INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

ORDER OF 12 JANUARY 1989

1989

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFEREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME

(EL SALVADOR/HONDURAS)

ORDONNANCE DU 12 JANVIER 1989
Official citation :

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Order of 12 January 1989, I.C.J. Reports 1989, p.3

Mode officiel de citation :

Différend frontalier terrestre, insulaire et maritime (El Salvador/Honduras),
ordonnance du 12 janvier 1989, C.IL.J. Recueil 1989, p. 3

Sales number 5 49
N° de vente :

1989
12 January
General List
No. 75

INTERNATIONAL COURT OF JUSTICE
YEAR 1989

12 January 1989

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

ORDER

The President of the Chamber of the International Court of Justice
formed to deal with the above-mentioned case,

Having regard to Article 48 of the Statute of the Court and to Article 18,
paragraph 3, and Articles 44 and 92 of the Rules of Court,

Having regard to the Special Agreement concluded on 24 May 1986
between the Republic of El Salvador and the Republic of Honduras for
the submission to a chamber of the Court of a land, island and maritime
frontier dispute between the two States and to the Order of 8 May 1987 by
which the Court decided to accede to the request of the Parties to form a
special chamber of five judges to deal with the case, and declared the
Chamber to have been duly constituted,

Having regard to the Order made by the Court on 27 May 1987 by which
1 June 1988 was fixed as the time-limit for the filing by each of the Parties
of a Memorial and to the Order made by the Chamber on 29 May 1987
by which it authorized the filing of Counter-Memorials and Replies in
the present case as contemplated by the Special Agreement, and fixed
1 February 1989 as the time-limit for the filing by each of the Parties of a
Counter-Memorial and 1 August 1989 as the time-limit for the filing by
each of the Parties of a Reply;

Whereas the Memorials of the two Parties were duly filed within the
time-limit fixed therefor;

4
4 DISPUTE (EL SALVADOR/HONDURAS) (ORDER [2 I 89)

Whereas by a cable signed by their respective Ministers for Foreign
Affairs dated 21 December 1988 and received in the Registry on 23 De-
cember 1988 the two Parties jointly requested, for the reasons set out
in the said cable, the extension of the time-limit for the filing of the
Counter-Memorials to 10 February 1989 and of that for the filing of the
Replies to 15 December 1989,

Extends to 10 February 1989 the time-limit for the filing by each of the
Parties of a Counter-Memorial and to 15 December 1989 the time-limit
for the filing by each of the Parties of a Reply;

And reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twelfth day of January, one thousand
nine hundred and eighty-nine, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of El Salvador and the Government of Honduras, respectively.

(Signed) José SETTE-CAMARA,
President of the Chamber.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

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

(YOUGOSLAVIE c. FRANCE)

ORDONNANCE DU 30 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA y. FRANCE)

ORDER OF 30 JUNE 1999
Mode officiel de citation:

Licéité de l'emploi de la force {Yougoslavie €. France),
ordonnance du 30 juin 1999, CLS. Recueil 1999, p. 994

Official citation:
Legality of Use of Force (Yugoslavia v. France),
Order of 30 June 1999, LC.J. Reports 1999, p. 994

N° de vente:
ISSN 0074-4441 Sales number 743

ISBN 92-1-070815-6

30 JUIN 1999

ORDONNANCE

LICÉITÉ DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. FRANCE)

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. FRANCE)

30 JUNE 1999

ORDER
994

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1999

30 juin 1999

AFFAIRE RELATIVE À LA LICÉITÉ
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. FRANCE)

ORDONNANCE

Présents: M. WEERAMANTRY, vice-président, faisant fonction de prési-
dent en l'affaire; M. SCHWEBEL, président de la Cour;
MM. Oba, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI,
FLEISCHHAUER, KOROMA, VERESHCHETIN, MS HIGGINS,
MM. PARRA-ARANGUREN, KOOLMANS, REZEK, juges ; M. KRECA,
juge ad hoc; M. ARNALDEZ, greffier adjoint.

La Cour internationale de Justice,

Ainsi composée,
Après délibéré en chambre du conseil,

Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, 48, 49 et 79
de son Règlement,

Vu la requête déposée au Greffe de la Cour le 29 avril 1999, par
laquelle la République fédérale de Yougoslavie a introduit une instance
contre la République française «pour violation de l'obligation de ne pas
recourir à l'emploi de la force»,

Vu la demande en indication de mesures conservatoires présentée par
la Yougoslavie le 29 avril 1999 et l'ordonnance rendue par la Cour le
2 juin 1999, aux termes de laquelle elle a rejeté ladite demande et réservé
la suite de la procédure;

Considérant qu'aux fins de se renseigner auprès des Parties sur la suite
995 LICÉITÉ DE L'EMPLOI DE LA FORCE (ORD. 30 VI 99)

de la procédure le vice-président de la Cour, faisant fonction de président
en l'affaire, a reçu leurs représentants le 28 juin 1999; considérant qu’au
cours de cette réunion la France, se référant aux conclusions auxquelles
la Cour était parvenue dans son ordonnance susmentionnée du 2 juin
1999, a demandé qu'il soit statué séparément, avant toute procédure sur
le fond, sur la question de la compétence de la Cour en l'espèce; consi-
dérant qu'au cours de la même réunion, la Yougoslavie s'est opposée à
cette demande et a indiqué qu'elle souhaitait pouvoir présenter un
mémoire sur le fond, ainsi qu’envisagé dans le Règlement de la Cour,
étant entendu que la France pourrait soulever des exceptions prélimi-
naires dans le délai fixé pour le dépôt de son contre-mémoire, conformé-
ment au paragraphe | de l’article 79 dudit Règlement: et considérant
que le demandeur a évoqué un délai d'environ six mois aux fins du dépôt
de la pièce qu'il souhaitait produire:

Considérant les vues des Parties et les dispositions pertinentes du
Règlement de la Cour,

Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite prescrites par l’article 45 du Règlement:

Pour le mémoire de la République fédérale de Yougoslavie, le 5 janvier
2000;

Pour le contre-mémoire de la République francaise, le 5 juillet 2000;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, a La Haye, le trente juin mil neuf cent quatre-vingt-dix-neuf, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et
les autres seront transmis respectivement au Gouvernement de la Répu-
blique fédérale de Yougoslavie et au Gouvernement de la République
frangaise.

