082- Arbitral Award of 31 July 1989 (Guinea Bissau vs Senegal)
On August 23rd, 1989, Guinea Bissau filed before the International Court of Justice (ICJ) an application instituting proceedings against Senegal concerning the delimitation of the maritime border between the two countries. It explained that the two countries could not agree through diplomatic channels on this issue and resorted to appointing an arbitral tribunal composed of three arbitrators. The latter had to answer the following questions:
“1. Does the Agreement concluded by an exchange of letters [between France and Portugal] 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 ?”
Guinea Bissau emphasised the point that articles 2 and 9 of the arbitration agreement required the Arbitral Tribunal to inform the parties of their decision and to attach to it a map delimiting the maritime boundary in question. The requesting State considered that the award rendered on 31 July 1989 should be considered:
- Inexistent: on the ground that one of the arbitrators; in the present case, the President of the Arbitral Tribunal expressed in an individual opinion, an opinion contrary to his vote in the ratio decidendi of the decision;
- In the alternative, null and void: on the ground that the court had not, in more than one respect, fulfilled the task entrusted to it, in particular with regard to the obligations contained in Articles 2 and 9 of the Compromise.
Guinea Bissau also accompanied its initial application with a request for the indication of interim measures, which was rejected by the Court in an order of March 2nd, 1990.
The ICJ ruled on the merits of the case in its judgment of November 12th, 1991. After confirming that it had jurisdiction over the case and that there was indeed a dispute of a legal nature, it considered the arguments of both parties.
First, it rejected Senegal’s argument that Guinea Bissau’s request was an abuse of due process.
Subsequently, with regard to the argument that the award invoked by Guinea Bissau did not exist, it concluded, after examining all the documents submitted, that the separate opinion expressed by the President of the Tribunal was not in contradiction with its vote. It was simply a statement of alternative reasoning to resolve the issue. Since the majority of 2 votes to 1 was very real, the sentence could not be struck by non-existence for lack of a true majority.
Finally, with regard to the argument that the award was null and void for failure to comply with the obligations contained in Articles 2 and 9 of the Arbitration Agreement, which would constitute an abuse of power. After deliberation, the Court concluded that the Arbitral Tribunal had ruled on all the points of law that had been raised, that the operative part of the award was “clear and precise” and that the judges had not disregarded their jurisdiction. Accordingly, Guinea Bissau’s plea relating to the award also had to be rejected.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.
