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Provisional Measures in the Practices of the International Court of Justice

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20 July 2011

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Provisional Measures in the Practices of the International Court of Justice


Prasit Pivavatnapanich§


Introduction

It is generally accepted that a power of indication of provisional measures, or interim measures, measures conservatoires in French1, which is deemed to be an incidental jurisdiction2, both at domestic and international proceeding, has played a paramount role in preserving rights in dispute of the Parties concerned, pendente lite  the final judgment on the merits of the main claim. At the same time, such interim protections also ensure that an outcome of a final decision rendered by the World Court or other international tribunals is still effective and enforceable. At present, there are several new courts, such as the International Tribunal for the Law of the Sea3 , the International Criminal Court4 , and chambers, like the Chambers of the World Court and the Sea- Bed Disputes Chamber, which are endowed with the power to order interim protections. But this work examines the role and importance of provisional measures embodied in article 41 of the Statute5 , including proprio motu contained in article 75 (1) of the Court’s Rule of Procedures6 , in the light of the practice of International Court of Justice7  (hereafter called ICJ) and the International Centre for Settlement of Investment of Disputes (hereafter ICSID). The paper mainly comprises five parts. The first part deals with the purpose of interim protections. In this part of the work, the present author explains the roles and objectives of interim protections.

The second part, considered the gist of this paper, focuses upon the key elements of indication of such measures. In dealing with the decisive factors of ordering injunctive relief, the practices of the Hague Court relating to requests for indication provisional measures shed light on the criteria of such measures. 

This is followed by an important discussion of some of the problems of interim measures, in both a practical and a theoretical way, highlighting the problematic relation between interim protection and jurisdiction on merits of the case.

Finally, there is a brief analysis of the legal status of interim relief, an issue deemed to be difficult. There are, at least, two questions, requiring further careful exploration. Is order of indication of provisional measures legally binding? If the answer is positive, the next question is how are such measures enforced?. Then, in the case of a respondent state failing to comply with the interim protections, what is a sanction? These issues, inevitably, need to be clarified.                

1. The Purpose of Provisional Measures

There are, by and large, two main purposes of indication of provisional measures. The first is to preserve the respective rights relating to the main claims before deciding the merits of the case8.  The primary function of interim relief is to maintain the status qua9 , or restitution in integrum.

The second, and most importantly, is to maintain the integrity of the ultimate judgment of the Court, or arbitral awards10 . According to Jiminenez de Arechaga, a former President of the ICJ: “The essential object of the provisional measures is to ensure that the execute of a future judgment on the merits shall not be frustrated by the actions of one party pendent lite…11 ”  

2. The Criteria of Provisional Measures

In analyzing the conditions to render interim protection, a close careful study of practices of orders of the Court concerning a request for indication of provisional measures is indispensable. With regard to the role and importance of provisional measures as provided by article 41, although most international lawyers take the view that its Statute denies a concept of stare decisis as a result of article 5912  of the Statute of the Court13 , case law shows that the power of indication of interim protection was not arbitrary but was consistent with previous orders regarded as an authoritative decision. Moreover, both applicant States and respondent States rely heavily upon previous cases in order to further frame and develop their requests for indication of interim protections. However, in some borderline cases, learned judges do not share the same view on the issues of interim protection. As a general rule, there are sine qua non three interrelated conditions in order to issue interim protections of rights in dispute of the parties14.  The next paragraphs devote more attention to each criterion.       

2.1 Urgency

Clearly, an urgent situation, or an imminent jeopardy, plays a distinctive role in determining the provisional measures so as to protect the rights of the parties concerned. The requirement of urgency can not be found in article 41 of its Statute. Instead, the Rules of Court stating that a request for indication of interim protection is primarily considered as the first priority15 is considered to connote the notion of urgency.  This means that, argumentum contrario, the Court and the Tribunal can repudiate a request for the indication of interim measures of protection if they find that the imminent danger does not exist or is too remote. To put it more simply, the Court declined to indicate interim protections if the relevant circumstances are devoid of urgency. The jurisprudences of the Court demonstrated that a requirement of urgency has been well established.  

In the history of case law of the present Court, there are only three cases where requests for indication provisional measures were dismissed by the ICJ on the grounds of lacking the situation of urgency16. In the Interhandel case, the Court rejected a request for interim protections asked by the Swiss on the grounds of lacking urgency.  Several decades later, The Court had an opportunity to closely examine such a requirement in the Great Belt case between Finland and Denmark in 1991. In this case, Finland requested for indicating interim measures, banning further a construction of a bridge constructed by Denmark. After a careful examination of such a request, the Court refused to indicate interim measures on the account of a lack of urgency. In this case, the Court found that the bridge had not been built before 1994 and the Court rendered a judgment before that time17.    

