du 11 mai 1973 et enregistrée au Greffe le
même jour, par laquelle le Gouvernement pakistanais, invoquant l’article

4
PRISONNIERS DE GUERRE PAKISTANAIS (ORDONN. 13 VIL 73) 329

41 du Statut et Particle 66 du Règlement, a prié la Cour d'indiquer, en
attendant l’arrêt définitif en Paffaire dont la Cour a été saisie par la
requéte en date du même jour. les mesures conservatoires suivantes:

«{) Le rapatriement des prisonniers de guerre et internés civils con-
formément au droit international, qui a déjà commencé, ne doit
pas être interrompu à cause des accusations de génocide portées
contre un certain nombre de personnes détenues en Inde.

2) Ces personnes, qui sont détenues en Inde et accusées de pré-
tendus actes de génocide, ne doivent pas être livrées au «Ban-
gladesh» pour y être jugées tant que ia Cour n’aura pas statué sur
la demande du Pakistan visant sa juridiction exclusive en la
matière et le défaut de juridiction de tout autre gouvernement ou
autorité»;

2. Considérant que le dépôt de la requête introductive d’instance et de
la demande en indication de mesures conservatoires, ainsi que les mesures
précises sollicitées, ont été notifiés par télégramme au Gouvernement
indien le jour même et qu’il lui a été simultanément transmis copie de la
requête et de la demande par courrier aérien;

3. Considérant que, conformément à l’article 40, paragraphe 3, du
Statut et à l’article 37, paragraphe 2, du Règlement, des copies de la
requèle ont ci transmises aux Membres des Nations Unies par l'entremise
du Secrétaire general et aux autres Etats admis à ester devant la Cour;

4. Considérant que, en application de Particle 31, paragraphe 2, du
Statut, le Gouvernement pakistanais a désigné sir Muhammad Zafrulla
Khan pour siéger comme juge ad hoc, et qu’il a siégé en l’affaire jusqu’au
2 juillet 1973;

5. Considérant que le Gouvernement pakistanais et le Gouvernement
indien ont été avisés par des communications en date du 14 mai 1973 que
la Cour tiendrait en temps voulu des audiences publiques pour donner
aux Parties la possibilité de présenter leurs observations sur la demande
en indication de mesures conservatoires déposée par le Gouvernement
pakistanais, et que la date d’ouverture de ces audiences a été par la suite
fixée au 29 mai 1973;

6. Considérant que le 28 mai 1973, à la suite de communications reçues
du Gouvernement pakistanais et du Gouvernement indien, la Cour a
décidé de reporter l’ouverture des audiences publiques, et a fixé par la
suite au 4 juin 1973 la date d'ouverture de ces audiences;

7. Considérant que, par lettre de l'ambassadeur de l'Inde aux Pays-Bas
datée du 23 mai 1973 et reçue au Greffe le 24 mai 1973, le Gouvernement
indien a refusé de consentir à la compétence de la Cour en l’affaire, et a
soutenu qu'à défaut d’un tel consentement la Cour ne saurait être
valablement saisie de Vaffaire et ne saurait lui donner suite, et qu'il
n'existe aucun fondement juridique à Ja compétence de la Cour en
l'espèce: et que, dans les deux déclarations transmises à la Cour par des

5
PRISONNIERS DE GUERRE PAKISTANAIS (ORDONN. 13 VII 73) 330

lettres de l'ambassadeur de l’Inde aux Pays-Bas datées des 28 mai et
4 juin 1973, le Gouvernement indien a présenté un nouvel exposé motivé
pour démontrer l’incompétence de la Cour en l’espèce;

8. Considérant qu’à l’ouverture des audiences publiques, qui ont eu
lieu les 4, 5 et 26 juin 1973, étaient présents devant la Cour l’agent, l'agent
adjoint et les conseils du Gouvernement pakistanais;

9. Ayant entendu les observations sur la demande en indication de
mesures conservatoires et les réponses aux questions de membres de la
Cour présentées au nom du Gouvernement pakistanais par 8. Exc. M. J.
G. Kharas et M. Yahya Bakhtiar, Attorney-General du Pakistan;

10. Considérant que, dans unelettre du 11 juillet 1973, agent du Pakistan
a informé la Cour qu’il escomptait que des négociations entre le Pakistan
et l’Inde, où seraient discutées les questions qui font l’objet de la requête,
se dérouleraient dans un proche avenir; et que, dans cette lettre, le Gou-
vernement pakistanais prie la Cour de différer la suite de l’examen de la
demande en indication de mesures conservatoires afin de faciliter ces
négociations ;

11. Considérant que, dans la même lettre, le Gouvernement pakistanais
demande en outre à la Cour de fixer des délais pour le dépôt de pièces
écrites en l'affaire:

12. Considérant que c’est le Pakistan qui a demandé à la Cour d’indi-
quer des mesures conservatoires au motif que les circonstances de l’espèce
lexigeaient ;

13. Considérant qu’il résulte de la nature même d’une demande en
indication de mesures conservatoires que la Cour soit priée de statuer
d'urgence, comme la Cour I’a reconnu expressément à l’article 66, para-
graphe 2, de son Règlement;

14. Considérant que le fait que le Gouvernement pakistanais prie
maintenant la Cour de différer la suite de l’examen de la demande en
indication de mesures conservatoires signifie que la Cour n’est plus
saisie d’une demande en indication de mesures conservatoires sur laquelle
elle doive statuer d’urgence; et que la Cour n’est donc pas appelée à se
prononcer sur cette demande;

15. Vu l'article 66, paragraphe 1, du Règlement selon lequel une
demande en indication de mesures conservatoires peut être présentée à
tout moment au cours de la procédure relative à l’affaire au sujet de
laquelle elle est introduite;

16. Considérant que, dans les circonstances de lPespèce, la Cour doit
d’abord s’assurer qu’elle a compétence pour connaître du différend ;

En conséquence,
LA Cour,
par huit voix contre quatre,

Décide que les pièces écrites porteront d’abord sur la question de la
compétence de la Cour pour connaître du différend ;
PRISON NILRS DE GUFRRE PARISTANAIS (ORDONN, 13 VIL 73) 331

Fixe comme suit la date d'expiration des délais pour la procédure
écrite:

Pour le dépôt du mémoire du Gouvernement pakistanais, le ler octobre
1973,

Pour le dépôt du contre-mémoire du Gouvernement indien, le 15 dé-
cembre 1973:

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Have, le treize juillet mil neuf cent soixante-treize, en quatre
exemplaires, dont l'un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement pakistanais, au
Gouvernement indien et au Secrétaire général de Organisation des
Nations Unies pour transmission au Conseil de sécurité.

