2 March 1990

 

General List No. 82

 
     

international Court of Justice

     
 

Arbitral Award of 31 July 1989

 
     

Guinea-Bissau

 

v. 

Senegal

     
     
 

Order

 
     
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BEFORE: President: Ruda
Vice-President: Mbaye
Judges: Lachs, Elias, Oda, Ago, Schwebel, Sir Robert Jennings, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Pathak
Judge ad hoc: Thierry
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1990.03.02_arbitral_award.htm
   
Citation: Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1990 I.C.J. 64 (Order of Mar. 2)
   
Represented By: Guinea-Bissau: H.E. Mr. Fidelis Cabral de Almada;
Mrs. Monique Chemillier-Gendreau;
Mr. Miguel Galvao Teles;

Senegal: H.E. Mr. Doudou Thiam;
Mr. D. W. Bowett.

 
     
 
 
     
 


[p.64]
The International Court of Justice,

Composed as above,

After deliberation,

Makes the following Order:

Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73 and 74 of the Rules of Court,

1. Whereas by an Application filed in the Registry of the Court on 23 August 1989 the Republic of Guinea-Bissau instituted proceedings against the Republic of Senegal in respect of a dispute concerning the existence and validity of the arbitral award delivered on 31 July 1989 by the Arbitration Tribunal for the Determination of the Maritime Boundary between the two States;
[p 65]

2. Whereas on 23 August 1989 a copy of the Application was transmitted to the Republic of Senegal; whereas pursuant to Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, copies of the Application were transmitted to Members of the United Nations through the Secretary-General and to other States entitled to appear before the Court; and whereas by an Order dated 1 November 1989 the Court fixed time-limits for the written proceedings in the case;

3. Whereas on 18 January 1990 a request was filed in the Registry whereby the Government of Guinea-Bissau, relying on Article 41 of the Statute of the Court and Article 74 of the Rules of Court, and on the ground of actions stated to have been taken by the Senegalese Navy in a maritime area which Guinea-Bissau regards as an area disputed between the Parties, requested the Court to indicate the following provisional measures:

"In order to safeguard the rights of each of the Parties, they shall abstain in the disputed area from any act or action of any kind whatever, during the whole duration of the proceedings until the decision is given by the Court";

4. Whereas the Agent of Senegal was on 18 January 1990 notified by telex of the filing of the request for provisional measures and on 19 January 1990 the text thereof was communicated to him by post;

5. Whereas pursuant to Article 31, paragraph 2, of the Statute, the Government of Guinea-Bissau chose Mr. Hubert Thierry to sit as judge ad hoc in the case;

6. Whereas the Parties were informed by communications dated 26 January 1990 that the Court would hold public hearings opening on 12 February 1990 to afford the Parties the opportunity of presenting their observations on the request for the indication of provisional measures;
7. Whereas by letter of 7 February 1990, received in the Registry on 9 February 1990, the Agent of Senegal presented to the Court written observations of Senegal on the request for the indication of provisional measures, containing the following submission:

"The Government of Senegal prays the Court, pursuant to Article 41 of its Statute and Article 73 of the Rules of Court, to declare inadmissible and subsidiarily to dismiss the request for provisional measures made by the Government of Guinea-Bissau";

8. Whereas at public hearings held on 12 February 1990 oral observations on the request for provisional measures were presented by the following representatives: on behalf of the Republic of Guinea-Bissau: H.E. Mr. Fidelis Cabral de Almada, Agent, Mrs. Monique Chemillier-Gendreau, Counsel, and Mr. Miguel Galvao Teles, Counsel; on behalf of the Republic of Senegal: H.E. Mr. Doudou Thiam, Agent, and Mr. D. W. Bowett, Co-Agent;[p 66]

9. Whereas during the oral proceedings questions were put to the Parties by Members of the Court, and replies in writing, with documents in support, were subsequently transmitted to the Registry;

*

10. Whereas the events leading to the present proceedings are as follows : on 26 April 1960 an agreement by exchange of letters was concluded between France and Portugal for the purpose of defining the maritime boundary between Senegal (at that time an autonomous State within the Communaute) and the Portuguese Province of Guinea; and whereas that agreement adopted as the boundary line a straight line at 240 from the intersection of the extension of the land frontier and the low-water mark, represented by the Cape Roxo lighthouse;

11. Whereas after the accession to independence of Senegal and Guinea-Bissau a dispute arose between them concerning the delimitation of their maritime territories, which was the subject of negotiations between them from 1977 onward; whereas on 12 March 1985 the Parties concluded an Arbitration Agreement for submission of that dispute to an Arbitration Tribunal ; whereas Article 2 of the said Agreement provided that the following questions should be put to the Tribunal:

"(1) Does the agreement concluded by an exchange of letters on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal?

