Provisional Measures Before International Courts and Tribunals 1107125596, 9781107125599

Table of contents :
Cover
Half title
Series
Title
Copyright
Epigraph
Contents
Foreword
Preface
List of Abbreviations
Table of Cases
Table of Treaties and Documents
1 Introduction
I Provisional Measures in International Law
A Definition and Character of Provisional Measures
B Provisional Measures and the Inherent Powers of International Courts and Tribunals
II Scope of the Book
A Overall Purpose
B Coverage of International Courts and Tribunals
III Outline of the Book
Part I Preliminary Matters
2 Origins of Provisional Measures
I Introduction
II Municipal Law Origins
A Provisional Measures in Antiquity and the Middle Ages
1 Greco-Roman Origins
2 Provisional Measures in Canon Law
B Provisional Measures in the Common and Civil Law Traditions
1 The Common Law and the Interlocutory Injunction
2 The Civil Law Tradition and the Codifying Impulse
(a) France and the Code de Procédure Civile
(b) Germany and the Zivilprozessordnung
(c) Switzerland and the Conflation of Traditions
III Development by Early International Courts and Tribunals
A The Early International Codification Projects: 1873-1907
B The American Experience: 1902-1918
1 The Treaty of Corinto
2 The Central American Court of Justice
(a) Honduras v El Salvador and Guatemala
(b) The Bryan-Chamorro Treaty Cases
(i) Costa Rica v Nicaragua
(ii) El Salvador v Nicaragua
3 Provisional Measures in the Bryan Treaties
4 Assessing the Central American Experience
C Provisional Measures and Inter-War Arbitration
1 Inter-State Arbitration Treaties
2 The Mixed Arbitral Tribunals
IV The Permanent Court of International Justice
A The Statute of the Permanent Court of International Justice
1 The Advisory Committee of Jurists
2 Adoption of the Statute
B Procedural Rules of the Permanent Court of International Justice
1 The 1922 Rules
2 The 1931 Rules
3 The 1936 Rules
C The Jurisprudence of the Permanent Court of International Justice
1 The Sino-Belgian Treaty Case
2 Factory at Chorzów (Indemnities)
3 South-Eastern Greenland
4 The Prince von Pless Case
5 The Polish Agrarian Reform Case
6 Electricity Company
V Conclusions
A Towards a Modern Law of Provisional Measures
B Revisiting Two Premises
3 Constitutive Instruments and Procedural Rules
I Introduction
II The International Court of Justice
A Succeeding the Permanent Court of International Justice
B Article 41 of the ICJ Statute
C Provisional Measures and the ICJ Rules
1 The 1946 and 1972 Rules
2 The 1978 Rules
III Dispute Settlement Under UNCLOS
A UNCLOS Part XV and the System of Compulsory Dispute Settlement
1 UNCLOS III and the Codification of the Law of the Sea
2 Dispute Settlement Architecture Under UNCLOS
B UNCLOS Article 290
C Provisional Measures and the Procedural Rules of UNCLOS Part XV Dispute Settlement Bodies
1 The International Tribunal for the Law of the Sea
2 Annex VII Arbitration
IV International Investment Arbitration
A Treaty-Based Investor-State Arbitration
1 Bilateral and Multilateral Investment Treaties
2 ICSID and the ICSID Convention
3 The ICSID Additional Facility
B Treaty Provisions Governing Provisional Measures in International Investment Law
1 Article 47 of the ICSID Convention
2 NAFTA Article 1137
C Provisional Measures Under the ICSID Rules and ICSID (AF) Rules
1 Rule 39 of the ICSID Rules
2 Article 46 of the ICSID (AF) Rules
V Arbitral Tribunals and the UNCITRAL Arbitration Rules
A Arbitration and International Dispute Settlement
1 The Permanent Court of Arbitration
2 International Claims and Compensation Bodies
3 Non-ICSID Investment Arbitration
B The UNCITRAL Arbitration Rules
1 Drafting and Proliferation
2 The 2010 Amendments
C Provisional Measures Under the UNCITRAL Rules
1 Article 26 of the 1976 Rules
2 Article 26 of the 2010 Rules
VI Other International Courts and Tribunals
A The European Court of Justice
B International Human Rights Regimes
C International Commercial Arbitration
Part II Provisional Measures in General
4 Power to Order Provisional Measures
I Introduction
II Provisional Measures as Incidental Proceedings
III Legal Source of the Power to Order Provisional Measures
A Provisional Measures as a General Principle of International Law
B Provisional Measures as an Inherent Power of International Courts and Tribunals
C Provisional Measures as an Express Mandate
D Contours and Preconditions: Provisional Measures as Lex Specialis
1 Fixed Minimum Features of the Power
2 Constitutive Instruments and Lex Specialis
IV Prima Facie Jurisdiction
A The International Court of Justice
1 Early Debates and Discarded Alternatives
2 Settled Practice of the International Court of Justice
B Dispute Settlement Under UNCLOS
1 UNCLOS Article 290(1)
2 UNCLOS Article 290(5)
C Inter-State Arbitration
D Investor-State Arbitration
V Prima Facie Admissibility
A Jurisdiction and Admissibility Distinguished
B Prima Facie Admissibility and the International Court of Justice
C Prima Facie Admissibility in Other International Courts and Tribunals
1 Dispute Settlement Under UNCLOS
2 Inter-State Arbitration
3 Investor-State Arbitration
VI Admissibility of the Application for Provisional Measures Proper
VII Conclusions
5 Purpose of Provisional Measures
I Introduction
II Measures for the Preservation of Rights Pendente Lite
A Different Forms of the Measure
B Defining a Right Pendente Lite
C Relationship Between Measures Requested and the Merits Proper
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
(a) ICSID Arbitration
(b) UNCITRAL Arbitration
D Plausibility of the Rights Claimed and the Prospect of Success on the Merits
1 The International Court of Justice
(a) Merits Review in the Separate and Dissenting Opinions of the ICJ: 1951-2006
(b) Further Development and Scope: 2009 Onwards
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
III Measures for the Non-Aggravation of the Dispute
A Protection of the Objective Interest
B The International Court of Justice
1 A Separate Power?
2 Preconditions for the Award of Measures for Non-Aggravation
3 Scope and Effect of Measures for Non-Aggravation: The Border Area Case
C Dispute Settlement Under UNCLOS
D Inter-State Arbitration
E Investor-State Arbitration
1 ICSID Arbitration
2 UNCITRAL Arbitration
IV Conclusions
6 Prejudice and Urgency
I Introduction
II The International Court of Justice
A The Standard of ‘Irreparable’ Prejudice
B Questions of Urgency
1 Risk of Materialization Prior to the Date of Judgment
2 Representations by the Respondent: The Effect of Certain Documents and Data
III Dispute Settlement Under UNCLOS
A Prejudice Under UNCLOS Article 290
1 The Emergence of ‘Irreparable’ Prejudice
2 Serious Harm to the Marine Environment
B Urgency Under UNCLOS Article 290
1 General Considerations of Urgency
(a) Urgency Under UNCLOS Article 290(1)
(b) Urgency Under UNCLOS Article 290(5)
2 Risk of Materialization and the Effect of Undertakings
3 Measures for the Protection of the Marine Environment and the Precautionary Principle
IV Inter-State Arbitration
V Investor-State Arbitration
A Prejudice Before Investor-State Arbitration Tribunals
1 ICSID Arbitration
2 UNCITRAL Arbitration
B Urgency Before Investor-State Arbitration Tribunals
1 ICSID Arbitration
(a) General Considerations of Urgency
(b) Risk of Materialization and Axiomatic Urgency
2 UNCITRAL Arbitration
VI Conclusions
7 Content and Enforcement
I Introduction
II The Binding Character of Provisional Measures
A Early Debates Concerning the Permanent Court of International Justice and Beyond
1 Arguments Concerning Article 41 of the PCIJ and ICJ Statute
2 Arguments Concerning the Binding Character of Provisional Measures as a General Principle of Law
3 Practice of the International Court of Justice Prior to LaGrand: Anglo-Iranian Oil and Bosnian Genocide
4 The Practice of Other Courts and Tribunals
(a) Dispute Settlement Under UNCLOS
(b) Investor-State Arbitration
(i) ICSID Arbitration
(ii) UNCITRAL Arbitration
B LaGrand and Its Discontents
1 Background
2 The Proceedings in LaGrand
(a) The Pleadings
(b) The Judgment
(c) Dissenting Opinions
C The New Status Quo
III Content of Provisional Measures
A Content of Provisional Measures Generally
1 Measures for the Protection of Substantive or Procedural Rights
2 Interim Judgments and Final Resolution of the Dispute
B Proportionality in Provisional Measures
1 Proportionality in Investor-State Arbitration
2 Proportionality Before Other International Courts or Tribunals
3 Proportionality and Custody of Persons or Moveable Property
C Duration of Provisional Measures
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
IV Breach and Enforcement of Provisional Measures
A Legal Consequences of Non-Compliance and Questions of Applicable Law
1 Application of the Law of State Responsibility to Provisional Measures
(a) Attribution
(b) Breach and Defences
(c) Invocation of Responsibility
2 Individual and Corporate Liability for Breach of Provisional Measures
B Enforcement of Provisional Measures
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Investor-State Arbitration
(a) ICSID Arbitration
(b) UNCITRAL Arbitration
V Conclusions
Part III Specific Aspects of Provisional Measures
8 Questions of Substance and Procedure
I Introduction
II Provisional Measures and Questions of Substance
A Human Rights and Humanitarian Law
1 Cases in Which Humanitarian or Human Rights Law is the Subject of the Main Claim
2 Cases of Diplomatic Protection
3 Cases in Which the Link is Attenuated or Broken
4 Understanding the Practice
B Parallel Seisin of the International Court of Justice and UN Security Council
1 Interaction between the International Court of Justice and UN Security Council
2 Conflict Between Provisional Measures of the International Court of Justice and UN Security Council Resolutions
C Proceedings Before Other Courts and Tribunals
1 Domestic Civil Proceedings
(a) Identity of Parties
(b) Identity of Subject Matter
(c) Limitations to the Restraint of Domestic Civil Proceedings
2 Domestic Criminal Proceedings
3 Other International Proceedings
D Integarated Dispute Settlement
1 Integrated Approaches to International Dispute Settlement
2 Provisional Measures and Integrated International Dispute Settlement
(a) UNCLOS Article 290 and Provisional Measures for the Protection of the Marine Environment
(b) The International Court of Justice and Third Party Regulation of the Parties’ Behaviour
III Provisional Measures and Questions of Procedure
A Advisory Proceedings
1 Scope of the Advisory Jurisdiction
2 Provisional Measures and Advisory Proceedings
B Non-Appearing Parties
1 The Practice of Non-Appearance
2 Provisional Measures and Non-Appearing Parties
(a) General Practice
(b) The Errors of Arctic Sunrise
C Interpretation Proceedings
1 Interpretation of Judgments and Awards
2 Provisional Measures and Interpretation Proceedings
D ICSID Annulment Proceedings
1 The ICSID Annulment Mechanism
2 Provisional Measures in ICSID Annulment Proceedings
E Modification or Revocation of Provisional Measures
1 Procedures of Modification or Revocation
2 Justifying Modification or Revocation
9 Litigation Strategy and Provisional Measures
I Introduction
II Different Purposes of Provisional Measures
A Provisional Measures and the Future Conduct of Litigation
1 The International Court of Justice
2 Dispute Settlement Under UNCLOS
3 Inter-State Arbitration
4 Investor-State Arbitration
B Provisional Measures and Reputational Risks
1 Reputation and International Dispute Settlement
2 Benefits of Seeking Provisional Measures Notwithstanding Risk of Non-Compliance
3 Risks of Seeking Provisional Measures
C Provisional Measures as the Real Objective of Contested Proceedings
1 Time-Sensitive Situations
2 Custody of Persons or Moveable Property
D The ‘Proceed at Own Risk’ Principle
III Use and Abuse of Provisional Measures
A Abuse of Process in International Law
B Provisional Measures as an Abuse of Process
IV Conclusions
10 Conclusions
Appendix
Bibliography
Index

Citation preview

PROV ISIONAL MEASURES BEFORE INTERNATIONAL COUR TS AND TR IBUNALS

Since the decision of the International Court of Justice in LaGrand (Germany v United States of America), the law of provisional measures has expanded dramatically both in terms of the volume of relevant decisions and the complexity of their reasoning. Provisional Measures before International Courts and Tribunals seeks to describe and evaluate this expansion, and to undertake a comparative analysis of provisional measures jurisprudence in a range of significant international courts and tribunals so as to situate interim relief in the wider procedure of those adjudicative bodies. The result is the first comprehensive examination of the law of provisional measures in over a decade, and the first to compare investor-state arbitration jurisprudence with more traditional inter-state courts and tribunals. cameron miles is a barrister of Gray’s Inn and a barrister and solicitor of the Supreme Court of Victoria and the High Court of Australia. He is a practicing public international lawyer and a member of 3 Verulam Buildings in London.

cambridge studies in international and comparative law: 128 Established in 1946, this series produces high-quality, reflective and innovative scholarship in the field of public international law. It publishes works on international law that are of a theoretical, historical, cross-disciplinary or doctrinal nature. The series also welcomes books that provide insights from private international law, comparative law and transnational studies that inform international legal thought and practice more generally. The series seeks to publish views from diverse legal traditions and perspectives, and of any geographical origin. In this respect it invites studies offering regional perspectives on core probl´ematiques of international law, and in the same vein, it appreciates contrasts and debates between diverging approaches. Accordingly, books offering new or less orthodox perspectives are very much welcome. Works of a generalist character are greatly valued and the series is also open to studies on specific areas, institutions or problems. Translations of the most outstanding works published in other languages are also considered. After 70 years, Cambridge Studies in International and Comparative Law remains the standard-setter for international legal scholarship and will continue to define the discipline as it evolves in the years to come. General Editors

Larissa van den Herik Professor of Public International Law, Law School, Leiden University Jean D’Aspremont Professor of Public International Law, Manchester International Law Centre, University of Manchester

A list of books in the series can be found at the end of this volume.