Le Président,
(Signé) Manfred LACHS.

Le Greffier,
{ Signé) S. AQUARONE.

M. NAGENDRA SINGH, juge, joint à l'ordonnance l'exposé de son
opinion individuelle.

M. PETRÉN, juge, joint à l'ordonnance l'exposé de son opinion dissi-
dente.

(Paraphé) M. E.
(Paraphé) 8. A.


99

SEPARATE OPINION OF JUDGE GROS
[Translation]

Having begun my study of the questions put to the Court by an ex-
amination of the competence of the World Health Assembly, it seems to
me to be useful to outline the considerations, additional to — and some-
times more far-reaching than — the reasoning in the Advisory Opinion,
which have led me to agree to its conclusions, in particular those of
paragraphs 48 and 49 and the operative clause.

There is nothing hypothetical about the question put to the Court ; the
documentation supplied by the WHO, and other documents known to the
public, show that it involves a request by almost all the member States of
the Eastern Mediterranean Regional group that the World Health Assem-
bly should decide to transfer the Alexandria office from Egypt to another
country in the region — not that there has ever been any criticism of the
performance by that office of its tasks, but solely for a reason of foreign
policy which is totally unrelated to health affairs (cf. paras. 31 and 33 of the
Opinion).

Such being the factual situation, the legal “cause” for the request for
transfer of the Alexandria office is a political decision by a group of
member States of the WHO, a counter-measure directed against Egypt
which this group of States seek to have the other member States ratify, by
deciding, in the World Health Assembly, the transfer of the office from
Egypt (cf. the views of the Government of Egypt on this point during the
discussion in Geneva on 23 May 1979, in document A32/B/SR/13, p. 6).
When these facts are known throughout the WHO as well as to all well-
informed members of the public, it seems to me that the Advisory Opinion
should put them on record as an initial element for the legal analysis it is
requested by the WHO to carry out. Since the real question is whether the
legal status of the Alexandria office vis-a-vis the WHO contemplates and
permits of a decision by the World Health Assembly to transfer it, and if so
on what conditions and according to what modalities, the first part of the
problem is to decide whether the WHO can, within the limit of its com-
petence as a specialized agency, confirm political measures which concern
only a limited number of States, when at no time has any health objective
been invoked.

This fundamental background has been left aside by the Court, and it
seems to me that the Advisory Opinion thus given is incomplete. To reply
that there are conditions to be observed by the WHO and by Egypt to
enable the hypothesis of a transfer to be put into effect “in an orderly
manner” (para. 49 of the Advisory Opinion) by-passes the fundamental
question of the lack of competence of a specialized agency to decide on

30
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 100

measures which do not fall within the functions attributed to it, and which
by their nature are foreign to the objectives defined in its constitution.

It is of course not enough to assert that since the measures contemplated
in the World Health Assembly are political actions, the Court cannot in
any way take them into account. This is not a new problem. The Court has
already had to study it, and has found that most of the questions of law put
to the Court in requests from international organizations for advisory
opinions had their origins in a political context. Thus the Court, on any
request for advisory opinion, distinguishes the political motives from the
object of the request, which must be directed to a legal question (cf.
Conditions of Admission of a State to Membership in the United Nations
(Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948,
pp. 61 and 64 ; Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, pp. 70-72 :
Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 155 and 157). In this
case the Court therefore had to concentrate its examination on the actual
object of the request, i.e., the question of the competence of the World
Health Assembly to take a decision, by way of political sanction, to
transfer the Alexandria office from Egypt, at the request of the other States
in the region. Thus it is not a question of the grounds for the withdrawal,
but of the content of the decision. The conditions in which the competence
of an assembly is exercised are not without relevance for an examination of
its power of decision ; this is shown by all decisions of courts entrusted
with judicial control of decisions taken by the organs of an international
institution. Thus examination of the competence of the World Health
Assembly is, in my opinion, the initial element of the problem.

The extent of the discussion in 1962 and in 1971 (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971) showed that the Court on a number of
occasions has not hesitated to examine the lawfulness of measures taken by
the General Assembly of the United Nations (cf. dissenting opinion, /.C./.
Reports 1971, pp. 331-332 and 339-341) : the rule is the same for any
international organization which is entitled to request an advisory opinion
and in fact does so.

It has also been suggested in the present case that the Court should not
deal with anything other than the object strictly described in the question
put; the Advisory Opinion gives a decisive reply on this question by
pointing out that the “true” question is the legal status of the relationships
between the WHO and the Alexandria Office, and with what has become
the classic quotation from the second sentence on page 157 of the 1962
Advisory Opinion :

“It is not to be assumed that the General Assembly would thus seek
to fetter or hamper the Court in the discharge of its judicial functions ;
the Court must have full liberty to consider all relevant data available

31
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 101

to it in forming an opinion on a question posed to it for an advisory
opinion.”

I would add to this an earlier sentence in the same Advisory Opin-
ion :
“The Court ... cannot attribute a political character to a request

which invites it to undertake an essentially judicial task, namely, the
interpretation of a treaty provision.” (.C.J. Reports 1962, p. 155.)

As in 1962, “the question put to the Court is intertwined with political
questions”, but that is not a reason for refusing to examine the question
whether the Constitution of the WHO, and the international agreements
concluded by the Organization, confer competence on the World Health
Assembly to decide what is contemplated for the Alexandria Office.

Naturally, the political motivation is not in itself the subject of the
Court’s examination, and the Court should devote itself solely to the
question of the extent of the competence of the World Health Assembly to
take a particular decision to transfer the seat of a regional office, defined by
the Court as the “conditions and modalities” under which a transfer might
be contemplated, in accordance with the applicable rules of law.

