Provisional Measures


Provisional Measures

ICJ Statute, Art. 41(1); ICJ Rules, Arts 73-78

Objectives of Provisional Measures

  • The preservation of the integrity of the final judgment
  • The avoidance of any aggravation or extension of the dispute

 

Binding nature of PM



ICJ resolved the ambiguity in LaGrand (2001) paras 101-2:

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 cal1 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 that Article.

 

Points relevant in granting PM

  1. ‘A risk of irreparable prejudice to rights in issue before the Court

The request for provisional measures cannot be designed to obtain an interim judgment on the merits. Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep 24, 143:

  1. There remains the request of Nicaragua (paragraph 15 above) for an award, at the present stage of the proceedings, of $370,200,000 as the “minimum (and in that sense provisional) valuation of direct damages”. There is no provision in the Statute of the Court either specifically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the final and binding character of the Court’s judgments, under Articles 59 and 60 of the Statute, it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Furthermore, in a case in which the respondent State is not appearing, so that its views on the matter are not known to the Court, the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement.
  2. Urgency