(2) In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal respectively?"

and whereas Article 9 of the Agreement provided that the decision of the Tribunal "shall include the drawing of the boundary line on a map" ;
12. Whereas the Arbitration Tribunal constituted under the Agreement pronounced on 31 July 1989, by two votes (including that of the President of the Tribunal) to one, an award of which the operative clause was as follows:

"For the reasons stated above, the Tribunal decides...

To reply as follows to the first question formulated in Article 2 of the Arbitration Agreement: The Agreement concluded by an exchange of letters on 26 April 1960, and relating to the maritime boundary, has the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal with regard solely to the areas mentioned in that Agreement, namely the territorial sea, the contiguous zone and the continental shelf. The 'straight line drawn at 240 ' is a loxodromic line";

and whereas in that award the Tribunal also stated its conclusion that "it is not called upon to reply to the second question" in the Arbitration Agree-[p 67]ment, and that in view of its decision it "has not thought it necessary to append a map showing the course of the boundary line";

13. Whereas the President of the Arbitration Tribunal appended a declaration to the award; and whereas in the view of Guinea-Bissau it was "clearly apparent" that the position adopted by the President in that declaration was "incompatible with the position which he has endorsed by his vote in favour of the 'award' and which had given the appearance of a majority"; whereas Guinea-Bissau accordingly considers that "there was in fact no majority within the Tribunal";

14. Whereas Guinea-Bissau contends in its Application to the Court that "A new dispute thus came into existence, relating to the applicability of the text issued by way of award on 31 July 1989"; whereas that dispute was brought before the Court by the above-mentioned Application, in which Guinea-Bissau requests the Court, in respect of the decision of the Arbitration Tribunal, to adjudge and declare:

"- that that so-called decision is inexistent in view of the fact that one of the two arbitrators making up the appearance of a majority in favour of the text of the 'award', has, by a declaration appended to it, expressed a view in contradiction with the one apparently adopted by the vote;
- subsidiarily, that that so-called decision is null and void, as the Tribunal did not give a complete answer to the two-fold question raised by the Agreement and so did not arrive at a single delimitation line duly recorded on a map, and as it has not given the reasons for the restrictions thus improperly placed upon its jurisdiction;
- 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";

15. Whereas Guinea-Bissau explains in its request for the indication of provisional measures that that request was prompted by

"acts of sovereignty by Senegal which prejudge both the judgment on the merits to be given by the Court and the maritime delimitation to be effected subsequently between the States";

whereas the acts complained of by Guinea-Bissau, and alleged to have occurred in a "disputed area", are as follows: on 9 October 1989 a fishing vessel of Japanese registry, the Hoyo Maru No. 8, holding a licence issued by the authorities of Guinea-Bissau to fish in the exclusive economic zone of Guinea-Bissau, was boarded by the Senegalese Navy in a position corresponding to geographical co-ordinates 12 01' North and 17 31' West, and escorted to a Senegalese port; legal proceedings were taken, for breach of Senegalese fishing regulations, and the vessel was released on payment of 90 million CFA francs; on 9 November 1989 a fishing vessel of Chinese registry, the Yan Yu 625, holding a similar fishing licence issued [p 68] by Guinea-Bissau, was similarly boarded at 12 08' North and 17 04' West, and escorted to a Senegalese port; legal proceedings were taken, and the vessel subsequently released on payment of 50 million CFA francs;

16. Whereas Senegal has confirmed that these incidents occurred, and states that if the area where the incidents occurred was "the maritime area that is under Senegal's jurisdiction by virtue of the agreement of 1960 (that is to say, the territorial sea, the contiguous zone and the continental shelf)", Senegal relied on a presumption of validity of the award;