Almost ten years later, in the Arrest Warrant case, the Court reiterated the same line of reasoning as to why a request for indication of interim protection should be dismissed. To be able to understand the reasoning given by the Court, a background of this case should be briefly considered. In the case concerning the Arrest Warrant between the Democratic Republic of the Congo, or formerly Zaire, and Belgium, a Belgian investigating judge issued and circulated an international arrest warrant against Mr. Abdulaye Yerodia who acted as the Minister for Foreign Affairs of the Congo, as he was charged with crimes against humanity. Several months later after the Belgium judge issued the arrest warrant; the Congo submitted a request for indication of provisional measures to the Court on 17 October 2000, thereby annulling the international arrest warrant. After that time, Mr. Yerodia was replaced as the Minister for Foreign Affairs as a result of a Cabinet reshuffle and appointed as the Minister of Education. The Court relied on, among other things, two principal reasons for rejecting the request. 

First, and most importantly, the Minister of Education in comparison with the Minister for Foreign Affairs has few chances to conduct international affairs, thereby involving less frequent trips aboard18 . Accordingly, two necessary requirements, condition sine qua non, namely a matter of urgency and a principle of irreparable prejudice, were not established, thereby dismissing such requests submitted by the Congo.       

Second, in the stage of oral arguments, the Court found that the Parties were willing to make diplomatic efforts to mend fences, resolving the international row by peaceful means19.  The Court, therefore, decided that the circumstances did not require the indication of provisional measures as recognized by article 41 of its Statute. The Court was both wisely and rightly wedded to promoting pacific settlements of disputes, if possible, rather than responding to the claims of the Parties without taking into account other amicable solutions.         

2.2 Irreparable prejudice

In order to achieve a request for interim protections, it is necessary for the Parties, either plaintiff or offender to demonstrate that actual jeopardy will occur if the Court or the Tribunal do not issue the provisional measures. This means that such a request will be dismissed by the Court if the Parties fail to prove the actual loss, adding that actual damages are not too remote. In Amco Asia Corp. v. Indonesia20 , the Indonesian government made a request for interim protection on the grounds that the plaintiff published an article that possibly aggravated or exacerbated the dispute, affecting the climate of investment in Indonesia. Hence, the plaintiff had to desist from propaganda but the such request was rejected by the Tribunal because the such article did not create any actual harm or aggravate the dispute.     

Basically, interim protection is a matter of discretion21 . It means that the right in disputes of a requesting State can be compensated in the final decision on the merits of the case.

2.3 Right in issues

Besides the two key elements mentioned above, a concept of rights in issue is a sene qua non to render the indication of provisional measures. If the Court finds that a request for indication of interim protection is not closely relevant to the merits of the case in hand, such a request, of course, is denied. It should be also noted that legal rights claimed must be based upon existing laws, or lex lata not lex ferenda, i.e. conventions, customary international law or general principle of law. It follows that it is incumbent on a requesting State to demonstrate that, before the Court, international law recognizes her rights in dispute which are violated by a respondent State.  

In the Arbitral Award in 1989 (Guine-Bissau v. Senegal), Guine-Bissau requested interim measures but the Court dismissed the request on the grounds that “the alleged rights sought to be made the subject of provisional measures are not the subject of the proceeding 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 merits22 . In this case, the main argument was exclusively concerned with the validity of the arbitral award concerning the maritime frontier. Such a request did not directly involve an issue of the validity of the arbitral award concluded between two states. By contrast, the request per se dealt with maritime activities. With respect to the third criteria, Professor Collins pointed out clearly that “The…provisional measures are designed to protect right in issue and not other rights23 ”.  The element of rights in dispute was considerably highlighted by Judge Shahabuddeen in the Passage through the Great Belt Case (Finland v. Denmark). According to Judge Shahabuddeen’s view24 , the requesting Sate must demonstrate the existence of the right claimed sought to be protected. 

It should be noted that an issue of jurisdiction on the merits is not deemed to be a necessary element to indicate provisional measures. According to Judge Arechaga ‘s view25 , a former President of the ICJ, the possibility of jurisdiction over the merits is, inter alia, only one relevant condition. The Court, therefore, must take into account other elements i.e. urgent circumstances, legal rights claimed.        

To sum up, in order to issues provisional measures as provided by article 41 of the Statute of the International Court of Justice, three criteria, as we have seen, must be always met. Argumentum contrario, the Court can refuse to issues such measures if one of the three elements of indication of provisional measures is absent.

More interestingly, however, these criteria, well established in the case-law of the ICJ, were challenged in the Lockerbie case. In this case, the crux of the problem was the relationship between the power of the Court to indicate interim measures and a legal effect of resolutions granted by the Security Council. A majority of the judges voted against a request for indication of provisional measures submitted by Libya and five judges, who voiced dissenting opinions, voted in favour of such a request.  The main reason why the Court refused to indicate interim measure was that the resolution issued by the Security Council prevailed the right in dispute claimed by Libya under the Montreal Convention as a result of article 103 explicitly contained in the United Nations Charter26.   

