1 [1951] ICJ 89.

2 [1972] ICJ 12; 67 AJIL 145 (1973).

3 Cf. Gross, Leo, The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order, 65 AJIL 280 (1971)CrossRefGoogle Scholar. Gross suggests that “through a separate instrument or clauses in conventions, states could agree to accept as binding provisional measures.” Such an agreement might encourage states to have recourse to the Court “knowing that their interests would be protected pending the final disposition of the case.”

4 Art. 41:

1. 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 or either party.

2. Pending the final decision notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

5 As to the origins of Article 41, see Dumbauld, , Interim Measures of Protection in International Controversies 144–47 (1932)Google Scholar. The Court may indicate interim measures in general terms to the effect that both parties must act to preserve the status quo and to prevent aggravation of the dispute; and the performance or prohibition of specific acts may be ordered. The Court sometimes specifies the acts to be performed in considerable detail.

In the Anglo-Iranian Oil Company Case the Court ordered the parties to establish a Board of Supervision composed of two members appointed by each state, and a fifth chosen by agreement, or in default of agreement, by the President, who is a national of a third state. The Court directed that the Board should ensure that profits of the company, after allowing for its operation and normal expenses, be paid to banks to be held in trust pending the order of the Court or the agreement of the parties. [1951] ICJ 94. In the Fisheries Jurisdiction Case, the Court ordered the United Kingdom to “ensure that vessels registered in the United Kingdom do not take an annual catch of more than 170,000 metric tons of fish” from a specific area and to furnish Iceland and the Court with information concerning control and regulation of fish catches. [1972] ICJ 17–18.

6 Art. 61 of the old Rules of Court. The Rules were amended on May 10, 1972, and came into force on September 1, 1972. For text, see 67 AJIL 195–224 (1973), The contingency of revocation or modification of an order may be provided for in the order itself. In the Fisheries Jurisdiction Case, the Court, in its Order of interim protection of August 17, 1972, provided that “unless the Court has meanwhile delivered its final judgment in the case, it shall, at an appropriate time before August 15, 1973, review the matter at the request of either party in order to decide whether the foregoing measures shall continue or need to be modified or revoked.” [1972] ICJ 18. In July 1973, the Court reaffirmed its order pending a final judgment in the case. [1973] ICJ 304.

7 Legal Status of the South-Eastern Territory of Greenland, [1932] PCIJ, ser. A/B, No. 48, at 283–84.

8 1 Rosenne, , Law and Practice of the International Court 427 (1965)Google Scholar. See also Hudson, , The Permanent Court of International Justice 1920–1942, 424 (1943)Google Scholar.

9 Rosenne, supra note 8.

10 [1957] ICJ 152.

11 Nuclear Tests Case (Australia v. France) (Interim Measures of Protection [1973] ICJ 108; 67 AJIL 778 (1973). Dumbauld, (supra note 5, 129–44) examines the practice of the Mixed Arbitral Tribunals established after World War I. He points out that most of the tribunals adopted rules providing for interim measures, the rules being influenced by the procedures of various states. Although the Anglo-German rules contained no express provision, the tribunal did exercise a power to grant interim protection.

12 Rule 57 was adopted on March 24, 1922, and amended on February 21, 1931 to deprive the President of his power to indicate interim measures of protection. The change followed recognition of the principle that the Court should sit continuously and should be summoned without delay if not actually in session when an application was made. For original and amended texts of Article 57, see Dumbauld, supra note 5, at 200–01. The President’s power under the original Article 57 appears to be broader than his power under Article 66 of the present Statute.

13 Legal Status of the South-Eastern Territory of Greenland, [1932] PCIJ, ser. A/B, No. 48, at 284.

14 Id., 287–88. In the Fisheries Jurisdiction Case, the Court, in addition to making an interim order against Iceland directing it to refrain from taking steps to enforce its regulations effecting a fifty mile exclusive fishing zone, also ordered protection, it appears ex proprio motu, of Icelandic rights. The Court imposed a fish catch limit on British trawlers, bearing in mind “the exceptional dependence” of Iceland “upon coastal fisheries for its livelihood and economic development.” [1972] ICJ 16, (para. 23 of the Order).

