Marcos, Eunice V.

1D
Reyes, Sherylyn R.
Legal Writing

EXECUTIVE SUMMARY

Entire Case: The Arbitral Award of 31 July 1989

Short Title: Guinea-Bissau v. Senegal

Date: Judgement of 12 November 1991

Statement of facts:
On 26 April 1960, an agreement by exchange of letters was concluded between
France and Portugal for the purpose of defining the maritime boundary between the
Republic of Senegal (at that time an autonomous State within the Communaute
established by the constitution of the French Republic of 1958) and the Portuguese:
Province of Guinea. The letter of France proposed (inter alia) that: "As far as the outer
limit of the territorial sea, the boundary shall consist of a straight line drawn at 2A0 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 delimitation 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.
After the accession to independence of Senegal and Portuguese Guinea, which became
Guinea-Bissau, a dispute arose between these two States concerning the delimitation of
their maritime areas. This dispute was the subject of negotiations between them from
1977 onward, in the course of which Guinea-Bissau insisted that the maritime areas in
question be delimited without reference to the 1860 Agreement, disputing its validity and
its opposability to Guinea Bissau.
On 23 August 1989, Guinea Bissau filed a unilateral application instituting proceedings
against Senegal in the International Court of Justice based on the optional clause
declarations of both states. Guinea Bissau was seeking a declaration that an award of
arbitration between the parties, rendered on 31 July 1989, was inexistent for a lack of
real majority. Subsidiarily, Guinea Bissau contended that the award was null and void
because the Tribunal had failed to answer the second of two questions put to it, had not
decided on the delimitation of the maritime are concerned as a whole by a single line on a
map, and had not given the reasons for so failing to exercise its jurisdiction. The Court
rejected all of Guinea Bissaus submissions and held that the award was valid and binding
on both parties.
Table of arguments:

ISSUES: Republic of Guinea- Republic of Senegal:

Bissau:
1) Whether or not The Republic of Senegal asserts that it had
the Agreement Guinea-Bissau always been aware of the
of 26 April 1960 contends that when, Franco-Portuguese
has the force of in September 1977, negotiations which
law in the negotiations culminated in the
relations between the Parties Agreement of 26 April
between the were, on its 1960, since the French
Republic of initiative, begun for delegation included a
Senegal and the the purpose of Senegalese member, that it
Republic of settling the question has constantly relied on the
Guinea-Bissau. of the determination 240 maritime boundary
of the maritime defined by the 1960
boundary between Agreement, and that
them, Guinea- Guinea-Bissau had also
Bissau was not even respected the Agreement,
aware of the that for many years it has
existence of the not protested against it and
Franco-Portuguese that the proclamation of
exchange of letters independence 05 Guinea-
of 26 April 1960, Bissau, in its reference to
and it was only from the boundaries of the
1978 on that the territorial waters, tacitly
Republic of Senegal recognized I the 240" limit.
invoked it in the
course of the
negotiations.

2) Whether or not Guinea-Bissau claims Senegal does not

the Arbitral that the Agreement share this view. Its
Award of 31 concluded by different
July 1989 is exchange of notes on interpretation of the
inexistent and 26 April 1960 is null Constitutional texts,
should be and void because by as well as on the fact
considered as signing it, both that in addition to the
 null and void. Portugal and France
committed to breach
of norms of internal
law of fundamental
importance. Guinea-
Bissau concludes that,
according to the
Portuguese
Constitution of 1933,
the 1960 Agreement
should have been
submitted for
approval to the
National Assembly.
That breach of
Constitutional Law
was of a manifest
character and in
accordance with the
rule codified in
Article 46 of the
Vienna Convention on 1960 Agreement did
the Law of Treaties;
The Franco-
Portuguese
Agreement was null
and void.
written text of the
Constitution,
consideration has to
be given a whole
body of customs and
practices which have
appreciably altered
the original meaning
of the constitutional
texts. Senegal gives in
addition an account of
international case-law
and diplomatic
precedents relating to
the nullity of treaties
on grounds of the
violation of
international law. On
that question it
reaches the
conclusion that the
not involve and
manifest violation of
Portuguese law.

Ruling:

1) Whether or not the Agreement of 26 April 1960 has the force

of law in the relations between the Republic of Senegal and
the Republic of Guinea-Bissau.