3. Some Problems of Provisional Measures 

3.1 The Problem of Provisional Measures and Jurisdiction

3.1.1 The practice of International Court of Justice

One of the most controversial issues widely discussed among international scholars is whether the jurisdiction of the World Court is deemed to be a prerequisite of indicating interim measures. With regard to this point, legal opinions can be divided into two camps. The first group, which has been well established by the jurisprudences of the ICJ together with a number of individual judges who delivered separate opinions27 , including leading commentators28 , does not consider the jurisdiction on a merit of a case in hand as a basis for issuing the provisional measures. The jurisprudences of the Hague Court have firmly recognized a prima facie test as appropriate grounds for granting interim protections29.  The prima facie test means that the Court is able to indicate such measures if, prima facie, the Court does not manifestly lack jurisdiction, that is to say, a request for indication of interim protection does not obviously fall outside a jurisdiction over the case.  In other words, the ICJ ‘s power to render such measures does not primarily predicate upon the jurisdiction of the ICJ over the case in question. Consequently, the ICJ is able to indicate provisional measures even if, after painstaking examination, it possibly lacks jurisdiction. The problem of the relationship between the jurisdiction and the power to indicate provisional measures was first revealed in the Anglo-Iranian Oil Co. in 195130.  The Court took the view that the Court, prima facie, had jurisdiction over the case, albeit fully established.

It should be added that the subject matter of jurisdiction is most crucial to the Court, equally to an applicant and a respondent, so the ICJ has always born in mind that the indication of provisional measures did not prejudge the question of the jurisdiction of the Court, which requires an individual judge to carefully scrutinize this issue again after the applicant instituted proceeding against the respondent, including any relevant issues pertaining to the merits of the case. This concern was markedly reflected in the Nicaragua Case. After issuing provisional measures under article 41 of the Statue of the Court in tandem with article 73 and 74 of the Rules of the Court, the Court observed that “Whereas the decision given in the present proceeding in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relation to the merits themselves.”31  

In addition, some jurists adopted the view that a source of indicating interim measures coming from article 41 is independent from a source of jurisdiction over a merit of dispute arising from article 36 (1) or (2), widely known as compulsory jurisdiction32

In contrast, the second group expressing a minority view that can be found in several dissenting opinions took a different position in that the power to issue interim measures was only anchored in the jurisdiction of the main claim. It follows that the power to indicate such measures presupposes the jurisdiction on the merit of the dispute. It sounds like a convincing argument.  In the Anglo- Iranian Oil Co, Judge Winiarki, a Polish judge, and Judge Badawi, an Egyptian judge, had the opportunity to deliver dissenting opinions with meaningful reasons. The latter put it this way: “The question of interim measures of protection is linked, for the Court, with the question of jurisdiction; the Court has power to indicate such measures only if it holds, should it be only provisionally, that it is competent to hear the case on its merits”33   Apart from the two learned judges mentioned earlier, several judges, in later cases, opposed the indication of provisional measures before considering the issue of the jurisdiction. In the Fisheries Jurisdiction Case, Judge Padilla Nervo, confirmed the opinion of Judge Winiaski and Badawi Pasha. According to Judge Padilla Nervo‘s view, the Court should not indicate measures of protection because the question pertaining to the jurisdiction of the Court had not been fully explored34.

In addition, one year later, in the Nuclear Test Case, Judge Andre Gros, a French jurist, and Judge Foster shared the same view that appeared in dissenting opinions. What is more, by the same token, Judge Nagendra Singh was deeply concerned about the prima facie test as a legal basis for indication interim protections. The line of his argument is very interesting and convincing.  He put it “ The burden on the Court to satisfy itself about its own competence becomes much more important if in such circumstance it wishes to contemplate the granting of interim measures of protection. The Court must then feel a higher degree of satisfaction as to its own competence than can be derived from the positive but cursory test of “prima facie” jurisdiction or the negative test of “no manifest lack of jurisdiction”35 . [emphasis added]  Judge Morozov further expressed more juristic reasoning, in his separate opinion, an opinion with which the present author concurs, on the question of the competence of the Court to entertain the merits as provided by article 36 and the power to indicate interim measures under article 41 of the Statute36.  By way of interpretation, Judge, moreover, advanced his arguments by looking at the structure of the Statue of the International Court of Justice together with the Rules of Procedure. After carefully considering both, Judge Morozov stated that “Article 41 and 48 of the Statute are to be found in Chapter III of the Statute under the title “Procedure”. This means that provision of that Chapter cannot be regarded as something which may be separated from Chapter II of the Statue”. After explaining the relationship between the jurisdiction on the merits and the power to grant such measures, he went on to the conclusion that “It is however important to stress that the Court has no right to consider the question of interim measures of protection, before it has satisfied itself that it has jurisdiction in accordance with Article 36 and 37 of the Statute”. Also, before ending his separate opinion, Judge Morosov emphasized that “Thus neither the Statute nor the Rules of the Court contain any provisions which provide that the request for interim measures of protection has any priority over the question of jurisdiction”.           

