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World Court Digest

III. The International Court of Justice
3.10. Provisional Measures
3.10.5. Provisional Measures and Merits

¤ 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.