The Tribunal has already stated clearly in the present award that the
1960 Agreement is valid, wholly valid. The Tribunal considers that the 1960
Agreement must be interpreted in the light of the law in force at the date of its
conclusion. It is a well-established general principle that a legal event must be assessed in
the light of the law in force at the time of its occurrence and the application of that aspect
of inter-temporal law to cases such as the present one is confirmed by case-law in the
realm of the law of the sea. The Tribunal considers that the 1960 Agreement does not
delimit those maritime spaces which did not exist at that date, whether they are termed
exclusive economic zone, fishery zone or whatever. 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. The "straight line drawn
at 240 is a loxodromic line.
2) Whether or not the Arbitral Award of 31 July 1989 is
inexistent and should be considered as null and void.
The contention of the Guinea-Bissau that the award was
inexistent for lack of a real majority cannot be accepted. The
Court then found, on the submission to that effect of Senegal,
that the award was valid and binding for both States, which had
the obligation to apply it.

Courts Ruling:

The Tribunal concluded that the 1960 Agreement was valid and could be opposed
to Senegal and to Guinea-Bissau that it had to be interpreted in the light of the law in
force at the date of its conclusion 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." and 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". THE COURT, Unanimously, Rejects the
submission of the Republic of Guinea-Bissau that the Arbitral 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; by
eleven votes to four, rejects the submission of the Republic of Guinea-Bissau that the
Arbitral Award of 31 July 1989 is absolutely null and void.
FOR: 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.
By twelve votes to three, rejects the submission of the Republic of Guinea-Bissau that the
Government of Senegal is not justified in seeking to require the Government of Guinea-
Bissau to apply the Arbitral Award of 3 1 July 1989; and, on the submission to that effect
of the Republic of Senega1, finds that the Arbitral 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.
FOR: President Sir Robert Jennings; Vice-President Oda; Judges Eachs, Ago,
Schwebel, Ni, Evensen, Tarassov,Guillaume,Shahabuddeen, Ranjeva; Judge ad
hoc Mbaye.
AGAINST: Judges Aguilar Mawdsley, Weeramantry;Judge ad hoc Thierry."

Other Notes:

The case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya}"

I.C.J. Reports1982, paragraph 80, and the case concerning Delimitation of the Maritime
Bounds in the Gulf of Maine Area 1.0 J Resorts 1984, paragraph 51), the Court in the
first case, and a Chamber'of the Court in the second, clearly indicated that if the
"Tripolitanian Furrow" in the first case and the "Northeast Channel" in the second Case
had clearly marked an interruption in continuity, they would have considered that
geological factor as relevant. Thus, international jurisprudence has never stated
expressly that those geological factors must always and as an absolute rule be set aside,
whatever the circumstances. In the case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), the International Court of Justice even went so far as
to declare that it "does not necessarily exclude the possibility that certain geomorphorical
configurations of the sea-bed, which do not amount to such an interruption of the natural
prolongation of one Party with regard to that of the other, may be taken into account for
the delimitation, as relevant circumstances
Characterizing the area" (I.C, J. Reports 1982, p. 58, par. 68). The
Montego Bay Convention of 10 December 1982 recognized the legal title of the coastal
State over its continental shelf by the operation of a concept of "distance" as a
complement to, and sometimes a substitute for, that of "natural prolongation". In fact,
the 1982 Convention, without at all neglecting the concept of "natural prolongation" (its
Article76 refers to it in its very first paragraph), has nonetheless introduced in a
spectacular manner another criterion, namely that of distance. This comparative
effacement of the concept of natural prolongation in relation to that of distance could not
but result in the eclipse of geological and morphological considerations. The
International Court of Justice which, in its 1969 Judgment in the North Sea Continental
Shelf cases, stressed the concept of natural prolongation, has itself held it to be an
essentially relative principle. The fact that the legal notion of the continental shelf and the
physical reality of that shelf do not coincide, the absence of any imperative and
necessary link between the basis of the coastal State's title to its continental shelf and the
principles of delimitation, the fact that the Court has the duty to cause equity to prevail
as a result, rather than the principle of natural prolongation which sometimes does not
contribute to it, and lastly the new trends of the law of the sea expressed in Articles 76
and 83 of the Montego Bay Convention, - all these have contributed to this
comparative ;effacement of the institution of natural prolongation and, consequently, of
geological and geomorphological factors.