Apart from the dissenting opinions previously mentioned, in the Nicaragua Case where the problem of jurisdiction was extremely significant, an Agent of the United States of America adopted a similar view by contending that the Court lacked jurisdiction relating to the merits and, then, a fortiori, became devoid of jurisdiction to indicate the provisional measures requested by Nicaragua, thereby the Court removed the case from the list37.  Unfortunately, the Court disagreed with the United States ’s claims and, subsequently, found that the jurisdiction on the merit might be founded and, by a unanimous decision, the Court granted the provisional measures, rejecting the request asked for by the United States of America that was strongly opposed to the indication of provisional measures.          

3.2 Humanitarian Concerns as Grounds for Indication of Interim Protection

Several years ago, the Court voted in favour of a request for interim protections of human rights in order to postpone the execution of two individuals, namely Mr. Breard and Mr. La Grand; both of them were found guilty of murder by the Virginia Court and Arizona Court, respectively. This was not the first time in its history that the World Court employed provisional measures, as provided by article 41 of its Statute, to protect the rights of civilians. In the Tehran case, such measures were used by the Court, without hesitation, because the plight of hostages was at stake. The Court stated that “ Whereas continuance of the situation the subject of the present request exposes the human beings concerned to privation, hardship, anguish and even danger to life and health and thus to a serious possibility of irreparable harm.”38   Again, the Court exercised its primary function by granting the interim protections in order to save the rights of Nicaraguan citizens to live.     

In the two cases previously mentioned, the Court, obviously, properly functions as the principal organs of the United Nations that has a duty to resolve international disputes between states by issuing interim protections, which might minimize international tension between parties, upholding the respective rights of the parties. The Court‘s decisions were deservedly highly commendable.

In contrast to such cases, as we have seen, in the Breard and La Grand case, the Court indicated interim protections in order to prolong the stay of execution of an individual, actions which have been criticized by some commentators39  or even a judge who voted in favour of the Court’s Order. For a better understanding of the issue of humanitarian reasons as grounds for granting interim protections, the basic facts of such cases should be briefly mentioned. For the former case, Mr. Angel Francisco Breard, a Paraguayan who was charged with manslaughter and rape, after being found guilty, was sentenced to death penalty under the law of Virginia. In the latter case, the facts repeated themselves. Karl and Walter La Grand, who held a German nationality and dwelled in America for many years, were indicted for committing heinous crimes, murdering a bank manager, robbing a bank and kidnapping two employees. Ultimately, they faced the same fate as Breard, namely, capital punishment under the law of Arizona. In essence, a salient feature of the two cases mentioned earlier was that they shared a common legal point, namely, the American government breached the right of the nationals to communicate with their consular office manifestly enshrined in article 36 (1) of the Vienna Convention on Consular Relations 1963 that is widely considered as international customary law and accepted as a binding erga omnes.             

In both the Breard and La Grand case, Judge Shigeru Oda, the well known dissenter, appends a declaration to the Order of the Court. Although he voted in favour of, with great hesitation, a stay of execution of such persons, he considered that the request for the indication of provisional measures should have been dismissed40 , a view that the present author fully agrees with. Before ending his declarations, he accepted that he voted in favour of the Order, in both cases, for humanitarian reasons41.  Moreover, he did not shrug off of his responsibilities as he expressed his deep concerns about the functions of the Court that is primarily responsible for resolving international conflicts among states instead of intervening directly in the plight of a private person42.  Although his line of legal reasoning was correct, for me, if readers, who read his separate opinion with juristic mind, are not purely persuaded by sympathy for the condemned persons, his separate opinion was strongly criticized by Michale Addo who said that “Judge Oda is clearly swimming against the tide43 .”              

It seems to me that Michale Addo jumped to the conclusion that the Breard case and the La Grand case were justified by the reason of the Court’s Order enumerated in the Tehran case and the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case44 . His proposition is that life is life. Any destruction of human beings is contrary to the rights of the individual. His arguments may be flawed. From both my legal and moral standpoints, we can not equate the lives of Mr. Breard and Mr. La Grand, who committed serious crimes, with lives of people, who were innocent, in the Tehran and the Nicaragua case. We cannot, and should not, compare the lives of Breard, Karl and Walter La Grand with the lives of a scores of innocent people in the Tehran case, let alone systematically annihilating tens of thousands of innocent civilians, the so called ethnic cleansing, in the Application of the Convention on the Prevention and Punishment of the Crime of The Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) case.45  Three lives pale into insignificance when considering the massacres, tortures, exterminations and collateral damage that took place in Bosnia, including other parts of the World like East Timor and Burundi.

One might feel that the execution of a person per se violates a value of life with a capital L. Nowadays, it has become a cliché to describe the death penalty as a breach of international human rights, a view particularly supported by non-governmental organizations, widely known as NGOs and also some academic circles46.  Unlike in the past, a modern concept of human rights, on a global scale, has now been thrust into the limelight. Although the prime objectives of this essay are not primarily involved with the death penalty under international law, the author would like to touch upon this issue.