Le vice-président,
(Signé) Christopher G. WEERAMANTRY.

Le greffier adjoint,
(Signé) Jean-Jacques ARNALDEZ.


                     385

                                       DECLARATION OF JUDGE YUSUF

                        Disagreement with point 3 of the operative paragraph — Improper character‑
                     ization of actual material injury suffered — Reformulation of claim as loss of
                     professional remuneration is restrictive, without legal or logical reasoning — Exis‑
                     tence of causal nexus between unlawful detention and injury suffered by
                     Mr. Diallo — Unsatisfactory evidence of pre‑detention earnings does not detract
                     from existence of an injury resulting from detention — Court’s decision inconsis‑
                     tent with jurisprudence and practice of human rights courts and tribunals — Equity
                     considerations should have been applied — Compensation fixed in equity on the
                     basis of causal link between unlawful detention and the material injury suffered by
                     Mr. Diallo.

                       1. I have voted in favour of the operative part of the Judgment except
                     point 3 which
                             “Finds that no compensation is due from the Democratic Republic
                           of the Congo to the Republic of Guinea with regard to the claim
                           concerning material injury allegedly suffered by Mr. Diallo as a
                           result of a loss of professional remuneration during his unlawful
                           detentions and following his unlawful expulsion.”
                        I consider it my judicial duty to explain the reasons for my disagree-
                     ment with this finding and with the considerations on which it is based,
                     particularly as it relates to the “loss of earnings” by Mr. Diallo due to his
                     unlawful detentions in 1995‑1996.
                        2. The Court, in its Judgment on the merits of 30 November 2010,
                     stated that
                              “The Court is of the opinion that the Parties should indeed engage
                           in negotiation in order to agree on the amount of compensation to be
                           paid by the DRC to Guinea for the injury flowing from the wrongful
                           detentions and expulsion of Mr. Diallo in 1995‑1996, including the
                           resulting loss of his personal belongings.” (Ahmadou Sadio Diallo
                           (Republic of Guinea v. Democratic Republic of the Congo), Merits,
                           Judgment, I.C.J. Reports 2010 (II), p. 691, para. 163.)
                        3. The Parties having failed to reach agreement on the amount of com-
                     pensation, the matter was submitted to the Court for settlement. In con-
                     sidering the compensation to be paid to Guinea for the injuries suffered
                     by Mr. Diallo, the Court refers to the four heads of damage identified by
                     Guinea in the following manner :
                            “Guinea seeks compensation under four heads of damage : non‑
                           material injury (referred to by Guinea as ‘mental and moral damage’),

                     65

6 CIJ1032.indb 126                                                                                26/11/13 09:37

                     386 	             ahmadou sadio diallo (decl. yusuf)

                          and three heads of material damage : alleged loss of personal pro-
                          perty ; alleged loss of professional remuneration (referred to by Gui-
                          nea as ‘loss of earnings’) during Mr. Diallo’s detentions and after his
                          expulsion ; and alleged deprivation of ‘potential earnings’.” (Judg-
                          ment, para. 14.)

                       4. In its Memorial, Guinea refers to United Nations General Assembly
                     resolution 60/147 of 16 December 2005 and to the Basic Principles and
                     Guidelines annexed to it which define the types of compensable damage
                     due to victims of human rights violations as follows :
                             “Compensation should be provided for any economically assessa-
                          ble damage, as appropriate and proportional to the gravity of the
                          violation and the circumstances of each case, resulting from gross
                          violations of international human rights law and serious violations of
                          international humanitarian law, such as :

                          (a) Physical or mental harm ;
                          (b) Lost opportunities, including employment, education and social
                              benefits ;
                          (c) Material damages and loss of earnings, including loss of earning
                              potential ;
                          (d) Moral damage ;
                          (e) Costs required for legal or expert assistance, medicine and medi-
                              cal services, and psychological and social services.” (United
                              Nations General Assembly resolution 60/147 of 16 Decem-
                              ber 2005 (UN doc. A/RES/60/147), Annex, para. 20.)

                        5. The Court has decided to reformulate as a “loss of professional
                     remuneration” the material damage claimed by Guinea to have been suf-
                     fered by Mr. Diallo due to his detentions and characterized in Guinea’s
                     Memorial as a “loss of earnings” in conformity with the above‑mentioned
                     Basic Principles as well as with the practice of human rights courts,
                     such as the European Court of Human Rights (ECHR) and the Inter‑
                     American Court of Human Rights (IACHR). I can see no legal or logical
                     reason for this restrictive reformulation of Guinea’s claim for compensa-
                     tion for this material injury.
                        6. The characterization of the claim by Guinea for “loss of earnings” by
                     a businessman, who was the manager and sole associé of two companies
                     which he himself had founded, as a claim for “loss of professional remune-
                     ration” does not, in my view, constitute a proper qualification of the actual
                     material injury suffered in this case nor does it correspond to the context
                     in which the damage was caused or the particular circumstances of the
                     victim of the human rights violations recognized by the Court.
                        7. Mr. Diallo as a businessman, was not only remunerated for his
                     managerial responsibilities but had overall responsibility, being the sole

                     66

6 CIJ1032.indb 128                                                                                26/11/13 09:37

                     387 	             ahmadou sadio diallo (decl. yusuf)

                     associé, for the income‑generating activities of the companies from which
                     he also personally benefited in terms of earnings. As was stated by the
                     Court in its Judgment of 30 November 2010 on the merits :
                          “it is difficult not to discern a link between Mr. Diallo’s expulsion
                          and the fact that he had attempted to recover debts which he
                          believed were owed to his companies by, amongst others, the

                          Zairean State or companies in which the State holds a substantial
                           portion of the capital, bringing cases for this purpose before the civil
                           courts” (Merits, Judgment, I.C.J. Reports 2010 (II), p. 669, para. 82).
                        8. Bearing in mind that Mr. Diallo was detained in 1995‑1996 with a
                     view to his expulsion, it is not unreasonable to assume that the intended
                     consequence of his detentions and expulsion, which were found by the
                     Court to be unlawful, was to frustrate his efforts to recover those debts.
                     This had a direct effect on his personal earnings as a businessman and as
                     the sole associé of the two companies. Moreover, the detention of a
                     businessman for such a long period of time does not only disturb his com-
                     mercial and entrepreneurial activities, but is likely to interrupt his ability
                     to generate income from such activities.

