COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA SENTENCE
ARBITRALE DU 31 JUILLET 1989

(GUINEE-BISSAU c. SENEGAL)

ARRET DU 12 NOVEMBRE 1991

199]

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
ARBITRAL AWARD OF 31 JULY 1989

(GUINEA-BISSAU v. SENEGAL)

JUDGMENT OF 12 NOVEMBER 1991
Mode officiel de citation:

Sentence arbitrale du 31 juillet 1989,
arrêt, C.I.J. Recueil 1991, p. 53

Official citation:

Arbitral Award of 31 July 1989,
Judgment, I.C.J. Reports 1991, p. 53

N° de vente :
Sales number

600

12 NOVEMBRE 1991

ARRET

SENTENCE ARBITRALE DU 31 JUILLET 1989
(GUINEE-BISSAU c. SENEGAL)

ARBITRAL AWARD OF 31 JULY 1989
(GUINEA-BISSAU v. SENEGAL)

12 NOVEMBER 1991

JUDGMENT
53

INTERNATIONAL COURT OF JUSTICE
YEAR 1991

12 November 1991

CASE CONCERNING THE
ARBITRAL AWARD OF 31 JULY 1989

(GUINEA-BISSAU v. SENEGAL)

International arbitral award — Application based on Article 36, paragraph 2, of
the Statute, requesting Court to declare inexistence or nullity of the award —
Recognition by both Parties that proceedings not by way of appeal — Jurisdiction
not disputed by Respondent.

Allegation of abuse of process.

Possible effect of absence of arbitrator from meeting at which award delivered to
Parties.

Inexistence of award attributed to lack of real majority — Declaration appended
to award by President of Tribunal did not invalidate his vote.

Nullity of award on grounds of excès de pouvoir and insufficiency of reasoning
— Second question put to Tribunal by arbitration agreement to be answered “In
the event of a negative answer” to the first question — No reply given to second
question — Whether lack of reply supported by sufficient reasoning — Criticism of
structure of award.

Interpretation by tribunal of provisions of arbitration agreement governing its
competence — Role of the Court in nullity proceedings not to determine what inter-
pretation might be preferable but to ascertain whether tribunal acted in manifest
breach of competence conferred by arbitration agreement — Application of
relevant rules of treaty interpretation — Ordinary meaning of words confirmed by
travaux préparatoires.

Argument that Tribunal required to answer both questions in any event —
Absence of agreement of Parties to that effect when Arbitration Agreement drafted
— Argument that Tribunal’s answer to first question was partially negative —
Interpretation of expression “negative answer” — Tribunal’s answer to first ques-
tion was complete and affirmative answer.

1991
12 November
General List
No. 82
ARBITRAL AWARD (JUDGMENT) 54

Provision in Arbitration Agreement for drawing of boundary line on a map —
Decision not to attach map sufficiently reasoned — Absence of map not, in the cir-
cumstances of the case, such an irregularity as would render award invalid.

JUDGMENT

Present: President Sir Robert JENNINGS; Vice-President ODA; Judges LACHS,
AGo, SCHWEBEL, Ni, EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN,
AGUILAR MAWDSLEY, WEERAMANTRY, RANJEVA; Judges ad hoc THIERRY,
MBAYE; Registrar VALENCIA-OSPINA.

In the case concerning the Arbitral Award of 31 July 1989,
between

the Republic of Guinea-Bissau,
represented by

H.E. Mr. Fidélis Cabral de Almada, Minister of State attached to the Presi-
dency of the Council of State of Guinea-Bissau,

as Agent;

H.E. Mr. Fali Embalo, Ambassador of Guinea-Bissau to the Benelux coun-
tries and the European Communities,

as Co-Agent;

Mrs. Monique Chemillier-Gendreau, Professor at the University of Paris VIE,

Mr. Miguel Galväo Teles, Advocate and former Member of the Council of
State of Portugal,

Mr. Keith Highet, Adjunct Professor of International Law at the Fletcher
School of Law and Diplomacy and Member of the Bars of New York and
the District of Columbia,

Mr. Charalambos Apostolidis, Lecturer at the University of Bourgogne,

Mr. Paulo Canelas de Castro, Assistant Lecturer at the Law Faculty of the
University of Coimbra,
Mr. Michael B. Froman, Harvard Law School,

as Counsel;

Mr. Mario Lopes, Procurator-General of the Republic,
Mr. Feliciano Gomes, Chief of Staff of the National Navy,

as Advisers,
and

the Republic of Senegal,
represented by

H.E. Mr. Doudou Thiam, Advocate, former Batonnier, Member of the Inter-
national Law Commission,

as Agent;
ARBITRAL AWARD (JUDGMENT) 55

Mr. Birame Ndiaye, Professor of Law,
Mr. Tafsir Malick Ndiaye, Professor of Law,

as Co-Agents;

Mr. Derek W. Bowett, Q.C., Queens’ College, Cambridge; Whewell Professor
of International Law, University of Cambridge,

Mr. Francesco Capotorti, Professor of International Law, University of
Rome,

Mr. Ibou Diaite, Professor of Law,

Mr. Amadou Diop, Legal Adviser, Embassy of Senegal to the Benelux coun-
tries,

Mr. Richard Meese, Legal Adviser, partner in Frere Cholmeley, Paris,

as Counsel,

THE COURT,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 23 August 1989 the Ambassador of the Republic of Guinea-Bissau to
the Netherlands filed in the Registry of the Court an Application instituting
proceedings against the Republic of Senegal in respect of a dispute concerning
the existence and validity of the Arbitral Award delivered on 31 July 1989 by an
arbitration tribunal established pursuant to an Arbitration Agreement between
the two States dated 12 March 1985. In order to found the jurisdiction of the
Court the Application relied on the declarations made by the two Parties
accepting the jurisdiction of the Court as provided for in Article 36, para-
graph 2, of the Statute of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
communicated forthwith by the Registrar to the Republic of Senegal; in
accordance with paragraph 3 of that Article, all other States entitled to appear
before the Court were notified of the Application.

3. By an Order dated 1 November 1989 the Court fixed time-limits for the
written proceedings (Memorial of Guinea-Bissau and Counter-Memorial of
Senegal).

4. Since the Court at that time included upon the Bench a judge of Sen-
egalese nationality, Judge Kéba Mbaye, Vice-President of the Court, but did
not include a judge of the nationality of Guinea-Bissau, the Government of
Guinea-Bissau, in exercise of its right under Article 31, paragraph 2, of the
Statute of the Court, chose Mr. Hubert Thierry to sit as judge ad hoc in the
case.

5. On 18 January 1990 the Government of Guinea-Bissau filed in the Regis-
try of the Court a request, on the basis of Article 41 of the Statute of the Court
and Article 74 of the Rules of Court, for the indication of provisional measures.
By an Order dated 2 March 1990, the Court, after hearing the Parties, dismissed
that request.

6. The Memorial and Counter-Memorial having been duly filed within the
time-limits fixed by the Court, the case became ready for hearing in accordance
with Article 54, paragraph 1, of the Rules of Court.
ARBITRAL AWARD (JUDGMENT) 56

7. On 5 February 1991 the term of office of Judge Mbaye came to an end in
accordance with the Statute. The Government of Senegal thereupon became
entitled, under Article 31, paragraph 3, of the Statute of the Court, to choose a
judge ad hoc to sit in the case, and chose Judge Mbaye.

8. At public hearings held between 3 and 11 April 1991, the Court heard oral
arguments addressed to it by the following:

For the Republic of Guinea-Bissau: H.E. Mr. Fidélis Cabral de Almada,
Mrs. Monique Chemillier-Gendreau,
Mr. Miguel Galväo Teles,
Mr. Keith Highet.

For the Republic of Senegal: H.E. Mr. Doudou Thiam,
Mr. Derek W. Bowett, Q.C.,
Mr. Francesco Capotorti.

In the course of the hearings, questions were put to both Parties by Members
of the Court; replies in writing were filed in the Registry in accordance with
Article 61, paragraph 4, of the Rules of Court.

9. During the hearings, the Agent of Guinea-Bissau requested the Court to
authorize the calling as a witness or expert witness of a person already
included, as an adviser, in the list of those representing that State furnished by it
to the Court; the Agent of Senegal, on the basis, inter alia, of Article 57 of the
Rules of Court, objected to this being done. After consideration, the Court
decided that it would not be appropriate to accede to the request of Guinea-
Bissau.

