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The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute

  • PAOLO PALCHETTI

Abstract

The article aims at examining, in the light of the practice of the International Court of Justice, some issues concerning the power of the Court to indicate provisional measures to prevent the aggravation or extension of a dispute. While the existence of a power to indicate non-aggravation measures appears to be well established in the Court's case law, the scope of this power has proved to be a more controversial issue. This study argues that, by attaching relevance to the element of aggravation, the Court has been able to indicate measures that are not strictly needed to prevent a risk of irreparable harm but which at any rate contribute to a greater protection of the rights of the parties; at the same time, however, the Court has so far refrained from regarding the risk of aggravation as a circumstance which may justify a less stringent evaluation of the other conditions that normally need to be satisfied for the granting of interim protection under Article 41 of the ICJ Statute.

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1 See Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, para. 62 (not yet published).

2 Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Request for the Indication of Provisional Measures, Order of 5 December 1939, PCIJ Rep. (Series A/B) No. 79, at 199.

3 On the possible reasons which led the Permanent Court to adopt this solution see J. Sztucki, Interim Measures in the Hague Court (1983), 76–7.

4 See, for instance, Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Provisional Measures, Order of 5 July 1951, [1951] ICJ Rep. 89, at 93; Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Interim Protection, Order of 17 August 1972, [1972] ICJ Rep. 12, at 17; Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, [1973] ICJ Rep. 99, at 106. For a review of the Court's practice, see S. Oda, ‘Provisional Measures’, in V. Lowe and M. Fitzmaurice (eds.), Fifty Years of the International Court of Justice. Essays in Honour of Sir Robert Jennings (1996), 541, at 552–3.

5 See Sztucki, supra note 3, at 74 ff.

6 Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, [1976] ICJ Rep. 3, at 13, para. 42.

7 Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, [1986] ICJ Rep. 3, at 9, para. 18.

8 In the same vein, J. Sztucki, ‘Case Concerning Land and Maritime Boundary (Cameroon v. Nigeria): Provisional Measures, Order of 15 March 1996’, (1997) 10 LJIL 341, at 351.

9 J. G. Merrils, ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’, (1995) 44 ICLQ 90, at 123.

10 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [1996] ICJ Rep. 13, at 22, para. 41.

11 Armed Activities on the Territory of the Congo (DRC v. Uganda), Provisional Measures, Order of 1 July 2000, [2000] ICJ Rep. 111, at 128, para. 44.

12 See K. Oellers-Frahm, ‘Article 41’, in A. Zimmermann, C. Tomuschat, and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (2006), 923, at 932.

13 The Chamber was composed of Judges Bedjaoui (president), Lachs, and Ruda, and of Judges ad hoc Luchaire and Abi-Saab. Judge Lachs had also advocated a more active role for the Court in contributing to the peaceful settlement of disputes. In his Separate Opinion attached to the Order of 11 September 1976 in the Aegean Sea Continental Shelf case, he criticized the Court, arguing that it should have put greater stress on ‘the need for restraint on the part of both States and the possible consequences of any deterioration or extension of the conflict’. Aegean Sea Continental Shelf, supra note 6, at 20. However, Judge Lachs was not suggesting that the Court should indicate provisional measures; he was arguing that the Court should make recommendations to the parties. On the distinction between provisional measures and recommendation, see infra, section 5.

14 Aerial Incident at Lockerbie (Libyan Arab Jamahirya v. United States of America), Provisional Measures, Order of 14 April 1996, [1996] ICJ Rep. 143, at 158, para. 32 (Judge Bedjaoui, Dissenting Opinion).

16 Thirlway, H., ‘The Law and Procedure of the International Court of Justice 1960–1989. Part Twelve’, (2001) 72 British Year Book of International Law 37, at 103. Contra Sztucki, supra note 8, at 351.

17 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007 (not yet published), paras. 49–50. The author of this article wishes to acknowledge that he acted as advisor for Uruguay in the proceedings.

18 Sztucki, supra note 3, at 74.

19 Referring to the above-mentioned measure indicated by the Permanent Court in the Electricity Company of Sofia and Bulgaria case, Hersch Lauterpacht significantly observed that, following that decision, ‘the possible irreparability of the damage ceased to be the decisive criterion applied by the Court’. H. Lauterpacht, The Development of International Law by the International Court of Justice (1958), 253.

20 Frontier Dispute case, supra note 7, at 9, para. 19.

21 Perhaps the clearest example in this respect is the Court's Order of 22 June 1973 rendered in the case concerning the Nuclear Tests, supra note 4.

