As
the parties await the final judgment, they and the Security Council receive the
suggested measures. The Court must identify and communicate to the parties the actions wholly or partly related to the initial requests and Orders applicable to the
party that made the request. Although the Court has often helped nations settle disputes, some scholars push for expanding its adjudicatory
jurisdiction. They argue that the Court should monitor compliance with its
final judgment because ordering provisional measures alone cannot control the parties’
behavior in a dispute.
This post, therefore, argues that Court’s interim
measures and initiatives to monitor the same do not guarantee compliance with all
the final rulings. The following are the conditions under which the Court issues
provisional measures:
Prima Facie Jurisdiction
One of the conditions under which the Court grants the
request for interim measures is when the provisions by applicants, prima
facie, match the required conditions (ICJ Reports 1973, para. 14). When
Australia and New Zealand presented their case against France (the 1973
Nuclear Tests cases), the Court indicated provisional measures at their
request to stop France from conducting nuclear tests that caused radioactive
fall-out on these territories. Here, the Court decided to order interim
measures before addressing the contested issue, and the consideration would not
disadvantage the final decision (Merrills, (1995) 44 ICLQ, at p91.
The Court discovered on 20 December 1974 that
Australia and New Zealand had no object as France complied with the orders.
While this example shows the effectiveness of ICJ’s prima facie
jurisdiction, similar results are achievable without indicating interim
measures. In the Great
Belt (Finland v. Denmark) case, ICJ did not order provisional measures when
Finland requested. The Court only encouraged direct and friendly settlements
between Finland and Denmark. By 3 September 1992, Finland and Denmark had
settled the dispute.
Again,
the Court is commonly known to order interim measures to cases over which it
has the provision of interim measures calculations based on prima facie does not mean
that the Court has jurisdiction over the proposal. For instance, in the Application of
the International Convention on the Elimination of racial
discrimination case, Georgia v Russia, the Court could not make the
final judgment on 1 April 2011 because there was a preliminary objection to its
jurisdiction (Article 22 CERD).
In
some instances, the Court acts against its lack of jurisdiction by asking
applicants to suggest instruments that could give it an appropriate basis to
decide the merits. An example is DR Congo v Rwanda case. Concerning this
case, the Court rejected the request for PM by DRC in 2002, citing a lack of
prima facie jurisdiction. Still, the courts did not grant Rwanda the request to
remove the case from ICJ and sustained so until 2006, when it finally confirmed
it had no jurisdiction over the case.
For the Protection of Individuals’ Rights
Secondly, the
court indicates provisional measures when protecting parties’ rights
before the final judgment.[2]
This step also ensures that the final judgment is practical. For this reason,
ICJ clearly states that it will not issue interim measures if the applicants
lack proof of irreparable prejudice to certain rights related to the dispute
(such as La Grand, Order of 3 March 1999, para 23). Additional examples of
situations where the court issued preliminary measures to protect the rights of
individuals include the Breard and La Grand (Paraguay and Germany, both
v USA), Pulp Mills (Argentina v Uruguay), the Great Belt case (Finland V
Denmark), and the alleged breaches of 1955 Treaty of Amity (Iran v US) – 3
October 2018.
Although the
Court aims to secure the rights of individuals, it has the right to give Orders
that contradict what the parties requested. An example Is Iran v US on 3
October 2018. When the Court acts this way, it fails to give equal treatment. The
step may trigger non-compliance with the terms of the provisional measures. LaGrand, Avena, and Breard are
examples of violation of Article 36 of the Vienna Convention (1969) by the
United States. The Article requires local authorities to allow foreign
nationals to notify their consulate about their detention. The officials of the
US law did not know about the notice. However, even after learning that Article
36 enforces the rights of foreigners to contact consular officials in Germany
in 1992, the United States executed Karl LaGrand in 1999.