Like all “specialized agencies”, within the meaning of Article 57 of the
United Nations Charter, the WHO has special functions concerning public
health (Chap. I, Art. 2, of its Constitution). with the objective of “the
attainment by all peoples of the highest possible level of health” (ibid.
Chap. I, Art. 1). The States parties to that Constitution enumerated nine
principles in its preamble, and undertook to co-operate “to promote and
protect the health of all peoples” ; there is not a single one of these nine
principles which is not exclusively directed to concern for public health.
The structure of the WHO is organized as is usual in specialized agencies :
an Assembly holding an ordinary session once a year, an Executive Board,
and a Secretariat. Whichever of these organs may be concerned, power is
only conferred upon them by the Constitution “to further the objective of
the organization” (Art. 18 (m), functions of the Health Assembly). The
competence of the Organization was defined, by the States which set it up,
as described by them in a text which is an international treaty, and as such
is subject to the examination of the Court in the present case. Article 18,
which sets out 13 functions of the World Health Assembly, connects them
all with the “field of health”.

In this context, Organization/member States, what was the sequence of
events from the outset between the WHO and Egypt with regard to the
Alexandria Office ? The Advisory Opinion gives a detailed history of these
relationships in paragraphs 11 to 27, and deduces conclusions therefrom in
paragraphs 43, 48 and 49. I would merely add that the true significance of
the actual events becomes apparent if one recalls that from 1946 to 1948
there was as yet no WHO, but an Interim Commission, a sort of general
staff without troops, which met in five sessions from 1946 to January 1948,

32
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 102

and that if the 1946 Constitution in Article 54 decided that “as soon as
practicable” it should integrate “the Pan American Sanitary Organization
...and all other inter-governmental regional health organizations in exis-
tence prior to the date of signature of this Constitution”, it is difficult to
believe that the draftsmen, highly qualified specialists in international
health problems and for the most part former delegates to prewar orga-
nizations, drafted a text which had no real content. The Pan American
Organization is the only one specifically named, but if it had been unique
the terms “all other... organizations” would have had no meaning. It has
however been contended that the Alexandria Bureau was not, in 1946-
1949, an inter-governmental regional organization, that Article 54 could
not apply to it, and that for that reason the WHO could not have “inte-
grated” the Bureau. The documentation supplied to the Court demon-
strates that from 1938 to 1946 the international and regionally represen-
tative character of the Bureau was maintained. It should however also be
added that the argument mentioned above is flawed by an error as to the
powers of a court concerning assessment of the common action of the
WHO and Egypt to “integrate” the Bureau between 1948 and 1951. The
Court must decide on the legal status of the Bureau as it was set up by the
parties (the Court has given a good account of this in paragraph 16 of the
Opinion ; the World Health Assembly resolution of 10 July 1948 is clear,
since it uses the terminology of Article 54 of the Constitution, and formally
cites it). To say in 1980 that the WHO could not integrate the Bureau in
1949-1951 implies that the common action of the WHO and Egypt during
that period, carried out according to Article 54, was unlawful and ought
retroactively to be held void. Historians enjoy rewriting history, but the
interpretation proposed here would amount first of all to denying what is
evident from the facts, i.e., the action of integration which did take place —
rightly or wrongly, that is all that critics could say of it — and furthermore
to expunging the texts which established the legal status of the relations
between the WHO and Egypt, the Bureau being declared to be disqualified
ab initio after 30 years of functioning and of express recognition by the
WHO as regional office. It would be unheard-of for an international
tribunal to be able to “annul” agreements regularly concluded in the view
of the parties, and applied between them without controversy, on the
grounds of an original non-constitutionality. At no time during the WHO
discussions on the possibility of a transfer of the Alexandria Office was
there any question of any failure whatever by Egypt to comply with the
obligations it undertook vis-à-vis the WHO under the status governed by
their common action culminating in the 1951 Agreement. On the contrary,
even the proponents of the transfer recognized that the Office was not in
question as regards its action as a regional organ.

When the WHO Constitution came into force on7 April 1948, the WHO
wished to incorporate into itself the experienced sanitary organizations
which had survived the war period, 1939 to 1945, in order to begin to
function otherwise than on paper. Furthermore, there was more to this
procedure, described in Article 54 of the Constitution, than a merely

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INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 103

provisional and ad hoc approach. For lack of staff and finance, the WHO
could not hope to replace the innumerable research centres, national or
international, official or private, which had long been occupied with health
problems throughout the world. The WHO itself describes its role as one of
assistance to national health services, of stimulating efforts to eradicate
diseases, of ameliorating hygiene, developing research and co-operation,
etc. : primarily its role is one of encouragement, information and co-
ordination. The negotiations for the incorporation of the Alexandria
Bureau, and those for the association with the Pan American Committee
during the very first years of the WHO, were not the only implementations
of this kind. The International Agency for Research on Cancer, established
in 1965, works in collaboration with the WHO without being a subsidiary
organ thereof : its Statute has been published as Appendix 2 to Basic
Documents, 1980 edition, published by the WHO. It is the 11 Participating
States of the Agency who undertake the financial responsibility, and an
independent governing Council, made up of a representative of each
Participating, State plus the Director-General of the World Health Orga-
nization, directs its work. Similarly, a recent effort to combat six serious
tropical diseases has been directed towards co-operation between States,
with voluntary participation. The role of the organs of the WHO must be
understood within this varied body of formulae for encouragement of the
most effective efforts, thus reducing to the level of an illusion the theory,
which was put forward in the World Health Assembly and before the
Court, of the “sovereignty” of that Assembly. In the performance of the
weighty task defined in the preamble to its Constitution, the WHO
depends on the conjunction of goodwill on all sides ; it has concluded
numerous agreements with organizations or with States for this purpose.
Any international agreement is binding on the parties ; the WHO should
respect the agreement which it concluded with Egypt for the Alexandria
Office.