Many countries have manifestly recognized capital punishment in their criminal law, even some states in U.S.A, a land of freedom, like Texas or in other parts of the world such as, China, Thailand47 , a Buddhist nation. If the death penalty is contrary to international law on human rights, the criminal law of many countries per se is inconsistent with international legal norm, possibly leading to responsibility of state on the international level. But this cannot hold because the legal status of the legality of death penalty in the context of international law of human right is vague. Up to the present time, a lot of prisoners worldwide have been sentenced to execution by injection, hanging or shooting. It is generally accepted that, in principle, the criminal procedures, from jurisdictions, investigations, litigations, punishments to judicial reviews, are primarily regarded as a domestic affair without interference from other nations. But this does not means that the present author agrees with the inappropriate manners of the American government, violating consular assistances. In my scholarly view, in the La Grand case, there are two issues that must be separately examined. The first is the legality of death penalty. The second is the violation of article (1) of the Vienna Convention on Consular Relations.  The second question is not contingent upon the first question. It follows that although Breard and La Grand contacted their consular at the time of arrest or detention behind bars, the final outcome was not considerably different, that is to say, the sentencing of such culprits to death.                  

4. Types of Interim Measures

Typically, the power of the Court and the Tribunal to grant interim protections is very broad, allowing the Court to use delicate discretion to indicate such measures in case by case.

In the precedents of the World Court, the Court had several opportunities to indicate such measures to protect rights in dispute. There are various kinds of interim protections, depending upon the circumstances required. For example, The Court granted provisional measures on the grounds that the conducts of the respondent State resulted in irreparable injuries, like nuclear testing or military activities, ethnic cleansing and genocide, and the Court can also alleviate international confrontations between the Parties, particularly legal disputes of maritime boundaries. In these situations, the Court and the Chamber usually render interim protections in the form of ordering such respondents to immediately desist from any kinds of military operations48 , release innocent hostages49 , prevent and refrain from any armed conflict50.   

In the precedents of the ICSID, arbitrators issued provisional measures on the account of halting parallel national proceedings, an action is viewed as the most important interim measures. In the MINE case between the Republic of Guinea and Maritime International Nominees Establishments (MINE), Mine instituted proceedings before two national courts, the Antwerp Court and the Geneva Court respectively. The Republic of Guinea sought the request of interim measures before the ICSID tribunal, desisting from parallel domestic proceedings by MINE which were explicitly recognized by article 2651  of the ICSID Convention. The Tribunal agreed with the such request and recommended that “MINE immediately withdraw and permanently discontinue all pending litigation in national courts, and commence no new actions… ”52        

5. The legal status of Interim Measure: moral or legal binding force 

The problem of the legal status of interim relief has been discussed among commentators because the Statute uses the word “indicate”, connoting merely recommended opinion and lacking mandatory force. According to Bowett ’s view, the question of the legal effect of provisional measures indicated by the I.C.J. remains an open question53.  Also, many international lawyers express the view that interim measures of protection is deemed to be an advisory character54  required the Parties to consider such measures in bona fide, rather than legally comply with the provisional measures. 

This problem was explained when the Agent of United States of America, in the Breard and La Grand cases in relation to a delay of the execution of two foreigners who lived in America, contended that an interim relief granted by the Court lacked a legal force, thereby was not binding the United States of America and could not furnish a basis for judicial relief55.  But the Court disagreed with the United States ’s argument.

In consideration of the ICSID convention, after a careful reading of article 41 of the ICSID Convention, one might feel that interim measures are not deemed to be a legal biding force because the such article uses the word “recommended”, rather than “prescribe” or “order”. Some prominent jurists like Dr. Shihata, Prof. Collins, regarded the provisional measures granted by arbitrators as a non-juridical binding force, or a moral force.56  In order to understanding the spirit of this article drafted by Dr. Broches, the first Secretary- General of the ICSID, resorting to a travux preparatories of the ICSID is very helpful. According to the first draft, the word “prescribe” is used, in stead of “recommend.” Also, in the first tentative draft, it included a penalty in the case of failing to comply with such interim measures. But this proposal was objected to by the Chinese delegate on the grounds that the Parties, in some cases, cannot carry out the provisional measures if such measures were inconsistent with “necessity on national policy.”57  The Member, therefore, fully agreed that the word “prescribe” should be superseded by the word “recommend”, including omitting the specific sanctions in the case of ignoring the arbitral award.     

6. Final Thoughts

As far as international law and the function of the Hague Court are concerned, interim measure of protection granted by the Court is primarily designed to preserve the legal rights of the Parties and, hopefully, lessen international tensions between states. The practice of the World Court regarding issuing interim relief upheld the principal responsibility of the Court, reducing international conflicts.

The World Court as the principal and judicial organ of the United Nations functions as the legal machinery for adjudicating upon international legal matters 58, not political problems, on an international scale between sovereign states. To be able to reach this goal, the power to grant interim protections, which is inherent to the Court, is indispensable.    