PROV ISIONAL MEASURES BEFORE INTERNATIONAL COUR TS AND TR IBUNALS CAMERON MILES of Gray’s Inn, Barrister

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi - 110002, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107125599 10.1017/9781316410813  C Cameron Miles 2017

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library. Library of Congress Cataloguing-in-Publication Data Names: Miles, Cameron A., 1984– author. Title: Provisional measures before international courts and tribunals / Cameron A. Miles, 3 Verulam Buildings, Gray’s Inn. Description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2017. | Series: Cambridge studies in international and comparative law ; 128 | Includes bibliographical references and index. Identifiers: LCCN 2016041122 | ISBN 9781107125599 (hardback) Subjects: LCSH: Civil procedure (International law) | Provisional remedies. Classification: LCC KZ6250.M55 2017 | DDC 341.5/5 – dc23 LC record available at https://lccn.loc.gov/2016041122 ISBN 978-1-107-12559-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Salamander took issue with academic international lawyers and even more so judges who claimed that the resolution of this or that international legal question was not what a faithful adherence to the rules of the game suggested but what their partial account of the values purportedly reflected in the law was said to suggest. In Salamander’s view, this essentially populist opposition of positive law and the values underlying it – between mere ‘black-letter’ law and some more authentic spirit of that law – was spurious. The positive law was the values, or at least a particular formal embodiment of those values. This being so, recourse, in preference in effect to the application of the positive law, to what were said to be the values underpinning it was misconceived at best and special pleading at worst. Roger O’Keefe, ‘Curriculum Vitae: A Prequel’, Inaugural Lecture given at University College London, 10 December 2015, published in (2016) 69 Current Legal Problems

CONTENTS

Foreword page xvi Preface xix List of Abbreviations xxvi Table of Cases xxxiii Table of Treaties and Documents 1

Introduction

li

1

I Provisional Measures in International Law 1 A Definition and Character of Provisional Measures 1 B Provisional Measures and the Inherent Powers of International Courts and Tribunals 4 II Scope of the Book 5 A Overall Purpose 5 B Coverage of International Courts and Tribunals 6 III Outline of the Book 8

part i Preliminary Matters 2

Origins of Provisional Measures

13 15

I Introduction 15 II Municipal Law Origins 16 A Provisional Measures in Antiquity and the Middle Ages 16 1 Greco-Roman Origins 16 2 Provisional Measures in Canon Law 19 B Provisional Measures in the Common and Civil Law Traditions 1 The Common Law and the Interlocutory Injunction 21 2 The Civil Law Tradition and the Codifying Impulse 24 (a) France and the Code de Proc´edure Civile 25 (b) Germany and the Zivilprozessordnung 27 (c) Switzerland and the Conflation of Traditions 29 III Development by Early International Courts and Tribunals 31 A The Early International Codification Projects: 1873–1907 31 B The American Experience: 1902–1918 33

vii

20

viii

contents 1 The Treaty of Corinto 33 2 The Central American Court of Justice 34 (a) Honduras v El Salvador and Guatemala 37 (b) The Bryan–Chamorro Treaty Cases 38 (i) Costa Rica v Nicaragua 39 (ii) El Salvador v Nicaragua 41 3 Provisional Measures in the Bryan Treaties 42 4 Assessing the Central American Experience 43 C Provisional Measures and Inter-War Arbitration 45 1 Inter-State Arbitration Treaties 45 2 The Mixed Arbitral Tribunals 47 IV The Permanent Court of International Justice 51 A The Statute of the Permanent Court of International Justice 51 1 The Advisory Committee of Jurists 51 2 Adoption of the Statute 53 B Procedural Rules of the Permanent Court of International Justice 55 1 The 1922 Rules 55 2 The 1931 Rules 55 3 The 1936 Rules 58 C The Jurisprudence of the Permanent Court of International Justice 60 1 The Sino-Belgian Treaty Case 61 2 Factory at Chorz´ow (Indemnities) 65 3 South-Eastern Greenland 67 4 The Prince von Pless Case 69 5 The Polish Agrarian Reform Case 71 6 Electricity Company 74 V Conclusions 77 A Towards a Modern Law of Provisional Measures 77 B Revisiting Two Premises 80

3

Constitutive Instruments and Procedural Rules

82

I Introduction 82 II The International Court of Justice 82 A Succeeding the Permanent Court of International Justice 82 B Article 41 of the ICJ Statute 86 C Provisional Measures and the ICJ Rules 88 1 The 1946 and 1972 Rules 88 2 The 1978 Rules 89 III Dispute Settlement Under UNCLOS 93 A UNCLOS Part XV and the System of Compulsory Dispute Settlement 93 1 UNCLOS III and the Codification of the Law of the Sea 93 2 Dispute Settlement Architecture Under UNCLOS 96 B UNCLOS Article 290 98

contents

ix

C Provisional Measures and the Procedural Rules of UNCLOS Part XV Dispute Settlement Bodies 101 1 The International Tribunal for the Law of the Sea 101 2 Annex VII Arbitration 105 IV International Investment Arbitration 106 A Treaty-Based Investor-State Arbitration 106 1 Bilateral and Multilateral Investment Treaties 106 2 ICSID and the ICSID Convention 108 3 The ICSID Additional Facility 109 B Treaty Provisions Governing Provisional Measures in International Investment Law 110 1 Article 47 of the ICSID Convention 110 2 NAFTA Article 1137 112 C Provisional Measures Under the ICSID Rules and ICSID (AF) Rules 113 1 Rule 39 of the ICSID Rules 113 2 Article 46 of the ICSID (AF) Rules 115 V Arbitral Tribunals and the UNCITRAL Arbitration Rules 116 A Arbitration and International Dispute Settlement 116 1 The Permanent Court of Arbitration 116 2 International Claims and Compensation Bodies 117 3 Non-ICSID Investment Arbitration 118 B The UNCITRAL Arbitration Rules 118 1 Drafting and Proliferation 118 2 The 2010 Amendments 121 C Provisional Measures Under the UNCITRAL Rules 123 1 Article 26 of the 1976 Rules 123 2 Article 26 of the 2010 Rules 124 VI Other International Courts and Tribunals 127 A The European Court of Justice 127 B International Human Rights Regimes 128 C International Commercial Arbitration 129

part ii Provisional Measures in General 4

Power to Order Provisional Measures

131

133

I Introduction 133 II Provisional Measures as Incidental Proceedings 134 III Legal Source of the Power to Order Provisional Measures 136 A Provisional Measures as a General Principle of International Law 136 B Provisional Measures as an Inherent Power of International Courts and Tribunals 139 C Provisional Measures as an Express Mandate 142

x

contents D Contours and Preconditions: Provisional Measures as Lex Specialis 143 1 Fixed Minimum Features of the Power 143 2 Constitutive Instruments and Lex Specialis 144 IV Prima Facie Jurisdiction 147 A The International Court of Justice 149 1 Early Debates and Discarded Alternatives 149 2 Settled Practice of the International Court of Justice 151 B Dispute Settlement Under UNCLOS 155 1 UNCLOS Article 290(1) 155 2 UNCLOS Article 290(5) 156 C Inter-State Arbitration 158 D Investor-State Arbitration 159 V Prima Facie Admissibility 162 A Jurisdiction and Admissibility Distinguished 162 B Prima Facie Admissibility and the International Court of Justice 164 C Prima Facie Admissibility in Other International Courts and Tribunals 166 1 Dispute Settlement Under UNCLOS 166 2 Inter-State Arbitration 168 3 Investor-State Arbitration 168 VI Admissibility of the Application for Provisional Measures Proper 169 VII Conclusions 171

5

Purpose of Provisional Measures

174

I Introduction 174 II Measures for the Preservation of Rights Pendente Lite 175 A Different Forms of the Measure 175 B Defining a Right Pendente Lite 176 C Relationship Between Measures Requested and the Merits Proper 179 1 The International Court of Justice 180 2 Dispute Settlement Under UNCLOS 185 3 Inter-State Arbitration 186 4 Investor-State Arbitration 187 (a) ICSID Arbitration 187 (b) UNCITRAL Arbitration 191 D Plausibility of the Rights Claimed and the Prospect of Success on the Merits 193 1 The International Court of Justice 194 (a) Merits Review in the Separate and Dissenting Opinions of the ICJ: 1951–2006 194 (b) Further Development and Scope: 2009 Onwards 197

contents 2 Dispute Settlement Under UNCLOS 201 3 Inter-State Arbitration 203 4 Investor-State Arbitration 205 III Measures for the Non-Aggravation of the Dispute 208 A Protection of the Objective Interest 208 B The International Court of Justice 209 1 A Separate Power? 209 2 Preconditions for the Award of Measures of Non-Aggravation 213 3 Scope and Effect of Measures for Non-Aggravation: The Border Area Case 214 C Dispute Settlement Under UNCLOS 216 D Inter-State Arbitration 218 E Investor-State Arbitration 218 1 ICSID Arbitration 218 2 UNCITRAL Arbitration 222 IV Conclusions 223

6

Prejudice and Urgency

225

I Introduction 225 II The International Court of Justice 226 A The Standard of ‘Irreparable’ Prejudice 226 B Questions of Urgency 232 1 Risk of Materialization Prior to the Date of Judgment 232 2 Representations by the Respondent: The Effect of Certain Documents and Data 234 III Dispute Settlement Under UNCLOS 239 A Prejudice Under UNCLOS Article 290 239 1 The Emergence of ‘Irreparable’ Prejudice 239 2 Serious Harm to the Marine Environment 243 B Urgency Under UNCLOS Article 290 245 1 General Considerations of Urgency 245 (a) Urgency Under UNCLOS Article 290(1) 245 (b) Urgency Under UNCLOS Article 290(5) 246 2 Risk of Materialization and the Effect of Undertakings 248 3 Measures for the Protection of the Marine Environment and the Precautionary Principle 252 IV Inter-State Arbitration 255 V Investor-State Arbitration 257 A Prejudice Before Investor-State Arbitration Tribunals 257 1 ICSID Arbitration 257 2 UNCITRAL Arbitration 263 B Urgency Before Investor-State Arbitration Tribunals 266 1 ICSID Arbitration 266

xi

xii

contents (a) General Considerations of Urgency 266 (b) Risk of Materialization and Axiomatic Urgency 2 UNCITRAL Arbitration 269 VI Conclusions 272

7

Content and Enforcement

267

274

I Introduction 274 II The Binding Character of Provisional Measures 275 A Early Debates Concerning the Permanent Court of International Justice and Beyond 275 1 Arguments Concerning Article 41 of the PCIJ and ICJ Statute 276 2 Arguments Concerning the Binding Character of Provisional Measures as a General Principle of Law 280 3 Practice of the International Court of Justice Prior to LaGrand: Anglo-Iranian Oil and Bosnian Genocide 282 4 The Practice of Other Courts and Tribunals 285 (a) Dispute Settlement Under UNCLOS 285 (b) Investor-State Arbitration 285 (i) ICSID Arbitration 285 (ii) UNCITRAL Arbitration 287 B LaGrand and Its Discontents 288 1 Background 288 2 The Proceedings in LaGrand 291 (a) The Pleadings 291 (b) The Judgment 292 (c) Dissenting Opinions 293 C The New Status Quo 295 III Content of Provisional Measures 298 A Content of Provisional Measures Generally 298 1 Measures for the Protection of Substantive or Procedural Rights 298 2 Interim Judgments and Final Resolution of the Dispute 302 B Proportionality in Provisional Measures 304 1 Proportionality in Investor-State Arbitration 305 2 Proportionality Before Other International Courts or Tribunals 307 3 Proportionality and Custody of Persons or Moveable Property 309 C Duration of Provisional Measures 316 1 The International Court of Justice 316 2 Dispute Settlement Under UNCLOS 317 3 Inter-State Arbitration 318 4 Investor-State Arbitration 318

contents

xiii

IV Breach and Enforcement of Provisional Measures 319 A Legal Consequences of Non-Compliance and Questions of Applicable Law 319 1 Application of the Law of State Responsibility to Provisional Measures 319 (a) Attribution 320 (b) Breach and Defences 321 (c) Invocation of Responsibility 323 2 Individual and Corporate Liability for Breach of Provisional Measures 326 B Enforcement of Provisional Measures 328 1 The International Court of Justice 329 2 Dispute Settlement Under UNCLOS 336 3 Investor-State Arbitration 336 (a) ICSID Arbitration 336 (b) UNCITRAL Arbitration 339 V Conclusions 341

part iii Specific Aspects of Provisional Measures 8

Questions of Substance and Procedure

343

345

I Introduction 345 II Provisional Measures and Questions of Substance 346 A Human Rights and Humanitarian Law 346 1 Cases in Which Humanitarian or Human Rights Law is the Subject of the Main Claim 347 2 Cases of Diplomatic Protection 353 3 Cases in Which the Link is Attenuated or Broken 356 4 Understanding the Practice 362 B Parallel Seisen of the International Court of Justice and UN Security Council 364 1 Interaction between the International Court of Justice and the UN Security Council 364 2 Conflict Between Provisional Measures of the International Court of Justice and UN Security Council Resolutions 368 C Proceedings Before Other Courts and Tribunals 369 1 Domestic Civil Proceedings 372 (a) Identity of Parties 373 (b) Identity of Subject Matter 374 (c) Limitations to the Restraint of Domestic Civil Proceedings 376 2 Domestic Criminal Proceedings 377 3 Other International Proceedings 382

xiv

contents D Integrated Dispute Settlement 384 1 Integrated Approaches to International Dispute Settlement 384 2 Provisional Measures and Integrated International Dispute Settlement 387 (a) UNCLOS Article 290 and Provisional Measures for the Protection of the Marine Environment 388 (b) The International Court of Justice and Third Party Regulation of the Parties’ Behaviour 392 III Provisional Measures and Questions of Procedure 397 A Advisory Proceedings 397 1 Scope of the Advisory Jurisdiction 397 2 Provisional Measures and Advisory Proceedings 400 B Non-Appearing Parties 405 1 The Practice of Non-Appearance 405 2 Provisional Measures and Non-Appearing Parties 409 (a) General Practice 409 (b) The Errors of Arctic Sunrise 409 C Interpretation Proceedings 414 1 Interpretation of Judgments and Awards 414 2 Provisional Measures and Interpretation Proceedings 417 D ICSID Annulment Proceedings 423 1 The ICSID Annulment Mechanism 423 2 Provisional Measures in ICSID Annulment Proceedings 425 E Modification or Revocation of Provisional Measures 433 1 Procedures of Modification or Revocation 433 2 Justifying Modification or Revocation 436