17. Whereas after the close of the oral proceedings the Agent of Guinea-Bissau, by a letter of 13 February 1990, stated that a further incident took place on 18 December 1989, when the vessel of Chinese registry Yuan Yu I was boarded by the Senegalese Navy at a position (12 07' 67" North, 17 03' 65" West) stated to be to the south of the 240 line from Cape Roxo, and therefore, in the view of Guinea-Bissau not in the disputed area, and in an area undisputedly within the jurisdiction of Guinea-Bissau;

18. Whereas according to information supplied to the Court by both Parties, on 1 January 1990 the authorities of Guinea-Bissau arrested four fishing vessels of Senegalese registry in the area regarded by Guinea-Bissau as the disputed area, at positions 12 14' 06" North, 17 09' 97" West; 12 14' 69" North, 17 10' 07" West; 12 15' 06" North, 17 09' 33" West; and 12 12' 74" North, 17 11' 71" West; whereas Guinea-Bissau alleges that the captains of these vessels stated to the authorities of Guinea-Bissau that the authorities of Senegal had authorized and even encouraged them to fish in the area, which was regarded by Senegal as appertaining to it;

**

19. Whereas the Republic of Guinea-Bissau claims to found the jurisdiction of the Court to entertain the present case upon declarations made by the Parties accepting the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute of the Court; and whereas such declarations were made, by the Republic of Senegal on 22 October 1985, deposited with the Secretary-General of the United Nations on 2 December 1985, and by the Republic of Guinea-Bissau on 7 August 1989, deposited the same day with the Secretary-General of the United Nations; whereas the declaration made by Guinea-Bissau is without reservations, while the declaration of Senegal is subject to reservations, but Guinea-Bissau contends that none of them is relevant to the present dispute;

20. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such [p 69]measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;

21. Whereas the Court takes note of the statement made at the hearing by the Agent of Senegal that Senegal makes every reservation at this stage as to the jurisdiction of the Court with respect to the substance of the Application, and the statement of the Co-Agent of Senegal that it is not satisfied that the Court has jurisdiction to entertain the main Application, but does not wish to broach the issue of jurisdiction over the main Application at this stage; and whereas Senegal, while contending that the Court should decline to indicate provisional measures, has accordingly not based that contention on the ground of lack of jurisdiction on the merits of the case;

22. Whereas the Court considers that the two declarations made under Article 36, paragraph 2, of the Statute appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;

23. Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the merits themselves and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction or in respect of such merits;

**

24. 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, J.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;

25. 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 [p 70] 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;

26. 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;

27. 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;

28. 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.

In favour: President Ruda; Vice-President Mbaye; Judges Lachs, Elias, Oda, Ago, Schwebel, Sir Robert Jennings, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Pathak;

Against: Judge ad hoc Thierry.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this second day of March, one thousand nine hundred and ninety, in three copies, one of which will be placed in [p 71] the archives of the Court and the others transmitted to the Government of the Republic of Guinea-Bissau and the Government of the Republic of Senegal, respectively.

(Signed) Jose Maria Ruda,
President.

(Signed) Eduardo Valencia-Ospina,
Registrar.

Judges Evensen and Shahabuddeen append separate opinions to the Order of the Court.

Judge ad hoc Thierry appends a dissenting opinion to the Order of the Court.

(Initialled) J.M.R
(Initialled) E.V.O.

[p 72]

Separate opinion of judge Evensen

I agree with the Court's decision to dismiss the request of Guinea-Bissau for the indication, under Article 41 of the Statute, of provisional measures. I likewise agree with the finding of the Court that the Court need not finally establish that it has jurisdiction on the merits of the case before deciding whether or not to indicate such measures. On the other hand, it seems obvious that the Court should "not ... indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis" for the Court's jurisdiction in the case. Here the absence at this stage of any challenge to the Court's jurisdiction should be noted.

In its Order of 11 September 1976 in the Aegean Sea Continental Shelf case the Court held, inter alia, that:

"the power of the Court to indicate interim measures under Article 41 of the Statute presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute ..." (I.C.J. Reports 1976, p. 9, para. 25).