10. In the course of the written proceedings, the following submissions were
presented by the Parties:

On behalf of the Republic of Guinea-Bissau,
in the Memorial:

“For the reasons set forth above, and for any other reasons adding to
or amending them which it reserves the right to submit and elaborate on
during the subsequent written and oral proceedings, the Government of
Guinea-Bissau respectfully asks the Court to adjudge and declare:

— that the so-called ‘award’ of 31 July 1989 is inexistent in view of the fact
that one of the two arbitrators making up the appearance of a majority
in favour of the text of the ‘award’, has, by a declaration appended to it,
expressed a view in contradiction with the one apparently adopted by
the vote;

— subsidiarily, that that so-called decision is absolutely null and void, as
the Tribunal failed to reply to the second question raised by the Arbi-
tration Agreement, whereas its reply to the first question implied a need
for a reply to be given to the second, as it did not comply with the provi-
sions of the Arbitration Agreement by which the Tribunal was asked to
decide on the delimitation of the maritime areas as a whole, to do so by
a single line and to record that line on a map, and as it has not given the
reasons for the restrictions thus improperly placed upon its jurisdic-
tion;
ARBITRAL AWARD (JUDGMENT) 57

— that the Government of Senegal is thus not justified in seeking to
require the Government of Guinea-Bissau to apply the so-called award
of 31 July 1989.”

On behalf of the Republic of Senegal,
in the Counter-Memorial:

“Considering the facts and arguments stated above, the Government of
the Republic of Senegal requests the Court to:

1. Reject the Submissions of the Government of the Republic of
Guinea-Bissau directed at establishing the inexistence and, subsidiarily,
the nullity of the Arbitral Award of 31 July 1989.

2. Adjudge and declare that the said Arbitral Award is valid and bind-
ing for the Republic of Senegal and the Republic of Guinea-Bissau, which
have the obligation to apply it.”

11. At the conclusion of its last oral statement, each Party presented sub-
missions identical to those contained respectively in the Memorial and the
Counter-Memorial.

12. The events leading up to the present proceedings are as follows. On
26 April 1960 an Agreement by exchange of letters was concluded between
France, on its own behalf and that of the Communauté, and Portugal for the
purpose of defining the maritime boundary between the Republic of Senegal
(at that time an autonomous State within the Communauté) and the Portuguese
Province of Guinea. The letter of France proposed (inter alia) as follows:

“As far as the outer limit of the territorial sea, the boundary shall consist
of a straight line drawn at 240° from the intersection of the prolongation of
the land frontier and the low-water mark, represented for that purpose by
the Cape Roxo lighthouse.

As regards the contiguous zones and the continental shelf, the delimita-
tion shall be constituted by the prolongation in a straight line, in the same
direction, of the boundary of the territorial seas.”

The letter of Portugal expressed its agreement to this proposal.

13. After the accession to independence of Senegal and Guinea-Bissau a dis-
pute arose between them concerning the delimitation of their maritime areas.
This dispute was the subject of negotiations between them from 1977 onward,
in the course of which Senegal asserted, inter alia, that the line defined in the
1960 Agreement had been validly established, while Guinea-Bissau disputed
the validity of that Agreement and its opposability to Guinea-Bissau, and
insisted that the maritime areas in question be delimited without reference to
the Agreement.

14, On 12 March 1985 the Parties concluded an Arbitration Agreement for
submission of that dispute to an arbitration tribunal; the terms of the Agree-
ment, so far as relevant to the questions now before the Court, were as follows:

“The Government of the Republic of Senegal and the Government of
the Republic of Guinea-Bissau,
ARBITRAL AWARD (JUDGMENT) 58

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:
Article 1

1. The Arbitration Tribunal (hereinafter called “the Tribunal”) shall
consist of three members designated in the following manner:

Each Party shall appoint one arbitrator of its choice;

The third arbitrator, who shall function as President of the Tribunal,
shall be appointed by mutual agreement of the two Parties or, in the
absence of such agreement, by agreement of the two arbitrators after con-
sultation with the two Parties.

2. ...

3. ...

Article 2

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. In the event of a negative answer to the first question, what is the
course of the line delimiting the maritime territories appertaining to the
Republic of Guinea-Bissau and the Republic of Senegal respectively ?

Article 4

1. The Tribunal shall take its decisions only in its full composition.

2. The decisions of the Tribunal relating to all questions of substance or
procedure, including all questions relating to the jurisdiction of the Tribu-
nal and the interpretation of the Agreement, shall be taken by a majority of
its members.

Article 9

1. Upon completion of the proceedings before it, the Tribunal shall
inform the two Governments of its decision regarding the questions set
forth in Article 2 of the present Agreement.

2. That decision shall include the drawing of the boundary line on a
map. To that end, the Tribunal shall be empowered to appoint one or more
technical experts to assist it in the preparation of such map.

3. The Award shall state in full the reasons on which it is based.

4....
ARBITRAL AWARD (JUDGMENT) 59

Article 10

1. The Arbitral Award shall be signed by the President of the Tribunal
and by the Registrar. The latter shall hand to the Agents of the two Parties a
certified copy in the two languages.

2. The Award shall be final and binding upon the two States which shall
be under a duty to take all necessary steps for its implementation.

3. ...

Article 11

1. No activity of the Parties during the course of the proceedings may be
deemed to prejudge their sovereignty over the areas the subject of the Arbi-
tration Agreement.

2. ...

Done in duplicate in Dakar, on 12 March 1985, in the French and Portu-
guese languages, both texts being equally authentic.”

15. An Arbitration Tribunal was duly constituted under the Agreement, by
the appointment first of Mr. Mohammed Bedjaoui and then of Mr. André
Gros, Arbitrators, and of Mr. Julio A. Barberis, President. On 31 July 1989 the
Tribunal pronounced the Award the existence and validity of which have been
challenged in the present proceedings. According to this Award it was adopted
by the votes of the President of the Tribunal and Mr. Gros, over the negative
vote of Mr. Bedjaoui.

16. The findings of the Tribunal may for the purposes of the present judg-
ment be summarized as follows. The Tribunal concluded that the 1960 Agree-
ment was valid and could be opposed to Senegal and to Guinea-Bissau (Award,
para. 80); that it had to be interpreted in the light of the law in force at the date
of its conclusion (ibid., para. 85); that

“the 1960 Agreement does not delimit those maritime spaces which did not
exist at that date, whether they be termed exclusive economic zone, fishery
zone or whatever...”,

but that

“the territorial sea, the contiguous zone and the continental shelf... are
expressly mentioned in the 1960 Agreement and they existed at the time of
its conclusion” (ibid.).

The Tribunal went on to say that:

“As regards the continental shelf, the question of determining how far
the boundary line extends can arise today, in view of the evolution of the
definition of the concept of ‘continental shelf’. In 1960, two criteria served
to determine the extent of the continental shelf: that of the 200-metre
bathymetric line and that of exploitability. The latter criterion involved
a dynamic conception of the continental shelf, since the outer limit would
depend on technological developments and could consequently move fur-
ther and further to seaward. In view of the fact that the ‘continental shelf”
existed in the international law in force in 1960, and that the definition of
the concept of that maritime space then included the dynamic criterion
indicated, it may be concluded that the Franco-Portuguese Agreement

10
ARBITRAL AWARD (JUDGMENT) 60

delimits the continental shelf between the Parties over the whole extent of
that maritime space as defined at present.” (Award, para. 85.)

17. The Tribunal then explained that

“Bearing in mind the above conclusions reached by the Tribunal and the
wording of Article 2 of the Arbitration Agreement, in the opinion of the
Tribunal it is not called upon to reply to the second question.

Furthermore, in view of its decision, the Tribunal considered that there
was no need to append a map showing the course of the boundary line.”
({bid., para. 87.)

18. The operative clause of the Award was as follows:

“For the reasons stated above, the Tribunal decides by two votes to one:

To reply as follows to the first question formulated in Article 2 of the
Arbitration Agreement: The Agreement concluded by an exchange of let-
ters of 26 April 1960, and relating to the maritime boundary, has the force
of law in the relations between the Republic of Guinea-Bissau and the
Republic of Senegal with regard solely to the areas mentioned in that
Agreement, namely the territorial sea, the contiguous zone and the con-
tinental shelf. The ‘straight line drawn at 240°’ is a loxodromic line.”
(Para. 88.)

19. Mr. Barberis, President of the Arbitration Tribunal, appended a declar-
ation to the Award, and Mr. Bedjaoui, who had voted against the Award,
appended a dissenting opinion. The declaration of President Barberis read as
follows:

“I feel that the reply given by the Tribunal to the first question put by the
Arbitration Agreement could have been more precise. I would have replied
to that question as follows:

‘The Agreement concluded by an exchange of letters of 26 April 1960,
and relating to the maritime boundary, has the force of law in the rela-
tions between the Republic of Guinea-Bissau and the Republic of Sen-
egal with respect to the territorial sea, the contiguous zone and the
continental shelf, but does not have the force of law with respect to the
waters of the exclusive economic zone or the fishery zone. The “straight
line drawn at 240°” mentioned in the Agreement of 26 April 1960 is a
loxodromic line.’