In the absence of a “super-State”, each international organization has
only the competence which has been conferred on it by the States which
founded it, and its powers are strictly limited to whatever is necessary to
perform the functions which its constitutive charter has defined. This is
thus a compétence d'attribution, i.e., only such competence as States have
“attributed” to the organization. It is a misuse of terminology to speak of
the sovereignty of the WHO or the sovereignty of the World Health
Assembly ; States are sovereign in the sense that their powers are not
dependent on any other authority, but specialized agencies have no more
than a special competence, that which they have received from those who
constituted them, their member States, for the purpose of a well-defined
task. Anything outside that competence and not calculated to further the
performance of the task assigned lies outside the powers of the organiza-
tion, and would be an act u/rra vires, which must be regarded as without
legal effect. In my view, that is the situation shown by the dossier in the
present case ; the World Health Assembly has been called on by certain
member States to take a decision to transfer a regional office without any

34
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 104

ground of health being asserted, by way of political sanction, and such an
action does not fall within its competence.

One last point on this question. It has been contended that, in the
absence of an international tribunal competent to pass upon the legality of
the acts of an international organization, the only control of the legality of
the decisions of the World Health Assembly is through the votes of the
Organization’s member States on each decision, that once a majority has
been obtained the decision is binding on all. This is not a correct descrip-
tion of the powers of the WHO Assembly. The World Health Assembly has
not the power to set aside by unilateral decision treaties it has concluded
with a member State. In order for this to be the case, the WHO would have
to be a super-State, the very notion of which has previously been rejected
by the Court. A decision of the WHO which is contrary to international law
does not become lawful because a majority of States has voted in favour of
it. The WHO and, in particular, its Assembly were created by the member
States in order to carry out that which they had decided to do together, and
that alone ; member States are not bound to implement an unlawful act if
that is what they hold it to be, and the practice of international organi-
zations has shown that recourse is had in such circumstances to a refusal to
carry out such act. Consequently nothing is settled by a decision taken by a
majority of member States in matters in which a specialized agency over-
steps its competence. Numbers cannot cure a lack of constitutional com-
petence. In 1962 the Court stated: “Save as they have entrusted the
Organization with the attainment of these common ends, the member
States retain their freedom of action.” (Certain Expenses of the United
Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, p. 168). The coming, together of member States’ delegates in
the World Health Assembly does not make of that Assembly anything
more than what the Constitution specifies : an assembly to consider and
express itself with respect to health objectives. That which those State
delegates could not do in isolation, 1.e., set aside agreements between an
organization and a member State, they similarly cannot do when meeting
together in an assembly the sole common objectives of which relate to
health.

Itis of course regrettable that in no organ of the WHO and at no level did
a concern for the legality of the step of withdrawal lead to its being
properly studied and considered. The dossier transmitted to the Court by
the WHO does not meet the obligations laid down in Article 77 of its
Constitution, which provides that the Director-General “shall make ar-
rangements for the presentation of the case before the Court, inclu-
ding arrangements for the argument of different views on the question”. It
has not been possible io learn sufficiently from the documents supplied,
unsupported by any commentary, what was done within the Organization
during the critical period 1948-1951 nor what precisely was the attitude
with respect to the integration of the Alexandria Bureau of the authorities
who controlled the WHO’s actions. Nevertheless, the then Director-Gen-
eral was perfectly conversant with the travaux préparatoires on Article 54

35
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 105

of the WHO Constitution and with the intention to “integrate” regional
organizations, and the Head of the WHO Legal Division had followed all
the negotiations up to and including the conclusion of the 1951 Agreement.
Questions put by the Court or by its Members were met by generalities or
evasions (for example, the answers to the questions I put on 28 October
and 18 November 1980 concerning the problems that had arisen since
January 1978 in relation to a transfer of the WHO’s Geneva headquarters).
An international administrative service is under an obligation to maintain
such conditions as ensure the proper functioning of the organization,
which implies a duty to give detailed study and consideration to problems
which raise a question of the constitutional] and legal propriety of an action
of the organs of that organization. At the first meeting of the Working
Group “on the question of a transfer of the Regional Office for the Eastern
Mediterranean Region” on 29 May 1979, the Secretariat stated that “it
would be very important to draw a line between the political role of the
members and the neutral role of the secretariat”. The entire proceedings
before the Court have been marked by this misconception both of the
obligations of the member States of a specialized agency and of the role of
an international secretariat. The member States are bound by the obliga-
tion which they assumed in the Constitution to act within the WHO only
with health objectives in view, whilst the Secretariat must carry out the
same task of working for health, and there cannot be any question of
“neutrality” for it when it is a matter of applying the Constitution and
ensuring respect for the international obligations which bind the Organi-
zation. The same uncertainty of views is reflected in the text which the
Director-General submitted to Committee B at its meeting on 24 May
1979 (doc. A 32/B/SR/ 14, p. 3), whereby it would be decided to undertake
a study of the effects of the implementation of the transfer “taking ne-
cessary steps for its implementation”, which seems to regard a decision to
remove the Office as a foregone conclusion even before the aforemen-
tioned study of its consequences had begun. (Compare the detailed study
carried out by the United Nations Food and Agriculture Organization on
the problem of its Regional Office for the Near East, submitted before the
Conference session in November 1979, which, on 28 November, adopted
resolution 20/79 emphasizing the need to find “a solution which would
respect the interest of all Member Nations” and requested the Director-
General to use “his best and unfettered judgment”)

*
* *

Having thus set forth the reasons why I consider that the Court ought to
have gone further than it has in the reasons it gives for its Opinion, it
remains for me to indicate very briefly the reasons why I was able to vote
for its provisions.