                        9. It is true that the Republic of Guinea has failed to provide satisfac-
                     tory evidence on the amount of monthly earnings of Mr. Diallo before his
                     detention, but that cannot automatically lead to the conclusion that there
                     was no loss of earnings resulting from his unlawful detention. A loss of
                     earnings arises, in the first instance, from a disruption of the activities
                     which help generate the income of the individual concerned. It is through
                     such disruption or, in some cases, total interruption of the activities of the
                     individual that an unlawful detention causes the victim an injury whose
                     final material consequence is a loss of earnings. The existence of this
                     injury and its causal link with the wrongful act can be ascertained through
                     the determination of the extent to which it prevented the individual from
                     engaging in his or her habitual income-generating activities. Thus, the
                     amount of the income itself can neither determine the existence of an
                     injury nor of the causal link between the injury and the unlawful act,
                     although it may be useful for fixing the compensation due to the victim.
                        10. By focusing solely on the lack of reliable evidence relating to the
                     amount of monthly earnings of Mr. Diallo (paragraphs 42‑44 of the
                     Judgment), the Court has lost sight of the actual injury caused by the
                     unlawful detention of Mr. Diallo — i.e., the disruption of his income‑
                     generating activities and the fact that the detention prevented him from
                     engaging in such activities. It also appears to have overlooked the cir-
                     cumstances of the expulsion of Mr. Diallo from the DRC which did not
                     clearly allow him to collect and save all the documents related to the acti-
                     vities of his companies.
                        11. The fact that the Republic of Guinea was unable to establish,
                     to the satisfaction of the Court, the actual amount of Mr. Diallo’s pre‑
                     detention earnings can neither detract from the existence of an injury due

                     67

6 CIJ1032.indb 130                                                                                26/11/13 09:37

                     388 	              ahmadou sadio diallo (decl. yusuf)

                     to his detentions nor from the fact that these unlawful detentions interfe-
                     red with his ability to engage in his normal income-generating entrepre-
                     neurial activities. It is on the basis of the injury suffered as a result of this
                     interference with his activities that the Court should have fixed, in equity,
                     the compensation due to him in view of the causal nexus between this
                     injury and the unlawful detentions.
                        12. Moreover, the practice of international human rights courts, which
                     have the most extensive jurisprudence in this area, does not appear to
                     have been taken into account by the Court with respect to the fixing of
                     compensation for loss of earnings resulting from the unlawful detention
                     of Mr. Diallo, despite the fact that it is stated in paragraph 13 of the
                     Judgment that
                             “The Court has taken into account the practice in other inter
                          national courts, tribunals and commissions (such as the Internatio-
                          nal Tribunal for the Law of the Sea, the European Court of Human
                          Rights (ECHR), the Inter‑American Court of Human Rights
                          (IACHR), the Iran‑United States Claims Tribunal, the Eritrea‑
                          Ethiopia Claims Commission, and the United Nations Compensa-
                          tion Commission), which have applied general principles governing
                          compensation when fixing its amount, including in respect of injury
                          resulting from unlawful detention and expulsion.”

                        13. The absence of reliable evidence or information on the earnings of
                     the victims of unlawful acts by States has not deterred those courts from
                     awarding compensation on the basis of equitable considerations. Those
                     courts and tribunals have adopted a flexible approach, based on equity,
                     in assessing lost earnings where evidence of earnings was either insuffi-
                     cient or was not established to the satisfaction of the Court. For instance,
                     in Delta v. France (1990), although the applicant was unemployed at the
                     time of his arrest and detention, the ECHR held that it did “not find it
                     unreasonable to regard Mr. Delta as having suffered a loss of real oppor-
                     tunities” as a result of the detention. Consequently, the Court awarded,
                     on an equitable basis, a global sum for both pecuniary and non-pecuniary
                     damages (Delta v. France (application No. 11444/85), 19 December 1990,
                     paras. 40-43).
                        14. Similarly, the ECHR in Stafford v. United Kingdom (2002),
                     having found that a causal nexus existed between the unlawful detention
                     and the injury suffered, considered that though the applicant failed
                     to substantiate his claims for lost earnings, such a claim for pecuniary
                     loss “cannot be completely discounted”, and awarded, in equity, a global
                     sum for both pecuniary and non‑pecuniary damages (Stafford v.
                     United Kingdom (application No. 46295/99), 28 May 2002, paras. 92‑94).
                     In Assanidze v. Georgia (2004), the applicant failed to produce evidence
                     of his monthly income prior to his arrest, and the ECHR was unable to
                     make a precise calculation of his lost earnings. However, the ECHR
                     found that the applicant must necessarily have sustained such a loss as a

                     68

6 CIJ1032.indb 132                                                                                26/11/13 09:37

                     389 	             ahmadou sadio diallo (decl. yusuf)

                     result of being held without cause when, from the date of detention
                     onwards, he should have been in a position to find employment and
                     resume his activities. Once again, on the basis of equity, the request for
                     pecuniary damages was not discounted (Assanidze v. Georgia (application
                     No. 71503/01), 8 April 2004, paras. 200‑201).