This partially affirmative and partially negative reply is, in my view, the
exact description of the legal position existing between the Parties. As sug-
gested by Guinea-Bissau in the course of the present arbitration (Reply,
p. 248), this reply would have enabled the Tribunal to deal in its Award
with the second question put by the Arbitration Agreement. The partially
negative reply to the first question would have conferred on the Tribunal a
partial competence to reply to the second, i.e., to do so to the extent that the
reply to the first question would have been negative.

In that case, the Tribunal would have been competent to delimit the

11
ARBITRAL AWARD (JUDGMENT) 61

waters of the exclusive economic zone* or the fishery zone between the two
countries. The Tribunal thus could have settled the whole of the dispute,
because, by virtue of the reply to the first question of the Arbitration
Agreement, it would have determined the boundaries for the territorial
sea, the contiguous zone and the continental shelf, as the Award has just
done and, by its answer to the second question, the Tribunal could have
determined the boundary for the waters of the exclusive economic zone or
the fishery zone, a boundary which might or might not have coincided with
the line drawn by the 1960 Agreement.

* | refer to the ‘waters’ of the exclusive economic zone and I think it necessary
to be as specific as this, because it sometimes occurs that the notion of this zone
covers also the continental shelf as, for example, in Article 56 of the 1982 Montego
Bay Convention.”

20. In his dissenting opinion, Mr. Bedjaoui referred to the declaration by
President Barberis, which, he said,

“shows to what an extent the Award is incomplete and inconsistent with
the letter and spirit of the Arbitration Agreement with regard to the single
line desired by the Parties. Since it emanates from the President of the
Tribunal himself, that Declaration, by its very existence as well as by
its contents, justifies more fundamental doubts as to the existence of a
majority and the reality of the Award.” (Para. 161.)

21. A public sitting of the Tribunal was held on 31 July 1989 for delivery of
the Award, at which President Barberis and Mr. Bedjaoui were present, but not
Mr. Gros. At that sitting, after the Award had been delivered, the representative
of Guinea-Bissau indicated that, pending full reading of the documents and
consultation with his Government, he reserved the position of Guinea-Bissau
regarding the applicability and validity of the Award, as he alleged that it did
not satisfy the requirements laid down by agreement between the two Parties.
After contacts between the Governments of the two Parties, in which Guinea-
Bissau indicated its reasons for not accepting the Award, the present proceed-
ings were brought before the Court by Guinea-Bissau.

x * x

22. The Court will first consider its jurisdiction. In its Application,
Guinea-Bissau founds the jurisdiction of the Court on “the Declarations
by which the Republic of Guinea-Bissau and the Republic of Senegal
have respectively accepted the jurisdiction of the Court under the condi-
tions set forth in Article 36, paragraph 2, of the Statute” of the Court.
These declarations were deposited with the Secretary-General of the
United Nations, in the case of Senegal on 2 December 1985, and in the
case of Guinea-Bissau on 7 August 1989. Guinea-Bissau’s declaration
contained no reservation; Senegal’s declaration, which replaced a previ-
ous declaration of 3 May 1985, provided that

“Senegal may reject the Court’s competence in respect of:

— Disputes in regard to which the parties have agreed to have
recourse to some other method of settlement;

12
ARBITRAL AWARD (JUDGMENT) 62

— Disputes with regard to questions which, under international law,
fall exclusively within the jurisdiction of Senegal.”

That declaration was also expressed as being applicable solely to “all legal
disputes arising after the present declaration...”

23. Senegal observed that if Guinea-Bissau were to challenge the deci-
sion of the Arbitration Tribunal on the merits, it would be raising a ques-
tion excluded frorn the Court’s jurisdiction by the terms of Senegal’s
declaration. According to Senegal, the dispute concerning the maritime
delimitation was the subject of the Arbitration Agreement of 12 March
1985 and consequently fell into the category of disputes “in regard to
which the parties have agreed to have recourse to some other method of
settlement”. Furthermore, in the view of Senegal, that dispute arose
before 2 December 1985, the date on which Senegal’s acceptance of the
compulsory jurisdiction of the Court became effective, and is thus
excluded from the category of disputes “arising after” that declaration.

24. However, the Parties were agreed that there was a distinction
between the substantive dispute relating to maritime delimitation, and the
dispute relating to the Award rendered by the Arbitration Tribunal, and
that only the latter dispute, which arose after the Senegalese declaration, is
the subject of the present proceedings before the Court. Guinea-Bissau
also took the position, which Senegal accepted, that these proceedings
were not intended by way of appeal from the Award or as an application
for revision of it. Thus, both Parties recognize that no aspect of the sub-
stantive delimitation dispute is involved. On this basis, Senegal did not
dispute that the Court had jurisdiction to entertain the Application under
Article 36, paragraph 2, of the Statute. In the circumstances of the case the
Court regards its jurisdiction as established.

25. In this respect the Court would emphasize that, as the Parties were
both agreed, these proceedings allege the inexistence and nullity of the
Award rendered by the Arbitration Tribunal and are not by way of appeal
from it or application for revision of it. As the Court had occasion to
observe with respect to the contention of nullity advanced in the case of
the Arbitral Award Made by the King of Spain on 23 December 1906:

“the Award is not subject to appeal and . . . the Court cannot
approach the consideration of the objections raised by Nicaragua to
the validity of the Award as a Court of Appeal. The Court is not
called upon to pronounce on whether the arbitrator’s decision was
right or wrong. These and cognate considerations have no relevance
to the function that the Court is called upon to discharge in these
proceedings, which is to decide whether the Award is proved to be a
nullity having no effect.” (I.CJ. Reports 1960, p. 214.)

* *

13
ARBITRAL AWARD (JUDGMENT) 63

26. The Court will now consider a contention by Senegal that Guinea-
Bissau’s Application is inadmissible, insofar as it seeks to use the declara-
tion of President Barberis for the purpose of casting doubt on the validity
of the Award (see paragraph 30 below). Senegal argues that that declara-
tion is not part of the Award, and therefore that any attempt by Guinea-
Bissau to make use of it for that purpose “must be regarded as an abuse of
process aimed at depriving Senegal of the rights belonging to it under the
Award”. Senegal also contends that the remedies sought are dispropor-
tionate to the grounds invoked and that the proceedings have been
brought for the purpose of delaying the final solution of the dispute.

27. The Court considers that Guinea-Bissau’s Application has been
properly presented in the framework of its right to have recourse to the
Court in the circumstances of the case. Accordingly, it does not accept
Senegal’s contention that Guinea-Bissau’s Application, or the arguments
used in support of it, amount to an abuse of process.

* *

28. Guinea-Bissau contends that the absence of Mr. Gros from the
meeting of the Arbitration Tribunal at which the Award was pronounced
amounted to a recognition that the Tribunal had failed to resolve the dis-
pute. Guinea-Bissau accepts that at this meeting

“it was not intended that a ‘decision’ should be taken, and by a formal
and strict interpretation it would be possible to avoid applying to it
Article 4, paragraph 1 [of the Arbitration Agreement], requiring that
the Tribunal be in its full composition . . .”.

Guinea-Bissau however takes the view that this was a particularly im-
portant meeting of the Tribunal and that the absence of Mr. Gros lessened
the Tribunal’s authority.

29. The Court notes that it is not disputed that Mr. Gros participated in
the voting when the Award was adopted. Thereafter the Award had to be
delivered to the Parties. In this respect Article 10, paragraph 1, of the Arbi-
tration Agreement provided that the Award having been signed by the
President and the Registrar, the Registrar was to “hand to the Agents of
the two Parties a certified copy in the two languages”. This was done. A
meeting was held at which the Award was read. The absence of Mr. Gros
from that meeting could not affect the validity of the Award which had
already been adopted.

x * x

30. The Court will now examine the submissions of Guinea-Bissau that
the Arbitral Award is inexistent, or subsidiarily that it is absolutely null
and void. In support of its principal contention, that the Award is inexis-

14
ARBITRAL AWARD (JUDGMENT) 64

tent, the Applicant claims that the Award was not supported by a real
majority. Guinea-Bissau does not dispute the fact that the Award was
expressed to have been adopted by the votes of President Barberis and
Mr. Gros; it contends however that President Barberis’s declaration con-
tradicted and invalidated his vote, thus leaving the Award unsupported by
areal majority. The Tribunal, having concluded, in reply to the first ques-
tion in the Arbitration Agreement, that the 1960 Agreement “has the force
of law in the relations between” the Parties, held that that was so “with
regard solely to the areas mentioned in that Agreement, namely, the terri-
torial sea, the contiguous zone and the continental shelf...” (Award,
para. 88). However, Guinea-Bissau drew attention to the fact that, in his
declaration, President Barberis stated that he would have replied to the
effect that the Agreement had the force of law in the relations between the
Parties “with respect to the territorial sea, the contiguous zone and the
continental shelf, but does not have the force of law with respect to the
waters of the exclusive economic zone or the fishery zone . . .” (para-
graph 19 above).

