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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Frontier Dispute, (Burkina Faso/Republic of Mali),
Provisional Measures, Order of 10 January 1986
I.C.J. Reports 1986, p. 3
[pp. 9-10] Considering that, independently of the requests submitted
by the Parties for the indication of provisional measures, the Court or,
accordingly, the Chamber 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;
Whereas, in particular, when two States jointly decide to have recourse to a
Chamber of the Court, the principal judicial organ of the United Nations, with a
view to the peaceful settlement of a dispute, in accordance with Article 2,
paragraph 3, and Article 33 of the Charter of the United Nations, and incidents
subsequently occur which not merely are likely to extend or aggravate the
dispute but comprise a resort to force which is irreconcilable with the
principle of the peaceful settlement of international disputes, there can be no
doubt of the Chamber's power and duty to indicate, if need be, such provisional
measures as may conduce to the due administration of justice;
Whereas furthermore, according to the indications furnished by one of the
Parties, armed actions within the territory in dispute could result in the
destruction of evidence material to the Chamber's eventual decision;
Whereas the facts that have given rise to the requests of both Parties for
the indication of provisional measures expose the persons and property in the
disputed area, as well as the interests of both States within that area, to
serious risk of irreparable damage; and whereas the circumstances consequently
demand that the Chamber should indicate appropriate provisional measures in
accordance with Article 41 of the Statute.
[p. 10] Whereas States remain at liberty to negotiate or resolve
particular aspects of a dispute brought before the Court ; whereas their freedom
to do so is not incompatible with the Court's exercise of its own functions ;
and whereas the fact that the two Parties have entrusted another body with the
task of defining the terms of the troop withdrawal in no way deprives the
Chamber of the rights and duties pertaining to it in the case brought before it;
Whereas the Chamber, while welcoming the fact that the Parties have been
able to reach agreement on a ceasefire, and have thus brought to an end the
armed actions which gave rise to the requests for the indication of provisional
measures, is nonetheless faced with its duty under Article 41 of the Statute to
ascertain for itself what provisional measures ought to be taken to preserve the
respective rights of either Party;