(4) interim measures of protection
interlocutory injunctions /…
(4) interim measures of protection
- interlocutory injunctions / provisional measures / interim measures [court orders]
- are binding
what is it?
- Preserving the status quo pending final determination of the issues before the court or tribunal. For of relief pendente lite, i.e. during litigation, in order to protect rights subject to litigation and to protect further aggravation of the dispute. Interlocutory injunction at common law.
- [a court order to compel or prevent a party from doing certain acts pending the final determination of the case. made at an interim stage during the trial]
- FYI: Superinjunction: not only can you not publish the story, you cannot say that you have the story either
objective of IMP/IJ/PM/IM
- does not settle the case
- Injunction happens at the beginning of the proceeding, is not the final word.
- Chorzow factory case: expropriation of factory in germany .G exercised German proptection of citizens Is P allowed to expropriate factory in poland?
- If Germany wins the case against poland, 5 years later then the investor is stopped from
"for the time being, P is not to expropriate the factory bc it may be that (when we come to the merits,) P is not allowed to do so; so as nt to undermine merits of judgement that may very well go to germany.
Power to indicate interim measures of protection or provisional measures is part of inherent jurisdiction or incidental jurisdiction.
- Indicate = hand down provi measures
- Important to ensure administration of justice. It would not be right for intl ct and tribunals not to have the power to ensure (if someone wins on the merits, their right shouldn't already be removed) avoid a polo victory.
- Especially in article by Mendelson: what is inherent jurisdiction. Mendel refers to it as incidental jurisdiction.
- We will look at ukraine v russia. Read the provisional measures order (last yr).
The procedure for dealing with a request for interim measures is distinct from the procedure for dealing with preliminary objections (i.e. jurisdiction and admissibility).
When case Is before ICJ which concerns rights i.e. expropriation of factory / HR of individuals that can be removed / undermined substantially by one of the parties such that it is necessary for interim measures (u v r).
- There will be 3 stages to ICJ litigation:
u v r case is still at stage 1Stage 1 is distinct and discrete from 2. S1 are often urgent i.e. russia is breaching rights of individuals in crimea. Ukraine wants ct to hand down order of S1: with immediate effect, R needs to stop breaching rights of Ukrainian individuals Timor Leste v Australia: demand for PM was filed on 23dec 2013/2014. president of icj had to grab all judges on hague (a date they were not likely to be in ct) - one of the few incidences international lawyers moved quickly
- Provisional measures - "order"
- Jurisdiction and admissibility - "judgements"
- Merits - "judgements"
- Article 41(1) ICJ Statute: ‘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.’
- Statute regulates indication by ICJ of prov measures -> A41(1). Power to indicate PM is part of inherent jurisdic of intl cts and tribunals. This is another expression of that power (set out in statute)
- Throwback: inherent powers and jurisdiction -> following from inherent jurisdiction and from written instruments
- Why 'respective right of either party?' in previous exxamples it was 1 party i.e. Russia did not have interest in PM, it was ukraine. But ICJ will always stress that (if PMs are indicated, it is for both parties to ensure that nothing happens to aggravate the situation/ do sth that fails to preserve rights of juris
- President Jiménez de Aréchaga in Aegean Sea Continental Shelf (Greece v Turkey), 1976 ICJ Rep 3, 15–16: ‘The essential object of provisional measures is to ensure that the execution of a future judgment on the merits shall not be frustrated by the actions of one party pendente lite [that is, during litigation]’
- ‘According to general principles of law recognized in municipal systems, and to the well-established jurisprudence of this Court, the essential justification for the impatience of a tribunal in granting relief before it has reached a final decision . . . is that the action of one party ‘pendente lite’ causes or threatens a damage to the rights of the other, of such a nature that it would not be possible fully to restore those rights, or remedy the infringement thereof, simply by a judgment in its favour.’
- View of another renowned international lawyer Jimenez: explained in a separate opinion, the reasons for why ct indicates PM:
- The idea that something will be beyond restoration (rights of 1 parties), unless PM has been indicated.
- PM will say 1. Stop infringing ukrainian rights 2. Stop antagonising / aggravating ukraine
- See A41(1); would you say these orders are binding? -> "indicate" .. "ought to be"
- does not seem to be drafted as binding
- A38: "decide…. Shall apply". A38 talks about judgements. This might have suggested PM are binding. But it is NT in the case in A41!!! It suggests sth less than bindingness …
- "ought" may relate to determination of court… not obligation [someone's point in class]
This is the issue in LaGrand case: Germany v US
- Prisoner rights.. PM prevent actions taken against him in a criminal manner. German guy was the son of G console to the US. He thought he had diplomatic immunity because his dad had DI. Ended up on death row.
- Did the US breach vienna convention on consular relations? CVCR says if any party from the signatory states i.e. if G is apprehended by police in US, G has the right to see G consul. Thus the consul can give advice to his rights.
- He had not been allowed to see the console. [IS THIS A BREACH OF Vconvention]?
- "we can an order w PM and we will wait". G won at s1. there was an order from ct that says ct not allowed to execute him until merits surface. The US ordered to kill him. [is order of PM binding or not?]
- held: yes, binding
LaGrand v Germany (Germany v US) ICJ Rep 2001 p 466, 502–3
- The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and, in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of the Article.
- Ct relied heavily on object purpose of 1) statute 2) A41 of statute
Ct applied a commonsense analysis [binding]. The point of PM is to avoid the situation where a guy is killed before breach.
- Ct points to wording in A41 in this context.
- Case ECHR: Mamatcalov v escalov and turkey: in the system of ECHR, there is no same textual foundation (statute). With respect to ECHR, there is less of a foothold. But nevertheless, natl ct has followed ITL ct
Ukraine v Russia Provisionary Measures 2017
"Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible ((see, for example, Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, para. 71).’)
This means that in the ukraine v russia case, ukraine makes a number of assertions; ukraine is saying international law breached on a couple of accounts. If ukr argued sth outlandish without basis on intl law, it doesn't make sense for ct to issue a PM if it wasn't a plausi claim.
- Ct says: it follows. We must deal w the question of HR .
Prima facie, ukraine looks breached HR, so we will indicate pm. But recently no, because PM has not been indicated as being plausible…
Consider: When do international courts and tribunals find provisional measures to be necessary and appropriate? From whence do they draw the competence to indicate such measures? Are they binding? And to what extent do international courts and tribunals sing from the same hymn-sheet within the field of provisional measures?