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World Court Digest

III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.10. Provisional Measures
3.10.1. General Questions

¤ Land and Maritime Boundary betweenCameroon and Nigeria
(Cameroon v. Nigeria) Provisional Measures,
Order of 15 March 1996
I.C.J. Reports 1996, p. 13

[pp. 21-22] 34. Whereas in the present proceedings Cameroon has requested the Court to exercise the power conferred upon it by Articles 41 of the Statute of the Court and 73 of the Rules of 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;
35. Whereas this power to indicate provisional measures has as its object to preserve the respective rights of the Parties, pending a decision of the Court, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong to the Applicant or to the Respondent; and whereas such measures are only justified if there is urgency;

[pp. 22-23] 41. Considering that, independently of the requests for the indication of provisional measures submitted by the Parties to preserve specific rights, the Court possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require (cf. Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18);

42. Whereas the events that have given rise to the request, and more especially the killing of persons, have caused irreparable damage to the rights that the Parties may have over the Peninsula; whereas persons in the disputed area and, as a consequence, the rights of the Parties within that area are exposed to, serious risk of further irreparable damage; and whereas armed actions within the territory in dispute could jeopardize the existence of evidence ant to the present case; and whereas, Prom the elements of information available to it, the Court takes the view that there is a risk that events likely to aggravate or extend the dispute may occur again, thus rendering any settlement of that dispute more difficult;

[pp. 24-25] 49. For these reasons,

THE COURT,

Indicates, pending a decision in the proceedings instituted as aforesaid, the following provisional measures:

(1) Unanimously,

Both Parties should ensure that no action of any kind, and particularly no action by their armed forces, is taken which might prejudice the rights of the other in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before it;

(2) By sixteen votes to one,

Both Parties should observe the agreement reached between the Ministers for Foreign, Affairs in Kara, Togo, on 17 February 1996, for the cessation of all hostilities in the Bakassi Peninsula;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc Mbaye;
AGAINST: Judge ad hoc Ajibola;

(3) By twelve votes to five,

Both Parties should ensure that the presence of any armed forces in the Bakassi Peninsula does not extend beyond the positions in which they were situated prior to 3 February 1996;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc Mbaye;
AGAINST: Judges Shahabuddeen, Weeramantry, Shi, Vereshchetin; Judge ad hoc Ajibola;

(4) By sixteen votes to one,

Both Parties should take all necessary steps to conserve evidence relevant to the present case within the disputed area;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Ararigureri; Judge ad hoc Mbaye;
AGAINST: Judge ad hocAjibola;

(5) By sixteen votes to one,

Both Parties should lend every assistance to the fact-finding mission which the Secretary-General of the United Nations has proposed to send to the Bakassi Peninsula.
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc, Mbaye;
AGAINST: Judge ad hoc Ajibola.

[p. 28 Decl. Shahabuddeen] A provisional measure should be framed in self-executing terms, in the sense, that it should contain all the legal elements required for its interpretation and application. In the case of a provisional measure limiting the movement of armed forces, an essential element is the prescription of a clear physical benchmark, in the nature of a stipulation of positions or lines in relation to which it could, be easily determined whether the required limitation has been observed. For the reasons alluded to in paragraph 38 of the Court's Order, the evidence has not permitted the Court to identify such a benchmark. A related problem confronted the Chamber in the Frontier Dispute case, but there an alternative solution was available (Provisional Measures, I.C.J. Reports 1986, pp. 10-11, para. 27, and p. 12, para. 32 (1) (D)). No similar alternative solution is available here.

In the result, a provisional measure limiting the movement of armed forces will not serve the intended purpose of avoiding conflict in the area. On the contrary, it may provide a basis for a fresh dispute, in that, in the circumstances of this case, there could be argument between the Parties as to what position or positions each occupied prior to 3 February 1996.

[p. 31 J.Decl. Weeramantry, Shi and Vereshchetin] The two Parties have given the Court two entirely different versions in regard to the incidents of 3 February 1996. These different versions involve entirely different positions in regard to the location of their respective armed forces on that date.
The Court has refrained from reaching any conclusion at this stage as between the contradictory versions presented by the two Parties, and advisedly so, for a decision on a matter of this nature would have required more detailed and specific evidence than was placed before the Court.
The Court's Order, requiring the Parties to ensure that the presence of any armed forces in the Bakassi Peninsula should not extend beyond the positions in which they were situated, prior to 3 February, 1996, in effect leaves it to each Party to determine what that position was and to act upon that determination. These positions May well be contradictory, thus leaving open the possibility of confusion upon the ground. The Order may thus be interpreted as containing an internal contradiction.

Indeed, the Court itself would be unable to state what those respective positions are, if an enquiry were , addressed to it.
Our view is that item 3 should not, for these reasons, have been included in the Order and we have therefore been unable to support that portion of the Order.

[p. 53 S.O. Ajibola] In view of what I have said above, the purpose and content of Article 41 of the Statute is not and cannot be restricted only to the preservation of the prospective rights of the parties in a matter like the one before the Court. The situation calls for an order proprio motu under Article 75 of the Rules of Court, hence my reason for voting with the majority of the Court on the first operative part of the Order. Inherently, the issue of non-aggravation and non-extension is not only linked with the protection of the prospective rights of litigants, but it is an integralpart of that protection, and provides a basis upon which an indication can be given.

[pp. 54-55 S.O. Ajibola] Having regard to the jurisprudence and the position of the Court with regard to Cameroon's request for an indication of provisional, measures, it is difficult for the Court to exercise its discretion to grant the third request of Cameroon. The third request of Cameroon is that "the Parties shall abstain ftom any act or action which might hamper the gathering of evidence in the present case" (emphasis added) - although no such measure can, in my view, be indicated by the Court for the following reasons:

(a)As mentioned earlier, it has not been shown clearly where the armed forces of Cameroon and Nigeria are stationed at the moment. The evidence put in by the two Parties is conflicting and there is no agreement between them. The maps are not of much help either.
(b)The nature of the evidence to be gathered has not been made clear to the Court. Evidence was adduced that the Cameroonian Prefect hurriedly left Idabato without collecting his documents there, but Nigeria presented facts and documents including pictures to show that Idabato or Achibong is a part of Nigeria in Cross River State.
(c)There was no agreement between Nigeria and Cameroon about the, cease-fire line which might have made it easier to indicate a provisional measure in this regard, unlike the case concerning the Frontier Dispute where such an agreement was reached.
(d)Part of Nigeria's case is that since Cameroon has already filed its Memorial, all the required evidence (which, I think, mostly consists of treaties, agreements and conventions) has already been filed in the Court.
(e)Nigeria is not making any request of this kind and the position, of the law is that both Parties should be treated equally. In other words, though the content of the request is that "the Parties" should abstain from acts which might hamper the gathering of evidence in this case, this can only refer to Cameroon.

It is for all these reasons that I have come to the conclusion that this request made by Cameroon cannot be granted by the Court. It follows that the three measures requested by Cameroon on 10 February 1996 cannot be indicated.