The absorption of the Alexandria Bureau within the WHO through the
“common action” of the WHO and Egypt, in conformity with Article 54 of
the Constitution, was a valid operation comprising several successive acts

36
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 106

culminating in the 1951 Agreement, which is applicable to any difficulty
that may arise between the parties with regard to the Office’s operations or
its legal status. To bring the Regional Office’s existence in Egypt to an end
does not fall within the discretionary power of either party ; that which was
done by “common action” can only be undone by agreement. If it is not
possible to reach such agreement, either party may secure the termination
of the 1951 headquarters agreement under Section 37, which confers a right
of revision and denunciation. In the first place, the semantic discussions
concerning the word “revise” seem to me irrelevant, since in any event
Section 37 allows a request for modification of the Agreement and, in the
event of a refusal, the denunciation of the agreement. It is carrying for-
malism a long way to say that only a request for partial revision is possible ;
it would, in fact, be easy to demand a modification unacceptable to the
other party and then to denounce the Agreement. Secondly, the WHO has
itself recognized the following chain of events in the history of its nego-
tiation of the headquarters agreement with Egypt : the 1951 Agreement
follows the model draft host agreement drawn up by the WHO, which is
copied from the WHO’s Headquarters Agreement of 1948-1949 with
Switzerland, which is based on the ILO’s Headquarters Agreement with
Switzerland of 11 March 1946. And with respect to this last-named agree-
ment, the Court has seen extracts from the report of the ILO delegation to
the 1946 Montreal Conference, in which Mr. Wilfred Jenks, who nego-
tiated the text of the Headquarters Agreement with Switzerland, con-
cluded that in his view “the arrangement is terminated by mutual agree-
ment” (Constitutional Questions, para. 32). The 1951 Agreement is a head-
quarters agreement, based on the model host agreement prepared in the
WHO, and its provisions were intended to regulate the legal status of the
Regional Office established in Egypt. Both the WHO and Egypt have,
from the very beginning until the present day, taken the view that the 1951
Agreement between the WHO and the host country was concluded essen-
tially to lay down the reciprocal obligations of the parties arising from the
establishment in Egypt of a regional office. The agreement of the parties
perfected the various actions which contributed to that establishment with
a headquarters agreement regulating the operations of the Office in Egypt
and, from a legal point of view, making them possible. A transfer of
that Office makes the “revision” of the Agreement necessary because it
deprives it of its object and purpose by moving the seat of the office. The
agreement of the parties on the Alexandria “establishment” would be
broken. Section 37 is a clause that protects the parties so that the provisions
of the headquarters agreement may be implemented in an orderly manner ;
should any particular difficulties arise, “revision” is provided for and, a
fortiori, where a party wishes to put an end to all the obligations it has
contracted and without taking account of what the other party has pro-
vided nor of the services it has rendered.

Examination of the legal relations established between the WHO and
Egypt has shown the existence of a series of acts, distinct but connected by
their common objective, namely the establishment of a WHO Regional

37
INTERPRETATION OF AGREEMENT (SEP. OP. GROS) 107

Office in Egypt, and which culminated in the conclusion of the headquar-
ters agreement of 25 March 1951, which specified the legal status of the
Office, of this regional headquarters, of its staff and, above all, of its
activities in Egypt. The WHO devoted much attention between 1949 and
1951 to the conclusion of the 1951 Agreement, which was indispensable to
it in order that the Regional Office might function ; not only was it the
WHO which proposed the text, but it carefully discussed it with all the
competent bodies of the Egyptian State. As between the two parties, the
series of acts which led to the establishment of the Regional Office con-
stitutes an agreement to bring about a continuation of the health activities
of the Alexandria Bureau, integrated by common accord as a Regional
Office ; this agreement is enshrined in a treaty approved by the two parties
in proper form. Implementation in good faith of the undertakings entered
into by the WHO with Egypt for the purpose of integrating the existing
Alexandria Bureau within the WHO requires that all the provisions of the
1951 Agreement be applied, including Section 37, which makes possible an
examination of the problem of the revision and, possibly, the termination
of the treaty, whilst respecting the legal obligations assumed by the par-
tes.

The Advisory Opinion did not adopt this view, but did summarize it in
its analysis of the opinions which have been advanced, and an endeavour
has been made to amalgamate those opinions on a basis which was
necessarily that of the lowest common denominator.

That being the case, it is with the benefit of all the foregoing observations
that, taking into account the precise legal obligations enshrined in the
operative clause of the Opinion, I have been able to subscribe to it. Above
all, I maintain that the WHO Assembly lacks competence to terminate the
Regional Office’s legal status unilaterally for reasons other than the health
objectives laid down in the Constitution of the WHO.

(Signed) André GROS.

38


96

SEPARATE OPINION OF JUDGE NI

I agree with the decision of the Court that the Application of Guinea-
Bissau should be rejected. I also agree generally with the line of reasoning
contained in the Judgment. I feel, however, that certain aspects of the
Judgment might call for further elaboration.

The present case involves the following two questions, which will be
dealt with successively. They are: (1) whether the Award of 31 July 1989
should be considered inexistent because of the declaration made by the
President of the Arbitration Tribunal, Mr. Barberis; and (2) subsidiarily
whether the Award should be considered a nullity because the Tribunal
failed to answer the second question in Article 2 of the Arbitration Agree-
ment and also failed to append the map provided for in Article 9 of that
Agreement, without giving reasons therefor.

1. ALLEGED INEXISTENCE OF THE AWARD

It is to be noted that, of the three members of the Arbitration Tribunal,
Mr. Barberis and Mr. Gros voted for the Award, while Mr. Bedjaoui voted
against it. If Mr. Barberis’s declaration is to be viewed as a dissent from
the Award, as alleged by Guinea-Bissau, the Award should, Guinea-Bis-
sau contends, be considered as inexistent because it would no longer be
supported by a majority. The declaration of Mr. Barberis has been quoted
in extenso in paragraph 19 of the Judgment and will not be reproduced
here.

On reading Mr. Barberis’s declaration one notes that it contains a num-
ber of verbal forms in conditional tenses, such as “could have”, “would
have”, “might have”, etc. To a large extent it merely sets forth a series of
doubts, reservations, suppositions or suggested variations without
expressing any clear and decisive opposition to or contradiction with any
part of the operative clause of the Award that would enable one to view
the declaration as manifesting dissent.