15 [1952] ICJ 114.

16 [1951] ICJ 89.

17 [1972] ICJ 16, para. 17, emphasis added.

18 [1973] ICJ 102, para. 17, emphasis added.

19 See the Dissenting Opinions of Judges Winiarski and Badawi Pasha in the Anglo-Iranian Oil Company Case (Interim Measures of Protection), [1951] ICJ 96; and of Judges Gros and Petren in the Nuclear Tests Case, [1973] ICJ 115, 124. In the latter case, Judge Forster, in his Dissenting Opinion (id., III ) seems to favor an even stricter test: “. . . the Court required no mere probability but the absolute certainty of possessing jurisdiction” (emphasis added). Judge Gros distinguished the Fisheries Jurisdiction Case on the grounds that in that case “the urgency was admitted, the reality and the precise definition of the dispute were not contested; finally, the right of the Applicant States which was protected . . . was recognized as being a right currently exercised, whereas the claim of Iceland constituted a modification of existing law,” Australia was asking the Court to modify existing positive law. Finally, Judge Gros emphasized the direction contained in Article 41 obliging the Court to consider each case according to “the circumstances.” Therefore, in no sense could previous cases be regarded as consolidating the law as to interim measures.

It is true that each case must be considered according to the circumstances. However, it is difficult to see how the Australian application lacked urgency. Further, to say that Australia sought a “modification of existing positive law” is to beg the very question which the substantive case would examine. In fact, there is a grave contradiction inherent in Judge Gros’ viewpoint: if “the precise definition of the dispute” is a requirement for an indication of interim measures, and such a definition was absent from the Australian case, how could Judge Gros state so categorically that Australia was demanding a change in existing positive law? On the contrary, Judge Gros himself defined with precision the issue: “the existence of a rule forbidding the overstepping of a threshold of atomic pollution.”

20 See Grieg, , International Law 515 (1970)Google Scholar.

21 [1973] ICJ 126.

22 Grieg, supra note 20, at 515.

23 See Dissenting Opinion of Judges Winiarski and Badawi Pasha in the Anglo-Iranian Oil Company Case, [1951] ICJ 96. Note that the tribunals generally awarded interim protection as long as “want of jurisdiction is not manifest.” See Dumbauld, supra note 5, at 134, 139.

24 In their joint declaration, they stated: “ . . . a vote for this Order cannot have the slightest implication as to the validity or otherwise of the rights protected by such Order . . . those substantive questions have not been prejudged at all since the Court will, if it declares itself competent, examine them, after according the Parties the opportunity of arguing their cases.” [1972] ICJ 18.

25 Id., para. 21 of Order.

26 [1973] ICJ 105, para. 33 of Order.

27 [1957] ICJ 105.

28 Id., 117–18.

29 [1972] ICJ 15, para. 15.

30 [1973] ICJ 101, para. 14.

31 Id., paras. 15, 16.

32 Supra note 27.

33 [1972] ICJ 16, para. 17.

34 Id., para. 5.

35 [1957] ICJ X10.

36 [1973] ICJ 106.

37 Id., 108.

38 Id., 115.

39 Article 53, like Article 41, is contained in Chapter III headed “Procedure.” The sequence of the articles is revealing: Articles 39, 40 deal with the institution of proceedings; Articles 42, 43 provide for presentation of the case; Articles 44–52 control the details of the hearing, including enquiries, witnesses, and proofs. Article 53 then deals with the question of jurisdiction. Article 54 refers to the conclusion of the arguments and sets out rules governing the deliberation of the Court. It is clear that Article 53 has no application to Article 41 applications. Article 53 applies only to the substantive proceedings after “the Court has received proofs and evidence” (Art. 52).

40 For the first time, the Court in the Nuclear Tests Case clearly distinguishes questions of jurisdiction and admissibility. In earlier cases, including the Anglo-Iranian Oil Company Case and the Fisheries Jurisdiction Case, no clear distinction is made.

