Article 290 UNCLOS discusses the nature of provisional measures, and Article 290 (5) states that ITLOS must indicate provisional measures, including on the cases meant to proceed to Annex arbitration. On the other hand, the UN Convention Law of the Sea (UNCLOS) contains the criteria for ordering interim measures. Article 74(1) of the Court’s Rules prioritizes the indication of interim measures over other cases and further requires that the Court be convened to take part in the proceedings and make the decision over the request, which it treats as a matter of urgency. Article 41 is ICJ Statute. It allows the court to indicate interim measures in appropriate circumstances to preserve the respective rights of all parties to a dispute.

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.

When applying for provisional measures, applicants use written and oral pleadings to convince the Court of the urgency, state, and function of the requested Order (Article 73-78 of ICJ Rules of Court).  Article 75 indicates that the Court can decide at any time to assess the propio motu, to determine if the circumstances satisfy the indication of interim measures to check compliance by any or all the parties. In other words. The court may monitor the Order’s implementation to discover how the parties have implemented it.

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.