31. The Court considers that, in putting forward this formulation, what
President Barberis had in mind was that the Tribunal’s answer to the first
question “could have been more precise” — to use his own words —, not
that it had to be more precise in the sense indicated in his formulation,
which was, in his view, a preferable one, not a necessary one. In the opin-
ion of the Court, the formulation discloses no contradiction with that of
the Award.

32. Guinea-Bissau also drew attention to the fact that President Bar-
beris expressed the view that his own formulation “would have enabled
the Tribunal to deal in its Award with the second question put by the Arbi-
tration Agreement” and that the Tribunal would in consequence “have
been competent to delimit the waters of the exclusive economic zone or
the fishery zone between the two countries”, in addition to the other areas.
The Court considers that the view expressed by President Barberis, that
the reply which he would have given to the first question would have
enabled the Tribunal to deal with the second question, represented, not a
position taken by him as to what the Tribunal was required to do, but only
an indication of what he considered would have been a better course. His
position therefore could not be regarded as standing in contradiction with
the position adopted by the Award.

33. Furthermore, even if there had been any contradiction, for either of
the two reasons relied on by Guinea-Bissau, between the view expressed
by President Barberis and that stated in the Award, such contradiction
could not prevail over the position which President Barberis had taken
when voting for the Award. In agreeing to the Award, he definitively
agreed to the decisions, which it incorporated, as to the extent of the mari-
time areas governed by the 1960 Agreement, and as to the Tribunal not
being required to answer the second question in view of its answer to the
first. As the practice of international tribunals shows, it sometimes hap-
pens that a member of a tribunal votes in favour of a decision of the tribu-

15
ARBITRAL AWARD (JUDGMENT) 65

nal even though he might individually have been inclined to prefer
another solution. The validity of his vote remains unaffected by the
expression of any such differences in a declaration or separate opinion of
the member concerned, which are therefore without consequence for the
decision of the tribunal.

34. Accordingly, in the opinion of the Court, the contention of Guinea-
Bissau that the Award was inexistent for lack of a real majority cannot be
accepted.

x * x

35. Subsidiarily, Guinea-Bissau maintains that the Award is, as a
whole, null and void, on the grounds of excés de pouvoir and of insuffi-
ciency of reasoning. Guinea-Bissau observes that the Tribunal did not
reply to the second question put in Article 2 of the Arbitration Agreement,
and did not append to the Award the map provided for in Article 9 of that
Agreement. It is contended that these two omissions constitute an excès de
pouvoir. Furthermore, no reasons, it is said, were given by the Tribunal for
its decision not to proceed to the second question, for not producing a
single delimitation line, and for refusing to draw that line on a map.

36. The Court will examine Guinea-Bissau’s contentions, whether
presented as of excés de pouvoir or as lack of reasoning, which are based
on the absence of a reply to the second question put by the Arbitration
Agreement, before dealing with those relating to the absence of a map.

e ox

37. On this first point, the Court would, for convenience, recall at the
outset that, according to Article 2 of the Arbitration Agreement:

“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?”

38. The Award, after dealing with some preliminary matters, analyses
the grounds upon which Guinea-Bissau based its assertions that the 1960
Agreement did not have the force of law in its relations with Senegal
(paras. 35-79). The conclusion in paragraph 80 of the Award is that “the

16
ARBITRAL AWARD (JUDGMENT) 66

1960 Agreement is valid and can be opposed to Senegal and to Guinea-
Bissau”. The Award then deals, in paragraphs 80 to 86, with “the scope of
substantive validity of the 1960 Agreement” and states that:

“the 1960 Agreement does not delimit those maritime spaces which
did not exist at that date, whether they be termed exclusive economic
zone, fishery zone or whatever.

On the other hand, the position regarding the territorial sea, the
contiguous zone and the continental shelf is quite different. These

three concepts are expressly mentioned in the 1960 Agreement and
they existed at the time of its conclusion.”

The Award goes on to say that, for the reasons explained in the passage
quoted in paragraph 16 above,

“the Franco-Portuguese Agreement delimits the continental shelf
between the Parties over the whole extent of that maritime space as
defined at present”.

Then the Award continues, in paragraph 87:

“Bearing in mind the above conclusions reached by the Tribunal
and the actual wording of Article 2 of the Arbitration Agreement, in
the opinion of the Tribunal it is not called upon to reply to the second
question.”

Finally, paragraph 88 of the Award declares in its first sentence that:

“For the reasons stated above, the Tribunal decides by two votes to
one:

To reply as follows to the first question formulated in Article 2 of
the Arbitration Agreement: The Agreement concluded by an
exchange of letters on 26 April 1960, and relating to the maritime
boundary, has the force of law in the relations between the Republic
of Guinea-Bissau and the Republic of Senegal with regard solely to
the areas mentioned in that Agreement, namely the territorial sea, the
contiguous zone and the continental shelf.”

39. Guinea-Bissau’s complaint on the ground that the Tribunal did not
give an answer to the second question in Article 2 of the Arbitration
Agreement involves three arguments. It questions whether the Tribunal
really took a decision not to give an answer; it contends that, even if there
was such a decision, there was insufficient reasoning in support of it; and,
finally, it contests the validity of any such decision.

40. As tothe first of these three arguments, Guinea-Bissau suggests that
what the Tribunal did was not to decide not to answer the second question

17
ARBITRAL AWARD (JUDGMENT) 67

put to it; itsimply omitted, for lack of a real majority, to reach any decision
at all on the issue. In this respect Guinea-Bissau stresses that what is
referred to in the first sentence of paragraph 87 of the Award as an “opin-
ion of the Tribunal” on the point appears in the statement of reasoning,
not in the operative clause of the Award; that the Award does not specify
the majority by which that paragraph would have been adopted; and that
only Mr. Gros could have voted in favour of this paragraph. In the light of
the declaration made by President Barberis, Guinea-Bissau questions
whether any vote was taken on paragraph 87.

41. The Court recognizes that the structure of the Award is, in that
respect, open to criticism. Article 2 of the Arbitration Agreement put two
questions to the Tribunal; and the Tribunal was, according to Article 9, to
“inform the two Governments of its decision regarding the questions set
forth in Article 2”. Consequently, it would have been normal to include in
the operative part of the Award, 1.e., in a final paragraph, both the answer
given to the first question and the decision not to answer the second. It is to
be regretted that this course was not followed. However, when the Tribu-
nal adopted the Award by two votes to one, it was not only approving the
content of paragraph 88, but was also doing so for the reasons already
stated in the Award and, in particular, in paragraph 87. It is clear from that
paragraph, taken in its context, and also from the declaration of Presi-
dent Barberis, that the Tribunal decided by two votes to one that, as it had
given an affirmative answer to the first question, it did not have to answer
the second. By so doing, the Tribunal did take a decision: namely, not
to answer the second question put to it. The Award is not flawed by any
failure to decide.

*

42. Guinea-Bissau argues, secondly, that any arbitral award must, in
accordance with general international] law, be a reasoned one. Moreover,
according to Article 9, paragraph 3, of the Arbitration Agreement, the
Parties had specifically agreed that “the Award shall state in full the rea-
sons on which it is based”. Yet, according to Guinea-Bissau, the Tribunal
in this case did not give any reasoning in support of its refusal to reply to
the second question put by the Parties or, at the very least, gave “wholly
insufficient” reasoning, which did not even make it possible to “determine
the line of argument followed” and did not “reply on any point to the
questions raised and discussed during the arbitral proceedings”. On this
ground also, it is claimed that the Award is null and void.

43. In paragraph 87 of the Award, referred to above, the Tribunal,
“bearing in mind the ... conclusions” that it had reached, together with
“the wording of Article 2 of the Arbitration Agreement”, took the view
that it was not called upon to reply to the second question put to it. This
reasoning is brief, and could doubtless have been developed further. But
the references in paragraph 87 to the Tribunal’s conclusions and to the

18
ARBITRAL AWARD (JUDGMENT) 68

wording of Article 2 of the Arbitration Agreement make it possible to
determine, without difficulty, the reasons why the Tribunal decided not to
answer the second question. By referring to the wording of Article 2 of the
Arbitration Agreement, the Tribunal was taking note that, according to
that Article, it was asked, first, whether the 1960 Agreement had “the force
of law in the relations” between Guinea-Bissau and Senegal, and then, “in
the event of a negative answer to the first question, what is the course of
the line delimiting the maritime territories” of the two countries. By refer-
ring to the conclusions that it had already reached, the Tribunal was
noting that it had, in paragraphs 80 et seq. of the Award, found that the
1960 Agreement, in respect of which it had already determined the scope
of its substantive validity, was “valid and can be opposed to Senegal
and to Guinea-Bissau”. Having given an affirmative answer to the first
question, and basing itself on the actual text of the Arbitration Agreement,
the Tribunal found as a consequence that it did not have to reply to the
second question. That statement of reasoning, while succinct, is clear and
precise. The second contention of Guinea-Bissau must also be dismissed.