                        15. This flexible approach is not limited to the jurisprudence of the
                     European Court of Human Rights. The Inter-American Court of Human
                     Rights has developed a clear set of standards for valuation of lost earn
                     ings where there is insufficient or unreliable information on actual ear-
                     nings (see for example Caracazo v. Venezuela, judgment of 29 August 2002
                     (reparations and costs), IACHR, para. 88 ; El Amparo v. Venezuela, judg-
                     ment of 14 September 1996 (reparations and costs), IACHR, para. 28). In
                     the Ituango Massacres case (2006), while the IACHR considered that
                     pecuniary damage should be calculated on the basis of probative elements
                     which allow the real damage to be ascertained, it granted compensation,
                     on grounds of equity, in favour of those victims whose loss of income was
                     not proved specifically (Ituango Massacres, judgment of 1 July 2006 (pre-
                     liminary objections, merits, reparations and costs), paras. 371‑372).

                       16. Finally, I find it regrettable that the Court appears to overlook in
                     this Judgment as well as in the previous one on the merits the fact that
                     Mr. Diallo was the central figure and the sole associé gérant of two com-
                     panies which were in reality unipersonal companies, though they were
                     incorporated as companies with limited liability. As pointed out in my
                     2010 joint dissenting opinion with Judge Al‑Khasawneh, Mr. Diallo was

                          “for all intents and purposes one and the same with the two compa-
                          nies. Nor were his parts sociales a small amount of his wealth, they
                          were practically all his wealth with the result that, as a consequence of
                          the actions taken by the DRC authorities against him, he was reduced
                          to destitution.” (Ahmadou Sadio Diallo (Republic of Guinea v. Demo‑
                          cratic Republic of the Congo), Merits, Judgment, I.C.J. Reports
                          2010 (II), joint dissenting opinion of Judges Al‑Khasawneh and
                          Yusuf, p. 701.)
                        17. The unlawful detentions of Mr. Diallo undermined his ability to
                     manage the activities of his companies or whatever was left of them, to
                     recover the debts owed to the companies by the Government of Zaire
                     (DRC), and thus to generate the revenue from which his activities would
                     be compensated. Through his unlawful detentions, and consequent arbi-
                     trary expulsion, Mr. Diallo was prevented, as the sole associé gérant of
                     the two companies, from promoting and managing the activities of his
                     two companies and from ensuring that their assets and income‑generating
                     business could be properly sustained during the period of his illegal incar-
                     ceration. This prevention had a direct impact on his ability to continue to
                     receive an income from his businesses which suffered from further pertur-

                     69

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                     390 	             ahmadou sadio diallo (decl. yusuf)

                     bation and interruption of their activities. It is the causal link between the
                     unlawful detentions and the material damage suffered by Mr. Diallo
                     during this period in the form of loss of earnings that should have been
                     used by the Court to determine compensation on grounds of equity.

                                                               (Signed) Abdulqawi A. Yusuf.

                     70

6 CIJ1032.indb 136                                                                                26/11/13 09:37


175

DISSENTING OPINION OF JUDGE THIERRY
[Translation]

To my deep regret I am unable to associate myself with the Court’s
decision in the present case concerning the Arbitral Award of 31 July 1989.
I hereby give the reasons for my dissent, which essentially relate to the
legal consequences of the fact, explicitly recognized by the Court, that that
Award: “has not brought about a complete delimitation of the maritime
areas appertaining respectively to Guinea-Bissau and Senegal” (para-
graph 66 of the Judgment of the Court).

It follows that the dispute has not been fully settled and the Court notes
that there are “elements of the dispute that were not settled by the Arbitral
Award” (para. 68).

The omission is nonetheless seen as ascribable to the Parties rather than
to the Tribunal inasmuch as, according to the Judgment: “that result is
due to the wording of Article 2 of the Arbitration Agreement” (para. 66).

Accordingly, and in spite of that “result”, the Award is found to be valid
and binding for the Parties and the submissions of Guinea-Bissau are con-
sequently rejected.

It seems to me, on the contrary, that

(1) what the Court refers to as “elements of the dispute that were not
settled by the. .. Award” were in fact the essential part of that dispute.
Having failed to bring about a comprehensive settlement of the dis-
pute submitted to it, relating to the determination of the maritime
boundary between Senegal and Guinea-Bissau, the Tribunal failed to
accomplish its jurisdictional mission — as can be seen from the fact
that that maritime boundary has stil! not been delimited. The Tribunal
did not do its job and it is that failure which should, in my opinion,
have led the Court to find the Award to be null and void;

(2) contrary to the line of argument developed by the Court, that failure
was not justified by the terms of Article 2 of the Arbitration Agree-
ment. That provision did not stand in the way of a comprehensive
settlement of the dispute provided it was interpreted in its context and
in the light of the object and purpose of the Arbitration Agreement, in
application of the rules of international law relating to the interpreta-
tion of treaties that have their origin in the jurisprudence of the Court
itself. This means that the dispute could — and thus should — have
been completely and comprehensively settled in accordance with
the common will of the Parties, as expressed in the Arbitration Agree-
ment, and with the essential purpose of the institution of arbitration;

(3) paragraphs 66 and 67 of the Court’s Judgment should, on the other

126
ARBITRAL AWARD (DISS. OP. THIERRY) 176

hand, be approved, as they open the way to the necessary settlement of
the long-standing dispute between Senegal and Guinea-Bissau, for
which there is still no equitable solution, relating to the determination
of their maritime boundary.

