MARITIME DELIMITATION BETWEEN GUINEA-BISSAU AND

SENEGAL,
ORDER OF 8 NOVEMBER 1995, I.C.J. REPORTS 1995, P. 423
SUDIPTA PURKAYASTHA 2012 BATCH
MRUDULA VANAN 2012 BATCH

1. BRIEF FACTS OF THE CASE AND THE ISSUES INVOLVED

The

Republic

of

Guinea-Bissau

[Guinea-Bissau],

having

attained

Independence in the year 1973 from the Portugal, proposed to its

neighbouring States that they enter into negotiations to reach an
agreement with respect to maritime boundaries, in accordance with
International Law.
Thus, negotiations with the Republic of Senegal [Senegal] (which was a
French colony until 20 June 1960) began in 1977, and Senegal invoked a
Letter of exchange between France and Portugal on the issue of
delineation dating back to 26 April 1960, whereby France and Portugal
agreed that, 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 by
the Cape Roxo lighthouse, and as regards the contiguous zones and the
continental

shelf,

the

delimitation

shall

be

constituted

by

the

prolongation in a straight line, in the same direction, of the boundary of

the territorial seas.
Guinea-Bissau did not accept the above agreement made by its colonizers
in the past, arguing the defect of the letters of exchange, for the lack of
ratification and publication in Portugal, and wanted to pursue the
Negotiations without reference to the 1960 Agreement.
The negotiations went on for 8 years in vain, therefore both the states
decided to sign an arbitration agreement and submitted the case matter

to be decided by a 3-member tribunal, mutually agreed upon by them, to

decide upon two issues as given below:
(1)Whether 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 Guinea-Bissau and 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
Guinea-Bissau and Senegal respectively?
On 31 July 1989, only 2 out of the 3-member Tribunal pronounced an
ambiguous award, the existence and validity of which, Guinea-Bissau
challenged before the International Court of Justice in an application
dated 23 August 1989, submitting that the award by the tribunal was
inexistent, and null and void. On 12 November 1991, a 15 Judge Bench of
the ICJ passed an order unanimously rejecting all the submissions of
Guinea-Bissau.
While the 23 August 1989 case was still pending before the ICJ, GuineaBissau instituted another proceeding against Senegal, in a dispute
concerning the delimitation of the maritime territories between the two
states, on 12 March 1991.
2. ANALYSIS OF MAJOR LEGAL POINTS [PRINCIPLES AND
SOURCES OF INTERNATIONAL LAW]

Uti possidetis juris

This principle of customary international law is an embodiment of
the Latin phrase uti possidetis, ita possideatis, or as you
possess, so may you possess, guaranteeing the territorial integrity
of newly independent States, by ensuring that each state so formed
was recognized as possessing the same territories that were
previously under the control of its colonial predecessor.1

1 P. Hensel et al., The Colonial Legacy and Border Stability: Uti Possidetis and
Territorial Claims in the Americas, 45th Annual Meeting of the International
Studies Association, Montreal, March 2004

In the present case, such upholding of colonial frontiers has been

extended to the determination of a maritime boundary. Since
France had colonised Senegal and Guinea-Bissau was under the
control of Portugal, the 1960 agreement between these former
colonial masters (the French and Portuguese) delimiting the
maritime areas on the west coast of Africa, would persevere in the
face of subsequent decolonisation.
Thus, both the arbitral tribunal and the ICJ were accurate in
holding that contractual obligations relating to territory entered
into by colonial masters would bind successor states.

Common administration of maritime zone

As per the agreement reached after negotiation between Senegal
and Guinea-Bissau, a joint maritime zone" was established for the
common administration of the terra nullius that remained
unaddressed by the 1960 Agreement, for exploiting both fisheries
and continental shelf resources.

1960 Agreement as a Source of International Law

Article 38(1)(a) bestows the status of a Source of International
Law on international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states.
As seen in the present case, the 1960 Agreement delimiting
maritime borders
signed by the French and Portuguese colonial masters of Senegal
and Guinea-Bissau, respectively, would qualify as a convention as
per Article 38, as is evidenced by Article 2(1)(a) of the Vienna
Convention

on

the

Law

of

Treaties,1969,

which

defines

treaty(convention) as an international agreement concluded

between States.
Thus, the 1960 Agreement was the primary Source of International
Law in this dispute.