22 This circumstance is reflected in the formula employed by the Court in the operative part of its orders. The first measure indicated in the Order rendered in the Land and Maritime Boundary between Cameroon and Nigeria reads as follows: ‘Both parties should ensure that no action of any kind, and particularly no action by their armed forces, is taken . . . which might aggravate or extend the dispute before it’. Supra note 10, at 24. In the Armed Activities on the Territory of the Congo case, the Court indicated a measure directing the parties to ‘prevent and refrain from any action, and in particular any armed action, . . . which might aggravate or extend the dispute before the Court or make it more difficult to resolve’. Supra note 11, at 129. It may be observed that the formula employed by the Court in both cases, referring to action of any kind, ‘particularly’ armed action, seems to imply a recognition that actions other than armed action might also risk aggravating the dispute.

23 Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measures, Order of 17 June 2003, [2003] ICJ Rep. 102, at 116, para. 39.

24 On this point, see Thirlway, supra note 16, at 102.

25 Electricity Company of Sofia and Bulgaria, supra note 2, at 199.

26 On this point, see Sztucki, supra note 3, at 79 ff. The existence of a connection between the Court's power to indicate non-aggravation measures and the parties' duty not to interfere with or obstruct proceedings pending before the Court by coercive extrajudicial means was recently advocated by Judge Buergenthal in his declaration annexed to the Court's Order of 23 January 2007 in the case concerning Pulp Mills on the River Uruguay.

27 For an examination of the Court's practice in this respect see S. Rosenne, ‘Provisional Measures and Prima Facie Jurisdiction Revisited’, in N. Ando, E. McWhinney, and R. Wolfrum, Liber Amicorum Judge Shigeru Oda (2002), I, 514; C. Dominicé, ‘La compétence prima facie de la Cour internationale de Justice aux fins d'indication de mesures conservatoires’, ibid., 383; Oellers-Frahm, supra note 12, at 934.

28 Referring to the views sometimes held by individual members of the Court, one author has raised the question whether a special regime for provisional measures in cases involving the use of force is emerging. See C. Gray, ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua’, (2003) 14 EJIL 867, at 888 ff. On the Court's power to indicate provisional measures in situations involving the use of force, see also R. Ranjeva, ‘La prescription par la Cour internationale de Justice de mesures conservatoire à portée militaire’, in E. Yapko and T. Boumedra (eds.), Liber Amicorum – Mohammed Bedjaoui (1999), 449.

29 Legality of the Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, [1999] ICJ Rep. 124, at 140, para. 49.

30 Ibid., at 203.

31 Ibid., at 202.

32 Ibid., at 209.

33 Ibid., at 207.

34 In the same vein see Gray, supra note 28, at 889.

35 Apart from the Orders of 2 June 1999 in the Legality of Use of Force cases, see also Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, [2002] ICJ Rep. 219, at 249–50, para. 93.

36 Infra section 4.

37 Thirlway, supra note 16, at 106. According to this author, since non-aggravation measures do not strictly relate to the rights in dispute in a case, it would be difficult to see how the jurisdiction to indicate measures of this kind ‘can be an element of the jurisdiction to entertain the merits’. Ibid., at 85.

38 In this sense see Greig, D. W., ‘The Balancing of Interests and the Granting of Interim Protection by the International Court’, (1991) 11 Australian Year Book of International Law 108, at 127. According to Greig, ‘there would seem to be no logical reason against the granting of interim measures to prevent an extension of the dispute to encompass other rights appertaining to the litigants’; to this end, ‘an appropriate test might be to limit the Court's competence under Article 41 by reference to the question of whether the rights sought to be protected also fell, prima facie at least, within its jurisdiction on the merits’.

39 Frontier Dispute case, supra note 7, at 9, para. 16.

40 Land and Maritime Boundary between Cameroon and Nigeria, supra note 10, at 22, para. 39.

41 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, [1993] ICJ Rep. 3, at 24, para. 52.

42 Land and Maritime Boundary between Cameroon and Nigeria, supra note 10, at 22, para. 39.

43 Ibid., at 23, para. 42. See also the Court's Order of 1 July 2000 in the case concerning Armed Activities on the Territory of the Congo, supra note 11, at 125, para. 43.

44 In his declaration annexed to the Court's Order, Judge Oda remarked that ‘loss of life in the disputed area, distressing as it undoubtedly is, does not constitute the real subject matter of the dispute’. Land and Maritime Boundary between Cameroon and Nigeria, supra note 10, at 26–7, para. 2. On this point see also Thirlway, supra note 16, at 98; Y. Iwamoto, ‘The Protection of Human Life through Provisional Measures Indicated by the International Court of Justice’, (2002) 15 LJIL 345.