44. Thirdly, Guinea-Bissau challenges the validity of the reasoning
thus adopted by the Tribunal on the issue whether it was required to
answer the second question. In this respect Guinea-Bissau presents two
arguments: first that the Arbitration Agreement, on its true construction,
required an answer to the second question whatever might have been its
teply to the first; secondly, that in any event an answer to the second
question was required because the answer to the first question was in fact
partially negative.

45. Guinea-Bissau’s first argument is that the Arbitration Agreement
was concluded on the basis of an agreement

“that a two-fold question should be posed to the Tribunal, in order to
ensure that whatever [the Tribunal’s] reply concerning the value of
the Franco-Portuguese exchange of letters, the Tribunal would be
called upon to proceed to a comprehensive delimitation of the mari-
time territories”.

In the view of Guinea-Bissau, even if the Tribunal upheld the validity and
opposability of the 1960 Agreement, the effect would not be to produce a
complete delimitation, and a complete delimitation by a single line was the
object and purpose of the Arbitration Agreement. Accordingly, Guinea-
Bissau is in effect contending that that Agreement required the Tribunal
to answer the second question whatever was its answer to the first.

46. In this connection the Court would first recall

“a rule consistently accepted by general international law in the mat-
ter of international arbitration. Since the Alabama case, it has been
generally recognized, following the earlier precedents, that, in the

19
ARBITRAL AWARD (JUDGMENT) 69

absence of any agreement to the contrary, an international tribunal
has the right to decide as to its own jurisdiction and has the power to
interpret for this purpose the instruments which govern that jurisdic-
tion.” (Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports
1953, p. 119.)

In the present case, Article 4, paragraph 2, of the Arbitration Agreement
confirmed that the Tribunal had the power to determine its own jurisdic-
tion and to interpret the Agreement for that purpose.

47. By its argument set out above, Guinea-Bissau is in fact criticizing
the interpretation in the Award of the provisions of the Arbitration Agree-
ment which determine the Tribunal’s jurisdiction, and proposing another
interpretation. However, the Court does not have to enquire whether or
not the Arbitration Agreement could, with regard to the Tribunal’s
competence, be interpreted in a number of ways, and if so to consider
which would have been preferable. By proceeding in that way the Court
would be treating the request as an appeal and not as a recours en nullité.
The Court could not act in that way in the present case. It has simply to
ascertain whether by rendering the disputed Award the Tribunal acted in
manifest breach of the competence conferred on it by the Arbitration
Agreement, either by deciding in excess of, or by failing to exercise, its
jurisdiction.

48. Such manifest breach might result from, for example, the failure of
the Tribunal properly to apply the relevant rules of interpretation to the
provisions of the Arbitration Agreement which govern its competence. An
arbitration agreement {compromis d'arbitrage) is an agreement between
States which must be interpreted in accordance with the general rules of
international law governing the interpretation of treaties. In that respect

“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 an end of the matter. If, on the
other hand, the words in their natural and ordinary meaning are
ambiguous or lead to an unreasonable result, then, and then only,
must the Court, by resort to other methods of interpretation, seek to
ascertain what the parties really did mean when they used these
words.” (Competence of the General Assembly for the Admission of a
State to the United Nations, Advisory Opinion, LC.J. Reports 1950,

p. 8.)

The rule of interpretation according to the natural and ordinary meaning
of the words employed

“is not an absolute one. Where such a method of interpretation
results in a meaning incompatible with the spirit, purpose and con-
text of the clause or instrument in which the words are contained, no

20
ARBITRAL AWARD (JUDGMENT) 70

reliance can be validly placed on it.” (South West Africa, Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 336.)

These principles are reflected in Articles 31 and 32 of the Vienna Conven-
tion on the Law of Treaties, which may in many respects be considered as
a codification of existing customary international law on the point.

49. Furthermore, when States sign an arbitration agreement, they are
concluding an agreement with a very specific object and purpose: to
entrust an arbitration tribunal with the task of settling a dispute in accord-
ance with the terms agreed by the parties, who define in the agreement the
jurisdiction of the tribunal and determine its limits. In the performance of
the task entrusted to it, the tribunal “must conform to the terms by which
the Parties have defined this task” (Delimitation of the Maritime Boundary
in the Gulf af Maine Area, Judgment, I.C.J. Reports 1984, p. 266, para. 23).

50. In the present case, Article 2 of the Arbitration Agreement pre-
sented a first question concerning the 1960 Agreement, and then a second
question relating to delimitation. A reply had to be given to the second
question “in the event of a negative answer to the first question”. The
Court notes that those last words, which were originally proposed by
Guinea-Bissau itself, are categorical. The situation in the present case dif-
fers from that faced by the Court or by arbitral tribunals when they had
to reply to successive questions which were not made conditional on each
other, and to each of which some meaning had in any event to be attri-
buted in order for a reply to be given thereto, as for example in the case of
the Free Zones of Upper Savoy and the District of Gex (Order of 19 August
1929, P.C.LJ., Series A, No. 22, p. 13), or Corfu Channel, Merits (Judgment,
LCJ. Reports 1949, p. 24). Where, however, successive questions were put
to the Court which were made conditional on each other, the Court
replied, or found no room to reply, according to whether or not the gov-
erning condition had been fulfilled, as, for example, in /nterpretation of
the Greco-Bulgarian Agreement of 9 December 1927 (Advisory Opinion,
1932, P.C.LJ., Series A/B, No. 45, pp. 70, 86-87); and Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania (First Phase, Advisory
Opinion, ILC.J. Reports 1950, pp. 65, 67-68, 75, 76, 77; Second Phase, Advi-
sory Opinion, ibid., pp. 225, 226, 230).

51. In fact in the present case the Parties could have used some such
expression as that the Tribunal should answer the second question “tak-
ing into account” the reply given to the first, but they did not; they directed
that the second question should be answered only “in the event of a nega-
tive answer” to that first question. In that respect, the wording was very
different from that to be found in another Arbitration Agreement to which
Guinea-Bissau is a party, that concluded on 18 February 1983 with the
Republic of Guinea. By that Agreement, those two States asked another
tribunal to decide on the legal value and scope of another Franco-Portu-
guese delimitation convention and annexed documents, and then,

21
ARBITRAL AWARD (JUDGMENT) 71

“according to the answers given” to those initial questions, to determine
the “course of the boundary between the maritime territories” of the two
countries.

52. Faced with the problem presented by the prefatory words of the
second question, the Applicant stresses that, according to the Preamble
of the Arbitration Agreement, its object was to settle the dispute that had
arisen between the two countries relating to the determination of their
maritime boundary. The first sentence of Article 2 requested the Tribunal
to decide on the two questions put to it. The Tribunal was, according to
Article 9, to “inform the two Governments of its decision regarding the
questions set forth in Article 2”. That decision was to “include the drawing
of the boundary line on a map”. According to Guinea-Bissau, the Tribu-
nal was therefore required to delimit by a single line the whole of the mari-
time areas appertaining to each State. As, for the reasons given by the
Tribunal, its answer to the first question put in the Arbitration Agreement
could not lead to a comprehensive delimitation, it followed, in Guinea-
Bissau’s view, that, notwithstanding the prefatory words to the second
question the Tribunal was required to answer that question and to effect
the overall delimitation desired by both Parties.

53. Itis useful to recall, in order to assess the weight of that line of argu-
ment, the circumstances in which the Arbitration Agreement was drawn
up. Following various incidents, Senegal and Guinea-Bissau engaged in
negotiations, from 1977 to 1985, with regard to their maritime boundary.
Two opposing views were asserted. Senegal maintained that the Agree-
ment concluded in 1960 between France, on its own behalf and that of the
Communauté, and Portugal had the force of law in the relations between
the two States, by virtue of the rules relating to State succession, and that
the line defined by that Agreement defined the boundary. Guinea-Bissau
however considered that that Agreement was inexistent, null and void,
and in any case not opposable to it. From this it inferred that it would be
appropriate to proceed ex novo to a maritime delimitation between the
two States. When the time came to draft the Arbitration Agreement, Sen-
egal proposed that the Tribunal should decide solely whether the 1960
Agreement had the force of law in the relations between the Parties.
Guinea-Bissau asked that the Tribunal should be entrusted only with the
task of drawing the line delimiting the maritime territories in dispute.
After lengthy discussions, it was agreed that there should first be put to the
Tribunal the question proposed by Senegal. Guinea-Bissau suggested in
addition that, “in the event of a negative answer to the first question”,
the Tribunal should be asked to define the course of the delimitation
line. That form of words was ultimately adopted.