Lexcs de pouvoir in Public International Law

One of the major arguments of nullity of international law decisions
is that owing to Lexcs de pouvoir. This is an allegation that the
tribunal or court exercised such excessive powers which were not
vested in it, by making reference to the relevant agreement or
compromis establishing the ad hoc tribunal.2
In the present case, Guinea-Bissau alleged that the arbitral award
passed by the tribunal on 31 July 1989 was null and void because of
Lexcs de pouvoir.
In this regard, the ICJ found that the arbitral tribunal had chosen to
uphold the 1960 Agreement which drew a loxodromic straight line
on a bearing of 240, separating the whole of the maritime areas of
the two countries. Hence, this argument of Lexcs de pouvoir was
dismissed.

3. DECISION OF THE COURT

2 J. Paik et al., Asian Approaches to International Law and the Legacy of

Colonialism: The Law of the Sea, Territorial Disputes and International Dispute
Settlement, Routledge Publicshing, 2013, p.30

The President of the Court convened a meeting with the Representatives

of the Parties on 28 February 1992, deciding that the pending
negotiations must continue for 6 months in the first instance, further
extended by 3 months on October 1992.
On 10 March 1994, the agents presented the Management and Cooperation Agreement between the Republic of Guinea-Bissau and
Republic of Senegal, providing for Joint Exploitation of the Maritime
Zone between 268 and 220 Azimuths drawn from Cape Roxo, and the
establishment of an International Agency for the exploitation of the
zone, entering into force with exchange of instruments of ratifications
by both States.
The President of the Court then sent letters to the Presidents of both the
States that he was satisfied with their agreement. The representatives
then notified him about the decisions of the two Governments to
discontinue the proceedings, in writing and on 8 November 1995, the
Court passed an order placing the discontinuance on record and directed
the case to be struck off from the case list.
4.

IMPORTANCE

OF

THE

CASE

IN

CONTEMPORARYY

INTERNATIONAL LAW

The concept of Common Administration

With an increasing number of conflicts between States as to the
ascertainment

of

maritime

borders,

such

Common

Administration, as espoused by Senegal and Guinea-Bissau with

respect to the Exclusive Economic Zone left unaddressed by the
1960 Agreement, is a very significant concept of modern Law of the
Sea, since it allows States to commonly utilise marine resources, to
no adverse consequences to the either State, thus minimalizing
territorial disputes. This not only holds importance as a principle of
Law of the Sea, but also evolves International Environment Law by
ensuring

common

responsibility

for

maritime resources by both the States.

equitable

utilisation

of

Negotiated Settlement between States party to a dispute

As per the Separate Opinion of Judge Oda in the 1991 Judgment,
the display of insufficient grasp of the premises of the interrelation
of the exclusive economic zone and the continental shelf in the
1960 Agreement called for further negotiation between the two
States.
On the recommendation of the ICJ, thus, the two States decided to
commence negotiation proceedings, and finally arrived at an
equitable solution, thereby avoiding adverse litigation at the ICJ.
Such a recourse taken by the two States should ideally become a
norm of international dispute settlement, encouraging States to
peacefully and cordially settle vital issues such as maritime
delimitation outside the court system, reaching harmonious results
and avoiding acrimony.

Arbitral Awards as a Source of International Law, and their

scope of review
Article 38(1)(d) provides that the ICJ may apply judicial decisions
and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules
of law.
As per Judge Gilbert Guillaume3, quoting Louis Renault4, Nobel
Peace Prize winner, arbitral awards rendered in intergovernmental
disputes composed of highly qualified arbitrators from different
nations, adjudicating on vital matters international significance,
will enter into the body of international law, as subsidiary means
for the determination of rules of law.
Judge Lachs, in his separate opinion in the 1991 Judgment, while
respecting the validity of arbitral awards as a separate decision of
international law, stressed that the ICJ, though not a court of
appeal, was not entitled to review the process traversed by the
Tribunal in its deliberations, should it indicate serious flaws.
Agreeing in their the Joint Dissenting Opinion, Judges Aguilar
Mawdsley and Ranjeva opine that the principal judicial organ of the
international community must guarantee both respect for the rights
of parties and the reasoning by other international tribunals,
though it should not act as a court of appeal.

3 G. Guillaume , Are Arbitral Awards a Source of Law under Article 38?, Part 2,
Chapter 3, Precedent in International Arbitration, International Arbitration
Institute, Juris Publishing Inc., 1 June 2008, p. 112
4 L. Renault, Foreword, A. de Lapradelle and N. Politis, Recueil des Arbitrages
Internationaux, Tome Premier 1798-1855, 1905