On the contrary, the declaration affirms in substance, as does the Award,
that the Agreement concluded by Exchange of Letters in 1960 has the force
of law in the relations between the Republic of Guinea-Bissau and the
Republic of Senegal. The declaration likewise affirms, as does the Award,
that the Agreement is binding on the Parties with respect to the territorial
sea, the contiguous zone and the continental shelf. It also indicates, as does
the Award, that the Agreement does not bind the Parties with respect to the
waters of the exclusive economic zone or the fishery zone.

47
98 ARBITRAL AWARD (SEP. OP. NI)

Since it is an affirmative reply to the first question, the Tribunal was not
called upon to answer the second question in Article 2, paragraph 2, of the
compromis; the reason is the express condition: “In the event of a negative
answer to the first question.” It was in fact impossible for Mr. Barberis to
set off on a quest for the solution of a question which did not arise, for the
Tribunal was not confronted with the question of the validity of the 1960
Agreement with respect to the exclusive economic zone or the fishery
zone.

Mr. Barberis suggested that the Tribunal would have been competent to
delimit the waters of the exclusive economic zone or the fishery zone so as
to settle the whole dispute. But the Tribunal could not go beyond its man-
date, which only concerned the territorial sea, the contiguous zone and
the continental shelf. In fact, Mr. Barberis went no further. He merely
suggested a more comprehensive solution, as is clear from his use of the
phrase “would have been”. But his suggestion stopped there. His declara-
tion cannot therefore be taken to record his dissent, thereby overriding or
invalidating his vote. The vote is the most reliable indication as to whether
or not he concurred with the Award.

The declaration is not part of the Award. The practice whereby judges
attach separate opinions, dissenting opinions or declarations is well estab-
lished since the days of the Permanent Court of International Justice.
The practice is at present embodied in Article 95, paragraph 2, of the Rules
of Court, which provides that:

“Any judge may, if he so desires, attach his individual opinion to
the judgment, whether he dissents from the majority or not; a judge
who wishes to record his concurrence or dissent without stating his
reasons may do so in the form of a declaration...”

From the wording of this provision, it is clear that since individual opin-
ions or declarations are attached to the judgment, they cannot be a part of
it. Since they are individual opinions, whether or not they concur with the
judgment (or, in this case, with the Award), they cannot be considered to
represent the opinion of the body (whether a court or tribunal) as a whole.
They can only represent the views of the individual authors. They are thus
attached to the judgment or award, but do not form an integral part
thereof. They can explain, interpret, vary, criticize or even differ in certain
respects from the judgment or award. But to criticize or to propose varia-
tions does not necessarily import dissent. It is the operative part, and in
particular the voting, that counts. Unless the operative part is in turn
divided into parts and voted upon separately, it is the whole of the opera-
tive part that is voted upon.

In fact, this is the only sensible way to look at a judgment or award
which is rendered, not by one judge or arbitrator alone, but by a panel. If

49
99 ARBITRAL AWARD (SEP. OP. NI)

the parties were at liberty to assess an individual opinion or declaration by
their own viewpoints and thus disregard the voting, the legal order would
be thrown into great confusion. Nor can one consider that since the Court
has, in the present case, jurisdiction with respect to the Award it is free to
disregard the vote by giving its own evaluation of what a declaration by an
individual judge or arbitrator amounts to, unless there is clear and unmis-
takable proof that the facts are such that the declaration can be regarded
as a statement of dissent and the voting was flawed by mistake or compul-
sion. But such is not the case here.

Guinea-Bissau has criticized Senegal for “taking refuge behind legal
formalism”. But judges or arbitrators do not vote as a mere matter of for-
mality. They do so in order to express their precise position. They are fully
aware of the substantive implications of their vote. The vote is not just a
formal gesture. The vote indicates their final decision. If the declaration,
as in this case, raises an uncertainty as to whether a judge or arbitrator
concurs with or dissents from a judgment or an award, it is the vote that
constitutes the authentic expression of his attitude.

For these reasons, Guinea-Bissau’s assertion that there was no majority
in support of the Arbitral Award of 31 July 1989 and that the Award
should be adjudged and declared to be inexistent cannot be accepted.

2. ALLEGED NULLITY OF THE AWARD

Guinea-Bissau asks the Court to adjudge and declare, subsidiarily, that
the so-called decision is absolutely null and void, as the Tribunal failed to
reply to the second question put in the Arbitration Agreement, as it did not
decide on the delimitation of the maritime areas, as a whole, by a single
line and did not record that delimitation on a map, and as it has not given
the reasons on which the Award is based.

Arbitration has been useful in the peaceful settlement of disputes
between States. But there have also been abuses which can result in nulli-
ties. What is crucial is to have a list of the causes of nullity and also to make
provision for the kind of international organ which will be entrusted with
deciding on alleged causes of nullity.

It was in 1929 that the Government of Finland made a proposal to
examine the question and recommended that the power to pronounce nul-
lities should be vested in the Permanent Court of International Justice. A
committee of specialists was appointed by the Council of the League of
Nations to study the proposal. In the same year, the Institute of Interna-
tional Law decided to include on the agenda the possible constitution of a
body to hear appeals in cassation against decisions of international arbi-

50
100 ARBITRAL AWARD (SEP. OP. NI)

tration tribunals. It was the International Law Commission of the United
Nations which drafted and submitted in 1958 a set of “Model Rules on
Arbitral Procedure”, to which the attention of States was drawn.

In the “Model Rules”, the following two Articles are pertinent:
“Article 35

The validity of an award may be challenged by either party on one
or more of the following grounds:

(a) that the tribunal has exceeded its powers;

(b) that there was corruption on the part of a member of the tribunal;

(c) that there has been a failure to state the reasons for the award or a
serious departure from a fundamental rule of procedure;

(d) that the undertaking to arbitrate or the compromisis a nullity.

Article 36

1. If, within three months of the date on which the validity of the
award is contested, the parties have not agreed on another tribunal,
the International Court of Justice shall be competent to declare the
total or partial nullity of the award on the application of either
party.”