9

Litigation Strategy and Provisional Measures

443

I Introduction 443 II Different Purposes of Provisional Measures 444 A Provisional Measures and the Future Conduct of Litigation 445 1 The International Court of Justice 446 2 Dispute Settlement Under UNCLOS 449 3 Inter-State Arbitration 450 4 Investor-State Arbitration 451 B Provisional Measure and Reputational Risks 453 1 Reputation and International Dispute Settlement 453 2 Benefits of Seeking Provisional Measures Notwithstanding Risk of Non-Compliance 455 3 Risks of Seeking Provisional Measures 457 C Provisional Measures as the Real Objective of Contested Proceedings 458 1 Time-Sensitive Situations 459 2 Custody of Persons or Moveable Property 461 D The ‘Proceed at Own Risk’ Principle 463

contents III Use and Abuse of Provisional Measures 466 A Abuse of Process in International Law 466 B Provisional Measures as an Abuse of Process 469 IV Conclusions 471

10

Conclusions

473

Appendix 477 Bibliography 488 Index 509

xv

FOREWORD

On 8 January 1927, President Huber of the Permanent Court of International Justice handed down in circumstances of urgency the first recognizably modern order for provisional measures of protection by an international court or tribunal. The decision – taken alone pursuant to Article 41 of the Court’s Statute and Article 57 of its 1922 Rules – in the Sino-Belgian Treaty case1 was for 12 years an only child: although the Permanent Court would consider five other applications under Article 41, it would not see fit to award interim relief again until 1939, when the decision in Electricity Company was made against the approaching thunder of the Second World War.2 Provisional measures, it seemed, were to be considered an extraordinary remedy for extraordinary times: certainly not as a mainstay of international procedural law. Some 90 years later, the position is very different. International law is no longer dominated by a single body. Although the International Court of Justice is the successor to the Permanent Court and exercises a plenary jurisdiction of similar scope, the postwar international order has seen a great growth in the number and variety of adjudicative institutions, the majority of which have the power to award provisional measures. The result has been a rapid increase in the number of decisions concerning interim relief and the refinement of their reasoning. Cameron Miles’ book is one of the first to take account of these developments and to examine the international law of provisional measures in comparative perspective. Following a comprehensive analysis of the case law of the International Court, bodies operating under Part XV of the UN Convention on the Law of the Sea3 (specifically the International Tribunal for the Law of the Sea and Annex VII arbitral tribunals), 1 2 3

Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v China) (1928) PCIJ Ser A No 8. Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79. 16 November 1994, 1833 UNTS 3.

xvi

foreword

xvii

investor-state arbitration tribunals (including the Iran–US Claims Tribunal and ICSID and UNCITRAL tribunals) and those rare examples of inter-state arbitration tribunals which have awarded provisional measures,4 Miles identifies a ‘common approach’ to interim relief as between these courts and tribunals entailing certain uniform elements. The word ‘approach’ is carefully chosen – outside a few basic constraints that spring from the character of international jurisdiction generally, international courts and tribunals are free to adopt their own approach to provisional measures, and are in no sense bound to follow the dictates of (for example) the International Court on the topic. Nevertheless, a definable jurisprudence constante has emerged whereby most international courts follow the same process when deciding whether interim relief should be ordered: (a) whether the court or tribunal possesses prima facie jurisdiction over the dispute (which may include an inquiry into the dispute’s prima facie admissibility and the admissibility of the request for provisional measures itself); (b) some form of review over whether the applicant for interim relief possesses a case on the merits (whether in the form of the so-called ‘plausibility’ test or a more searching prima facie analysis of the applicant’s position); (c) whether the requisite relationship between the measures of protection sought and the rights subject to final adjudication exists; (d) whether there is a risk of ‘irreparable’ prejudice to those rights if provisional measures are not awarded, and (e) whether judicial or arbitral intervention is in all the circumstances urgent. Furthermore, the determination by the International Court in LaGrand5 that provisional measures ordered under Article 41 of its Statute are binding in international law – a decision that followed from a similar determination by an ICSID tribunal6 and the express wording of UNCLOS Article 290(6) – has more recently given rise to a new issue: state responsibility and the enforcement of provisional measures whether through the final judgment or other means. Miles sensibly uses these common elements to structure a legal analysis and comparative study of provisional measures that goes beyond earlier studies of the subject. He seeks coherence without oversimplifying – and so is willing to admit where a particular tribunal has chosen to depart from the ‘common approach’, choosing to see such departures not as heresy but 4 5 6

See e.g. Indus Waters Kishenganga Arbitration (Pakistan v India), Interim Measures (2011) 150 ILR 311. LaGrand (Germany v US), ICJ Reports 2001 p 466. Emilio Agust´ın Maffezini v Spain, Procedural Order No 2 (1999) 5 ICSID Reports 393.

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as the corollary of a variable system of international adjudication. This reflects a belief in the development of what might be termed international civil procedure – a corpus of jurisdictional and case management tools between international courts and tribunals to be drawn on as required. Whilst this is not entirely novel – Miles is anticipated to a degree by Bin Cheng,7 and more so by Chester Brown8 – Provisional Measures Before International Courts and Tribunals is one of the first extended considerations of these ideas in a particular field, and may serve as a proof of concept for other investigations of its kind. Of note in this respect is Miles’ Chapter 8, which situates interim relief in the context of other elements of international procedure, e.g. parallel proceedings, advisory proceedings and non-appearing parties. Seen in this light, interim relief is now properly seen as integrated into the dispute resolution process. The logical endpoint of this is Chapter 9, which takes account of the litigation strategy of interim relief, and how it might be used to achieve objectives beyond preservation of rights pendente lite or the status quo. In sum, Miles is to be congratulated. Provisional Measures Before International Courts and Tribunals will undoubtedly serve as a first port of call for scholars, practitioners and adjudicators who are confronted with questions involving interim relief, and international procedure more generally. It is a reflection of the growing maturity of the system of international courts and tribunals and their procedure. The Hague 1 May 2016 7 8

Judge James Crawford AC International Court of Justice

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953). Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2007).

PREFACE

This book arose out of a conversation with Dr Thomas Grant at the Lauterpacht Centre for International Law in Cambridge between the Michaelmas and Lent terms 2012–13. I had found myself in that least enviable of positions for a doctoral candidate – that what had at first blush been considered a viable (even fruitful!) topic of investigation had in my clumsy hands turned out to be decidedly unviable.1 The decision was made to abandon that particular windmill, and select another at which to tilt. Fortunately for me, Tom at that time was retained by the Thai government, and as such had cause to consider (at some length) the wider implications of the recent provisional measures decision of the International Court of Justice in Temple (Interpretation).2 On this basis, he commented that it was high time that the field was revisited – and not just in the ICJ-centric manner in which previous texts had dealt with the topic.3 Rather, he proposed, any analysis undertaken should be comparative in character, and to address a variety of international courts and tribunals so as to observe the extent to which ideas were being transmitted between these bodies. Furthermore, Tom suggested, any such investigation should take account of the interaction between provisional measures 1

2

3

The topic in question was that of resource extraction in res communis spaces, with a particular focus on seabed mining beyond 200nm under UNCLOS Part XI. The field is now the subject of investigation by Dr Surabhi Ranganathan, who will doubtlessly do a far better job with it than I ever could! See now Surabhi Ranganathan, ‘Global Commons’ (2016) 27 EJIL 693. Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537. See e.g. Jerzy Stucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer, 1983). A notable exception in this regard is Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005), but Rosenne’s analysis is hamstrung somewhat by the limited ITLOS and Annex VII case law available at that time.

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and other procedural devices in international law such that the proper role of each could be defined. Although provisional measures must be considered incidental within a wider international dispute, that did not mean they could be considered distinct from international procedure as a whole. A further conversation with Professor James Crawford AC SC, my thesis supervisor, confirmed that the idea was a good one and the appropriate authorities were notified forthwith. So far as I saw it, the contribution of the proposed project would be primarily practical and – in my plodding, common law way – black letter. Its originality would lie in its capacity to provide coherence to an area of international procedural law that was in a state of exponential growth on multiple fronts, positing solutions to common problems as it went. It would further carry on a school of thought – epitomized by the work of (inter alia) Bin Cheng4 and Chester Brown5 – that spoke of the potential for an international law of civil procedure produced through a ‘crossfertilization’ of ideas as between international adjudicative bodies. Such a unified approach to procedural questions, it might be thought, would reflect the maturity of the system of international dispute settlement, and indeed reaffirm its systemic qualities. ∗∗∗ The book that emerged over the next three years (or so) was produced during a time at which the law of provisional measures as it existed in the different courts and tribunals under examination was in a state of rapid evolution. This process did not coincide with the commencement of my project, but had (at least in my view) been under way in one form or another since the 2001 confirmation by the ICJ in LaGrand that its provisional measures were binding.6 This had prompted the Court to – perhaps in a manner that it had not previously turned its mind to – think carefully about the prerequisites for interim relief and the way in which these prerequisites were legally articulated. This made very little difference to some aspects of the calculation – prima facie jurisdiction, for example, had been a mainstay of the Court’s jurisprudence since the Fisheries Jurisdiction cases of the 1970s7 – but it prompted the evolution or 4 5 6 7

Bin Cheng, General Principles of International Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953). Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2007). LaGrand (Germany v US), ICJ Reports 2001 p 466, 501–2. Fisheries Jurisdiction (UK v Iceland), Interim Protection, ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (FRG v Iceland), Interim Protection, ICJ Reports 1972 p 32, 34.

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invention of others, notably what I refer to in shorthand as the ‘plausibility’8 and ‘link’9 requirements. LaGrand also forced the Court to grapple with the question of enforcement of provisional measures as a matter of state responsibility and the law of remedies – a situation with which it is still, despite multiple attempts,10 not entirely comfortable. A development that did occur over the lifetime of this project, however, was the issuing of several bold decisions on provisional measures by ITLOS under UNCLOS Article 290. These have certainly been innovative, but this innovation is not always constructively expressed,11 particularly insofar as these decisions have sought to alter the status quo pending resolution of the dispute by requiring the release of contested persons or assets – which may be identified as the principal excesses (amongst others) of ARA Libertad12 and Arctic Sunrise,13 qualified (so it seems) by the later decision in Enrica Lexie.14 By far the most active group of international courts and tribunals over the past three years has, however, been investor-state tribunals operating under both the ICSID Convention and in accordance with the 1976 and 2010 iterations of the UNCITRAL Rules. To my mind, such bodies offer fascinating potential for cross-fertilization as referred to earlier, due principally to the large number of eminent public international lawyers, both academics and judges, who sit on such tribunals. One need only look at the decision of the Tribunal in CEMEX v Venezuela,15 of which Judge Gilbert Guillaume and Professor Georges Abi-Saab were members, to understand 8 9 10

11

12 13 14

15

Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, ICJ Reports 2009 p 139, 151. Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, ICJ Reports 2007 p 3, 10–11. See e.g. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 34, 230–7. In this respect, I may be safely categorized as one of Ambrose Bierce’s Conservatives, being an individual ‘enamoured of existing evils, as distinguished from the Liberal, who wishes to replace them with others’: The Devil’s Dictionary (New York: Oxford University Press, 1999). ARA Libertad (Argentina v Ghana), Provisional Measures (2011) 156 ILR 186, 205. Arctic Sunrise (Netherlands v Russian Federation), ITLOS Case No 22 (Provisional Measures, 22 November 2013) §93–7, 105. Enrica Lexie Incident (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §§123–7. The strides taken by ITLOS in that case were reversed in part by the later decision on the same matter by the Annex VII tribunal in Enrica Lexie Incident (Italy v India), PCA Case No 2015-38 (Annex VII) (Provisional Measures, 29 April 2016), which unfortunately came too late to be considered. CEMEX Caracas Investments BV and CEMEX Caracas II Investments BV v Venezuela, ICSID Case No ARB/08/15 (Provisional Measures, 3 March 2010).