54. It will be apparent that the two questions had a completely different
subject matter. The first concerned the issue whether an international
agreement had the force of law in the relations between the Parties, while
the second was directed to a maritime delimitation in the event that that
agreement did not have such force. Senegal was counting on an affirma-
tive reply to the first question, and concluded that the straight line on a

22
ARBITRAL AWARD (JUDGMENT) 72

bearing of 240°, adopted by the 1960 Agreement, would constitute the
single line separating the whole of the maritime areas of the two countries.
Guinea-Bissau was counting on a negative answer to the first question,
and concluded that a single dividing line for the whole of the maritime
areas of the two countries would be fixed ex novo by the Tribunal in reply
to the second question. The two States intended to obtain a delimitation of
the whole of their maritime areas by a single line. But Senegal was count-
ing on achieving this result through an affirmative answer to the first
question, and Guinea-Bissau through a negative answer to that question.
No agreement had been reached between the Parties as to what should
happen in the event of an affirmative answer leading only to a partial
delimitation, and as to what might be the task of the Tribunal in such case.
The travaux préparatoires accordingly confirm the ordinary meaning of
Article 2.

55. The Court considers that this conclusion is not at variance with the
circumstance that the Tribunal adopted as its title “Arbitration Tribunal
for the Determination of the Maritime Boundary: Guinea-Bissau/Sen-
egal”, or with its definition, in paragraph 27 of the Award, of the “sole
object of the dispute” as being one relating to “the determination of the
maritime boundary between the Republic of Senegal and the Republic of
Guinea-Bissau, a question which they have not been able to settle by
means of negotiation ...”. In the opinion of the Court, that title and that
definition are to be read in the light of the Tribunal’s conclusion, which
the Court shares, that, while its mandate did include the making of a deli-
mitation of all the maritime areas of the Parties, this fell to be done only
under the second question and “in the event of a negative answer to the
first question”.

56. In short, although the two States had expressed in general terms in
the Preamble of the Arbitration Agreement their desire to reach a settle-
ment of their dispute, their consent thereto had only been given in the
terms laid down by Article 2. Consequently the Tribunal did not act in
manifest breach of its competence to determine its own jurisdiction by
deciding that it was not required to answer the second question except in
the event of a negative answer to the first. The first argument must be
rejected.

57. The Court now turns to Guinea-Bissau’s second argument. Apart
from its contention that, on a true construction, the Arbitration Agree-
ment required recourse to the second question whatever was the answer to
the first, Guinea-Bissau argues that the answer in fact given by the Tribu-
nal to the first question was a partially negative answer and that this suf-
ficed to satisfy the prescribed condition for entering into the second
question. Accordingly, and as was to be shown by the declaration of Presi-
dent Barberis, the Tribunal was, it is said, both entitled and bound to
answer the second question.

58. It is true that the Arbitration Tribunal, when answering the first
question, in paragraph 88 of the Award, explained that the 1960 Agree-

23
ARBITRAL AWARD (JUDGMENT) 73

ment had the force of law in the relations between the Parties “with regard
solely to the areas mentioned in that Agreement, namely the territorial
sea, the contiguous zone and the continental shelf”. Consequently “the
1960 Agreement does not delimit those maritime spaces which did not
exist at that date, whether they be termed exclusive economic zone, fishery
zone or whatever” (Award, para. 85).

59. In his declaration appended to the Award reproduced in para-
graph 19 above, President Barberis added that he would have preferred
that, in paragraph 88 of the Award, an affirmative answer be given with
respect to the areas delimited by the 1960 Agreement, and a negative
answer with respect to the areas not delimited by that Agreement. In his
opinion, such a partially negative wording would have conferred on the
Tribunal a partial competence to reply to the second question, and to
determine the boundary of the waters of the exclusive economic zones or
fishery zones between the two countries.

60. The Court would first observe that the Tribunal did not, in para-
graph 88 of its Award, adopt the form of words that President Barberis
would have preferred. Guinea-Bissau thus cannot base its arguments
upon a form of words that was not in fact adopted by the Tribunal. The
Tribunal found, in reply to the first question, that the 1960 Agreement had
the force of law in the relations between the Parties, and at the same time it
defined the substantive scope of that Agreement. Such an answer did not
permit of a delimitation of the whole of the maritime areas of the two
States, and a complete settlement of the dispute between them. It achieved
a partial delimitation. But that answer was nonetheless both a complete
and an affirmative answer to the first question; it recognized that the
Agreement of 1960 had the force of law in the relations between Senegal
and Guinea-Bissau. The Tribunal could thus find, without manifest
breach of its competence, that its answer to the first question was not a
negative one, and that it was therefore not competent to answer the second
question. In this respect also, the contention of Guinea-Bissau that the
entire Award is a nullity must be rejected.

61. Finally, Guinea-Bissau recalls that, according to Article 9, para-
graph 2, of the Arbitration Agreement, the decision of the Tribunal was to
“include the drawing of the boundary line on a map”, and that no such
map was produced by the Arbitration Tribunal. Guinea-Bissau contends
that the Tribunal also did not give sufficient reasons for its decision on
that point. It is contended that the Award should, for these reasons, be
considered wholly null and void.

62. The Court observes that the Award states that the 1960 Agreement
“clearly determines the maritime boundary as regards the territorial sea,
the contiguous zone and the continental shelf” by adopting “a straight line

24
ARBITRAL AWARD (JUDGMENT) 74

drawn at 240° ” (paras. 80 and 85). The Award states that this terminology
“makes it possible to rule out any geodesic line”, so that the line would
have to be a loxodromic line, which, moreover is in accordance with the
“sketch included in the preparatory work of the 1960 Agreement”
(paras. 86 and 88). Then, after deciding not to answer the second question,
the Tribunal adds that: “Furthermore, in view of its decision, the Tribunal
considered that there was no need to append a map showing the course of
the boundary line.”

63. The Court is unable to uphold the contention that the reasoning of
the Tribunal was insufficient on this point. The reasoning mentioned
above is, once again, brief but sufficient to enlighten the Parties and the
Court as to the reasons that guided the Tribunal. It found that the boun-
dary line fixed by the 1960 Agreement was a loxodromic line drawn at
240° from the point of intersection of the prolongation of the land frontier
and the low-water line of the two countries, represented for that purpose
by the Cape Roxo lighthouse. Since it did not reply to the second question,
it did not have to define any other line. It thus considered that there was no
need to draw on a map a line which was common knowledge, and the
definitive characteristics of which it had specified.

64. In view of the wording of Articles 2 and 9 of the Arbitration Agree-
ment, and the positions taken by the Parties before the Arbitration Tribu-
nal, it is open to argument whether, in the absence of a reply to the second
question, the Tribunal was under an obligation to produce the map en-
visaged by the Arbitration Agreement. The Court does not however
consider it necessary to enter into such a discussion. In the circumstances
of the case, the absence of a map cannot in any event constitute such an
irregularity as would render the Award invalid. The last argument of
Guinea-Bissau is therefore also not accepted.

65. The submissions of Guinea-Bissau must accordingly be rejected.
The Arbitral Award of 31 July 1989 is valid and binding upon the Republic
of Senegal and the Republic of Guinea-Bissau, which have the obligation
to apply it.

66. The Court nonetheless takes note of the fact that the Award has not
brought about a complete delimitation of the maritime areas appertaining
respectively to Guinea-Bissau and to Senegal. It would however observe
that that result is due to the wording of Article 2 of the Arbitration Agree-
ment.

67. The Court has moreover taken note of the fact that on 12 March
1991 Guinea-Bissau filed in the Registry of the Court a second Applica-
tion requesting the Court to adjudge and declare:

“What should be, on the basis of the international law of the
sea and of all the relevant elements of the case, including the future

25
ARBITRAL AWARD (JUDGMENT) 75

decision of the Court in the case concerning the arbitral ‘award’ of
31 July 1989, the line (to be drawn on a map) delimiting all the
maritime territories appertaining respectively to Guinea-Bissau
and Senegal.”

It has also taken note of the declaration made by the Agent of Senegal in
the present proceedings, according to which 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
impossible to reach an agreement, to bring the matter before the
Court”.

68. Having regard to that Application and that declaration, and at the
close of a long and difficult arbitral procedure and of these proceedings
before the Court, the Court considers 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.

69. For these reasons,
THE COURT,
(1) Unanimously,

Rejects the submission of the Republic of Guinea-Bissau that the Arbi-
tral Award given on 31 July 1989 by the Arbitration Tribunal established
pursuant to the Agreement of 12 March 1985 between the Republic of
Guinea-Bissau and the Republic of Senegal, is inexistent;

(2) By eleven votes to four,

Rejects the submission of the Republic of Guinea-Bissau that the Arbi-
tral Award of 31 July 1989 is absolutely null and void;

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Lachs,
Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen; Judge
ad hoc Mbaye.

AGAINST: Judges Aguilar Mawdsley, Weeramantry, Ranjeva; Judge ad hoc
Thierry.