Doubts can obviously be voiced as to whether such irreparable damage could arise if interim measures were not provided for. But in this context, it should be noted that neither Article 41 of the Statute of the Court nor Article 73 of the Rules of Court contain any reference as to "irreparable damage".

In the present case where the underlying interest involves harvesting the marine resources of the maritime areas concerned, guidance may be found in the United Nations Convention on the Law of the Sea concluded on 10 December 1982, although it has not yet entered into force. I shall draw special attention to Part V on the Exclusive Economic Zone and Part VI on the Continental Shelf.

In this relation attention should be drawn to the fact that the Government of Guinea-Bissau and the Government of Senegal signed this fundamental Convention on 10 December 1982 which was the opening date for signatures. Furthermore, both countries have ratified the Convention; Senegal ratified the Convention on 25 October 1984 and Guinea-Bissau ratified the Convention on 25 August 1986.

In Article 74, paragraph 1, of the 1982 Law of the Sea Convention, dealing with the delimitation of the exclusive economic zone between States with opposite or adjacent coasts, it is provided as the main principle that the delimitation of the zone between States with adjacent or opposite coasts "shall be effected by agreement".[p 73]

Paragraph 3 of this Article lays down provisions relating to certain preliminary safeguards to be taken. It provides:

"Pending agreement... the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation."

Identical provisions are provided for in Article 83 of the Convention on the delimitation of the continental shelf 'between States with opposite or adjacent coasts.

These Articles give expression to a governing principle of international law in this field. They contain guidelines not only with regard to the general obligations of coastal States to establish relevant fisheries regulations, but also indicate the character and contents of such regulations. These provisions entail in practice that coastal States should conclude agreements, where necessary, concerning the allowable catch of fish stocks, the distribution of this catch between the States concerned, the issuance of fishing licences, the character and modes of fishing gear, the protection of spawning grounds, establishing the necessary contacts between the relevant national fisheries authorities and other means for the rational and peaceful exploitation of these vital resources of the oceans.

The Court might possibly have made an appeal to the Parties to comply with these guidelines.

(Signed) Jens Evensen.

[p 74]

Separate opinion of Judge Shahabuddeen

I have voted for the Order made by the Court but would like to consider a little more specifically than the Court has done Guinea-Bissau's principal argument (referred to in paragraph 25 of the Order) on the particular point on which the decision has turned against it. Guinea-Bissau seemed to be contending for a more liberal view than that adopted by the Court of the kind of link which should exist between rights sought to be preserved by provisional measures and rights sought to be adjudicated in the case. The argument has given me some difficulty.

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.

Guinea-Bissau sought to overcome this problem by contending, in effect, for a more liberal view of the applicable principles than that on which the Court has acted. As I understand its case (CR 90/1, pp. 28-39), its argument is that, although the rights sought to be preserved by the requested provisional measures are not themselves part of the rights which form the subject of the specific dispute relating to the existence and validity of the award, the two sets of rights are logically linked, and that this link is such as to justify the Court in exercising its competence under Article 41 of the Statute to indicate provisional measures "if it considers the circumstances so require". The link has been presented within a theor-[p 75]etical framework in which the dispute as to the actual maritime rights of the Parties is regarded as a principal or first-order dispute and the dispute as to the existence and validity of the award is regarded as a subordinate or second-order dispute. To do justice to Professor Miguel Galvao Teles's arguments on the point, it is necessary to reproduce the following passages from his oral submissions:

"Now, save, possibly, in so far as measures relating to evidence are concerned, provisional measures always relate to the basic interests and are justified by them; and, in the second place, they must be declared admissible by reference to these interests even if the Tribunal is seised of a subordinate dispute or one of the second order." (CR 90/l,p. 32.)

"As is the case with the interests of the parties, decisions taken on subordinate disputes and disputes of the second order have no intrinsic value. Their value is due only to the contribution they make to the final solution of the basic dispute. What needs to be safeguarded, at any procedural stage, are the practical conditions of this final solution, peace with respect to the basic conflict, and, equally, the interests of the parties that are the object of the conflict, whatever the procedural stage reached, because, should the practical conditions of the final solution be impaired, the same will be true of the decision on the subordinate dispute or the dispute of the second order, because if peace is jeopardized the procedural stage at which one finds oneself is of no consequence." (Ibid., pp. 33-34.)