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how ideas may migrate between such bodies, as well as the odd persistence in certain other investor-state decisions of a separate opinion of President Jim´enez de Ar´echaga in the Aegean Sea case,16 which has been informally abandoned (at least as I see it) by the ICJ itself. And yet, the peculiar character of such bodies – brought about by their temporary nature and the fact that they are called upon to adjudicate between a person (natural or juridical) and the state – means investor-state arbitration is frequently called upon to deal with issues that rarely if ever arise between inter-state tribunals. Speaking subjectively, one such development has been the extent to which investor-state tribunals have been asked to step in to enjoin or forestall criminal or regulatory proceedings in the host state of the investment pendente lite after the arbitration has already commenced. Beginning with decisions such as Paushok v Mongolia,17 Perenco v Ecuador18 and Quiborax v Bolivia,19 the jurisprudence in this area has expanded progressively, leading to the adoption of a structured test for the resolution of such problems20 and its introduction into unusual fields, most recently with respect to preventing the state from maintaining extradition proceedings abroad.21 Finally, another development that occurred post-LaGrand – though I do not claim that it was inspired by it – was the decision of the Court of Arbitration in the Kishenganga dispute.22 This decision was unique in that unlike the other courts and tribunals under consideration, the Court derived its jurisdiction from a single instrument, the Indus Waters Treaty,23 which in Paragraph 28 of Annexure G was given a sui generis power to order interim relief. Further and in addition, the Court 16 17 18 19 20 21 22 23

Aegean Sea Continental Shelf (Greece v Turkey), Provisional Measures, ICJ Reports 1976 p 3, 16. Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia, UNCITRAL (Interim Measures, 2 September 2008). Perenco Ecuador Limited v Ecuador and Empresa Estatal Petr´oleos del Ecuador (PetroEcuador), ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009). Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kapl´un v Bolivia, ICSID Case No ARB/06/2 (Provisional Measures, 26 February 2010). Lao Holdings NV v Lao People’s Democratic Republic, ICSID Case No ARB(AF)/12/6 (Motion to Amend Provisional Measures, 30 May 2014) §§30, 37. Hydro Srl and Ors v Albania, ICSID Case No ARB/15/28 (Provisional Measures, 3 March 2016). Indus Waters Kishenganga Arbitration (Pakistan v India), Interim Measures (2011) 150 ILR 311. Indus Waters Treaty between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development, 19 September 1960, 419 UNTS 215.

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comprised a unique cross-section of the international legal community: judges, academics, governmental legal advisers and commercial arbitrators. The resulting opinion was thus (a) an opportunity to observe how a specific legal instrument might affect a general power in international law to award interim relief (as lex specialis), and (b) an opportunity to see how a tribunal composed of individuals drawn from across the international law spectrum would consider interim relief. From this perspective, Kishenganga is a significant decision for someone interested in a comparative approach to provisional measures, and in this book it has (I hope) received the recognition it deserves. ∗ The previous discussion is not intended to be a tour de horizon of recent developments for provisional measures in international law – though in re-reading it myself I understand it might look that way. Rather, it is an attempt to demonstrate that the importance of interim relief as a procedural tool has only increased since LaGrand, as the volume and complexity of the case law shows. This book intends to reflect some of the progress of the past 15 years, and to set it against the background of what came before. Ultimately, it will be for the reader to judge if it is of any use. The law here is as it was on 15 April 2016. Although this meant that several important decisions (e.g. the Annex VII provisional measures order in Enrica Lexie) came too late to be included in any substantive sense, I have done my best to flag the existence of these in the footnotes. Notwithstanding the immense contribution of those listed below, the usual caveat applies. ∗∗∗ As is often the case with projects of this kind, this book would not exist without help from a large number of people. Thanks firstly are owed to my thesis supervisor, who is now Judge James Crawford AC of the International Court of Justice. Over the course of his academic career, Judge Crawford has fostered many doctoral candidates, of which I am privileged to have been one. I have further been fortunate to have a professional association with him in one form or another that has stretched over the past five years (hopefully counting) and to count him as a mentor. His influence can be seen writ large in the footnotes, though in general his sage advice, encyclopedic knowledge and infinite patience have made this study far better than it ought to have been – and without his encouragement it may never have happened at all.

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In the same breath, thanks are also owed to my thesis adviser, Dr Thomas Grant. As I mentioned earlier, it was Tom who first suggested this topic to me and convinced me that it was worthy of extended study. Not one to shirk responsibility, he has always accepted cheerfully a measure of blame for setting me on this path, and has reliably proved to be a source of good humour and revelation in equal parts. In the course of writing this book, I have further benefited from consultations and discussions with a wide variety of peers – and particularly from my colleagues (past and present) from the Faculty of Law and the Lauterpacht Centre for International Law at Cambridge. They are too numerous to mention here in extenso, but especial thanks are owed to Lorand Bartels, Emma Bickerstaffe, Daniel Clarry, Marie-Claire Cordonier-Segger, Bart Smit Duijzentkunst, Markus Gehring, Christine Grey, Callista Harris, Naomi Hart, Valentin Jeutner, Jonathan Ketcheson, Massimo Lando, Rowan Nicholson, Sarah Nouwen, Roger O’Keefe, Daniel Peat, Surabhi Ranganathan, Pippa Rogerson, Jake Rylatt, Sahib Singh, Michael Waibel, Matthew Windsor and Rumiana Yotova. David Wills, Lesley Dingle and the wider staff of the Squire Law Library were unfailingly helpful and resourceful. Jason Allen and Rajiv Shah provided much-needed translation assistance. The usual suspects at Cambridge University Press – Finola O’Sullivan, Liz Spicer, Chlo´e Harries and Fiona Allison – were patience personified, as was the typesetting team at Aptara, coordinated with skill by Abdus Salam Mazumder. Beyond Cambridge, Mads Andenas, Eirik Bjorge, Govert Coppens, Tariq Baloch, Douglas Guilfoyle, Martins Paparinskis, Philippe Sands, Antonios Tzanakopoulos and Sir Michael Wood have proved invaluable sounding boards for various ideas (some better than others, and others still not worth mentioning). Sam Luttrell and Romesh Weeramantry did the same in addition to being invaluable and unfailing professional companions. My thanks to them all. This book would further not have been possible without the generous financial support of Trinity Hall, the Cambridge Commonwealth Trust and the Environmental Services Authority Trust. The latter is deserving of particular gratitude for permitting me to pursue a topic not directly related to environmental law, having nonetheless perceived and understood the immense practical value of my chosen subject to that area. A version of Chapter 2 was published as ‘The Origins of Provisional Measures before International Courts and Tribunals’ (2013) 73 Za¨oRV 615. I am very much indebted to the editors and publisher of that journal for permitting me to include it in the present work.

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I have saved the most important people for last. Vivienne Miles, Campbell Miles, Lachlan Miles and Stephanie Mullen were an unceasing source of encouragement and support during the writing of this book, and tolerated hours of interminable disquisition on provisional measures in international law; an experience that they neither asked for nor deserved. This book is affectionately dedicated to them accordingly. London 7 October 2016

Cameron Miles 3 Verulam Buildings

ABBREV IATIONS

1976 UNCITRAL Rules 2006 UNCITRAL Model Law 2010 UNCITRAL Rules AC AJCL AJIL AJIL Supp ALR Anales Ann de l’Inst Arb Int’l ARSIWA

ARSIWA Commentary

ASEAN ASIL Proc ATS AYIL Basic Documents: Investment

Basic Documents: Settlement

UNCITRAL Arbitration Rules 1976 UNCITRAL Model Law on International Commercial Arbitration 2006 UNCITRAL Arbitration Rules 2010 Appeal Cases (UK) American Journal of Comparative Law American Journal of International Law American Journal of International Law Supplement Australian Law Reports Anales de la Corte de Justicia Centroamericana Annuaire de l’Institut de droit international Arbitration International ILC Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Ybk 2001/II(2), 26 Commentary to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Ybk 2001/II(2), 31 Association of South-East Asian Nations Proceedings of the American Society of International Law at its Annual Meeting Australian Treaty Series Australian Yearbook of International Law Martins Paparinskis (ed), Documents in International Law: Basic Documents on International Investment Protection (Oxford: Hart, 2012) Christian J Tams and Antonios Tzanakopoulos (eds), Documents in International Law: Basic Documents on the Settlement of International Dispute (Oxford: Hart, 2012)

xxvi

list of abbreviations Basic Documents: PCA

BFSP BIT Brook JIL Brownlie’s Principles

BYIL CACJ Ca West ILJ CERD Chinese JIL CIC CJICL CJIL Claims Settlement Declaration

CLJ Col JTL CTS CPC CR Delhi LR Documents

DRC DR–CAFTA ECJ

xxvii

Basic Documents of the Permanent Court of Arbitration: Conventions, Rules, Model Clauses and Guidelines (The Hague: Permanent Court of Arbitration, 1998) British Foreign and State Papers Bilateral Investment Treaty Brooklyn Journal of International Law James Crawford, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 8th edn, 2012) British Yearbook of International Law Central American Court of Justice California Western International Law Journal International Convention for the Elimination of All Forms of Racial Discrimination Chinese Journal of International Law Corpus iuris canonici (Canon law) Cambridge Journal of International and Comparative Law Chicago Journal of International Law Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran Cambridge Law Journal Columbia Journal of Transnational Law Consolidated Treaty Series Code de proc´edure civile 1806 (France) Compte rendu (record of oral proceedings before the International Court of Justice) Delhi Law Review Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (London: League of Nations, 1920) Democratic Republic of the Congo Dominican Republic–Central America–United States Free Trade Agreement Court of Justice of the European Union

xxviii ECHR

ECT ECtHR EEZ EJIL ER EWCA EWHC F.3d Fouchard, Gaillard, Goldman

FRG F.Supp GA Genocide Convention GJIL Hague Recueil Hague YIL Harv LR HILJ IACtHR ICC ICCPR ICJ ICJ Acts and Documents ICJ Commentary

ICJ Pleadings ICJ Reports

list of abbreviations Convention for the Protection of Human Right and Fundamental Freedoms (European Convention on Human Rights) Energy Charter Treaty European Court of Human Rights Exclusive Economic Zone European Journal of International Law English Reports Court of Appeal of England and Wales High Court of England and Wales Federal Reporter, 3rd Series (US) Emmanuel Gaillard and John Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer, 1999) Federal Republic of Germany Federal Reports, Supplement (US) United Nations General Assembly Convention on the Prevention and Punishment of the Crime of Genocide Georgetown Journal of International Law Recueil des cours de l’Acad´emie de droit international Hague Yearbook of International Law Harvard Law Review Harvard International Law Journal Inter-American Court of Human Rights International Chamber of Commerce International Covenant on Civil and Political Rights International Court of Justice Acts and Documents concerning the Organization of the International Court of Justice Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm and Christian Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2nd edn, 2012) Pleadings, Oral Arguments and Documents presented to the International Court of Justice Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice

list of abbreviations ICJ Rules ICJ Statute ICJ Ybk ICLQ ICSID ICSID Commentary

ICSID Convention

ICSID Reports

ICSID (AF)

ICSID (AF) Rules ICSID Rules ICSID History

ICSID Rev – FILJ IELR IJIL Ind LJ IJMCL ILC ILC Ybk ILM ILR Int’l Theory Iran–US CTR Israel LR ITLOS

xxix

Rules of Court of the International Court of Justice 1978 Statute of the International Court of Justice Yearbook of the International Court of Justice International and Comparative Law Quarterly International Centre for Settlement of Investment Disputes Christoph Schreuer, Loretta Malintoppi, August Reinisch and Anthony Sinclair, The ICSID Convention: A Commentary (Cambridge: Cambridge University Press, 2nd edn, 2009) Convention on the Settlement of Investment Disputes between States and Nationals of Other States Reports of Cases Decided Under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of ICSID ICSID Arbitration (Additional Facility) Rules 2006 ICSID Rules of Procedure for Arbitration Proceedings 2006 History of the ICSID Convention: Documents Concerning the Origin and Formulation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 5 vols (Washington, DC: ICSID, 1968–1970). ICSID Review – Foreign Investment Law Journal International Environmental Law Reports Indian Journal of International Law Indiana Law Journal International Journal of Marine and Coastal Law International Law Commission Yearbook of the International Law Commission International Legal Materials International Law Reports International Theory Iran–US Claims Tribunal Reports Israel Law Review International Tribunal for the Law of the Sea

xxx ITLOS Rules ITLOS Basic Texts JICJ JIDS JWIT JYIL LCIA LJIL LJLC LMCLQ LN Doc LNTS LPICT McGill LJ MJIL MPEPIL

NAFTA New York Convention NILR NYIL NYUJILP ODIL OJ OJLS PCA PCA Arbitration Rules PCA Optional Rules PCIJ

PCIJ Statute

list of abbreviations Rules of Procedure of the International Tribunal for the Law of the Sea 2009 Basic Texts of the International Tribunal for the Law of the Sea Journal of International Criminal Justice Journal of International Dispute Settlement Journal of World Investment and Trade Japanese Yearbook of International Law London Court of International Arbitration Leiden Journal of International Law Leeds Journal of Law and Criminology Lloyd’s Maritime and Commercial Law Quarterly League of Nations Document League of Nations Treaty Series Law and Practice of International Courts and Tribunals McGill Law Journal Melbourne Journal of International Law Rudiger W¨olfrum (gen ed), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, online edn) North American Free Trade Agreement Convention on the Recognition and Enforcement of Foreign Arbitral Awards Netherlands International Law Review Netherlands Yearbook of International Law New York University Journal of International Law and Politics Ocean Development and International Law Official Journal (EU) Oxford Journal of Legal Studies Permanent Court of Arbitration PCA Arbitration Rules 2012 PCA Optional Rules for Arbitrating Disputes Between Two States 1992 Permanent Court of International Justice (in citations) Publications of the Permanent Court of International Justice Statute of the Permanent Court of International Justice

list of abbreviations Proc`es-Verbaux

RabelsZ Redfern & Hunter

Res Restatement Third

RGZ RHDI RIAA SC SCR Straddling Stocks Agreement

SYIL TAM TFEU TLCP TST UN Charter UNCIO

UNCITRAL UNCITRAL Register

xxxi

Proc`es-Verbaux of the Proceedings of the Committee, June 16th–July 24th 1920, with Annexes (The Hague: van Langenhuysen Brothers, 1920) Rabels Zeitschrift f¨ur ausl¨andisches und internationales Privatrecht Nigel Blackaby and Constantine Partasides (with Alan Redfern and Martin Hunter), Redfern and Hunter on International Commercial Arbitration (Oxford: Oxford University Press, 5th edn, 2009) Resolution Restatement (Third) of the Foreign Relations Law of the United States, 2 vols (St Paul, MN: American Law Institute, 1987) Reichsgerichts in Zivilsachen (Germany) Revue hell´enique de droit international United Nations Reports of International Arbitral Awards United Nations Security Council Supreme Court Reports (Canada) Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks Singapore Yearbook of International Law Recueil des décisions des tribunaux arbitraux mixtes, instit´ues par les trait´es de paix Consolidated Version of the Treaty on the Functioning of the European Union Transnational Law and Contemporary Problems Timor Sea Treaty Charter of the United Nations Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945) United Nations Conference on International Trade Law UNCITRAL, Register of Texts of Conventions and Other Instruments Concerning International Trade Law, 2 vols (New York: United Nations, 1973)

xxxii UNCITRAL Ybk UNCLOS UNCLOS III Off Rec

UNCTAD UN Doc UNESCO U Pa JIL US USC USFR Va JIL Vand JTL VCCR VCLT Virginia Commentary