The concept of nullity has been considered broad enough to cover all
serious irregularities in arbitration. However, most publicists are agreed
that an arbitral award can be held to be null and void only in cases where
the tribunal in question has “manifestly and in a substantial manner
passed beyond the terms of submission” (K. S. Carlston, The Process of
International Arbitration, p. 81, and the authorities quoted by him on
pp. 81-84). After citing a number of eminent authorities such as Vattel,
Bluntschli, Bonfils, Fauchille, Calvo, Oppenheim, Hall, Hyde, Castberg,
Schatzel, Stoykovitch, Weiss, etc., Carlston concluded that

“Claims of nullity should not be captiously raised. Writers who
have given special study to the problem of nullity are agreed that the
violation of the compromis should be so manifest as to be readily
established. In order that a tribunal’s decision or a jurisdictional
issue shall be considered null, it must, in general, be arbitrary, not
merely doubtful or arguable.” (Ibid., p. 86.)

In the present case, Guinea-Bissau alleged that the Arbitral Award of
31 July 1989 is a nullity because it fails to reply to the second question in
Article 2, paragraph 2, of the compromis. Guinea-Bissau raises a number
of arguments to prove that this was an excés de pouvoir and the Award is
therefore a nullity. Before going into the merits of this claim, certain
points should first be mentioned.

SI
101 ARBITRAL AWARD (SEP. OP. NI)

To begin with, the term excés de pouvoir means that the Tribunal has
exceeded or overstepped the powers which have been attributed to it by
the Parties. What Guinea-Bissau now complains of is that the Tribunal
has failed to exercise, not that it has exceeded, the powers vested in it
(compare the wording of Article 11, paragraph 2, of the Statute of the
United Nations Administrative Tribunal). The term “excès de pouvoir by
omission” is a self-contradictory one. It is also questionable whether, if
the Tribunal fails, in whole or in part, to exercise the powers vested in it,
the appropriate remedy is to apply for nullification of the Award.

Secondly, the ground of Guinea-Bissau’s complaint is the Tribunal’s
failure to reply to the second question, in Article 2, paragraph 2, of the
compromis. But Guinea-Bissau makes no reference to the reply of the
Award in respect of the first question, in Article 2, paragraph |, of the
compromis. No satisfactory reason is given as to why the whole Award
must be nullified.

Be that as it may, the thrust of Guinea-Bissau’s thesis is that, irrespective
of the Tribunal’s response concerning the value of the Franco-Portuguese
Exchange of Letters, the Tribunal was called upon to proceed to a com-
plete delimitation of the maritime territories. This interpretation is, how-
ever, in clear contradiction with the ordinary meaning to be given to the
terms of the compromis. In the present case, a reply to the second question
in Article 2, paragraph 2, of the compromis would have been mandatory
only if the first question had been answered “in the negative”. The obliga-
tion to reply to the second question is alternative, not simultaneous. Since
the first question was replied to in the affirmative, the Tribunal was not
called upon to reply to the second question. This follows from the ordi-
nary and natural meaning of the relevant words. Such an interpretation is
in perfect harmony with Article 31, paragraph 1, of the Vienna Conven-
tion on the Law of Treaties.

Guinea-Bissau, however, argues that the Tribunal’s reply to the first
question is partially in the affirmative and partially in the negative; a par-
tially negative reply is nevertheless a negative reply; the Tribunal was
therefore under an obligation to give a reply to the second question. It
should be recalled that, in the present case, there cannot be any such thing
as a “partially affirmative and partially negative answer”, since the ques-
tion put in the compromis relates to the maritime boundary, as it existed at
the time of conclusion of the Agreement in 1960, not thereafter. Indeed,
the Award, in paragraph 85, clearly indicated that the Agreement had to
be interpreted in the light of the law in force at the date of its conclusion.
Therefore the Tribunal’s reply to the first question with respect to the ter-
ritorial sea, the contiguous zone and the continental shelf is a complete
teply to the question put to the Tribunal. The word “solely” merely
explains the scope of its decision. It cannot, therefore, be taken as a rejec-
tion of a part of the Parties’ request and thus as a reason for characterizing
the reply to the first question as a partially negative or even as an
altogether negative answer.

52
102 ARBITRAL AWARD (SEP. OP. NI)

Guinea-Bissau further argues that since the entire dispute concerns the
maritime boundary and since the title of the 1960 Agreement and the
Preamble of the compromis both refer to the determination of the maritime
boundary, it follows that whatever the reply given to the first question, the
Tribunal should have proceeded to the second.

It must be pointed out that, in interpreting a treaty, such as the compro-
mis in the present instance, whose text is clear and unambiguous, no
attempt should be made to change the ordinary and natural meaning of
the language used in the text by resorting to other elements and to inter-
pret them as requiring under any circumstance the overall delimitation of
the maritime boundary between the two States. It is primarily and clearly
in the text of Article 2 of the compromis that the objective of the Parties is
located. Here the Parties agreed that a reply to the second question is con-
ditioned on a negative answer to the first. It cannot be envisaged that a
mention of the delimitation of the maritime boundary in the title of the
1960 Agreement and in the Preamble of the compromis can have the effect
of changing the meaning of the clear and unambiguous language of the
text in Article 2 of the compromis.

Guinea-Bissau persistently maintained that it was the intention of the
Parties that whatever the answer to the first question (in Article 2 of the
Arbitration Agreement) the Tribunal was called upon to delimit the entire
maritime boundary between the two States. But this contention does not
find any support in the clear language of the compromis.

On the contrary, a passage in Guinea-Bissau’s own Memorial sub-
mitted to the Tribunal reads:

“The representatives of Senegal ended by sharing this way of think-
ing [my emphasis] and accordingly the Tribunal is requested to carry
out a dual task: in the first place, to pronounce itself on the validity
of the Franco-Portuguese Exchange of Letters of 16 April 1960 as
a means of determining the maritime boundary between Guinea-
Bissau and Senegal; and, should this validity not be recognized
[Senegal’s emphasis], to lay down the course of the line delimiting the
maritime territories between the two States in accordance with the
pertinent norms of positive international law.” (Page 35 of Guinea-
Bissau’s Memorial before the Tribunal; quoted by Senegal on
page 34 of its Counter-Memorial before the Tribunal.)