In the resent years, the International Court of Justice, a successor of the Permanent Court of Justice, had opportunities to employ interim relief to protect private persons in the context of human rights, for example in Tehran Case, Nicaragua Case, Yugoslavia Case etc, or even the life of an individual person in the Breard Case and La Grand Case. In the distant past, classic international law was much more concerned with the relationship between modern states in the sense that sovereign states were only regarded as a main subject of international law, precluding private persons from the sphere of public international law in terms of application. But now international law has gradually involved private interests, especially in the context of humanitarian concerns and environmental problems. These cases mentioned in the forgoing paragraphs are the par excellent of the role of the World Court in relation to protecting international human rights through ordering provisional measures. Hopefully, interim measures, which are employed as interlocutory proceeding, operating in tandem with shuttle diplomacy as opposed to the previous gunboat diplomacy as well as other peaceful means will be properly exercised in order to pacify international disputes that have occurred in many regional areas around the world. 

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§ Lecturer in Law, Department of International Law, Faculty of Law Thammasat University.

1) See SHABTAI ROSENNE, PROCEDURE IN THE INTERNATIONAL COURT 149 (1983).

2) See PHILIPPE SANDS and PIERRE KLEIN, BOWETT’ LAW OF INTERNATIONAL INSTITUTIONS 359 (2001); TIMOTHY HILLIER, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 239 (1999).

3) See Article 290 of United Nations Convention on the Law of the Sea 1982. Those who are interested in granting interim measures of protection prescribed by the International Tribunal for the Law of the Sea see Sompong Sucharitkul, New Approaches to Inter-State Dispute Settlement.; Leah Sturz, Southern Bluefin Tuna Case: Australia and New Zealand v. Japan, 28 Ecology Law Quarterly 455 (2001); Moritaka Hayashi, The Southern Bluefin Tuna Case: Prescription of Provisional Measures by the International Tribunal For the Law of the Sea, 13 Tulane Environment Law Journal  361 (2000).    

4) See article 68, 92 of the Rome Statute of International Criminal Court 1999. It should be pointed that that no article in the Rome Statute is directly concerned with provisional measures but such articles authorize the Court to take appropriate action to protect victims and witnesses and to provisionally arrest the person, pending presentation of a request for surrender and documents. 

5) According to article 41, it is stipulated 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.”

6) Article 75 (1) provides that “ The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.”

7) A good brief historical review of ordering provisional measures of protections in the light of the practice of the Permanent Court of Justice and the International Court of Justice is the Oda’s article. See Shigeru Oda, Provisional Measures: The Practice of the International Court of Justice, in Vaughan Lowe and Malgosia Fitmaurice, Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (1996).

8) See Aegean Sea Continental Shelf case, I.C.J. Rep 1976, para. 25; Diplomatic and Consular Staff in Tehran Case, I.C.J. Rep 1979, para. 36;

9) See Bernard H. Oxman, Jurisdiction and the Power to Indication Provisional Measures, in Lori F. Damrosch (ed), The International Court Justice at a Crossroads 328 (1987).

10) See Lawrence Collins, Essays in International Litigation and the Conflict of Laws 12 (1994).

11) See I.C.J. Rep, Aegean Sea Continental Shelf Case (Greece v. Turkey) (1976), pp.15-16

12) Article 59 states that “The decision of the Court has no biding force except between the parties and inn respect of that particular case.” 

13) However, on this point, Judge Shahabuddeen thinks that such an article is not concerned with the question of precedents. Article 59 only underscores the juridical force of a decision, qua decision, that binds only the parties to the particular cases. But it does not mean that a previous decision bars the Court from viewing it as a correct legal position. See MOHAMES SHAHABUDDEEN, PRECEDENT IN THE WORLD COURT 63 (1996).  

14) It should be noted that Professor Bowett expresses the view that there are only two factors, namely jurisdiction on the merits and the degree of urgency and risk of irreparable damage, for the Court to grant the interim measures of protection.  See  PHILIPPE SANDS and PIERRE KLEIN, supra note 2, at 360.

15) Pursuant to article 74 (1) of the Rules of Court 1978, it states that “ A request for the indication of provisional measures shall have priority over all other cases.”

16) See Interhandel Case Concerning Request for the Indication of Interim Measures of Protection (Switzerland v. United States of America), I.C.J. Rep. 24 October 1957.

17) Great Belt Case, I.C.J. Rep, 1991. p. 18, 27

18) See Order with regard to A Request for the Indication of Provisional Measures in the Case Concerning Arrest Warrant (Democratic Republic of the Congo v. Belgium) on 8 December 2000, para. 72.

19) Id. para. 74,75,76.

20) See the Decision of the Request of the Republic of Indonesia for Recommendation of Provisional Measures   24 International Law Material 365 (1985).