W Arb Med Rev Wash ULQ WPF WTO Yale LJ YJIL Ybk Comm Arb Za¨oRV ZPO

list of abbreviations Yearbook of the United Nations Conference on International Trade United Nations Convention on the Law of the Sea Official Records of the Third United Conference on the Law of the Sea (New York: United Nations, 1972–1983) United Nations Conference on Trade and Development United Nations Document United Nations Educational, Scientific and Cultural Organization University of Pennsylvania Journal of International Law (in citations) United States Supreme Court Reports United States Code Papers relating to the Foreign Relations of the United States Virginia Journal of International Law Vanderbilt Journal of Transnational Law Vienna Convention on Consular Relations Vienna Convention on the Law of Treaties Myron N Nordquist (gen ed), United Nations Conventions on the Law of the Sea: A Commentary, 6 vols (Dordrecht: Martinus Nijhoff Publishers, 1985–1993) World Arbitration and Mediation Review Washington University Law Quarterly World Peace Foundation Pamphlet Series World Trade Organization Yale Law Journal Yale Journal of International Law Yearbook of Commercial Arbitration Zeitschrift f¨ur ausl¨andisches o¨ffentliches Recht und V¨olkerrecht Zivilprozessordnung (Germany)

CASES

A Central American Court of Justice Costa Rica v Nicaragua 39 Order of 1 May 1916, USFR (1916) 841 39 Award of 30 September 1916, (1917) 11 AJIL 181 39 El Salvador v Nicaragua 41 Order of 6 September 1916, 5 Anales 229 41 Award of 9 March 1917, (1917) 11 AJIL 674 41 Honduras v El Salvador and Guatemala 37, 40, 44 Order of 13 July 1908, (1908) 2 AJIL 838 37 Award of 19 December 1908, (1909) 3 AJIL 729 37

B Mixed Arbitral Tribunals Central Agricultural Union of Poland v Poland (1925) 6 TAM 329 49 Electricity Company of Sofia and Bulgaria v Municipality of Sofia and Bulgaria (1923) 3 TAM 593 49 Electric Tramway Company of Sofia v Bulgaria and Municipality of Sofia (1923) 2 TAM 928 49 Ellermann v Poland (1924) 5 TAM 457 66 Gramophone Co Ltd v Deutsch Grammophon Aktiengesellschaft and Polyphonwerke Aktiengesellschaft (1922) 1 TAM 857 49 Hallyn v Busch (1920) 1 TAM 10 49, 300 Re Majo and Brother (1922) 1 TAM 937 49, 300 Re Monplanet and Thelier (1920) 1 TAM 12 49, 300 Societ´e Tissages de Proisy v Farchy (1922) 2 TAM 338 49, 300 Tiedemann v Poland (1923) 3 TAM 596 50 Tiedmann v Poland (1924) 9 TAM 321 50 Ungarische Erdgas A-G v Romania (1925) 3 ILR 412 281

C Permanent Court of International Justice∗ Administration of the Prince von Pless (Germany v Poland) Order of 4 February 1933 (1933) PCIJ Ser A/B No 54 15, 69–71, 191 Order of 2 December 1933 (1933) PCIJ Ser A/B No 59 71

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xxxiv

cases

Certain German Interests in Polish Upper Silesia (Germany v Poland) (1926) PCIJ Ser A No 7 65, 302, 467 Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v China) Order of 8 January 1927 (1927) PCIJ Ser A No 8, 6 15, 61–65, 145, 242, 347–8 Order of 15 February 1927 (1927) PCIJ Ser A No 8, 11 64, 437 Order of 29 May 1929 (1929) PCIJ Ser A No 18 65 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) Preliminary Objections (1939) PCIJ Ser A/B No 77 75 Order of 5 December 1939 (1939) PCIJ Ser A/B No 79 3, 15, 74–6, 191, 209, 276, 282, 326, 371 Order of 26 February 1940 (1940) PCIJ Ser A/B No 80 76 Factory at Chorz´ow (Germany v Poland) (1928) PCIJ Ser A No 17 67, 465 Factory at Chorz´ow (Indemnities) (Germany v Poland) Order of 21 November 1927 (1927) PCIJ Ser A No 12 15, 28, 53, 65–9, 302–3, 462 Order of 25 May 1929 (1929) PCIJ Ser A No 19 67 Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (1929) PCIJ Ser A No 22 277 (1932) PCIJ Ser A/B No 46 467 Interpretation of Judgments Nos 7 and 8 (Factory at Chorz´ow) (Germany v Poland) (1927) PCIJ Ser A No 13 416 Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ Ser A/B No 53 69, 334 Legal Status of the South-Eastern Territory of Greenland (Denmark v Norway) Order of 2 August 1932 (1932) PCIJ Ser A/B No 48, 67 Order of 3 August 1932 (1932) PCIJ Ser A/B No 48, 277 15, 67–9, 80, 136, 145, 180, 235, 348, 360 Order of 11 May 1933 (1933) PCIJ Ser A/B No 55 69 Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Ser B No 4 398 SS Lotus (France v Turkey) (1927) PCIJ Ser A No 10 179 Status of Eastern Carelia (1923) PCIJ Ser B No 5 87 Pajzs, Cz´aky, Esterh´azy (Hungary v Yugoslavia) (1936) PCIJ Ser A/B No 68 334 Polish Agrarian Reform and the German Minority (Germany v Poland) Order of 29 July 1933 (1933) PCIJ Ser A/B No 58 15, 71–4, 175, 181, 201 Order of 2 December 1933 (1933) PCIJ Ser A/B No 60 74

D International Court of Justice† Admission of a State to the United Nations (Article 4 of the Charter), Advisory Opinion, ICJ Reports 1948 p 57 398

international court of justice

xxxv

Aegean Sea Continental Shelf (Greece v Turkey), Interim Protection, ICJ Reports 1976 p 3 2, 88, 136, 139, 149, 150, 151, 176, 180, 210, 211, 230, 264, 307, 364, 366, 409, 412 Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) Judgment, ICJ Reports 2010 p 639 353 Compensation, ICJ Reports 2012 p 324 334 Anglo-Iranian Oil Company (United Kingdom of Great Britain and Northern Ireland v Iran) Interim Measures of Protection, ICJ Reports 1951 p 89 77, 79, 88, 100, 133, 144, 149, 196, 209, 227, 282, 283, 300, 316, 364, 412, 444, 448, 476 Preliminary Objection, ICJ Reports 1952 p 93 150, 154, 316, 406, 448 Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), Advisory Opinion, ICJ Reports 1972 p 46 325 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Order of 9 March 1988, ICJ Reports 1988 p 3 400–3 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Order of 14 June 1989, ICJ Reports 1989 p 9 403 Application for Review of Judgment No 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973 p 166 334 Application for Review of Judgment No 333 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1987 p 18 398 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), ICJ Reports 1984 p 192 416 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Provisional Measures, ICJ Reports 1993 p 3 177, 184, 229, 282, 300, 331, 349–50, 364, 457 Provisional Measures, ICJ Reports 1993 p 325 93, 282, 284, 294, 331, 364, 420, 438 Judgment, ICJ Reports 2007 p 43 331, 361, 449 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) Provisional Measures, ICJ Reports 2008 p 353 3, 152, 154, 180, 184, 197, 214, 229, 295, 351, 365, 448 Preliminary Objections, ICJ Reports 2011 p 70 153, 154, 448 Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64 2, 53, 87, 180, 332, 401 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)

xxxvi

cases

Provisional Measures, ICJ Reports 2000 p 111 153, 165, 210, 214, 229, 330, 352, 367, 445 Judgment, ICJ Reports 2005 p 168 330, 445 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Provisional Measures, ICJ Reports 2002 p 219 153, 448 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Provisional Measures, ICJ Reports 2000 p 182 234, 378 Avena and Other Mexican Nationals (Mexico v United States of America) Provisional Measures, ICJ Reports 2003 p 77 165, 182–183, 301, 323, 354, 355, 445 Judgment, ICJ Reports 2004 p 12 317, 418, 467 Barcelona Traction, Light and Power Company Ltd (Belgium v Spain), ICJ Reports 1970 p 3 143, 384 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) Provisional Measures, ICJ Reports 2011 p 6 153, 165, 166, 182, 183, 184, 185, 197, 198, 199, 215, 225, 229, 233, 295, 322, 333, 393, 394, 439, 449 Joinder of Proceedings, ICJ Reports 2013 p 166 439 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) Provisional Measures, ICJ Reports 2013 p 230 93, 215, 295, 333, 420, 439–42, 445 Provisional Measures, ICJ Reports 2013 p 354 182, 184, 202, 216, 229, 295, 322, 333, 394, 442, 445, 449 ICJ, Judgment of 16 December 2015 335 Certain Criminal Proceedings in France (Congo v France), Provisional Measures, ICJ Reports 2003 p 102 153, 182, 210, 213, 240, 378 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Reports 1962 p 151 280, 398 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992 p 240 467, 470 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, ICJ Reports 1960 p 5 398 Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) Joinder of Proceedings, ICJ Reports 2013 p 184 439 Provisional Measures, ICJ Reports 2013 p 398 440 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) Judgment, ICJ Reports 1949 p 4 378 Compensation, ICJ Reports 1949 p 244 329

international court of justice

xxxvii

Difference Relating to the Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1998 p 423 398 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213 39, 393 East Timor (Portugal v Australia), Judgment, ICJ Reports 1995 p 90 147 Fisheries (UK v Norway), Judgment, ICJ Reports 1951 p 116 467 Fisheries Jurisdiction (Federal Republic of Germany v Iceland) Interim Protection, ICJ Reports 1972 p 30 90, 93, 135, 150, 151, 176, 180, 210, 228, 282, 317, 409, 444 Interim Measures, ICJ Reports 1973 p 313 93, 283, 317, 444 Judgment, ICJ Reports 1974 p 175 284 Fisheries Jurisdiction (Spain v Canada), Preliminary Objections, ICJ Reports 1998 p 432 148 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) Interim Protection, ICJ Reports 1972 p 12 2, 90, 93, 135, 145, 150, 151, 176, 177, 180, 210, 228, 282, 317, 409, 444 Interim Measures, ICJ Reports 1973 p 302 93, 283, 317, 444 Frontier Dispute (Burkina Faso/Mali), Provisional Measures, ICJ Reports 1986 p 3 88, 190, 210, 213, 228, 357, 392 Gabˇc´ıkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997 p 7 322, 395 Interhandel (Switzerland v United States of America), Interim Measures of Protection, ICJ Reports 1957 p 105 9, 88, 147, 148, 149, 151, 204, 227, 235, 371 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950 p 128 143 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase), Advisory Opinion, ICJ Reports 1950 p 221 87 LaGrand (Germany v United States of America) Provisional Measures, ICJ Reports 1999 p 9 91, 92, 165, 183, 229, 233, 289, 301, 323, 354, 355, 356, 367 Judgment, ICJ Reports 2001 p 466 5, 53, 87, 138, 165, 174, 209, 274, 291–292, 294, 323–324, 330, 347, 356, 445, 475 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea intervening) Provisional Measures, ICJ Reports 1996 p 13 145, 165, 166, 180, 190, 210, 229, 300, 301, 330, 358, 359, 364, 392 Judgment, ICJ Reports 2002 p 303 330 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, ICJ Reports 1990 p 92 134 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004 p 136 399

xxxviii

cases

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971 p 16 122, 398 Legality of Use of Force (Yugoslavia v Belgium), Provisional Measures, ICJ Reports 1999 p 124 152, 468, 470 Legality of Use of Force (Yugoslavia v Netherlands), Provisional Measures, ICJ Reports 1999 p 542 468, 470 Legality of Use of Force (Yugoslavia v Spain), Provisional Measures, ICJ Reports 1999 p 761 153, 448 Legality of Use of Force (Serbia and Montenegro v United Kingdom of Great Britain and Northern Ireland), Preliminary Objections, ICJ Reports 2004 p 1307 4, 139 Legality of Use of Force (Yugoslavia v United States of America), Provisional Measures, ICJ Reports 1999 p 916 448 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66 398 Legality of the Use or Threat of Nuclear Weapons, ICJ Reports 1996 p 266 398 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) Jurisdiction and Admissibility, ICJ Reports 1994 p 112 407 Judgment, ICJ Reports 2001 p 40 468 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) Provisional Measures, ICJ Reports 1984 p 169 152, 153, 162, 228, 300, 349, 444 Preliminary Objections, ICJ Reports 1984 p 392 317, 365, 406 Judgment, ICJ Reports 1986 p 14 93, 284, 406, 407 Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Objections, ICJ Reports 1954 p 19 147 Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, ICJ Reports 1963 p 15 4, 139, 169 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969 p 3 395 Nottebohm (Liechtenstein v Guatemala), Preliminary Objections, ICJ Reports 1953 p 111 4, 140 Nuclear Tests (Australia v France) Interim Protection, ICJ Reports 1973 p 99 90, 151, 152, 197, 210, 228, 300, 409, 444 Judgment, ICJ Reports 1974 p 253 4, 139, 163, 235, 284, 316, 406 Nuclear Tests (New Zealand v France) Interim Protection, ICJ Reports 1973 p 135 90, 150, 151, 152, 198, 228, 300, 409, 444 Judgment, ICJ Reports 1974 p 457 4, 139, 164, 316, 406