Dissenting Judges Petrén and Ignacio-Pinto in the Nuclear Tests Case both regarded the question as a nonjusticiable one. [1973] ICJ 124, 129.

The difficulties of definition of the term “justiciability” are notorious. See Grieg, supra note 20, at 474–78. It is arguable that the Court may even entertain nonjusticiable disputes under Article 38(2) of its Statute, that is, if the parties agree. However, in the Free Zones Case [1929] PCIJ ser. A/B, No. 46, the Court refused to exercise some very wide powers granted to it by the Special Agreement, on the ground that to do so would be inconsistent with its judicial nature. The attitude of the Court towards political questions is unclear, but a distinction drawn by Grieg (supra, 478) is of assistance: a distinction “between answering a question which is essentially political and answering a legal question in the light of political factors.”

The Locarno treaties provided that “justiciable” disputes, that is, disputes as to rights, were alone to be referred to arbitration or to the Court of International Justice. According to Guggenheim, the Council of the League was not competent to indicate interim measures when the issue was clearly justiciable. If the Court was of the opinion, in view of serious political tension surrounding the dispute, that it was not competent then the League had power to order interim measures. On the other hand, the Conciliation Commission always had the right to formulate interim measures, independently of the justiciable or nonjusticiable character of the dispute. See Guggenheim, , Les mesures Conservatoires dans la Procedure Arbitrale et Judiciare, 40 Recueil des Cours 656 (1932)Google Scholar.

41 [1965] ICJ 105, 106.

42 See Dumbacld, supra note 5, at 147–53. Denunciation of the Treaty of 1865 Case. [1927] PCIJ ser. A, No. 8.

43 [1951] ICJ 89.

44 Denunciation of the Treaty of 1865 Case. [1927] PCIJ, ser. A, No. 8.

45 On the other hand, it could be argued that Britain was seeking to prevent irreparable damage to its economy, in particular, closure of some ports and sectors of the fishing industry.

46 An argument could be constructed on the law of freedom to fish in the high seas and the historic rights of British fishermen.

47 [1972] ICJ, para. 22 of the Order.

48 [1973] ICJ, para. 31 of the Order.

49 Id., para. 29 of the Order.

50 Id., para. 31 of the Order. Only Judge Jiminéz de Aréchaga, in his declaration concurring in the Order of the Court, exphcitly mentioned the distinction. It was argued that Australia had no right of its own, as distinct from general community interest, upon which to base its application. Judge Jiminéz de Aréchaga was of the opinion that this question went not to the admissibility of the Australian application but to the issue of jurisdiction. At this stage of the proceedings, it was only necessary to establish that the parties were in conflict as to their respective rights. Id., 106.

51 Id., para. 27 of the Order. Australia alleged “that any effects of the French nuclear tests upon the resources of the sea or the conditions of the environment can never be undone and would be irremediable by any payment of damages.”

52 The now obsolete rule, referred to earlier, according to which interim protection was available only in respect of rights violation of which could not be adequately redressed by damages, seems to have been influenced by the traditional rule as to the availability of injunctions in common law systems: the Court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy.

See Halsbohy, , 21 Laws of England 352 (3rd ed.)Google Scholar.

One reason the Phillimore draft of the Covenant of the League contained no provision for injunctions was the belief that outside the common law injunction procedure was unfamiliar. Dumbauld has proved the fallaciousness of that assumption. See supra note 5, Chapter II.

53 [1957] ICJ 112

53 [1973] ICJ 105, para. 29 of the Order.

55 Dumbauld, supra note 5, 185.

56 [1972] ICJ 17, 35.

57 [1973] ICJ 106.

58 [1928] PCIJ, ser. A, No. 17, 1 W.C.R. 646.

59 [1927] PCIJ, ser. A, No. 12, see also Dumbauld, supra note 5, at 153–54.

60 [1973] ICJ 111.

61 [1933] PCIJ, ser. A/B, No. 58.