21) See J.G. Merrills, Interim Measures of Protection in The Recent Jurisdiction of The International Court of Justice, 44 International and Comparative Law Quarterly 90, 109 (1995);

22) See ICJ Report (Order in Case of Concerning the Arbitral Award of 31 July 1989 (Guinea – Bissau v. Senegal) 29 I.L.M. 626 (1990)

23) Lawrence Collins, supra not, p.75

24) See Separate Opinion of Judge Shabuddeen in the Passage through the Great Belt case (Finland v. Denmark)

25) See Separate Opinion of Judge Arechaga in Order on Request by Greece for the Indication of Interim Measures of Protection in the Aegean Sea Continental Shelf case (Greece v. Turkey). Also, Judge Shahabuddeen adopted a similar view. He pointed out that jurisdiction over the merits is merely one element which the applicant must establish in order to succeed in the substantive case. See Separate Opinion of Judge Shahabuddeen in Order With Regard to Request for the Indication of Provisional Measures in the Case Concerning Passage through the Great Belt (Finland v. Denmark)

26) Article 103 provides that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter prevail.”

27) See Separate Opinion of Judge Hersch Lauterpacht in the Interhandel Case (Switzerland v. United States of America); Separate Opinion of Judge Acechaga in the Aegean Sea Continental Shelf (Greece v. Turkey). And Judge Elias shared the same view in the same case.; See also Separate Opinion of Judge Evensen in The Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal).  In his separate opinion, Judge Evensen put it clearly “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.”

28) See M.H. Mendelson, Interim Measures of Protections in Case of Contested Jurisdiction,  The British Yearbook of International Law, 306, 308, 320 (1972-1973); Leo Gross, The Case Concerning United States Diplomatic and Consular Staff in Tehran, 74 the American Journal International Law 395, 400 (1980). 

29) See Nuclear Test case (Austria v. France), Interim Protection, I.C.J Rep. 1973, para. 13; Request for the Indication of Provisional Measures in Case Concerning United States Diplomatic and Consular Staff in Tehran, I.C.J. Rep. 1980, para.15; Request for the Indication of Provisional Measures in Case Concerning Military and Paramilitary Activities and against Nicaragua (Nicaragua v. United States of America), I.CJ. Rep.1984, para. 24.; Order in case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), I.C.J. Rep. 1990, para.20; Order with Regard to Request for the Indication of Provisional Measure in the Case Concerning Passage through the Great Belt (Finland v. Denmark), I.C.J. Rep.1992, para. 14.; Order regard to Request for the Indication of Provisional Measures  in the Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) on 9 April 19981, para. 23; Order with regard to Request for the Indication of Provisional Measures  in the Case Concerning the Vienna Convention on Consular Relations (Germany v. United States Of America), on 3 March 1999,para.13; Order with regard to Request for the Indication of Provisional Measures  in the Case Concerning the Arrest Warrant (Democratic Republic of the Congo v. Belgium), on 8 December 2000, para.67,68.   

30) I.C.J. Rep, 1951,p.93

31) See Military and Paramilitary In And Against Nicaragua (Nicaragua v. United States of America) Request for The Indication of Provisional Measures, 1984, para. 40

32) See J.G. Merrills, Interim Measures of Protection in The Recent Jurisdiction of The International Court of Justice, 44 International and Comparative Law Quarterly 90, 91 (1995);

33) ICJ Report, 1951,p.96

34) See Dissenting Opinion of Judge Padilla Nervo pp.38-39, Fisheries Jurisdiction Case (United Kingdom v. Iceland) and (Republic of Germany v. Iceland) (Requests for the Indication of Interim Measure of Protection)  I.C.J. Rep.1972 , and I.C.J. Rep. 30 (Order of August 17,1972)

35) See Separate Opinion of Vice-President Nagendra Singh in Order on Request by Greece for the Indication of Interim Measures of Protection in the Aegean Sea Continental Shelf Case (Greece v. Turkey), I.C.J. Rep.1976.

36) See Separate Opinion of Judge Morozov in Order on Request by Greece for the Indication of Interim Measures of Protection in the Aegean Sea Continental Shelf Case (Greece v. Turkey), I.C.J. Rep.1976.

37) See See Military and Paramilitary in and against Nicaragua (Nicaragua v. United States of America) Request for The Indication of Provisional Measures, 1984, para. 6

38) See Order with regard to a Request for Interim Measures in Case Concerning United States Diplomatic and Consular Staff in Tehran, I.C.J. Rep. 1980, para. 42.

39) See Alison Duxbury, Saving Lives in the International Court of Justice: The Use of Provisional Measures to Protect Human Rights, 31 California Western International Law Journal 141 (2000)

40) See a declaration of Judge Oda with regard to a Request for the Indication of Provisional Measures in  the case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) on 9 April 1998. See also a declaration of Judge Oda  with regard to a Request for the Indication of Provisional Measures in case Concerning the Vienna Convention on Consular Relations ( German v. United States of America), on 3 March 1999.

41) Id.

42) Id.