45 J. B. Elkind, Interim Protection: A Functional Approach (1981), at 228. For a similar view see also Merrils, supra note 9, at 123; L. Daniele, Le misure cautelari nel processo dinanzi alla Corte internazionale di giustizia (1993), at 91.

46 Pulp Mills on the River Uruguay (Argentina v. Uruguay), supra note 17, para. 8 (Judge Buergenthal, Declaration).

47 Ibid., para. 41.

48 Ibid., paras. 49–50.

49 Ibid., para. 51.

50 Buergenthal, supra note 46, para. 10.

51 Ibid., para. 11.

52 Ibid. Judge Buergenthal noted that the language employed in Art. 41 permits a less restrictive interpretation than that adopted by the Court, specifying that such an interpretation ‘finds expression in the Court's repeated assertions that it “possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require”’.

53 See Sztucki, supra note 8, at 357 (‘It appears that in the recent decades in general, and in the present case in particular, the Court, using Article 41, is embarking on exercising just these powers – powers of general prevention’); Oda, supra note 4, at 552–3 (‘It seems, however, that the Court has become inclined to interpret article 41 of the Statute much more widely so as to cover cases in which the prevention of an aggravation or extension of the dispute is required or even where the status quo needs to be maintained, although it has not indicated provisional measures solely to that end’); Thirlway, supra note 16, at 99 (‘Recent developments in the practice of indication of provisional measures suggest that there has been some shift of thinking within the Court away from the intentions of the Statute in this respect’).

54 On this point see Sztucki, supra note 3, at 77.

55 Supra section 1.

56 For a different view see Thirlway, supra note 16, at 107, who argues that only the measure directing the parties to preserve the status quo as regards the administration of the disputed areas ‘could be regarded as a true preservative provisional measure’.

57 Frontier Dispute case, supra note 7, at 10–11, para. 27.

58 See Sztucki, supra note 3, at 77, who observed that the function of these general clauses appeared to be that of reinforcing other measures that the Court could decide to indicate.

59 Pulp Mills on the River Uruguay (Argentina v. Uruguay), respectively supra note 1, para. 82, and supra note 17, para. 53.

60 LaGrand (Germany v. United States of America), Merits, Judgment of 27 June 2001, [2001] ICJ Rep. 466, at 506, para. 109.

61 Similarly, see Thirlway, supra note 16, at 107.

62 LaGrand (Germany v. United States of America), supra note 60, at 503, para. 103.

63 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Merits, Judgment of 10 October 2002, [2002] ICJ Rep. 303, at 453, para. 321; Armed Activities on the Territory of the Congo (DRC v. Uganda), Merits, Judgment of 18 December 2005, para. 262 (not yet published).

64 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, para. 452 (not yet published).

65 In the same sense, J. D'Aspremont, ‘The Recommendations Made by the International Court of Justice’, (2007) 56 ICLQ 185, at 187–8.

66 For this observation see T. Treves, ‘The Political Use of Unilateral Applications and Provisional Measures Proceedings’, in J. A. Frowein, K. Scharioth, I. Winkelmann, and R. Wolfrum (eds.), Verhandeln für den Frieden – Negotiating for Peace. Liber Amicorum Tono Eitel (2003), 463, at 479.

67 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Merits, Judgment of 24 May 1980, [1980] ICJ Rep. 3, at 43, para. 93. For an examination of the Court's position in this case, see S. Rosenne, The Law and Practice of the International Court 1920–1996 (1997), III, at 1149–50.

68 For an analysis of the Court's practice prior to the judgment in the LaGrand case, see Oellers-Frahm, supra note 12, at 954–5; P. Gaeta, La giustizia cautelare nel diritto internazionale (2000), at 147.

69 See the Judgments referred to supra notes 63 and 64.

70 In this respect see the remarks made by Judge Eiriksson in his dissenting opinion annexed to the Order of 27 August 1999 rendered by the International Tribunal of the Law for the Sea in the Southern Bluefin Tuna case. He contested the decision of the Tribunal to indicate a measure – which was binding on the parties – ‘of so general a nature that a party cannot be entirely clear when contemplating any given action whether or not it falls within its scope’. The text of Judge Eiriksson's opinion is available at the Tribunal's website (http//www.itlos.org).

* Associate Professor of International Law, University of Macerata.

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