| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.1. | General Questions |
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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. 79-80 D.O. Thierry] The measures have also a single aim. It is
defined by Article 41 in a simple and straight forward manner that deserves the
most careful attention. The aim of the measures is the preservation and
therefore the protection "du droit de chacun". Article 41
could have been formulated differently and more restrictively. It could, for
example, have referred to the rights (in the plural 1) of the parties, or to
the rights claimed by the parties. This is not the case. The expression "droit
de chacun" goes further. It invites the Court to exercise, in adopting
provisional measures, its judicial function to the full.
But while the aim of the measures is the protection "du droit de
chacun", they can have different objects, as shown by the case-law of
the Permanent Court of International Justice and of the present Court, depending
on the circumstances of the cases which have been brought before them and on
which they have pronounced. The object of the measures may be to prevent the
aggravation of the dispute - this is obvious. They may be directed to preventing
irreparable damage. Their object may be to preserve the exercise by the Court of
its judicial function by preventing the parties from anticipating the subsequent
decision of the Court on the merits. The latter concern has often been expressed
by the Court. These objectives can be envisaged separately, but they are
complementary. Regardless, however, of the immediate object of the measures,
their aim is, in any event, the preservation "du droit de chacun".
Finally, so far as their nature or substance is concerned, the measures may
be diverse and, except for the need that they be suited to the circumstances and
for their provisional character, there is no limit to the power of the Court to
select the appropriate remedies. The measures may be the ones that the party
asking for them requests; but they may be different "in whole" or in
part, without it being necessary to rely in this respect on Article 75,
paragraph 1, of the Rules of Court, which concerns the case where the Court acts
proprio motu, that is to say, without having received a request for
provisional measures.
Such are, in brief outline, the fundamental rules, deriving from the Statute
and Rules of Court, that govern the power of the Court to indicate provisional
measures.
[p. 81 D.O. Thierry] In short, although the circumstances do not
require measures of the type the Security Council may take in connection with
the maintenance of peace or for the settlement of disputes "the continuance
of which is likely to endanger the maintenance of peace", they do call for
provisional measures such as those that have been indicated by the Court in
various cases where it has been requested to do so.
Such are the measures required by the circumstances if one considers that
the incidents that have occurred are not altogether minor and without incidence
on the rights of the Parties. By virtue of Article 41 of the Statute of the
Court, if they are required by the circumstances the measures ought to
be taken.
Given their provisional nature, such measures cannot, provided they are
properly conceived, produce any negative effects on the rights of the Parties.
On the other hand, the denial of a request for them involves some risk of
aggravation of the dispute. It is therefore only if decisive legal reasons
existed for not indicating provisional measures that a request for them should
have been denied. But there are no such reasons here.
[p. 82 D.O. Thierry] The existence of irreparable damage (however
defined) which has already been sustained is obviously not the precondition for
granting provisional measures. These measures are intended (among other things)
to prevent irreparable damage, i.e., to ensure that it does not occur.
To require the existence of irreparable damage as the condition for the
indication of provisional measures would be virtually an absurdity because, if
the harm has already been done (i.e., irreparable damage has been caused), the
provisional measures would not serve any useful purpose. Provisional measures
are intended to counter the risk of any irreparable damage occurring. This is
indeed the very clear meaning of the relevant jurisprudence, first expressed in
1927 by the Permanent Court of International Justice in the case concerning the
Denunciation of the Treaty of 2 November 1865 between China and Belgium
(P.C.I.J., Series A, No. 8, p. 7) and, more recently, by the Court in the
Fisheries Jurisdiction case (I.C.J. Reports 1972, p. 16, para.
21). The commentators have however created an unfortunate confusion between the
risk of irreparable damage and the damage resulting from events which have
already taken place. A risk is by definition a matter of chance, and it is
dangerous to rely for a decision on the absence of a risk or on its
improbability. Moreover, the risk of irreparable damage must be viewed in the
light of the situation of the State which is in danger of sustaining it. As is
well known, Guinea-Bissau is a small State having very limited resources. To be
deprived of maritime biological resources, and a fortiori of other
maritime resources to which it might be entitled, can constitute an irreparable
damage for that State. In that connection, the risk of irreparable damage in the
present case can thus be regarded as comparable to the risk incurred by the
applicant States in the cases where measures were actually indicated by the
Court. In the Anglo-Iranian Oil Co. case for example, irreparable damage
would have been caused by the removal and sale of certain quantities of
petroleum belonging to that company, while in the Fisheries Jurisdiction
cases, the irreparable damage would have resulted from the exclusion of the
British and German fishing fleets from the zone affected by the Icelandic
regulations. It may well be questioned whether the damage in those cases was
really "more irreparable" than that which Guinea-Bissau is threatened
with.
| 1 | The English version of Art. 41 ("to preserve the respective rights of either party") differs substantially from the French version. |