international court of justice

xxxix

Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, ICJ Reports 2009 p 139 148, 152, 165, 182, 197, 198, 233, 235, 447 Oil Platforms (Islamic Republic of Iran v United States of America), ICJ Reports 2003 p 161 163 Passage through the Great Belt (Denmark v Norway) Provisional Measures, ICJ Reports 1991 p 12 148, 195, 228, 232, 235, 307, 463 Order of 10 September 1992, ICJ Reports 1992 p 348 449 Pulp Mills on the River Uruguay (Argentina v Uruguay) Provisional Measures, ICJ Reports 2006 p 113 148, 153, 178, 195, 229, 232, 234, 447, 459, 463 Provisional Measures, ICJ Reports 2007 p 3 3, 139, 148, 178, 182, 208, 211, 229, 366, 459, 460 Judgment, ICJ Reports 2010 p 14 466 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom of Great Britain and Northern Ireland), Provisional Measures, ICJ Reports 1992 p 3 228, 364, 368 Questions of the Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Provisional Measures, ICJ Reports 1992 p 114 210, 364, 368 Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) ICJ, Order of 28 January 2014 171 ICJ, Order of 3 March 2014 134, 135, 153, 171, 176, 182, 197, 198, 200, 295, 308, 438, 445 ICJ, Order of 22 April 2015 438 ICJ, Order of 11 June 2015 447 Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949 p 174 398 Request for the Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case (New Zealand v France), Provisional Measures, ICJ Reports 1995 p 288 164 Request for Interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537 149, 153, 183, 196, 197, 198, 204, 229, 300, 347, 365, 369, 415, 419, 421, 422 Request for Interpretation of the Judgment of 20 November 1950, in Asylum (Colombia/Peru) (Colombia/Peru), Judgment, ICJ Reports 1950 p 359 329, 416 Request for Interpretation of the Judgment of 31 March in the Case concerning Avena and Other Mexican Nationals (Mexico v United States of America) (Mexico v

xl

cases

United States of America), Provisional Measures, ICJ Reports 2008 p 311 182, 229, 415, 417, 418, 420 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951 p 15 398 Right of Passage over Indian Territory (Portugal v India), Preliminary Objections, ICJ Reports 1957 p 125 210 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008 p 12 387 Temple of Preah Vihear (Cambodia v Thailand), Judgment, ICJ Reports 1962 p 6 183, 395, 396, 421 Territorial and Maritime Dispute (Nicaragua v Colombia), Preliminary Objections, ICJ Reports 2007 p 832 296 Trial of Pakistani Prisoners of War (Pakistan v India), Provisional Measures, ICJ Reports 1973 p 328 90, 148, 228, 234, 406 United States Diplomatic and Consular Staff in Tehran (United States of America v Islamic Republic of Iran), Provisional Measures, ICJ Reports 1979 p 6 88, 92, 210, 226, 228, 233, 282, 310, 353, 354, 356, 409, 444, 461 Vienna Convention on Consular Relations (Paraguay v United States of America) 92, 183 Provisional Measures, ICJ Reports 1998 p 248 92, 183, 290, 301, 323, 354, 355 Order of 10 November 1998, ICJ Reports 1998 p 426 291 Western Sahara, Advisory Opinion, ICJ Reports 1975 p 12 398

E International Tribunal for the Law of the Sea ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186 104, 156, 157, 158, 185, 202, 240, 241, 285, 311, 450, 461 Artic Sunrise (Netherlands v Russian Federation), ITLOS Case No 22 (Provisional Measures, 22 November 2013) 156, 157, 167, 202, 241, 242, 245, 249, 250, 285, 300, 312, 318, 361, 409–14, 445, 461, 462 Delimitation of the Maritime Boundary between Ghana and Cˆote d’Ivoire in the Atlantic Ocean (Ghana/Cˆote d’Ivoire), ITLOS Case No 23 (Provisional Measures, 25 April 2015) 97, 185, 202, 217, 241, 243, 246, 254, 449 Enrica Lexie Incident (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) 156, 167, 202, 241, 249, 251, 314, 316, 360, 461 Land Reclamation by Singapore in and around the Straits of Johor (Singapore v Malaysia), Provisional Measures (2003) 126 ILR 487 156, 167, 176, 186, 240, 244, 247, 248, 250, 301, 308, 318, 390 M/V Louisa (St Vincent and the Grenadines v Spain) Provisional Measures (2010) 148 ILR 459 155, 167, 202, 241, 244, 245, 246, 248, 250, 413, 450 ITLOS Case No 18 (Judgment, 28 May 2013) 450

iran–united states claims tribunal

xli

M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea), Provisional Measures (1998) 117 ILR 111 145, 155, 202, 216, 239, 240, 242, 244, 245, 285, 361, 370, 371, 413, 449 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion (2011) 150 ILR 244 97, 255, 388, 398 Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS Case No 21 (Advisory Opinion, 2 April 2015) 399, 428 Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148 145, 156, 167, 176, 217, 239, 240, 244, 246, 247, 252, 253, 254, 285, 300, 324, 389

F UNCLOS Annex VII Arbitrations ARA Libertad (Argentina v Ghana) PCA Case No 2013–11 (Procedural Order No 1, 13 July 2013) 105, 106 PCA Case No 2013–11 (Termination Order, 11 November 2013) 313 Arctic Sunrise (Netherlands v Russian Federation) PCA Case No 2014–02 (Award, 14 August 2015) 319, 322, 336, 407, 462 Guyana v Suriname (2007) 139 ILR 566 167, 361, 449 Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), PCA (Annex VII) (Award on Agreed Terms, 1 September 2005) 390 MOX Plant (Ireland v United Kingdom of Great Britain and Northern Ireland), Procedural Order No 3 (2003) 126 ILR 310 106, 145, 155, 156, 167, 171 Republic of Mauritius v United Kingdom of Great Britain and Northern Ireland, UNCLOS Annex VII (Award, 18 March 2015) 167 Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Jurisdiction and Admissibility (2000) 119 ILR 508 247, 317

G Iran–United States Claims Tribunal Aeronutronic Overseas Services Inc v Government of the Islamic Republic of Iran, Air Force of the Islamic Republic of Iran and Bark Markazi Iran, Interim Award (1985) 8 Iran–US CTR 75 161, 264 Atlantic Richfield Company v Iran, the National Iranian Oil Company and Lavan Petroleum Company (1985) 8 Iran–US CTR 179 270 Behring International Inc v Iranian Air Force (1983) 3 Iran-US CTR 173 264, 265, 266, 288, 300, 303 (1985) 8 Iran–US CTR 237 265 Bendone-Derossi International v Government of the Islamic Republic of Iran, Interim Award (1984) 6 Iran–US CTR 130 161 Boeing Company v Iran (1984) 5 Iran–US CTR 152 264

xlii

cases

Component Builders Inc, Wood Components Co and Moshofsky Enterprises v Islamic Republic of Iran, Bank Maskan Iran and Insurance Company of Iran, Interim Award (1985) 8 Iran–US CTR 216 161, 373 E-Systems Inc v Islamic Republic of Iran & Bank Melli Iran, Interim Award (1983) 2 Iran–US CTR 51 3, 141, 191, 288, 301, 372, 373 Fluor Corporation v Iran and National Iranian Oil Co 263 (1982) 1 Iran–US CTR 121 263 (1986) 11 Iran–US CTR 296 270, 301, 376 Ford Aerospace and Communications Corporation and Aeronutronic Overseas Services Inc v Air Force of the Islamic Republic of Iran, Ground Forces of the Islamic Republic of Iran, Ministry of National Defence of the Islamic Republic of Iran and Government of Iran, Interim Award (1984) 6 Iran–US CTR 104 161 Government of the United States of America, on behalf and for the benefit of Tadjer-Cohen Associates Incorporated v Islamic Republic of Iran, Interim Award (1985) 9 Iran–US CTR 302 161, 192, 373 Iran v US (A-4 & A-15) (1984) 5 Iran–US CTR 112 264, 300 Iran v US (A-15(IV) & A24) (1993) 29 Iran–US CTR 214 264 Iran v US (B1) (1989) 22 Iran–US CTR 105 264 Paul Donin de Rosiere & Panacaviar SA v Iran and Sherkat Sahami Shilat Iran (1986) 13 Iran–US CTR 193 264, 270, 271 RCA Global Communications Disc Inc (RCA Globcom Disc), RCA Globcom Communications (RCA Globcom Inc), RCA Globcom Systems Inc v Islamic Republic of Iran, Telecommunications Company of Iran, Islamic Republic of Iran’s Army Joint Staff, Bank Melli Iran, Bank Markazi and Foreign Trade Bank of Iran, Interim Award (1983) 4 Iran–US CTR 5 161, 191, 192, 376 Rockwell International Systems Inc v Government of the Islamic Republic of Iran, Ministry of Defence, Interim Award (1983) 2 Iran–US CTR 369 161, 372, 373 Touche Ross and Company v Iran (1985) 9 Iran–US CTR 287 339 United States (Shipside Packing Co) v Iran (Ministry of Roads and Transport) (1983) 3 Iran–US CTR 331 300 United Technologies International Inc v Islamic Republic of Iran, Iranian Ministry of War for Armament, its Sucessors and Assigns, Iranian Navy, Iran Helicopter Support and Renewal Company, Bank Markazi Iran, International Bank of Iran and Japan, International Bank of Japan and Iranian Flight Hanger, Decision (1986) 13 Iran–US CTR 254 192, 303, 376 Watkins-Johnson Company v Iran (1983) 2 Iran–US CTR 362 339

H Investor-State Arbitrations Under the ICSID Convention, and Additional Facility‡ Abaclat and Ors v Argentine Republic, ICSID Case No ARB/07/5 Jurisdiction and Admissibility, 4 August 2011 467

investor-state arbitrations

xliii

Procedural Order No 11, 27 June 2012 168, 269, 378 AGIP SpA v People’s Republic of the Congo, Provisional Measures (1977) 1 ICSID Reports 309 189, 190, 287, 302, 337 Amco Asia Corporation, Pan American Development Ltd and PT Amco Indonesia v Republic of Indonesia, Provisional Measures (1983) 1 ICSID Reports 410 138, 179, 188, 219, 221, 257, 258, 302 Asian Agricultural Products Ltd v Republic of Sri Lanka, ICSID Case No ARB/87/3 (Award, 27 June 1990) 109 ATA Industrial, Construction and Trading Co v Jordan, ICSID Case No ARB/08/2 (Award, 18 May 2010) 369 Azurix Corp v Argentine Republic, ICSID Case No ARB/01/12 Provisional Measures, 6 August 2003 221, 267 Award, 14 July 2006 338 Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No ARB/03/29 (Decision on Jurisdiction, 14 November 2005) 179, 190, 302 Bear Creek Mining Corporation v Republic of Peru, ICSID Case No ARB/14/21 (Procedural Order No 2, 19 April 2015) 263, 377 Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No ARB/05/22 Procedural Order No 1, 31 March 2006 189, 208, 220, 257, 266, 267, 302 Procedural Order No 3, 29 September 2006 4, 141, 190, 221, 326, 430 Brandes Investment Partners LP v Bolivarian Republic of Venezuela, ICSID Case No ARB/08/3 (Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 2 February 2009) 451 Burlington Resources Inc and Ors v Republic of Ecuador and Empresa Estatal Petr´oleos Del Ecuador (Petroecuador), ICSID Case No ARB/08/5 (Procedural Order No 1, 29 June 2009) 145, 188, 206, 259, 260, 300, 452 Caratube International Oil Company LLP v Republic of Kazakhstan, ICSID Case No ARB/08/12 (Provisional Measures, 31 July 2009) 220, 297, 378 Cementownia ‘Nowa Huta’ SA v Republic of Turkey, ICSID Case No ARB(AF)/06/2 (Award, 17 September 2009) 468 CEMEX Caracas Investments BV and CEMEX Caracas II Investments BV v Bolivarian Republic of Venezuela, ICSID Case No ARB/05/15 (Provisional Measures, 3 March 2010) 220, 261, 263, 265 Ceskoslovenska Obchodni Banka AS v Slovak Republic, ICSID Case No ARB/97/4 189, 219, 375 Procedural Order No 2, 9 September 1998 375 Procedural Order No 3, 5 November 1998 219 Jurisdiction, 24 May 1999 160, 189, 375 Churchill Mining PLC v Republic of Indonesia, ICSID Case No ARB/12/13 (Procedural Order No 3, 4 March 2013) 160, 179, 188, 189, 220, 257, 259, 302 City Oriente Ltd v Republic of Ecuador and Empresa Estatal Petr´oleos Del Ecuador (Petroecuador), ICSID Case No ARB/06/21 (Revocation of Provisional Measures, 13 May 2008) 145, 188, 218, 221, 260, 261, 268, 269, 297, 319, 378

