Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) - The Court dismisses the request for the indication of provisional measures

INTERNATIONAL COURT OF JUSTICE

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4- I No. 90/5
2 March 1990

Arbitral Award of 31 July 1989
(Guinea-Bissau v. Senegal)

The Court dismisses the request for the indication of provisional measures

The following information is cornmunicated to the Press by the

Registry of the Interna.tiona1 Court of Justice:

Today, 2 March 1940, the International Court of Justice, in the case
concerning the Arbitral. Award of 31 July 1989 (Guinea-Bissau v. Senegal),
made an Order dismissin.g, by fourteen votes to one, the request of the

Republic of Guinea-Bissau for the indication of provisional measures.

The Court was composed as follows:

President Ruda; Vice-President Mbaye; Judges Lachs, Elias, Oda,
Ago, Schwebel, Sir ~obert Jennings , Ni, Evensen, Tarassov, Guillaume,

Shahabuddeen and Pathak; Judge ad hoc Thierry.

Judges Evensen and Shahabuddeen appended separate opinions to the
Order of the Court; Judge ad hoc Thierry appended a dissenting opinion.

The printed text of the Order and of the opinions will be available

in a few days' time. (Orders and enquiries should be addressed to the
Distribution and Sales Section, Office of the United Nations,
1211 Geneva 10; the Sales Section, United Nations, New York,
N.Y. 10017; or any specialized bookshop.)

An analysis oE the Order is given below, followed by the text of the
operative paragraph. The analysis has been prepared by the Registry for
the use of the Press and in no way involves the responsibility of the
Court. It cannot be quoted against the actual text of the Order, of
which it does not constitute an interpretation. Aiialysis of the Order

In its Order the Court recalls that on 23 August 1989 Guinea-Bissau

instituted proceedings against Senegal in respect of a dispute concerning
the existence and validity of the arbitral award delivered on
31 July 1969 by the Arbitration Tribunal for the Determination of the
Maritime Boiindary between the two States.

On 18 January 1990 Guinea-Bissau, 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 frorn aay act or action
of any kind whatever, during the whole dur2tion of the
proceedings until the decision is given by the Court."

The Court further recalls the events leading to the present

proceedings: 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 Communauté) and the Portuguese Province of Guinea; after the
accession to independence of Senegal and Guinea-Bissau a dispute arose

between them concerning the delimitation of their maritime territories;
in 1985 the Parties concluded an Arbitration Agreement for submission of
that dispute to an Arbitration Tribunal, Article 2 of which provided that
the following questions should be put to the Tribunal:

"(1) Does the agreement concluded by an exchange of
ïetters 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?

(3) 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 Article 9 of which provided that the decision of the Tribunal "shall

include the drawing of the boundary line on a map".

On 31 July 1989 the Arbitration Tribunal pronounced, 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."In that ;iward t.he Tribunal qlso st-ated its conclusion that "it 1s not
called upon to reply to the setonci question", and tliat "in view of its
àecision it has not tholight it necrssary to append a map showing the

course of the boundary line"; the? Presicierit of the Arbitration Tribunal
apperided a decl~rstion to the award.

Gui.nea-Bissau coiit.ends il its Application to the Court that "A new
dispute then came into existence, relsting to the applicability of the

text issued by way of awarci 011 31. July 1983"; and requests the Court, in
respect of the decision of Che Arbitratioil Tribunal, to adjuage and
decla re :

"- that that so called decision is inexistent in view of the

fact that one ci€ the two ~rbitrators making up the
sppearance of a msjority in favour of the text of the
'awira', has, by a declaratian appended to it, expressed a
view in contradiction with the one apparently adopted by the

vote ;

- subs.idiarily, that that so called decision is null and void,
as the Tribunal did not give a conplete a:iswer 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 Sovernmeilt of Senegal is thus not justified in

seeking to require the Government of Gxinea-Bissau to apply
the so-called award of 31 July 1989;"

The Court observes that Guinca-Bissau explains in its request for
~he 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 delimit~tion to bc eEfected subsequently between the

States;"

Tt then summarizes the incidents which took place a~d which involved
actions by both Parties with regard to foreign fishing vessels.

On the question of its jurisdiction the Court subsequently considers

that, whereas on a request for provisional mensures it need not, before
deciding whether or not to indicate them, finally satisfy itself that it
bas jurisdiction on the merits of the case, yet it ought not to indicate
such measures unless the provisions invoked by the Applicant appear,
prima facie, to afford a basis on which the jurisdicton of the Court

~night be founded; and finds that the two declarations made by the
Parties under Article 36, paragraph 2, of the Statute and invoked by the
4pplicant do appear, prima fscie, to afford a basis of jurisdiction.