The above passage clearly affirms that it was Guinea-Bissau which pro-
posed that the Tribunal be asked to pronounce on the validity of the 1960
Exchange of Letters and, should this validity not be recognized, to lay down
the course of the line delimiting the maritime territories between the two
States. And this way of thinking was shared by Senegal. Such has been the
result of the negotiations between the two States and they well knew what
they were agreeing to.

Although the passage quoted above was followed by a sentence, “In
any event, at the conclusion of the arbitration the maritime delimitation
between Guinea-Bissau and Senegal will have been effected”, this can

53
103 ARBITRAL AWARD (SEP. OP. NI)

only mean the delimitation of those maritime spaces which existed at the
time of the conclusion of the 1960 Agreement, because it was the 1960
Agreement which was in dispute. If the Parties had intended that there
should be an ex novo delimitation of the entire maritime boundary, irre-
spective of the result of the examination of the validity of the Franco-
Portuguese Exchange of Letters of 1960, they would have said so in the
compromis. Since this was not only a relevant, but a crucial point, they
could not have neglected to do so. Negotiations had been carried on for
eight years. How could a point of such substance and significance have
been overlooked? There is no evidence of any dispute having arisen
between the Parties on this point during their negotiations. On the con-
trary, the 11 prefatory words in Article 2, paragraph 2, were proposed by
Guinea-Bissau itself (Senegalese Counter-Memorial in the present pro-
ceedings, pp. 29, 33, 38 and 44; also publicsitting of 5 April 1991, CR91/4,
p. 45).

Guinea-Bissau also asserts that the various components of the mari-
time areas are indivisible. But this alleged indivisibility, even if the Parties
had so intended would not have removed the condition which the Parties
expressly laid down in Article 2, paragraph 2, of the compromis. Whether
or not the line is divisible is a question of how the line is to be drawn,
arising if the first question is answered in the affirmative. It does not
change the fundamental relationship between the two questions put in
Article 2, which is that the reply to the second one is conditioned on the
first question being answered in the negative.

It is to be noted that both Parties emphasized that they wanted a single
line of delimitation, but they viewed this concept differently. For its part,
Guinea-Bissau wished to have the continental shelf and the exclusive
economic zone re-aligned, by means of a synthetic line, on the basis of
equitable principles. As for Senegal, it wished to have the existing 240°
line raised to divide the exclusive economic zone. The argument of indi-
visibility, which seeks to identify the various components of the maritime
boundary and make them coincide, cannot therefore be used to support
Guinea-Bissau’s thesis that whatever the reply to the first question, the
Tribunal should have proceeded to the ex novo delimitation in accordance
with the second question.

Nor can it be said that the Tribunal’s task is indivisible. The Tribunal
was asked to determine, if it answered the first question in the negative,
the course of the line forming the maritime boundary. The first question
was answered in the affirmative, and there the task of the Tribunal ended.
Guinea-Bissau cannot now claim that something was left undone. This
“something” did not and cannot form the object of arbitration because it
did not exist at the time of the conclusion of the 1960 Agreement.

It is true that in the preambular part of Article 2 and also in Article 9,

54
104 ARBITRAL AWARD (SEP. OP. NI)

paragraph 1, of the compromis, the word “question” was used in the plural.
But such details of drafting cannot be relied upon to contradict the mean-
ing of the instrument as a whole, since at the time of its conclusion it was
not known whether both questions might have to be answered or not.

Guinea-Bissau has further contended that the Tribunal failed to exer-
cise its power under the compromis to make a decision on the course of a
single line delimiting all the maritime spaces and to indicate the boundary
line on a map. Since, as has been said before, the Tribunal was not called
upon to answer the second question, there was no occasion to delimit such
a boundary line and it naturally followed that no map could have been
appended.

As to the question of whether or not there has been sufficiency of rea-
soning, it is important not to base oneself solely on paragraph 87 of the
Award. Paragraph 87 only reaches a reasoned conclusion from what has
been discussed. The reasons in support of the conclusion arrived at in para-
graph 87 were, to a large extent, given earlier in the Award. The principal
point is the affirmation of the validity of the 1960 Agreement, as a conse-
quence of which the second question did not have to be answered. And
since no ex novo delimitation of the maritime boundary was to take place,
amap could not have been produced. All these points are interrelated. The
reason is self-evident. There is no basis for regarding the question of the
map as an independent matter and saying that no adequate reason is given
for its omission.

The line of reasoning that led the Tribunal to the conclusion in para-
graph 87 is clear. After analysing the question of the validity of the 1960
Agreement, the Tribunal, in paragraph 80 of the Award, observes that “the
1960 Agreement is valid and can be opposed to Senegal and to Guinea-
Bissau”. In paragraph 85 of the Award, the Tribunal states that the 1960
Agreement must be interpreted in the light of the law in force at the date of
its conclusion. Then it concludes in the same paragraph that the Agree-
ment does not delimit the maritime spaces which did not exist at that date,
whether they be termed “exclusive economic zone”, “fishery zone” or
whatever.

It is also to be noted that paragraph 87 and paragraph 88 are intimately
linked to each other. In paragraph 88 the Tribunal found that the 1960
Agreement had the force of law in the relations between Guinea-Bissau
and Senegal with regard to the areas mentioned in that Agreement. Conse-
quently, by the terms of Article 2 of the Arbitration Agreement, the Tribu-
nal did not have to answer the second question. Such was the conclusion
of paragraph 87 of the Award. When the Tribunal adopted paragraph 88
by two votes to one, it necessarily endorsed the reasoning behind para-
graph 87.

On the basis of such analysis and conclusions, the Tribunal then con-
cluded that it was not called upon to reply to the second question. The
decision on the question of the map follows that on delimitation of the
maritime boundary. Since the first question put in Article 2 of the compro-

55
105 ARBITRAL AWARD (SEP. OP. NI)

mis was answered in the affirmative, no ex novo delimitation took place.
Consequently, no map was called for. The reasoning is succinct, but it is

sufficiently clear for the purposes of the Award.
For the foregoing reasons, Guinea-Bissau’s subsidiary submission that
the Award of 31 July 1989 should be declared a nullity cannot be sus-

tained.
(Signed) Ni Zhengyu.

56