xliv

cases

CME Czech Republic BV (The Netherlands) v Czech Republic Partial Award (2001) 9 ICSID Rep 121 382 Final Award (2003) 9 ICSID Rep 264 382 CMS Gas Transmission Company v Republic of Argentina, ICSID Case No ARB/01/8 (Decision on Jurisdiction, 18 July 2003) 162 EDF (Services) Limited v Romania, ICSID Case No ARB/05/13 Procedural Order No 2, 30 May 2008 302 Award, 8 October 2009 326 Emilio Agust´ın Maffezini v Kingdom of Spain, Procedural Order No 2 (2001) 5 ICSID Reports 393 111, 113, 179, 187, 205, 266, 287, 294, 296, 302, 337 Enron Corporation and Ponderosa Assets LP v Argentine Republic, ICSID Case No ARB/95/3 (Decision on Jurisdiction, 14 January 2004) 162 Europe Cement Investment and Trade SA v Republic of Turkey, ICSID Case No ARB(AF)/07/2 (Award, 13 August 2009) 338, 468 Generation Ukraine Inc v Ukraine, ICSID Case No ARB/00/9 (Award, 16 September 2003) 338 Global Trading Resource Corporation and Globex International Inc v Ukraine, ICSID Case No ARB/09/11, 1 December 2010) 451 Helnan International Hotels AS v Arab Republic of Egypt, ICSID Case No ARB/05/19 (Provisional Measures, 17 May 2006) 258 Holiday Inns and Ors v Morocco, ICSID Case No ARB/72/1 (Provisional Measures, 2 July 1972), extracts published in Pierre Lalive, ‘The First “World Bank” Arbitration – Some Legal Problems’ (1980) 51 BYIL 123 160, 219, 258, 287, 498 Hydro srl and Ors v Albania, ICSID Case No ARB/15/28 (Provisional Measures, 3 March 2016) 262, 268, 378, 380, 382 International Quantum Resources Ltd, Frontier SPRL & Compagnie Mini`ere de Sakania SPRL v Democratic Republic of the Congo, ICSID Case No ARB/10/21 (Procedural Order No 1, 1 July 2011) 300 Ioan Micula, Viorel Micula, SC European Food SA, SC Starmill SRL and SC Multipack SRL v Romania, ICSID Case No ARB/05/20 (Decision on Jurisdiction and Admissibility, 24 September 2008) 163, 262, 429, 430, 432, 433 Kilic Insaat Ithalat Ihracat Sanayi ve Ticaret Anonim Sirketi v Turkmenistan, ICSID Case No ARB/10/1 (Award, 2 July 2013) 163 Lao Holdings NV v Lao People’s Democratic Republic, ICSID Case No ARB(AF)/12/16 (Ruling on Motion to Amend the Provisional Measures Order, 30 May 2014) 189, 315, 371, 379, 380, 381, 441 Ronald S Lauder v Czech Republic (2001) 9 ICSID Rep 66 382 Libananco Holdings Co Ltd v Turkey, ICSID Case No ARB/06/8 Preliminary Issues, 23 June 2008 302 Award, 2 September 2011 338

investor-state arbitrations

xlv

Liberian Eastern Timber Corporation v Liberia, Award (1986) 2 ICSID Reports 370 338, 407 Loewen Group Inc v Raymond L Loewen v United States of America, ICSID Case No ARB(AF)/98/3 (Decision on Jurisdiction, 5 January 2001) 189, 302 Marion Unglaube and Reinhard Unglaube v Republic of Costa Rica, ICSID Case Nos ARB/08/1 & ARB/09/20 (Award, 16 May 2012) 166 Maritime International Nominees Establishment v Guinea, Award (1988) 4 ICSID Reports 61 179, 287, 337, 373 Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No ARB(AF)/99/1 (Procedural Order No 2, 3 May 2000) 113, 299 Metalclad Corporation v United Mexican States, ICSID Case No ARB(AF)/97/1 (Order for Non-Disclosure, 27 October 1997) 189, 258 Millicom International Operations BV and Sentel GSM SA v Republic of Senegal, ICSID Case No ARB/08/20 (Provisional Measures, 9 December 2009) 159, 189, 220, 267, 297, 302, 374 Occidental Petroleum Corporation and Occidental Exploration and Production Company v Republic of Ecuador, ICSID Case No ARB/06/11 (Provisional Measures, 17 August 2007) 160, 205, 220, 258, 267, 268 Perenco Ecuador Ltd v Republic of Ecuador and Empresa Estatal Petr´oleos Del Ecuador (Petroecuador), ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009) 145, 188, 190, 221, 260, 263, 297, 300, 373 Phillip Morris Asia Limited v Commonwealth of Australia, PCA Case No 2012–12 (Procedural Order No 1, 7 June 2012) 123 Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/5 205, 258 Provisional Measures, 6 April 2007 205, 258, 267, 303, 338 Award, 15 April 2009 468 Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/03/24 176–7, 189, 220, 258, 267, 338, 376 Order, 6 September 2005 176, 258, 376, 426 Award, 27 August 2007 338 PNG Sustainable Development Program Ltd v Independent State of Papua New Guinea, ICSID Case No ARB/33/13 207, 262 Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 28 October 2014 452 Provisional Measures, 19 January 2015 159, 207, 221, 262, 268, 303, 305, 315, 319, 381 Award, 5 May 2015 452 Pope & Talbot Inc v Canada, Interim Measures (2000) 122 ILR 301 113, 299 PSEG Global Inc, The North American Coal Corporation and Konya Ingin Electrik ¨ Uretim ve Ticaret Limited Sirketi v Republic of Turkey, ICSID Case No ARB/02/5 (Award, 19 January 2007) 338

xlvi

cases

Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kapl´un v Plurinational State of Bolivia, ICSID Case No ARB/06/2 (Provisional Measures, 26 February 2010) 189, 190, 206, 220, 259, 297, 301, 302, 306, 337, 338, 378, 379, 380 Rachel S Grynberg, Stephen M Grynberg, Miriam Z Grynberg and RSM Production Corporation v Grenada, ICSID Case No ARB/10/6 (Award, 10 December 2010) 451 Railway Development Corporation v Republic of Guatemala, ICSID Case No ARB/07/23 (Provisional Measures, 15 October 2008) 189 RSM Production Corporation v St Lucia, ICSID Case No ARB/12/10 (Security for Costs, 13 August 2014) 161, 297 Saba Fakes v Republic of Turkey, ICSID Case No ARB/07/20 (Award, 14 July 2010) 338 Saipem SpA v People’s Republic of Bangladesh, ICSID Case No ARB/05/7 (Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007) 266, 304 Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16 (Award, 28 September 2007) 189 SGS Soci´et´e G´en´erale de Surveillance SA v Islamic Republic of Pakistan, Procedural Order No 2 (2002) 8 ICSID Reports 388 3, 189, 221, 302 SGS Soci´et´e G´en´erale de Surveillance SA v Republic of the Philippines, ICSID Case No ARB/02/6 (Decision on Jurisdiction, 24 January 2004) 162 Tanzania Electric Supply Company Limited v Independent Power Tanzania Ltd, Provisional Measures (1999) 8 ICSID Reports 239 188 Teinver SA, Transportes de Cercan´ıas SA and Autobuses Urbanos del Sur SA v Argentine Republic, ICSID Case No ARB/09/1 (Provisional Measures, 8 April 2016) 372, 377, 378, 381 Tethyan Copper Company Pty Ltd v Islamic Republic of Pakistan, ICSID Case No ARB/12/1 (Provisional Measures, 13 December 2012) 160, 176, 188, 206, 258, 297, 452 Tokios Tokel´es v Ukraine, ICSID Case No ARB/02/18 (Procedural Order No 1, 1 July 2003) 189, 220, 300–1, 373, 378 Trans-Global Petroleum Inc v Hashemite Kingdom of Jordan, ICSID Case No ARB/7/25 (Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008) 451 Vacuum Salt Products Limited v Government of the Republic of Ghana, Provisional Measures (1993) 4 ICSID Reports 323 189, 287, 373, 443 Victor Pey Casado and President Allende Foundation v Republic of Chile, Provisional Measures (2001) 6 ICSID Reports 373 111, 159, 160, 179, 190, 205, 207, 221, 296, 302, 326, 377 Waste Management Inc v United Mexican States, ICSID Case No ARB(AF)/98/2 (Award, 2 June 2000) 163

european court of human rights

xlvii

World Duty Free Company Limited v Republic of Kenya, ICSID Case No ARB/00/7 (Award, 4 October 2006) 190 Yaung Chi Oo Trading Pte Ltd v Government of the Union of Myanmar, Procedural Order No 2 (2002) 8 ICSID Reports 456 337

I Investor-State Arbitrations Under the UNCITRAL Arbitration Rules Chevron Corporation and Texaco Petroleum Corporation v Ecuador, PCA Case No 2009–23 135 First Order on Interim Measures, 14 May 2010 222 Second Order on Interim Measures, 6 December 2010 222 Third Order on Interim Measures, 28 January 2011 222 Interim Measures, 9 February 2011 162, 207 First Interim Award on Interim Measures, 25 January 2012 3, 135, 192, 302, 341 Second Interim Award on Interim Measures, 16 February 2012 341 Third Interim Award on Jurisdiction and Admissibility, 27 February 2012 168 Fourth Interim Award on Interim Measures, 7 February 2013 192, 340–1, 370, 384, 445 EnCana Corporation v Republic of Ecuador, LCIA Case No UN3481 (Interim Award, 31 January 2004) 168 Guaracachi America Inc and Rurelec PLC v Plurinational State of Bolivia, PCA Case No 2011–17 (Procedural Order No 14, 11 March 2013) 162 Himpurna California Energy Ltd v Indonesia, UNCITRAL (Interim Award, 26 September 1999) 377 Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Government of Mongolia, UNCITRAL (Interim Measures, 2 September 2008) 145, 161, 162, 169, 176, 192, 206, 207, 222, 265, 266, 271, 300, 304, 305, 306

J Court of Justice of the European Union Case 3/75R, Johnson and Firth Brown v Commission [1975] ECR 1 204 Cases 43/59, 44/59 & 48/59, Lachm¨uller v Commission [1960] ECR 489 204 Case 44/88R, Henri De Compte v European Parliament [1988] ECR 1670 128 Case C-377/98R, Netherlands v European Parliament and Council of the European Union [2000] ECR-I 6231 128 Case C-656/II, United Kingdom of Great Britain and Northern Ireland v Council of the European Union, ECLI:EU:C:2012:211 (Interim Measures, 18 April 2012) 128

K European Court of Human Rights Bock v Germany, ECtHR App No 22051/07 (Decision on Admissibility, 28 December 2007) 468

xlviii

cases

ˇ Conka v Belgium, ECtHR App 51564/99 (Decision, 13 March 2001) 297 Cruz Varas v Sweden, ECtHR App 15576/89 (Judgment, 20 March 1991) 297 Mamatkulov and Abdurasulovic v Turkey, ECtHR App 46827/99 & 46951/99 (Judgment, 6 February 2003) 297–298 Mamatkulov and Askarov v Turkey, ECtHR App 46827/99 & 46951/99 (Grand Chamber, 4 February 2005) 298

L Other International Courts and Tribunals Alabama Claims (United States of America/Great Britain) (1871) 29 RIAA 125 116 Behring Sea Fur Seals (United States of America/Great Britain) (1893) 28 RIAA 263 116 Border Dispute between Honduras and Nicaragua (Honduras/Nicaragua) (1906) 11 RIAA 101 33 Eritrea/Yemen (Phase 1: Territorial Sovereignty and Scope of the Dispute) (1998) 114 ILR 1 387 Eritea/Yemen (Phase 2: Maritime Delimitation) (1999) 119 ILR 418 387 Honduras v Nicaragua, Order of 1 February 1907 (1917) 7 WPF 120 33–34 Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India) Interim Measures (2011) 150 ILR 311 7, 146, 147, 176, 203, 204, 218, 255, 256, 300, 309, 318, 450, 451, 464, 465, 466 PCA Case 2011-01 (Award, 20 December 2013) 318 Lake Lanoux (France v Spain) (1957) 24 ILR 101 322, 395 Prosecutor v New TV SAL and Karma Al Khayat, STL-14–05/PT/AP/AR126.1 (Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 2 October 2014) 328 Re Letelier and Moffitt (Chile/United States of America) (1992) 88 ILR 727 43 Trail Smelter (United States of America/Canada) (1938) 3 RIAA 1911 138 United States–Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc WT/DS58/AB/R (Appellate Body Report, 12 October 1998) 467 Validity of the Treaty of Limits between Costa Rica and Nicaragua of 15 July 1858 (Nicaragua/Costa Rica) (1888) 28 RIAA 189 393 Vel`asquez Rodriguez (1988) 95 ILR 259 141 Boundary Dispute (Venezuela/British Guiana) (1899) 92 BFSP 160 118, 165

M Domestic Courts and Tribunals

Canada Morguard v De Savoye [1990] 3 SCR 1077

170

France Guinea v Atlantic Triton Company (1984) 3 ICSID Reports 3

138

domestic courts and tribunals

xlix

Germany State of L¨ubeck v State of Mecklenburg-Schwerin, 25 October 1925, RGZ 111, Appendix, 21 29

Ghana Ghana v High Court; ex parte Attorney General (2013) 156 ILR 240

313

United Kingdom American Cynamid Co v Ethicon Ltd [1975] AC 396 24, 193 Blakemore v Glamorganshire Canal Navigation (1832) 39 ER 639 23 Crowder v Tinkler (1816) 34 ER 645 23 Field v Jackson (1782) 21 ER 404 23 Glascott v Lang (1838) 40 ER 1000 23 Hill v Thompson (1817) 36 ER 239 23 Johnson v Goldswaine (1795) 145 ER 1027 23 NWL Ltd v Woods [1979] 3 All ER 614 460 Mogg v Mogg (1786) 21 ER 432 23 Occidental Exploration and Production Company v Republic of Ecuador [2005] EWCA Civ 1116 327 Republic of Ecuador v Occidental Exploration and Production Company [2005] EWHC 774 (Comm) 327 Ryder v Bentham (1750) 27 ER 1194 23 Shewsbury and Chester Railway v Shewsbury and Birmingham Railway (1851) 61 ER 159 23 Tonson v Walker (1752) 36 ER 1017 23 Wynstanley v Lee (1818) 36 ER 643 23