The act violated
the terms of the Vienna Convention, so Germany filed a claim against the United
States and requested a staying of the execution of Walter LaGrand. Following
this,
Under La Grand, ICJ instructed the US government to transmit the issued
Order to the State of Arizona Governor (ICJ Reports 1999, para. 29). Still, the US
Supreme Court refused to effect this jurisdiction and executed Walter LaGrand in
1999. In 2001, ICJ directed the US to assure Germany of non-repetition of its
treaty obligations and review/reconsider the severe penalties on German
nationals. As a result, the US observed the non-repetition by establishing
programs to promote awareness and emphasis on Vienna Convention.
ICJ’s ruling of
2001 referred to the terms of Article 41, which states that interim measures
given under circumstances of necessity should be binding to safeguard the
parties’ rights and avoid prejudice to the Court's final decision. Any opposing
claims would contradict the purpose and object of Article 41 (ICJ Reports 2001,
para. 102). The process started as a reaction to the Breard case and
proceeded post-LaGrand. However, the obligation to reconsider and review
convictions based on Vienna Convention has suffered non-compliance. In other
words, the United States judges, expected to handle the situation, ignored the
required re-determination because it either proved inappropriate or showed
association with procedural defaults.
Previously in the Case Concerning the Vienna
Convention on Consular Relations (Paraguay v US), Breard case, the Court
had ordered interim measures on 9 April 1998 when Paraguay requested so.
However, the US still executed Breard on 14 April 1998. Paraguay, thus,
requested ICJ to remove the case from its list. Similar situations have also been
recorded before the European Court of human rights. Mamatkulov and Askarov v
Turkey case is an example. The ECHR interim measure required the Turkish
government not to extradite applicants as they had pending proceedings.
However, the Turkish government ignored the Court’s indication and extradited
the applicants to Uzbekistan. The
applicants argued before the Grand Chamber that Turkey breached terms of Article
34 of the ECHR Convention through non-compliance to the interim measure. ECHR
confirmed this violation of Article 34 (Mamatkulov and Askarov v Turkey,
Judgement of 4 February 2005, para. 108).
During the Urgency to Protect Human Rights
Lastly,
ICJ provides interim measures to cases with proven urgency to prevent
irreparable harm. Under this condition, ICJ checks if the asserted rights are
plausible. Still, the plausibility proof does not interfere with the case’s
merits. The Court assesses the connection between the asserted rights or rights
over which protection is sought and the type of provisional measures that the
party request.
Examples
of cases here include Iran v US (Order of 3 October 2018); Question
relating to the Obligation to Extradite or Prosecute (Belgium v Senegal,
Order of 28 May 2009); Ukraine v Russia (19 April 2017); Costa Rica v
Nicaragua, Order of 8 March 2011); and Jadhav case (India v
Pakistan) Order of 18 May 2017. In
all these, the provisional order did not prejudge the merits of the cases. Article 41 of the ICJ Statute gives the Court the
power to indicate any provisional measures that preserve either party’s rights.
In the Nicaragua case, for instance, ICJ provisional measures would
preserve the reason behind the dispute, maintain the situation, avoid
exacerbation of the conflict, and keep the evidence.
The
overall outcome would be the effectiveness of the Court’s final decision. An example of non-compliance is the Nicaragua v US
case, in which the United States failed to appear in the merit phase and defied
the Court’s judgment.[3] Defiance is the complete
rejection of an issued decision, declaration of its invalidity, and
non-compliance.[4]
The lack
of compliance post-Nicaragua cases reveals the significant
challenges with ICJ. Several instances show the weaknesses in provisional measures
compliance as parties’ opinions toward ICJ pronouncements often differ.
An example is the Genocide case (Bosnia Herzegovina v Yugoslavia). Researchers and other scholars call upon the Court to exercise its right to monitor compliance with the ultimate solution to reduce the number of incidents when the parties to a dispute disregard the rulings. Article 290(6) UNCLOS states that parties involved in a dispute “shall comply promptly” with provisional measures under the Article applied by ICJ, ITLOS, or arbitral tribunal by UNCLOS. While these are known facts, the monitoring by tribunals and the international courts should not stop after issuing the sentence. The involvement of these institutions needs to advance beyond the declaration of the final judgment because compliance is an essential part of the enforcement of the agreed-upon legal decision.