"The fact that provisional measures are not conceived as a provisional anticipation of a possible final decision and that they are regarded by the Statute and the Rules as being based first of all on the interest of the international community itself in the enforcement of judicial decisions and in peace is the justification that the 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, whether the latter 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 questions of substance which are put to it are a necessary prerequisite of the settlement or the status of the settlement of the conflict of interests to which the measures relate, as implicitly recognized by the Permanent Court of International Justice in the case concerning the Denunciation of the Treaty of 2 November 1865 between China and Belgium, and by this eminent Court itself in the case concerning the Anglo-Iranian Oil Co" (Ibid., p. 37.)

In the first case so cited by learned counsel for Guinea-Bissau the Denunciation of the Treaty of 2 November 1865 between China and Belgium (P.C.I.J., Series A, No. 8) provisional measures were indicated to preserve the rights of Belgium and its nationals under a treaty although the formal relief sought in the substantive case was only a judgment that [p 76]

China was "not entitled unilaterally to denounce the Treaty ...". However, the issue so presented in the substantive case was not a purely theoretical one, for China had in fact denounced the treaty (P.C.I.J., Series A, No. 8, p. 5). It followed that, there being no denial that Belgium and its nationals had rights under the treaty if still in force, the existence of those rights would be directly affected by a determination that China had no right of denunciation. In this respect, the Order of Court read:

"Whereas the Chinese Government has declared the aforementioned Treaty to have ceased to be effective, whilst the Belgian Government, on the other hand, maintains that it is still in force, and as, consequently, the situation secured by the Treaty to Chinese nationals resident in Belgium has undergone no modification, whilst the corresponding situation of Belgian nationals in China has been altered in virtue of the abovementioned Presidential Order" (i.e., the Order issued by the President of the Republic of China relating to the denunciation of the Treaty. Ibid., p. 6. See also P.C.I.J., Series E,No.3,p.127.)

It seems, therefore, that the Court approached the matter on the footing that the rights sought to be preserved by the requested provisional measures were part of the rights which formed the subject of the dispute as to whether China had a right of denunciation and would be directly affected by a determination of the latter.

In a sense, the position in that case seemed similar to that in the Fisheries Jurisdiction case (United Kingdom v. Iceland), Interim Protection (I.C.J. Reports 1972, p. 12) in which it was clear that the British fisheries rights sought to be preserved by the requested provisional measures would be directly affected by the ultimate decision in the case even though the formal reliefs sought in the latter were declarations which related not to those rights themselves, but only, in substance, to the question whether Iceland's claim to an exclusive fisheries zone of 50 miles was valid in international law (I.C.J. Pleadings, Fisheries Jurisdiction, Vol. 1, p. 10, para. 21; and the argument of Sir Peter Rawlinson, ibid., pp. 98 ff.). Paragraphs 13 and 14 of the Order of Court in that case reasoned the position this way:

"13. Whereas in the Application by which the Government of the United Kingdom instituted proceedings, that Government, by asking the Court to adjudge that the extension of fisheries jurisdiction by Iceland is invalid, is in fact requesting the Court to declare that the contemplated measures of exclusion of foreign fishing vessels cannot be opposed by Iceland to fishing vessels registered in the United Kingdom.[p 77]

14. Whereas the contention of the Applicant that its fishing vessels are entitled to continue fishing within the above-mentioned zone of 50 nautical miles is part of the subject-matter of the dispute submitted to the Court, and the request for provisional measures designed to protect such rights is therefore directly connected with the Application filed on 14 April 1972" (I.C.J. Reports 1972, p. 15).