I

The Tribunal, constituted under the Arbitration Agreement between
Senegal and Guinea-Bissau dated 12 March 1985, was, as can be seen from
the first page of the Award, officially entitled in French: Tribunal arbitral
pour la détermination de la frontiére maritime, Guinée-Bissau/Sénégal
(“Arbitration Tribunal for the Determination of the Maritime Boundary:
Guinea-Bissau/Senegal”] (and in Portuguese: Tribunal arbitral para a
determinaçäo da fronteira maritima, Guiné-Bissau/Senegal). The mission
of that Tribunal, like every judicial body, was to settle the dispute sub-
mitted to it. The subject of that dispute followed from the name given
to the Tribunal, but also from the Preamble to the Arbitration Agreement,
which expressed the intention and the purpose of the Parties, by
virtue of which that Agreement had been reached. That Preamble
states that:

“The Government of the Republic of Senegal and the Government
of the Republic of Guinea-Bissau,

Recognizing that they have been unable to settle by means of
diplomatic negotiation the dispute relating to the determination of
their maritime boundary,

Desirous, in view of their friendly relations, to reach a settlement
of that dispute as soon as possible and, to that end, having decided to
resort to arbitration,

Have agreed as follows...”

These terms are perfectly clear. The dispute submitted to the Tribunal
by the two States was the dispute “relating to the determination of their
maritime boundary”. (The term “determination” is significant and does
not mean the same thing as “delimitation”, which occurs more frequently
in the Judgment of the Court. The word “determination” applies to a
boundary line that is not yet known and which remains to be defined.
“Delimitation” applies to known areas, whose extent needs to be speci-
fied.)

However, the Arbitration Agreement did not merely define the dispute
in that way; it also provided guidelines for the ways in which it was to be
settled by the Tribunal. In relation to the determination of the maritime
boundary, it was stated that this should be effected by the definition of a
“boundary line”, 1.e., by a single line. Article 2, paragraph 2, of the Arbi-
tration Agreement refers in that regard to: “the line delimiting the mari-
time territories appertaining to the Republic of Guinea-Bissau and the
Republic of Senegal respectively”.

127
ARBITRAL AWARD (DISS. OP. THIERRY) 177

Need one stress that, in this text, the “maritime territories” are in the
plural and the word “line” is singular, and that it is therefore one single
line, rather than several, that is contemplated?

In the same way, Article 9, paragraph 2, of the Arbitration Agreement,
which provides that the Award “shall include the drawing of the boun-
dary line on a map”, is fully explicit both with respect to the obligation
implied by the word “shall” and with respect to the concept of the boun-
dary line.

There was therefore no uncertainty surrounding the mission of the
Tribunal as defined by the Arbitration Agreement. It was required, not to
delimit this or that maritime area appertaining to the Parties respectively,
but to bring about a comprehensive settlement of their dispute by the
determination of their maritime boundary.

This is the mission that the Tribunal has not accomplished. As we know,
it confined itself to finding that the Franco-Portuguese Agreement of
26 April 1960, concluded prior to the independence of the two litigant
States, “has the force of law” in the relations between them. By so doing,
the Tribunal applied, to the maritime areas, the principle known as ufi pos-
sidetis juris or, in other words, the principle of respect for frontiers inher-
ited from the colonial period. The Tribunal nonetheless specified that
that Agreement related exclusively to the only areas that existed in inter-
national law at the time of its conclusion and that, as a consequence, only
those areas had been delimited, i.e., the territorial sea, the contiguous zone
and the continental shelf. What is more the Award, in its statement of
reasoning, makes the paradoxical suggestion that: “it may be concluded
that the Franco-Portuguese Agreement delimits the continental shelf
between the Parties over the whole extent of that maritime space as defined
at present” (text quoted in paragraph 16 of the Judgment).

The vagueness of this statement derives from the words “it may be con-
cluded” and the paradox results from the reference to the continental
shelf as defined at present, i.e., to its definition on the day on which the
Award was handed down, although the Tribunal had accepted, in accord-
ance with the “principles of intertemporal law”, that the Agreement of
1960 should be interpreted in the light of the law in force at the time of its
conclusion. The definition of the extent of the continental shelf did of
course evolve very markedly between 1960 and 1989, because of the devel-
opment of the means whereby its resources could be exploited and as a
result of the work done at the Third United Nations Conference on the
Law of the Sea.

However, having made that finding on the applicability of the
1960 Award, the Tribunal did not pass on the delimitation of the exclusive
economic zone, which was not covered by that Agreement, as that concept
was not incorporated into international law until a later date, in relation to
the work of the Third United Nations Conference on the Law of the Sea.

Nor did the Tribunal determine the single maritime boundary delimit-
ing the whole of the maritime areas (including the exclusive economic

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ARBITRAL AWARD (DISS. OP. THIERRY) 178

zone) that appertained to the two States; it did not even sketch out the
process of that determination. Nor did it include in its decision a map
showing the course of the maritime boundary, as it was obliged to do by
virtue of Article 9, paragraph 2, of the Arbitration Agreement. In fact, that
omission was the consequence of the Tribunal’s failure to accomplish its
mission with respect to the determination of the maritime boundary. As
that line had not been determined, it was clearly impossible to show it ona
map included in the decision of the Tribunal! There was thus a cumula-
tion of failures by the Tribunal to fulfil its obligations.

The result of these failures was that the Tribunal did not accomplish its
mission. In that regard, the Court has accepted — as I said at the very
beginning of this opinion — that “the Award has not brought about a
complete delimitation of the maritime areas appertaining respectively
to Guinea-Bissau and to Senegal”.

It nonetheless appears that, because of its failure to settle the dispute in
a complete and above all comprehensive manner, the Tribunal did not
settle it at all, seeing that it related to the determination of a maritime
boundary, i.e., a single boundary line. The delimitation of certain mari-
time areas by virtue of the provisions of the 1960 Agreement and by refer-
ence to that Agreement, does not constitute a partial settlement needing to
be completed by the delimitation of other areas and, more particularly, by
that of the economic zone — leading, by successive strokes, to a plurality
of lines. Seeing that the delimitation of the maritime areas appertaining to
each of the two States was to lead to the determination of a single maritime
boundary, in accordance with the common will of the Parties, it is clear
that the course of that boundary depended upon the taking into consider-
ation of the extent of all the maritime areas, not just some of them. The
Tribunal had therefore to take account of the delimitation of the econ-
omic zone, to the same extent as that of the other areas, in order to deter-
mine the maritime boundary.