It observes t.hat that decision in no way prejudges the question of

the jurisdiction of the Court to deal with the merits of the case. Guinea-Bissau has requested the Court to exercise in the present

proceedings the power conferred upon it bp 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".

The Court observes that 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); that such measures are provisional and indicated "pending the
final decision" (Article 41, paragraph 2, of the Statute); and that

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.

It further notes that 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 r'
award of 31 July 1989"; that 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; that 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.

The Court observes that 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"; that 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; it finds that 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 that any such measures could not be subsumed by the Court's judgment
on the merits.

Moreover, a decision of the Court that the award is inexistent or

null and void would in no way entai1 any decision that the Applicant's
claims in respect of the disputed maritime delimitation are well founded,
in whole or in part; and that the dispute over those claims will
therefore not be resolved by the Court's judgment.Operative paragraph

"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." Annex to Press Communiqué 90/5

Summary of Opinions appended

to the Order of the Court

Separate Opinion of Judge Evensen

The circumstances of the present case do not seem to require the
exercise of the Court's power under Article 41 of the Statute of the
International Court of Justice to indicate interim measures.

But the Court does not need finally to establish that it has

jurisdiction on the merits of the case before deciding whether or not to
indicate interim measures. The absence at this stage of any challenge to
the Court's jurisdiction is relevant in this context.

Ihe avoidance of irreparable damage should not be a condition for

the stipulation of interim measures. Neither Article 41 of the Statute
of the Court nor Article 73 of the Rules of Court contain any reference
to "irreparable damage". The Court's discretionary powers should not be
limited in such a manner.

In the present case guidance may be found in the United Nations

Convention on the Law of the Sea of 10 December 1982, especially in
Part V on the Exclusive Economic Zone and in Part VI on the Continental
Shelf. Both the Government of Guinea-Bissau and the Government of
Senegal have signed and ratified this Convention.

Article 74, paragraph 1, of the 1982 Convention, dealing with the
delimitation of the exc:lusive economic zone between neighbouring coastal
States ~rovides that the delimitation of the zone "shall be effected b.,
agreement". Identical provisions are found in Article 83 of the
Convention on the delimitation of the continental shelf. The Convention

has not yet entered into force.

But these articles give expression to governing principles of
international law in this field. They entail that coastal States should
conclude agreements, where necessary , concerning the allowable catch of

fishstocks, the distribution of this catch between the States concerned,
the issuance of fisheri.es licenses, the character and modes of fishing
gear, the protection of spawning grounds, the maintenance of the
necessary contacts between the relevant national fisheries authorities
together with other mea.ns for the rational and peaceful exploitation of

these vital resources of the oceans.Separate Opinion of Judge Shahabuddeen

In his separate opinion, it appears to Judge Shahabuddeen that
Guinea-Bissau has been 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. But, in his view, such an approach is

limited 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. In this case, if Guinea-Bissau were to succeed in obtaining a
declaration that the award was inexistent or invalid, the original

dispute would be reopened and each party would be at liberty to act
within the limits allowed by international 1a.w. This liberty of action,
resulting from such a decision in Guinea-Bissau's favour, would be
actually inconsistent with the situation created by an indication of
provisional measures restraining both parties from carrying out any

activities, instead of being consistent with it as in the normal case.
Consequently, Judge Shahabuddeen does not consider that the approach
suggested by Guinea-Bissau could lead to a decision different from that
reached by the Court.

Dissenting Opinion of Judge ad hoc Thierry

In his dissenting opinion, Judge Thierry gives the reasons which
have unfortunately prevented him from associating himself with the
Court's decision. Indeed, he takes the view that:

1. The incidents set forth in the Order were such as to require the
indication of provisional measures which ought, for that reason, to
have been indicated in accordance with Article 41 of the Statute and
Article 75, paragraph 2, of the Rules of Court.

2. There was, in this case, no legal impediment to the exercise, by the
Court, of its power to indicate provisional measures, since the
finding that it is called upon to reach with regard to the merits
(i.e., on the validity of the Arbitral Award of 31 July 1989) is bound W
to affect the rights of the Parties in the disputed maritime area.

3. The Court ought to have enjoined the Parties to negotiate on the basis
of the assurances given by Senegal in that regard, in order to
forestall any aggravation of the dispute for the time being.