62 [1973] ICJ 128.

63 Principle 21:

States have . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

The principle is well-established in international law: see the Trail Smelter Case.

64 From time to time the Court has pointed to the relativity of the concept of domestic jurisdiction. See e.g., the Tunis-Morocco Nationality Decrees Case [1923] PCIJ, ser. B, No. 4 and the Nottebohm Case [1955] ICJ 4.

65 [1957] ICJ 117–18.

66 See Article 36(6) of the Statute:

In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

67 [1973] ICJ, para. 13 of the Order.

68 Supra note 5, at 168. Rosenne points out that the failure of a state to comply with interim measures does not permit the Court to impose sanctions on that state or to “expose the recalcitrant State to any procedural disadvantage in so far as concerns the Court.” Supra note 8, at 125. See also Hambro, , The Binding Character of the Provisional Measures of Protection Indicated by the International Court of lustice, in Schatzel, and Schlochauer, (eds.), Rechtsfragen der Intehnationalen Organisation: Festschrift für Hans Wehberg 152 at 167 (1956)Google Scholar.

69 Supra note 5, at 141.

70 6 UN SCOR 559th-60th meetings (1951). See also Reisman, , Nullity and Revision 720–28 (1971)Google Scholar.

71 6 UN SCOR, 560th meeting, 12 (1951).

72 Supra note 70.

73 Supra note 8, at 428.

74 Although Article 94(2) does not speak of an “order,” clearly an order indicating interim measures is, for the purposes of Article 94, included within the concept “judgment,” by virtue of the policies of enforcement and prevention of breaches of the peace evident in Article 94. But note arguments of Iranian representative, supra note 71.

76 Note that a permanent member of the Council has been a party to all the significant cases on interim measures, in the Anglo-Iranian Oil Company Case and the Fisheries Jurisdiction Case, as applicant, and in the Nuclear Tests Case as defendant. In the Anglo-Iranian Oil Company Case Britain did not proceed with its case in the Security Council, because enforcement of the interim measures was futile after Iran made an eviction order against the company.

76 Stone, , Legal Controls of International Conflict 219 (1958)Google Scholar Stone concludes, with some hesitation and doubt, that it may be inferred from this fact “that recommendations should not require either a unanimous vote or concurrence of all Permanent Members” (219).

77 Reisman, supra note 70, at 724.

78 Cf. Guggenheim, supra note 40, at 656.

Le danger d’une execution d’une decision iudiciaire ou arbitrate est plus grand pour un litige liquide sur la base d’une obligation à long term que dans le cas ou un compromis est établi precisement pour juger un seul différend.

79 See Gross, supra note 3, at 314, citing Lauterpacht, 45 Institute of International Law, Annuatre 536–37 (II, 1954).

80 See Anglo-Iranian Oil Company Case, Fisheries Jurisdiction Case, Nuclear Tests Case.

81 See cases, Dumbauld, supra note 5, at 131–44.

82 See Nuclear Tests Case, [1973] ICJ 105, para. 31 of the Order. The requirement of a particular interest to base a claim to interim protection is, however, not as compelling as in the common law systems. In the latter, the Attorney-General is considered the appropriate authority to complain of public nuisance. The international system provides no equivalent procedure.

83 Cf.., Bryan treaties. Secretary Bryan’s purpose in these treaties, concluded between the United States and countries in Europe, Asia, and South America, was to avoid war “not to institute a new means of settling disputes” Dumbauld, supra note 5, at 100. They were based on the optimistic assumption that, if a period of time was allowed before hostilities, the saner elements in the population would prevail. For example, Article 4 of the treaties with China, France, and Sweden provided:

In case the cause of the dispute should consist of certain acts already committed or about to be committed, the Commission shall, as soon as possible, indicate what measures to preserve the rights of each party ought in its opinion to be taken provisionally and pending the delivery of its report.

UST Nos. 619, 609, 607 and see Stone, supra note 76, at 167.

84 See Dumbauld, supra note 5, at 95–101.