It is as well to point out, in that regard, that the Parties’ desire for a
single maritime boundary, as expressed in the Arbitration Agreement,
corresponds to the development of the law and the practice in relation to
delimitation. Professor Weil has pointed out that the Judgment of a
Chamber of the Court in the Delimitation of the Maritime Boundary in the
Gulf of Maine Area case (Judgment of 12 October 1984) made

“a significant contribution to the trend towards a single boundary,
determined by the application of the same ‘neutral’ criteria of coastal
geography and recourse to the same ‘neutral’ geometric methods”
(Perspectives du droit de la délimitation maritime, Pedone, 1988,
p. 135).

In the current legal situation resulting from the Court’s validation of the
Award of 31 July 1989, the boundaries of certain maritime areas are
legally established by virtue of the 1960 Agreement and with reference to
it, but the maritime boundary between the two States, as referred to in the

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ARBITRAL AWARD (DISS. OP. THIERRY) 179

1985 Arbitration Agreement, remains undetermined. That uncertainty is
naturally detrimental to good neighbourly relations between the two
States.

In other words, the “elements of the dispute that were not settled”
which feature in the Judgment of the Court are the essence of the dispute,
its true subject. The incomplete settlement of the dispute is tantamount to
an absence of a settlement. It is a proverbial truth that doing things by
halves is the same as not doing them at all.

It is that omission and the corresponding failure of the Tribunal to
accomplish its judicial mission, that should have led the Court to find that
the Award was null and void. By so doing, the Court would not in any way
have acted as a court of appeal in relation to the Tribunal, and would not
have subjected the Award to a réformation. It would not have exceeded its
jurisdiction as explained in its Judgment in the case concerning the Arbi-
tral Award Made by the King of Spain on 23 December 1906, of which the
relevant passage is quoted in paragraph 25 of the Court’s decision in the
present case. It would, on the contrary, have pointed to the derelictions of
the Tribunal, as those derelictions together constituted the “excés de pou-
voir” even though that expression, generally employed to designate cases
in which a court exceeds its jurisdiction and, by so doing, decides ultra
petita, is rather inappropriate in the context of this case. It is nonetheless
generally accepted that an excés de pouvoir may result both from a situa-
tion in which a judicial body exceeds its mission and from any failure to
accomplish that mission. However, those terminological considerations
apart, an award which does not achieve the settlement of the dispute
should be found to be null and void, by virtue of a well-established juris-
prudence from which the Judgment of the Court does not depart.

For by saying that

“It has simply to ascertain whether by rendering the disputed
Award the Tribunal acted in manifest breach of the competence con-
ferred on it by the Arbitration Agreement, either by deciding in
excess of, or by failing to exercise, its jurisdiction” (para. 47),

the Court admits that an award incompatible with the agreement for the
arbitration should be annulled. However, in the present case, the Court
has found that the Award was compatible with the Arbitration Agreement
although in my opinion, based upon the reasons I have given, it is incompat-
ible with it.

Was the Court concerned to preserve the institution of international
arbitration by validating the Award of 31 July 1989, even though that
Award leaves the dispute essentially unsettled ? Not to encourage States to
contest awards for no good reason is, of course, a legitimate concern, and
it is understandable that the Court should be affected by it. However, one
may also fear that such an important and respectable institution as arbi-
tration may suffer from a jurisprudence too exclusively inspired by that
concern, leading to the confirmation of awards that are seriously flawed.
If the presumption of validity of awards, which is in itself legitimate, were

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ARBITRAL AWARD (DISS. OP. THIERRY) 180

ever to assume the character of an irrefutable presumption because of the
line of conduct followed by the Court, States — and in particular those
with no more than a limited experience of international procedures —
would, in the absence of any appropriate recourse or safeguard against
excès de pouvoir or deficiencies of arbitration tribunals, be discouraged
from referring their disputes to those tribunals.

In the present case, the Court displays a very perceptible inclination
towards a very strong and very absolute presumption of validity of
awards. This can be seen from what I have just said, and is also apparent
from its reasoning on the interpretation of Article 2 of the Arbitration
Agreement, whereby the Tribunal’s failure to accomplish its mission was
nonetheless found to be compatible with the terms of that Agreement.

I

Is it a tenable view, on the lines of the Court’s reasoning, that the Tribu-
nal’s approach, and accordingly the incomplete nature of the Award, was
justified by the terms of Article 2 of the Arbitration Agreement ?

Argument before the Court centred on this provision and it was funda-
mentally on it that the Court based its conclusion that the Award is con-
sistent with that Agreement. It is, on the contrary, my opinion that
Article 2 did not prevent the Tribunal from accomplishing the mission
which was its raison d'être and the purpose of its establishment, and, there-
fore, from fulfilling the Tribunal’s primary, primordial obligation to per-
form its task with respect to the determination of the maritime boundary
between the two States.

The text of this Article 2, which sets out the questions the Tribunal was
to decide with a view to a settlement of the dispute, is as follows:

“The Tribunal is requested to decide in accordance with the norms
of international law on the following questions:

1. Does the Agreement concluded by an exchange of letters on
26 April 1960, and which relates to the maritime boundary, have the
force of law in the relations between the Republic of Guinea-Bissau
and the Republic of Senegal?

2. Inthe 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?”

The history of the negotiations that led to this provision has been out-
lined by the Court in support of its opinion that it was not the Tribunal’s
task in any event to delimit the whole of the two States’ maritime areas by a
single line. I have set out above the reasons, based on the provisions of the
Arbitration Agreement, for which I feel that this view is not well founded;

131
ARBITRAL AWARD (DISS. OP. THIERRY) 181

but the history of the negotiations, as outlined by the Court, sheds light on
the language of Article 2 and, particularly, the way its two paragraphs
mesh.