43) See Michael K. Addo, Vienna Convention on Consular Relations (Paraguay v. United States of America) (“Breard”) and La Grand (Germany v. United States of America, Applications for Provisional Measures, 48 International and Comparative Law Quarterly 673, 680 (1999).

44) Id.

45) See Order Provisional Measures in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), on 8 April 1993.

46) The most authoritative work in this field is the Prof. Schabas’s book.  See WILLIAM A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN TNTERNATIONAL LAW (1997).

47) See Article 19 of the Thai Criminal Code. It clearly stipulates that “Any person sentenced to death shall be shot to death.”

48) See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaraguav. United Sates of America) (Request for the Indication of provisional measures) , para. 41 B (1).

49) See Case Concerning United States Diplomatic and Consular Staffs in Tehran (United States of America v. Iran) (Request for the Indication of Provisional Measures), para. 47.

50) See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Request for the Indication of provisional measures) para. 47; Case Concerning the Frontier Dispute (Burkina Faso/Mali) (Request for the Indication of Provisional Measures), para.32.

51) According to article 26, it stipulates that “Consent of the parties to arbitrate under this Convention shall, unless otherwise  stated, be deemed consent to such arbitration to the exclusion of any other remedy”.

52) See 1 ICSID-Foreign Investment Law Journal 386 (1986).

53) PHILIPPE SANDS and PIERRE KLEIN, supra note 2, at 360

54) SHABTAI ROSENNE, supra note 1, at 149-150.

55) See La Grand Case (Germany v. United States) 40 I.L.M. 1069 (2001), para. 94.

56) Ibid., 324.; Lawrence Collins, supra note 10 , at.74

57) See Commentary on the ICSID Convention: Article, supra note, p.223; Charles N. Brower and  Ronald E.M. Goodman, Provisional Measure and the Protection of ICSID Jurisdiction Exclusivity Against Municipal Proceedings, 6 ICSID-Foreign Investment Law Journal 431, 441(1991)

58) See PHILIPPE SANDS and PIERRE KLEIN, supra note 2, at 338.

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BIBLIOGRAPHY

Books

Lawrence Collins, Essays in International Litigation and the Conflict of Laws, 1994.

Lori. F. Damrosch (ed), The International Court of Justice at a Crossroads, 1987.

Mohamed Shahabuddeen, Precedent in the World Court, 1996.

Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions, 2001.

Shabtai Rosenne, Procedure in International Court, 1983.

Vanghan Lowe and Malgosia Fitzmourice (ed.), Fifty Years of the International Court of  
     Justice: Eassay in Honour of Sir Robert Jennings, 1996. 

William A.Schabs, The Abolition of the Death Penalty in International Law,1997.

Articles

Alison Duxbury, Saving Lives in the International Court of Justice: The Use of
    Provisional Measures to Protect Human Rights, 31 California Western
International Law Journal, 2000.

Charles N. Brower and  Ronald E.M. Goodman, Provisional Measure and the Protection
    Of ICSID Jurisdiction Exclusivity Against Municipal Proceedings, 6 ICSID-Foreign Investment Law Journal, 1991

Ibrahim Shihata and Antonio R.Parra, The Experience of the International Centre for 
    Settlement of Disputes, 14 ICSID-Foreign Investment Law Journal, 1999.

J. G. Merrills, Interim Measures of Protection in the Recent Jurisdiction of the
    International Court of Justice, 44 International and Comparative Law Quarter,
1995

M.H. Mendelson, Interim Measures of Protections in Case of Contested Jurisdiction, The
British Yearbook of International Law, (1972-1973).

Leo Gross, The Case Concerning United States Diplomatic and Consular Staff in Tehran,
74 the American Journal International Law, 1980. 

Michael K. Addo, Vienna Convention on Consular Relations (Paraguay v. United States
Of America (“Breard”) and La Grand (Germany v. United States of America,
Application for Provisional Measures, 48 International and Comparative Law
Quarterly, 1999.

I.C.J. Reports of Judgments and Orders

Case Concerning Aegean Sea Continental Shelf Case (Greece v. Turkey) (Request
    For the Indication of Interim Protection).

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States
    Of America v. Iran) (Request for the Indication of Provisional Measures).

Case Concerning Military and Paramilitary Activities in and against Nicaragua
Nicaragua v. United Sates of America) (Request for the Indication of Provisional
Measures).

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda) (Request for the Indication of Provisional Measures).

Case Concerning the Frontier Dispute (Burkina Faso/Mali) (Request for the Indication of
Provisional Measures).

Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United
     States of America) (Request for the Indication of Provisional Measures) on 9
April 19981

Case Concerning the Vienna Convention on Consular Relations (Germany v. United
      States of America) (Request for the Indication of Provisional Measures) on 3
March

Conventions

Charter of the United Nations 19451

Statute of the International Court of Justice1945

Convention on the Settlement of Investment Disputes between States and Nationals of
    Other States 1965

United Nations Convention on the Law of the Sea 1982

The Rome Statute of International Criminal Court 1999

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