In the second case relied on by Guinea-Bissau, namely, the Anglo-Iranian Oil Co., Interim Protection (I.C.J. Reports 1951, p. 89), provisional measures were indicated for the protection of the company's property rights, although the United Kingdom's primary claim was only for a dec-laration that Iran was under a duty to submit the dispute to arbitration. This situation seems a little closer to the thesis of Guinea-Bissau. However, three observations may be made. First, in the absence of provisional measures, the execution of a possible decision by the Court that Iran was under a duty to submit to arbitration in respect of the property rights claimed by the company could be prejudiced (see the language used in the Electricity Company of Sofia and Bulgaria case, P.C.I.J., Series A/B, No. 79, p. 199). Secondly, if the Court held that Iran was under such a duty, the arbitration would presumably follow on the Court's judgment and so constitute, together with the decision of the Court, a connected series of proceedings leading to a definitive determination of the dispute concerning the substantive property rights. This perhaps explains why, in its main application, the United Kingdom also requested a declaration that Iran was additionally "under a duty ... to accept and carry out any award issued as a result of such arbitration" (I.C.J. Pleadings, Anglo-Iranian Oil Co., p. 18, para. 21(a)). And, thirdly, the United Kingdom had in any event sought, if only alternatively, a declaration from the Court as to the substantive property rights of the company (ibid., pp. 18-19, para. 21 (b)).

These cases suggest that the approach taken by Guinea-Bissau is subject to a limiting factor represented by the reflection that the situation created by an indication of provisional measures should be consistent with the effect of a possible decision in the main case in favour of the State applying for such measures. This was obviously the position in the two cases cited by Guinea-Bissau. But here, if provisional measures were indicated to restrain the Parties from carrying out any activities in the area in question, the situation so created would not be consistent with a possible decision in favour of Guinea-Bissau on the issue of the existence or validity of the award. As pointed out by the Court, such a decision would not determine the actual rights of the Parties in the area in question. In the particular circumstances of this case, all that would happen if Guinea-Bissau succeeded would be that the original dispute would resume without any machinery being automatically instituted to resolve it, and with each Party being at liberty to act within the limits allowed by international law [p 78] in the light of the merits of its position as it exists independently of the award. This liberty of action, arising from the situation so created by a decision in favour of Guinea-Bissau on the question of the existence or validity of the award, would be actually inconsistent with the situation created by an indication of provisional measures restraining the Parties from carrying out any activities, instead of being consistent with it as in the normal case. The real analogy seems to be with cases in which a request for provisional measures was refused on the ground that the measures sought were intended to preserve rights which did not form part of the rights which were the subject of the substantive dispute (see the cases of the Polish Agrarian Reform and German Minority (P.C.I.J., Series A/B, No. 58, p. 178), and the Aegean Sea Continental Shelf, Interim Protection (I.C.J. Reports 1976, p. 11, para. 34)).

For these reasons, I feel unable to consider that the interesting and learned arguments of Guinea-Bissau on the point in question could lead to a result other than that reached by the Court.

(Signed) Mohamed Shahabuddeen.

[p 79]

Dissenting opinion of judge Thierry

[Translation]

Article 41 of the Statute of the Court provides that

"The Court shall have the power 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",

while Article 75, paragraph 2, of the Rules of Court is to the effect that

"When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request."

These provisions are perfectly clear. They leave the Court a great deal of latitude in the exercise of its judicial function in the sphere of provisional measures. This is apparent from the condition to be fulfilled in order that such measures may be indicated, and from their aim, their object, and their nature.

Only one condition has to be fulfilled in order that measures may be taken. (It is important not to confuse the condition with the object of the measures.) This single condition is that the measures be required by the circumstances. But, if the circumstances actually require such measures, they "ought" to be taken (Art. 41).

The measures have also a single aim. It is defined by Article 41 in a simple and straightforward 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 pluralFN1) 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.
--------------------------------------------------------------------------------------------------------------------- FN1The English version of Article 41 ("to preserve the respective rights of either party") differs substantially from the French version.
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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 [p 80] 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.

In the present case the Court has not considered that it should make use of its power to indicate such measures, as requested by Guinea-Bissau. This negative decision is, in my opinion, regrettable and I cannot, much as I would have liked to do so, associate myself with it. The reasons for this position are, in brief, the following.

It appears to me that:

(1) the circumstances required that provisional measures be indicated and hence they ought to have been indicated;
(2) there was no legal obstacle in this case to the exercise by the Court of its power and the fulfilment of its obligation;
(3) the measures should have had as their object to bring the Parties to the negotiating table, on the basis of the intention of Senegal as conveyed by its counsel, in order to prevent a recurrence of the incidents that motivated Guinea-Bissau's request and, by the same token, the aggravation of the dispute.

I shall not deal with the question of prima facie jurisdiction, with regard to which I share, in essence, the opinion of the Court.