As the Court has pointed out (paras. 53 er seq. of the Judgment), in the
course of the negotiation of the Arbitration Agreement, Senegal laid parti-
cular emphasis on the Franco-Portuguese Agreement of 1960, which was
advantageous to it, and wanted the line laid down by this Agreement (a
straight line at 240°) to be perpetuated so that it would constitute the sole
delimitation for all the maritime areas, present and future, over which the
two States would respectively be called upon to exercise exclusive rights.
Senegal therefore expected that recognition of the validity of the
1960 Agreement would suffice for the complete settlement of the dispute
in such a way that the single maritime boundary would be the 240° line.
On the other hand Guinea-Bissau, which considered itself disadvantaged
by the 1960 Agreement (which is indeed the case, as is abundantly clear
from the most cursory inspection of the map — not produced by the Tribu-
nal — showing the 240° line) wanted an ex novo delimitation taking
account of the evolution of the law of the sea, particularly as regards the
continental shelf and the exclusive economic zone. However, both Parties
were agreed as to the need for a single line, although it was not the same
line they had in mind.

Thus, the language of the Arbitration Agreement was, as is often the
case, the result of a compromise (i.e., an intermediate solution accepted at
the price of mutual concessions). Article 2 set forth two questions, one
reflecting the wishes of Senegal as to the applicability of the 1960 Agree-
ment and a second one reflecting those of Guinea-Bissau, which strove for
an ex novo delimitation of the boundary line. That the second question
was to be subordinated to the first was nevertheless accepted and made
clear by the phrase “In the event of a negative answer to the first ques-
tion”, at the beginning of the second question. But both Parties considered
that in any event the dispute would be completely settled whatever the
reply of the Tribunal to the first question (whether an affirmative reply to
it effected a complete settlement of the dispute, or a negative one enabled
the Tribunal to deal with the second question). Moreover, both Parties,
Senegal as well as Guinea-Bissau, referred, throughout the proceedings
before the Tribunal, to a single line and therefore to a global settlement of
the dispute, as can be seen from the final submissions of Senegal formu-
lated at the close of those proceedings. (Annexes to the Memorial of
Guinea-Bissau, Book IV, Part 2, Hearing of 29 March 1988 (afternoon),
p. 281.)

But it was not possible to meet the common desire of the Parties by
answering only the first question once the Tribunal, being bound by the
principle of intertemporal law, had held that the 1960 Agreement applied
to certain areas (territorial sea, contiguous zone and continental shelf) but
not to others and particularly not to the economic zone. Thus the principle

132
ARBITRAL AWARD (DISS. OP. THIERRY) 182

of intertemporal law prevented an affirmative answer to the first question
of Article 2 of the Arbitration Agreement from being sufficient for the
settlement of the dispute.

The Tribunal was therefore faced with the following alternatives: either
it would not go beyond a literal interpretation of Article 2, and thus refrain
from answering the second question and hence from determining the
frontier line, thereby failing to settle the dispute and leaving unperformed
the mission entrusted to it by the Arbitration Agreement; or, on the con-
trary, the Tribunal might seek to interpret Article 2 in the light of the object
and purposes of the Arbitration Agreement and, by answering the second
question, perform its jurisdictional mission by determining, in keeping
with that mission, the maritime boundary between the two States.

It was the former of the two solutions that the Tribunal adopted, with-
out taking steps to justify its decision, except implicitly, and without
stating its choice in the operative part of the Award. The decision taken by
the Tribunal in this connection appears only in the statement of reason-
ing, and the Tribunal’s grounds are set out in four lines (paragraph 87 of
the Award, quoted in paragraph 17 of the Court’s Judgment). It was these
defects, due no doubt to the chaotic character of proceedings that lasted
four years (1985-1989) and to the very pronounced disagreements that
arose within the Tribunal (and were revealed by the declaration of its Pres-
ident and the dissenting opinion of Mr. Bedjaoui), which prompted the
Court to state that “the structure of the Award is, in that respect, open to
criticism” (para. 41) and that “this reasoning is brief, and could doubtless
have been developed further”, but that the statement of reasoning, while
succinct, “is clear and precise” (para. 43). These expressions were no
doubt carefully chosen, but the Court’s Judgment appears to be, in a num-
ber of respects, a collection of euphemisms: elements of the dispute that
were not settled; award so structured as to be open to criticism; reasoning
that was brief but ...!

However, the reasoning that led the Court to declare the Award valid is,
fortunately, more fully worked out than that of the Tribunal. The Court
held that, given the language of Article 2, it was not the Tribunal’s task to
delimit the whole of the maritime spaces appertaining to the two States, by
a single line, in any event. The Parties had only “expressed in general
terms in the Preamble of the Arbitration Agreement their desire to reach a
settlement of their dispute” but “their consent thereto had only been given
in the terms laid down by Article 2” (para. 56).

That provision — Article 2 — was accordingly the only one in which the
will of the Parties had been manifested, since the Preamble was merely
optative and Article 9 was subordinated to Article 2.

As a result, since the comprehensive settlement of the dispute was not
seen by the Court as the primary task of the Tribunal, there was nothing to
stand in the way of a literal interpretation of paragraph 2 of the Arbitra-
tion Agreement and that interpretation was the one most consistent with
the rules of interpretation of treaties. By answering the first question in the
affirmative and deciding, though implicitly, not to answer the second, the

133
ARBITRAL AWARD (DISS. OP. THIERRY) 183

Tribunal had, in the opinion of the Court, in no way failed to exercise
jurisdiction. Moreover, there would have been no need to produce the
map required by Article 9 of the Arbitration Agreement, given the Tribu-
nal’s decision not to answer the second question and, in any event, that
omission could not “constitute such an irregularity as would render the
Award invalid” (para. 64).

Thus the Court’s conclusions rest essentially on the premise that the
Tribunal was not necessarily required to determine the boundary line.