(3) By twelve votes to three,

Rejects the submission of the Republic of Guinea-Bissau that the Gov-
ernment of Senegal is not justified in seeking to require the Government
of Guinea-Bissau to apply the Arbitral Award of 31 July 1989; and, on the
submission to that effect of the Republic of Senegal, findsthat the Arbitral

26
ARBITRAL AWARD (JUDGMENT) 76

Award of 31 July 1989 is valid and binding for the Republic of Senegal and
the Republic of Guinea-Bissau, which have the obligation to apply it.

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Lachs,
Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen,
Ranjeva; Judge ad hoc Mbaye.

AGAINST: Judges Aguilar Mawdsley, Weeramantry; Judge ad hoc Thierry.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twelfth day of November, one thousand
nine hundred and ninety-one, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Republic of Guinea-Bissau and the Government of the Republic of
Senegal, respectively.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge Tarassov and Judge ad hoc MBAYE append declarations to the
Judgment of the Court.

Vice-President Opa, Judges LACHS, Ni and SHAHABUDDEEN append
separate opinions to the Judgment of the Court.

Judges AGUILAR MAWDSLEY and RANJEVA append a joint dissenting
opinion, and Judge WEERAMANTRY and Judge ad hoc THIERRY dissenting
opinions, to the Judgment of the Court.

(Initialled) R.Y.J.
(Initialled) E.V.O.

27


284

                DECLARATION OF JUDGE KOROMA

   The Court has found Uganda in violation of a wide range of legal instruments
to which it is a party — Rejection of claim of self-defence — Article 3 (g) of the
Definition of Aggression of 1974 (XXIX) — Non-attributability of attacks by
rebel groups reaffirms the Court’s earlier jurisprudence and is consistent with
Article 51 of the Charter — Customary law character of General Assembly
resolution 1803 (XVII) of 14 December 1962 — Article 21 of the African
Charter on Human and Peoples’ Rights of 1981 — Findings of the Court are in
general accordance with determinations made by the Security Council in its
resolutions on this dispute — Principle of pacta sunt servanda.

  1. The circumstances and consequences of this case involving the loss
of between three and four million human lives and other suffering have
made it one of the most tragic and compelling to come before this Court.

   2. Uganda stands accused by the Democratic Republic of the Congo
(DRC) of an act of aggression within the meaning of Article I of the
Definition of Aggression set out in General Assembly resolution 3314
(XXIX) of 14 December 1974, and in contravention of Article 2, para-
graph 4, of the United Nations Charter. Uganda is further accused of
committing repeated violations of the Geneva Conventions of 1949 and
their Additional Protocols of 1977 in flagrant disregard of the elementary
rules of international humanitarian law and of committing massive viola-
tion of human rights in the conflict zones in breach of international
human rights law.
   3. The Court has found that the Republic of Uganda :
— by engaging in military activities against the DRC and by actively
  extending military, logistic, economic and financial support to irregu-
  lar forces having operated on the territory of the Congo, violated the
  principle of non-use of force in international relations and the prin-
  ciple of non-intervention ;

— by the conduct of its armed forces, which committed acts of killing,
  torture and other forms of inhumane treatment of the Congolese
  civilian population, destroyed villages and civilian buildings, failed to
  distinguish between civilian and military targets and to protect the
  civilian population in fighting with other combatants, trained child
  soldiers, incited ethnic conflict and failed to take measures to put an
  end to such conflict, as well as by its failure to take measures to
  respect and ensure respect for human rights and international humani-

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      tarian law in the Congo, violated its obligations under international
      human rights law and international humanitarian law ; and

— by acts of looting, plundering and exploitation of Congolese natural
  resources committed by members of Ugandan armed forces in the
  territory of the DRC, and by its failure to comply with its obligations
  as an occupying Power in Ituri District to prevent acts of looting,
  plundering and exploitation of Congolese natural resources, violated
  obligations owed to the DRC under international law.

   4. These violations found by the Court are very serious breaches of
international law and are compounded by the gravity of this case and the
human tragedy underlying it. In effect, the Court’s findings confirm that
Uganda has been in violation of its obligations under the following inter-
national legal instruments : Article 2, paragraph 4 , of the United Nations
Charter, prohibiting the use of force by States in their international rela-
tions ; the Charter of the Organization of African Unity (OAU), which
obliges all States to respect the sovereignty and territorial integrity of one
another, to resolve disputes between them by peaceful means, and to
refrain from interfering in each other’s internal affairs ; the Regulations
respecting the Laws and Customs of War on Land annexed to the Fourth
Hague Convention of 18 October 1907 ; the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12 August
1949 ; Protocol I Additional to the Geneva Conventions of 12 August
1949 ; the International Covenant on Civil and Political Rights of
19 December 1966 ; the African Charter on Human and Peoples’ Rights
of 27 June 1981 ; the Convention on the Rights of the Child of 20 Novem-
ber 1989 ; and the Optional Protocol to the Convention on the Rights of
the Child on the Involvement of Children in Armed Conflict, all of which
are binding on Uganda.

  5. More specifically, the Court found that acts committed by the
Uganda Peoples’ Defence Forces (UPDF) itself and by officers and
soldiers in it were in clear violation of the provisions of international
humanitarian law and human rights instruments to which both Uganda
and the Congo are parties, as well as of international customary law, in
particular :

— the Hague Regulations, Articles 25, 27, 28, 43, 46 and 47, with regard
  to the obligations of an occupying Power ;
— the Fourth Geneva Convention, Articles 27, 32 and 53, also with
  regard to the obligations of an occupying Power ;

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286                  ARMED ACTIVITIES (DECL. KOROMA)

— the International Covenant on Civil and Political Rights, Articles 6,
  paragraph 1, and 7 ;
— the First Protocol Additional to the Geneva Conventions of 12 August
  1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2 ;

— the African Charter on Human and Peoples’ Rights, Articles 4 and 5 ;

— the Convention on the Rights of the Child, Article 38, paragraphs 2
  and 3 ;
— the Optional Protocol to the Convention on the Rights of the Child,
  Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

In a nutshell, Uganda has been found responsible for illegal use of force,
violation of sovereignty and territorial integrity, military intervention,
violation of human rights and international humanitarian law, looting,
plunder and exploitation of the Congo’s natural resources, causing injury
to the Congo as well as to Congolese citizens. Thus Uganda has been
found in breach of a wide range of legal instruments to which it is a party
and, according to the evidence before the Court, the violations gave rise
to the most egregious of consequences. The non-fulfilment of obligations
by a State entails international responsibility.

   6. Not only are the international Conventions violated by Uganda
binding on it, but they are intended to uphold the rule of law between
neighbouring States and constitute the foundation on which the existing
international legal order is constructed. They oblige States to conduct
their relations in accordance with civilized behaviour and modern
values — to refrain from the use of military force, to respect territorial
integrity, to solve international disputes by peaceful means, and to respect
human rights, human dignity, and international humanitarian law. Under
the international humanitarian law and international human rights instru-
ments mentioned above, Uganda was obliged to refrain from carrying
out attacks against civilians, to ensure humane treatment of them and
even of combatants caught up in military conflict, and to respect the most
basic of their rights, the right to life. In this regard, Article 1 of the
Fourth Geneva Convention stipulates that : “The High Contracting
Parties undertake to respect and to ensure respect for the present Con-
vention in all circumstances.” (Emphasis added.) Article 2 of the Conven-
tion provides that :

        “In addition to the provisions which shall be implemented in
      peace-time, the present Convention shall apply to all cases of declared
      war or of any other armed conflict which may arise between two or
      more of the High Contracting Parties, even if the state of war is not
      recognized by one of them.” (Emphasis added.)

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Article 27 states :
        “Protected persons are entitled, in all circumstances, to respect for
      their persons, their honour, their family rights . . . They shall at all
      times be humanely treated, and shall be protected . . . against all acts
      of violence . . .
        Women shall be especially protected against any attack on their
      honour, in particular against rape . . . or any form of indecent
      assault.”
According to Article 51 of Additional Protocol I to the 1949 Geneva
Conventions :
         “1. The civilian population and individual civilians shall enjoy
      general protection against dangers arising from military opera-
      tions . . .
         2. The civilian population as such, as well as individual civilians,
      shall not be the object of attack. Acts or threats of violence the pri-
      mary purpose of which is to spread terror among the civilian popu-
      lation are prohibited.
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         4. Indiscriminate attacks [against civilians] are prohibited . . .”