I. The Circumstances Required that Provisional Measures Be Indicated

An examination of the circumstances involves a review of the facts that have given rise to the request for provisional measures. The Senegalese authorities had boarded fishing vessels (a Chinese and a Japanese one) in the maritime area where the rights of the Parties are the subject of the [p 81] principal or fundamental dispute dividing them. These facts it should be noted are not disputed by Senegal. There is room for different opinions as to their gravity. Counsel for Guinea-Bissau took pains not to exaggerate in this respect. But it is impossible to question their importance in connection with the dispute and with the interests of Guinea-Bissau. They are such as to lead to an aggravation of the dispute, to provoke reactions on the part of Guinea-Bissau. According to the information made available to the Court, such reactions have already occurred and are liable to repeat themselves. To use common parlance, "things are getting out of hand". In legal terms one can say that the incidents in question are jeopardizing the neighbourly relations between two States called upon to cooperate with each other in the exploitation of the maritime resources of the areas off their coasts, in conformity with the norms of international law. 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.

II. There Is, in This Case, No Decisive Legal Reason against the Indication of Provisional Measures

A non possumus must, whenever the circumstances require the Court to indicate provisional measures, be very solidly grounded. Legal reasons that are compelling and incontrovertible are necessary if the dictates of prudence are to be justifiably set aside.

Two arguments have been advanced in this connection, based on case-law rather than on the terms of Article 41 of the Statute. The first, which was commented upon at length at the hearings but not adopted by the Court in the reasoning of its Order, relates to the absence of an irreparable damage. The boarding of vessels has not, it is alleged, caused damage of this nature that would have justified the indication of provisional measures. The second argument, which, on the contrary, the Court specifi-[p 82]cally cites as the basis of its decision, is grounded on the alleged absence of a sufficiently close connection between the legal interest underlying Guinea-Bissau's principal request, namely, that the arbitral award of 31 July 1989 be declared null and void or inexistent, and the legal interest on which it has based its request for provisional measures, relating to the situation in the maritime area wherein it claims rights. These are the two arguments to which we must address ourselves.

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 occur-ring. 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.

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 terri-[p 83]torial 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 Gui-nea-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 indi-cating the provisional measures which the circumstances require.

III. The Provisional Measures Which Should Have Been Indicated by the Court

As we have emphasized from the outset, the Court, by virtue of Article 41 of its Statute and Article 75, paragraph 2, of its Rules, possesses a complete freedom of choice with regard to the measures which it can indicate for the preservation "du droit de chacun ".[p 84]

Guinea-Bissau has requested the Court to invite the Parties to abstain in the disputed area "from any act or action of any kind whatever, during the whole duration of the proceedings until the decision is given by the Court".

The Court could reasonably have considered that the foregoing formula required amendment. It would have been going too far to prohibit all activities in the area and, in a manner of speaking, to "freeze" them throughout the duration of the proceedings, which could be lengthy. Other formulas should therefore have been sought which would have laid stress, on the one hand on the need to prevent the aggravation of the dispute and on the other on the duty of the Parties not to anticipate the decision of the Court on the merits. That last consideration is important, particularly from the standpoint of the exercise by the Court of its judicial function.

At all events, great attention should have been paid to the statement made at the close of argument on the instructions of the Agent for Senegal. That statement, by counsel for Senegal, was worded as follows:

"Now I would only add on the instructions of the Agent for Senegal, that the Court has the assurance of Senegal that until such time as this unfortunate dispute is resolved, Senegal, for its part, will use all diplomatic means available to it to negotiate with Guinea-Bissau an arrangement which will preclude incidents prejudicial to a peaceful resolution of the matter."

The Court should have relied on that declaration to determine the provisional measures required by the circumstances.

Can there be anything more in conformity with the mission of the Court, when it is seised of a request for the indication of provisional measures, than to rely on the convergence of that request with the intentions expressed by the other Party, in order to invite both of them to exercise moderation and encourage them to undertake negotiations with the aim, initially, of preventing any aggravation of the dispute?

Such a decision would, in my opinion, have been in perfect harmony with the spirit and the letter of Article 41 of the Statute and Article 75 of the Rules of Court.

(Signed) Hubert Thierry.

 
     

   

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