| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.5. | Provisional Measures and Merits |
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Arbitral Award of 31 July 1989
Provisional Measures
Order of 2 March 1990
I.C.J. Reports 1990, p. 64
[pp. 69-70] Whereas Guinea-Bissau has requested the Court to
exercise in the present proceedings the power conferred upon it by Article 41 of
the Statute of the Court "to indicate, if it considers that circumstances
so require, any provisional measures which ought to be taken to preserve the
respective rights of either party"; whereas the purpose of exercising this
power is to protect "rights which are the subject of dispute in judicial
proceedings" (Aegean Sea Continental Shelf, I.C.J. Reports 1976, p.
9, para. 25; Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1979,
p. 19, para. 36); whereas such measures are provisional and indicated "pending
the final decision" (Article 41, paragraph 2, of the Statute); and whereas
therefore they are to be measures such that they will no longer be required as
such once the dispute over those rights has been resolved by the Court's
judgment on the merits of the case; Whereas Guinea-Bissau recognizes in its
Application that the dispute of which it has seised the Court is not the dispute
over maritime delimitation brought before the Arbitration Tribunal, but a "new
dispute ... relating to the applicability of the text issued by way of award of
31 July 1989"; whereas however it has been argued by Guinea-Bissau that
provisional measures may be requested, in the context of judicial proceedings on
a subsidiary dispute, to protect rights in issue in the underlying dispute; that
the only link essential for the admissibility of measures is the link between
the measures contemplated and the conflict of interests underlying the question
or questions put to the Court, - that conflict of interests in the present case
being the conflict over maritime delimitation, - and that this is so whether the
Court is seised of a main dispute or of a subsidiary dispute, a fundamental
dispute or a secondary dispute, on the sole condition that the decision by the
Court on the questions of substance which are submitted to it be a necessary
prerequisite for the settlement of the conflict of interests to which the
measures relate; whereas in the present case Guinea-Bissau claims that the basic
dispute concerns the conflicting claims of the Parties to control, exploration
and exploitation of maritime areas, and that the purpose of the measures
requested is to preserve the integrity of the maritime area concerned, and that
the required relationship between the provisional measures requested by
Guinea-Bissau and the case before the Court is present;
Whereas the Application instituting proceedings asks the Court to declare
the 1989 award to be "inexistent" or, subsidiarily, "null and
void", and to declare "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"; whereas the Application thus asks the
Court to pass upon the existence and validity of the award but does not ask the
Court to pass upon the respective rights of the Parties in the maritime areas in
question; whereas accordingly the alleged rights sought to be made the subject
of provisional measures are not the subject of the proceedings before the Court
on the merits of the case; and whereas any such measures could not be subsumed
by the Court's judgment on the merits;
Whereas moreover a decision of the Court that the award is inexistent or
null and void would in no way entail any decision that the Applicant's claims in
respect of the disputed maritime delimitation are well founded, in whole or in
part; and whereas the dispute over those claims will therefore not be resolved
by the Court's judgment;
Accordingly, the Court, by fourteen votes to one,
Dismisses the request of the Republic of Guinea-Bissau, filed in the
Registry on 18 January 1990, for the indication of provisional measures.
[p. 74 S.O. Shahabuddeen] Accepting that the cases "have shown
the need for a clear connection between the object of the incidental request and
that of the principal one", Guinea-Bissau correctly submitted that the "establishment
of the connection is necessary inasmuch as the subject of the request is to
protect the rights in dispute, not other rights that are beyond the scope of the
proceedings" (CR 90/1, p. 27,12 February 1990). These propositions reflect
the traditional principle that provisional measures "should have the effect
of protecting the rights forming the subject of the dispute submitted to the
Court" (Polish Agrarian Reform, P.C.I.J. Series A/B, No. 58, p.
177).
In this case, it is clear that the maritime rights of the Parties, which are
sought to be preserved by the requested provisional measures, will not be
determined by a determination of the dispute pending before the Court as to the
existence and validity of the award. In the result, as it has been argued in the
Court's Order, the provisional measures requested are not directed to the
preservation of the rights of the Parties in that particular and somewhat
specialized dispute. Indeed, when the traditional principle is pressed to its
logical conclusion, it is difficult to conceive of circumstances which could
ground an indication of provisional measures relating to the substantive rights
sought to be determined by an arbitral award where the dispute in the main case
relates only to the existence and validity of the award.
[pp. 82-83 D.O. Thierry] It is likewise in the light of
Guinea-Bissau's situation that the relationship between the Application and the
subsidiary request must be viewed. The Application by Guinea-Bissau relates to
the validity or the legal existence of the award of 31 July 1989; the request
for the indication of provisional measures relates to rights which are the
subject-matter of that award and which that award determines, at least with
respect to the territorial sea, the contiguous zone and the continental shelf.
It is, however, clear that Guinea-Bissau is defending only one right in the
whole process of litigation on which it has embarked. This is the right to an
equitable delimitation of maritime areas, and in particular of the continental
shelf and the exclusive economic zone adjacent to its coasts and to those of
Senegal. It is with a view to such an equitable delimitation, of which it feels
it has been deprived by the 1960 agreement concluded by an exchange of letters
between France and Portugal, that an Arbitration Agreement was concluded in
1985. Since however, in the view of Guinea-Bissau, the award rendered by the
Tribunal is not valid, the question of the delimitation of the maritime frontier
remains open. In the event (which it cannot rule out) of the Court pronouncing
the nullity of the award, the question of the maritime frontier will have to be
settled either by an agreement between the Parties - an eminently desirable
solution - or by new arbitral proceedings, or else by the Court itself if it is
seised of the matter. It is therefore in order to preserve the rights which
would flow from the decision of the Court on the merits (i.e., on the validity
of the award) that Guinea-Bissau has submitted a request for the indication of
provisional measures. For indeed, if the Court renders a decision favourable to
Guinea-Bissau, the question of whether the 1960 agreement can be opposed to it
would be reopened and, by the same token, that of whether it is possible to
oppose to it the definition of its maritime boundary and of its rights with
regard to the territorial sea, the contiguous zone and the continental shelf on
the one hand and to the exclusive economic zone on the other. It follows that
the Court's decision on the merits will directly affect the respective rights of
the Parties in the maritime zones in question. It is this effect that paragraph
26 of the Order disregards inasmuch as it merely notes that the Court is not
called upon, for the moment, itself to determine the maritime boundary between
Senegal and Guinea-Bissau.
Thus at every stage, that of the Arbitration Agreement, that of the
arbitration proceedings, that of the challenging of the award or that of the
request for the indication of provisional measures, it is the same rights of
which Guinea-Bissau is trying to ensure the recognition, with a persistence
which its economic condition explains and justifies. Accordingly, neither the "insufficiently
irreparable" character of the damage incurred, nor the absence of a
substantial and fundamental connection between the Application and the request,
justifies the Court in abstaining from indicating the provisional measures which
the circumstances require.