In other words, in the course of a military conflict, civilians should be
spared unnecessary violence, including massacres and other atrocities
such as those allegedly perpetrated by the UPDF. Furthermore, accord-
ing to Article 3 of the 1989 Convention on the Rights of the Child, to
which Uganda is also a party, in all actions concerning children, the pri-
mary consideration must be the best interests of the child. Article 19 pro-
vides that States parties agree to take all appropriate measures to protect
the child from all forms of physical and mental violence, while Article 38
of the Convention provides that States parties undertake to respect and
to ensure respect for the rules of international humanitarian law appli-
cable to them in armed conflicts which are relevant to the child. States
parties to the Convention must take all feasible measures to ensure that
persons who have not attained the age of 15 years do not take part in
direct hostilities. Yet, according to the evidence before the Court, these
obligations were wantonly flouted during the UPDF’s military campaign
in the Congo, as children were recruited as child soldiers to take part in
the fighting.

   7. The Court thus reached the justifiable conclusion that Uganda
repeatedly and egregiously transgressed both the jus ad bellum and jus in
bello, illegally used force and violated the rules of international humani-
tarian law.
   8. Crucially and for very cogent reasons, the Court has rejected, under
both Article 51 of the United Nations Charter and customary interna-
tional law, Uganda’s contention that it acted in self-defence in using mili-

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tary force in the Congo. Uganda argued, inter alia, that the Congo was
responsible for the armed attacks by various rebel groups and was there-
fore guilty of aggression under the conditions set forth in the Definition
of Aggression of 1974 (XXIX) in Article 3, paragraph (g), which pro-
vides that :

        “Any of the following acts, regardless of a declaration of war,
      shall, subject to and in accordance with the provisions of article 2,
      qualify as an act of aggression :
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      (g) The sending by or on behalf of a State of armed bands, groups,
            irregulars or mercenaries, which carry out acts of armed force
            against another State of such gravity as to amount to the acts
            listed above, or its substantial involvement therein.”

The Court rejected the contention, observing that : Uganda never claimed
that it had been the victim of an armed attack by the armed forces of the
DRC ; the “armed attacks” to which reference was made came rather
from the ADF ; there was no satisfactory proof of the involvement in
these attacks, direct or indirect, of the Government of the DRC ; and the
attacks did not emanate from armed bands or irregulars sent by the
DRC, or on behalf of the DRC, within the meaning of Article 3 (g) of
General Assembly resolution 3314 (XXIX) of 1974 on the Definition of
Aggression. The Court concluded that, on the basis of the evidence
before it, even if the series of deplorable attacks could be regarded
as cumulative in character, they still remained non-attributable to the
DRC.
   9. This finding is also consistent with the jurisprudence of the Court.
In the case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), the Court stressed
the need to recognize a distinction between cases of armed attack and
“other less grave forms” of the use of force (Merits, Judgment, I.C.J.
Reports 1986, p. 101, para. 191). This distinction was reaffirmed by the
Court in 2003 in the case concerning Oil Platforms (Islamic Republic of
Iran v. United States of America). According to the Court, it is necessary
to distinguish between a State’s massive support for armed groups,
including deliberately allowing them access to its territory, and a State’s
enabling groups of this type to act against another State. Only the first
hypothesis could be characterized as an “armed attack” within the mean-
ing of Article 51 of the Charter, thus justifying a unilateral response.
Although the second would engage the international responsibility of the
State concerned, it constitutes no more than a “breach of the peace”,
enabling the Security Council to take action pursuant to Chapter VII
of the Charter, without, however, creating an entitlement to unilateral
response based on self-defence. In other words, if a State is powerless

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to put an end to the armed activities of rebel groups despite the fact that it
opposes them, that is not tantamount to use of armed force by that State,
but a threat to the peace which calls for action by the Security Council.
In my opinion, this interpretation is consistent with Article 51 of the
Charter and represents the existing law.

   10. However, according to the Declaration on Principles of Interna-
tional Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations (General Assembly
resolution 2625 (XXV)) :
      “no State shall organize, assist, foment, finance, incite or tolerate
      subversive, terrorist or armed activities directed towards the violent
      overthrow of the régime of another State, or interfere in civil strife in
      another State”.

Uganda, in the course of the proceedings, acknowledged that it had sup-
ported one of the Congolese rebel movements, explaining, inter alia, that
it gave “just enough” military support to the movement to help Uganda
achieve its objectives of driving out Sudanese and Chadian forces from
the Congo and of taking over the airfields between Gbadolite and the
Ugandan border and that its support was not directed at the overthrow
of the President of the Congo. The Court notes that even if Uganda’s
activities were in support of its perceived security needs, it necessarily still
violated the principles of international law.

   11. Another issue that was pleaded before the Court relates to perma-
nent sovereignty over natural resources. The Court’s acknowledgment of
the customary law character of General Assembly resolution 1803 (XVII)
of 14 December 1962, on permanent sovereignty over natural resources,
is not without significance, for, although the Court has decided that it is
the Hague Regulations of 1907 as well as the Fourth Geneva Convention
of 1949 which lay down the rules according to which Uganda’s conduct
must be judged, resolution 1803 (XVII), it should be recalled, confirmed
the “right of peoples and nations to permanent sovereignty over their
natural wealth and resources”. It makes clear that such resources should
be exploited “in the interest of . . . the well-being of the people of the
State concerned”. These rights and interests remain in effect at all times,
including during armed conflict and during occupation. The Security
Council in resolution 1291 (2000) reaffirmed the sovereignty of the DRC
over its natural resources, and noted with concern reports of the illegal
exploitation of the country’s assets and the potential consequences of
these actions on the security conditions and continuation of hostilities.
Accordingly, in my view, the exploitation of the natural resources of a
State by the forces of occupation contravenes the principle of permanent
sovereignty over natural resources, as well as the Hague Regulations of
1907 and the Fourth Geneva Convention of 1949. Moreover, both the

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DRC and Uganda are parties to the African Charter on Human and
Peoples’ Rights of 1981, which stipulates that :

        “All peoples shall freely dispose of their wealth and natural
      resources. This right shall be exercised in the exclusive interest of the
      people. In no case shall a people be deprived of it.” (Art. 21, para. 1 ;
      emphasis added.)

   12. It is noteworthy that the findings of the Court, a judicial organ, are
in the main in tandem with determinations made earlier by the Security
Council in its resolutions on this dispute. In its resolution 1234 (1999) the
Council implicitly considered the Congo, not Uganda, to be in a situation
of self-defence. In that resolution, the Council not only recalled the inher-
ent right of individual or collective self-defence under Article 51 of the
United Nations Charter, but also deplored the continuing fighting and
the presence of forces of foreign States in the DRC in a manner incon-
sistent with the principles of the United Nations Charter, and called upon
those States to bring to an end the presence of uninvited forces. In its
resolution 1291 (2000) the Council called for the orderly withdrawal of
all foreign forces from the Congo in accordance with the Lusaka Cease-
fire Agreement (1999). The Council also called on all parties to the con-
flict in the DRC to protect human rights and respect international
humanitarian law and the Convention on the Prevention and Punishment
of the Crime of Genocide of 1948. Acting under Chapter VII of the Char-
ter the Council, in resolution 1304 (2000), confirmed that Uganda and
Rwanda had violated the sovereignty and territorial integrity of the DRC
and demanded that they withdraw all their forces from the DRC without
further delay, and called on all parties to the conflict to protect human
rights and respect international humanitarian law.

  13. On the other hand, the Court has found the DRC to have been in
breach of its obligations to Uganda under the Vienna Convention on
Diplomatic Relations of 1961 because of its maltreatment of Ugandan
diplomats and other individuals. In other words, the Congo, even when
acting in self-defence,

      “is not relieved from fulfilling its obligations :
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      (b) To respect the inviolability of diplomatic or consular agents,
           premises, archives and documents.” (Responsibility of States
           for Internationally Wrongful Acts, United Nations, Official
           Records of the General Assembly, Fifty-sixth Session, Supple-

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          ment No. 10, United Nations doc. A/56/10 (2001), Draft Art. 50,
          para. 2 (b) and Commentary.)
Thus the findings of the Court have been carefully considered and
reasoned. Had Uganda respected its obligations under the United Nations
Charter not to resort to force in its disputes — political or otherwise —
with the DRC, its obligations under the OAU Charter to settle its dis-
putes by peaceful means, its obligations under international human rights
instruments and international humanitarian law to respect the human
rights and dignity of Congolese citizens and not to treat the civilian
population inhumanely during its military incursion, and had the UPDF
respected its obligation not to exploit the natural wealth and resources of
the territory under occupation, the ensuing human tragedy could have
been prevented or at least not aggravated.

  14. If Uganda, above all, had respected the fundamental and custom-
ary law principle of pacta sunt servanda — requiring a State to comply
with its obligations under a treaty — the tragedy so vividly put before the
Court would not, at least, have been compounded. Observance of treaty
obligations is not only moral, but serves an important role in maintaining
peace and security between neighbouring States and in preventing mili-
tary conflicts between them. Respect for this Judgment should contribute
to putting an end to this tragedy.

  15. It is, inter alia, against this background that I have voted in favour
of the Judgment.

                                          (Signed) Abdul G. KOROMA.

127