The reasoning of the Court can be analysed as a syllogism having the
following form:

(1) the Tribunal was not under an obligation to settle the dispute com-
pletely in any event;

(2) the Tribunal settled the dispute in part;

(3) the Award is therefore valid.

T have, earlier in this opinion, challenged the premise of this syllogism,
showing that, on the contrary, it was clear from the Arbitration Agreement
(from its Preamble, from Article 2, from Article 9, paragraph 2), and also
from the history of the negotiations that led to the conclusion of this
instrument, as outlined by the Court, as well as from the submissions of
the Parties in the proceedings before the Tribunal, that the common desire
of the Parties was to bring about the delimitation of a single maritime
boundary and that such was the essential task they entrusted to the Tribu-
nal,

Now if, as I believe is the case, the premise of the Court’s reasoning is
incorrect, it necessarily follows that the conclusion is also incorrect.

But in order to refute the reasoning of the Court fully, it is also neces-
sary to show that the Tribunal could answer the second question without
committing an excés de pouvoir — in the more usual meaning of the term,
i.e., without exceeding its competence under the Arbitration Agreement.

The Court has recalled two fundamental rules of interpretation of trea-
ties, applicable to the interpretation of the Arbitration Agreement; the
first, known as that “of the ordinary meaning of terms”, was formulated,
for example, in the Court’s opinion in the case concerning the Competence
of the General Assembly for the Admission of a State to the United Nations, in
which the Court made the following observations:

“the first duty of a tribunal which is called upon to interpret and
apply the provisions of a treaty, is to endeavour to give effect to them
in their natural and ordinary meaning in the context in which they
occur. If the relevant words in their natural and ordinary meaning
make sense in their context, that is the end of the matter.” (Advisory
Opinion, I.C.J. Reports 1950, p. 8, quoted in paragraph 48 of the
present Judgment.)

The second rule is the one requiring the object and the purpose of the

134
ARBITRAL AWARD (DISS. OP. THIERRY) 184

treaty to be taken into account. This rule, often applied by the Permanent
Court of International Justice (Polish Postal Service in Danzig, 1925,
P.C.LJ., Series B, No. 11, p. 39; Interpretation of the Convention of 1919
concerning Employment of Women during the Night, 1932, P.C.I.J., Series
A/B, No. 50, p. 373), has been formulated in the following terms:

“Where such a method of interpretation [the one based on the ordi-
nary meaning of terms] results in a meaning incompatible with the
spirit, purpose and context of the clause or instrument in which the
words are contained, no reliance can be validly placed on it.” (South
West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 336.)

This implies that whenever the result is incompatible with the object of the
agreement (in the present case the Arbitration Agreement) that object
should be taken into account for purposes of interpretation.

Article 31 of the Vienna Convention on the Law of Treaties, which, as
the Court has observed, can be regarded as a codification of existing
customary law, provides in this respect that:

“A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.”

If, as the Court states, the Tribunal was not bound to arrive at a compre-
hensive and complete settlement of the dispute submitted to it, it is con-
ceivable that a literal interpretation of Article 2 would have been appro-
priate, although it would also have been necessary to take account of
the context, that is, of the definition of the dispute in the Preamble and
Article 9.

If, on the other hand, as I maintain, the Tribunal was bound to settle the
dispute by determining a boundary line, it is clear that the “ordinary
meaning” method led to a result incompatible with the spirit and the
object of the Arbitration Agreement, as well as with the context of
Article 2, since failure to reply to the second question resulted in the
dispute not being settled.

In other words, it was for the Tribunal to take into account, in accord-
ance with the jurisprudence of the Permanent Court of International Jus-
tice and of this Court with regard to the interpretation of treaties, the spirit
of the Arbitration Agreement and above all its object, which was to ensure
the settlement of the dispute by the determination of a boundary line. The
Tribunal would thus have concluded that the terms of Article 2 only pre-
vented the second question from being answered if the answer to the first
one allowed the dispute to be settled. As this was not the case, the Tribunal
was to answer the second question to the full extent that its answer to the
first one left the dispute virtually unresolved. No excès de pouvoir would
have been committed since this interpretation of Article 2 would have
been not only consistent with the provisions of the Arbitration Agreement
but required in the light of its object. Accordingly, in conclusion, the

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ARBITRAL AWARD (DISS. OP. THIERRY) 185

Court should have held that the Tribunal had not accomplished its task
even though no legal obstacle prevented it from so doing, and should have
drawn the appropriate consequences from this shortcoming.

III

In paragraphs 66 to 68 of its Judgment, the Court, after observing that
the Award “has not brought about a complete delimitation of the mari-
time areas appertaining respectively to Guinea-Bissau and to Senegal”,
took note of the fact that Guinea-Bissau had filed in the Registry of the
Court a second Application requesting the Court to adjudge and declare
“what should be ... the line (to be drawn on a map) delimiting all the
maritime territories appertaining respectively to Guinea-Bissau and
Senegal”. It also took note of the declaration made by the Agent of
Senegal that one solution:

“would be to negotiate with Senegal, which has no objection to this, a
boundary for the exclusive economic zone or, should it prove impos-
sible to reach an agreement, to bring the matter before the Court”.

The Court, finally, considered it

“highly desirable that the elements of the dispute that were not
settled by the Arbitral Award of 31 July 1989 be resolved as soon as
possible, as both Parties desire”.

This observation corresponds to the interest of both countries and one
should associate oneself with it. But it is also necessary to arrive at an
understanding on the meaning of the phrase “the elements of the dispute
that were not settled by the Arbitral Award of 31 July 1989”. In my opin-
ion, as expressed above, these unsettled elements of the dispute are its
essential part, that is to say the determination of the maritime boundary
between the two States, delimiting the whole of the maritime areas apper-
taining respectively to each of them, a boundary which will fall to be deter-
mined equitably in accordance with the principles and norms of interna-
tional law accepted by Senegal and Guinea-Bissau.

(Signed) Hubert THIERRY.

136