United States Banco de Seguros del Estado v Mutual Marine Offices Inc, 230 F.Supp 2d 362 (SDNY, 2002) 340 Banco de Seguros del Estado v Mutual Marine Offices Inc, 344 F.3d 255 (2nd Cir, 2003) 340 Breard v Green, 523 US 317 (1998) 290 Breard v Netherland, 949 F.Supp 1255 (ED Va, 1996) 290 Breard v Pruett, 134 F.3d 615 (1998) 290 Germany v United States, 526 US 111 (1999) 290 Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418 (2006) 193 Hilton v Cuyot, 159 US 113 (1895) 170

l

cases

Jacobellis v Ohio, 378 US 184 (1964) 231 LaGrand (Karl) v Lewis, 883 F.Supp 451 (D Ariz, 1995) 289 LaGrand (Walter) v Lewis, 883 F.Supp 469 (D Ariz, 1995) 289 LaGrand v Stewart, 133 F.3d 1253 (9th Cir, 1998) 289 Mazurek v Armstrong, 520 US 968 (1997) 193 Metallgesellschaft AG v M/V Capitan Constante, 790 F.2d 280 (2nd Cir, 1986) 340 Munaf v Geren, 553 US 674 (2008) 193 NML Capital Ltd v Republic of Argentina, 2009 US Dist LEXIS 19046 (SNDY, 3 March 2009) 311 NML Capital Ltd v Republic of Argentina, 699 F.3d 246 (2nd Cir, 2012) 311 Publicis Communications v True North Communications Inc, 206 F.3d 725 (7th Cir, 2000) 340 Southern Seas Nav Ltd v Petroleos Mexicanos of Mexico City, 606 F.Supp 69 (SDNY, 1985) 340 Stewart v LaGrand, 526 US 115 (1999) 290

Notes ∗ † ‡

Pleadings for the relevant cases may be found in Series C of the PCIJ Reports. Pleadings for the relevant cases may be found at www.icj-cij.org. Forum depending, all investor-state arbitration decisions not contained within the ICSID Reports may be obtained from www.italaw.com/ or icsid.worldbank.org.

TREATIES AND DOCUMENTS

A Treaties and Proximate Instruments Agreement between Argentina and Ghana concerning an Arbitration under Annex VII of the UN Convention on the Law of the Sea, 27 September 2013, www.pca-cpa .org/showfile.asp?fil id=2340 313 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Species, 4 December 1995, 2167 UNTS 88 97, 100, 244 Agreement on the Application of Sanitary and Phytosanitary Measures, 14 April 1994, 1867 UNTS 493 253 Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (Peace Agreement), 12 December 2000, 40 ILM 260 118, 137 Agreement regarding the Headquarters of the United Nations, 26 June 1947, 11 UNTS 11 401–2 American Convention on Human Rights (Pact of San Jos´e), 22 November 1969, 1144 UNTS 123 128, 140 American Treaty of Pacific Settlement (Pact of Bogot´a), 30 April 1948, 30 UNTS 55 137 Association of South-East Asian Nations Agreement for the Protection and Promotion of Investments, 15 December 1987, 27 ILM 612 107 Protocol to Amend, 12 September 1996, in Basic Documents: Investment, doc 36 107 Association of South-East Asian Nations Comprehensive Investment Agreement, 29 February 2009, in Basic Documents: Investment, doc 40 107 Belgium – Bulgaria, Treaty of Conciliation, Arbitration and Judicial Settlement, 23 June 1931, 137 LNTS 191 74 Belgium – Yugoslavia, Convention of Conciliation, Judicial Settlement and Arbitration, 25 March 1930, 106 LNTS 343 470 Bilateral Investment Treaties 2004 Canadian Model BIT, in Basic Documents: Investment, doc 45 108 2004 Indian Model BIT, in Basic Documents: Investment, doc 46 108

li

lii

treaties and documents

2004 Netherlands Model BIT, in Basic Documents: Investment, doc 47 108 2004 US Model BIT, in Basic Documents: Investment, doc 48 108 2007 Norwegian Model BIT, in Basic Documents: Investment, doc 50 108 2008 German Model BIT, in Basic Documents: Investment, doc 51 108 2008 UK Model BIT, in Basic Documents: Investment, doc 52 108 Argentina–France BIT, 3 July 1991, 1728 UNTS 298 122 Argentina–Germany BIT, 9 April 1991, 1910 UNTS 198 122 Australia–Hong Kong BIT, 15 September 1993, [1993] ATS 30 123 Czech Republic–Netherlands BIT, 29 April 1991, 2242 UNTS 224 122 Germany–Pakistan BIT, 25 November 1959, 457 UNTS 23 107 UK–Argentina BIT, 11 December 1990, 1765 UNTS 33 122 US–Ecuador BIT, 27 August 1993, in Basic Documents: Investment, doc 64 122 Bryan Treaties for the Advancement of Peace US–China Treaty, 15 September 1914 (1916) 10 AJIL Supp 268 42 US–France Treaty, 15 September 1914 (1916) 10 AJIL Supp 278 42 US–Sweden Treaty, 13 October 1914 (1916) 10 AJIL Supp 304 42 Charter of the United Nations, 29 June 1945, 892 UNTS 119 84, 93, 279, 293, 330, 333, 350, 358, 368, 369, 385, 397 Consolidated Version of the Treaty on the Functioning of the European Union, 26 October 2012, [2012] OJ C 326/47 127 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, 10 December 1984, 1465 UNTS 85 129 Convention concerning Upper Silesia, 15 May 1922, 9 LNTS 466 65 Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993, 1819 UNTS 360 244 Convention for the Establishment of a Central American Court of Justice, 20 December 1907, 206 CTS 78 35–6, 37, 38, 39, 40, 41, 42, 208 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), 4 November 1950, 213 UNTS 222 128, 298, 467 Convention of Peace and Arbitration (Treaty of Corinto), 20 January 1902, 190 CTS 537 33–4, 35, 38, 43, 44, 45, 138 Convention on the Pacific Settlement of International Disputes (1899 Hague Convention), 29 July 1899, 187 CTS 410 32, 117 Convention on the Pacific Settlement of International Disputes (1907 Hague Convention), 18 October 1907, 205 CTS 233 117, 350 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 9 December 1948, 78 UNTS 277 152, 177, 331, 332, 349, 350, 457 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 10 June 1958, 330 UNTS 38 110, 118, 119, 120, 124, 134, 339

treaties and proximate instruments

liii

Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), 18 March 1965, 575 UNTS 159 General 1, 82, 108, 109, 110, 120, 190, 286, 306 Article 25 107, 160 Article 26 189, 259, 269 Article 36 159 Article 42 326, 328 Article 47 4, 111, 112, 113, 114, 116, 124, 137, 146, 160, 175, 188, 218, 220, 260, 261, 266, 285, 287, 294, 296, 299 Article 48 336 Article 53 336 Article 59 337 Article 60 337 Article 61 337, 338 Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), 2 February 1971, 996 UNTS 245 321, 393, 394, 395 Convention respecting the Laws and Customs of War on Land, 18 October 1907, 205 CTS 277 32, 117, 350 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Claims Settlement Declaration), 19 January 1981, 20 ILM 1981 118, 120, 137, 270, 370, 372 Dominican Republic–Central America–United States Free Trade Agreement, 5 August 2004, 43 ILM 514 107, 108, 122, 175, 190, 430 Energy Charter Treaty, 17 December 1994, 2080 UNTS 95 353 European Convention for the Peaceful Settlement of Disputes, 29 April 1957, 320 UNTS 243 137 Framework Agreement on the ASEAN Investment Area, 7 October 1998, in Basic Documents: Investment, doc 37 107 General Act for the Pacific Settlement of International Disputes, 26 September 1928, 93 LNTS 343 46, 69, 80, 137, 164, 278 General Treaty of Peace and Amity, 20 December 1907, 206 CTS 72 41 Geneva Conventions on the Law of the Sea Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 286 94–5 Convention on the Continental Shelf, 29 April 1958, 499 UNTS 312 94–5 Convention on the High Seas, 29 April 1958, 450 UNTS 82 94–5 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 206 94–5 Optional Protocol on the Settlement of Disputes Arising from the Law of the Sea Conventions, 29 April 1958, 450 UNTS 170 94–5

liv

treaties and documents

Geneva Conventions on the Protection of Persons in Armed Conflict Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 44, 350 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 350 Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 350 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 350 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflict, 8 June 1977, 1125 UNTS 3 350 Great Britain–United States, Treaty for the Amicable Settlement of All Causes of Difference between the Two Countries (Treaty of Washington), 8 May 1871, 143 CTS 145 117 Indus Waters Treaty between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development, 19 September 1960, 419 UNTS 215 146–7, 186, 256, 435 International Convention on the Elimination of All Forms of Racial Discrimination, 4 March 1969, 660 UNTS 195 184, 350, 351, 363 International Convention for the Prevention of Pollution from Ships as Modified by the Protocol of 1978 Relating Thereto, 11 February 1973 & 17 February 1978, 1340 UNTS 62 244 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 312, 347, 360, 361 Optional Protocol, 16 December 1966, 999 UNTS 302 129 Locarno Treaties General 46, 53, 80, 100, 278, 498 Belgium–Germany Agreement, 16 October 1925, 54 LNTS 305 46 Czechoslovakia–Germany Agreement, 16 October 1925, 54 LNTS 343 46, 69, 137, 470 Estonia–Germany Agreement, 10 August 1925, 62 LNTS 124 46, 278 Finland–Germany Agreement, 14 March 1925, 43 LNTS 367 46, 278 France–Germany Agreement, 16 October 1925, 54 LNTS 317 46, 100 Poland–Germany Agreement, 16 October 1925, 54 LNTS 329 46 Sweden–Germany Agreement, 29 August 1924, 42 LNTS 125 46, 278 Minorities Treaty between the Principal Allied and Associated Powers and Poland, 28 June 1919, 25 CTS 413 71, 74, 181 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 178 368

treaties and proximate instruments

lv

Netherlands – Yugoslavia, Treaty of Judicial Settlement, Conciliation and Arbitration, 11 March 1931, 129 LNTS 39 470 North American Free Trade Agreement, 17 December 1992, 32 ILM 296 107, 108, 110, 112–13, 116, 122, 137, 163, 175, 286, 299, 370 Rio Declaration on the Environment and Development, 14 June 1992, 31 ILM 974 253, 255 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 327 Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993 Article 31 294 Article 34 396 Article 36 149, 351 Article 38 172, 201, 319, 385, 467, 473, 475 Article 41 1, 5, 86–8, 98, 100, 135, 137, 142, 145, 146, 147, 160, 175, 185, 218, 226, 232, 239, 248, 256, 257, 261, 275, 276–80, 285, 291, 292–4, 298, 317, 400 Article 53 408 Article 59 319 Article 60 347, 415 Article 61 417 Article 64 334 Article 65 399 Article 68 400, 403 Article 73 169 Statute of the Permanent Court of International Justice, 16 December 1920, 6 LNTS 379 54 General 51–4, 85–6 Article 41 53–4, 55, 66, 68, 69, 75, 79–80, 175, 276–8 Article 60 415 Article 65 397 Statute of the River Uruguay, 26 February 1975, 1295 UNTS 340 178, 466 Timor Sea Treaty, 20 May 2002, 2258 UNTS 3 169, 170, 236 Treaty concerning the Construction of an Interoceanic Canal through the Territory of the Republic of Nicaragua (Bryan-Chamorro Treaty), 5 August 1914, 1 IELR 554 36–42, 44, 45 Treaty of Amity and Cooperation in Southeast Asia, 24 February 1976, 1025 UNTS 317, Art 2 396 Treaty of Amity, Commerce and Navigation between his Brittanick Majesty and the United States of America (Jay Treaty), 19 November 1794, 52 UNTS 279 31, 118 Treaty of Conciliation, Arbitration and Compulsory Adjudication, 3 December 1921, 12 LNTS 277 45–6 Treaty of Lausanne, 24 July 1923, 128 LNTS 11 48 Treaty of Neuilly-sur-Seine, 27 November 1919, 226 CTS 332 48

lvi

treaties and documents

Treaty of Peace, Commerce and Navigation between Belgium and China, 2 November 1865, 131 CTS 373 61–5, 347 Treaty of Saint-Germain-en-Laye, 10 September 1919, 226 CTS 8 48 Treaty of Territorial Limits between Costa Rica and Nicaragua, 15 April 1858, 118 CTS 439 39, 393 Treaty of Trianon, 4 June 1920, 6 LNTS 188 48 Treaty of Versailles 28 June 1919, 225 CTS 188 47 Treaty to Avoid or Prevent Conflicts between the American States, 3 May 1923, 33 LNTS 36 45–46 UN Convention on Jurisdictional Immunities of the State, annexed to GA Res 59/49, 2 December 2004 157 UN Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 Article 32 158 Article 58 312, 360 Article 60 360 Article 87 312, 360 Article 95 158 Article 110 312, 360 Part XII 244 Article 186 400, 403 Article 191 398–9 Part XV 3, 6, 7, 82, 93–8, 101, 156, 172, 179, 186, 201, 245, 336, 361, 388, 400, 403, 411, 449, 450 Article 283 166 Article 286 98 Article 288 186, 201 Article 290 1, 3, 4, 98–101, 105, 106, 111, 137, 185, 201, 203, 216, 218, 239, 240, 242, 243, 248, 255, 285, 317, 388, 414, 445, 449 Article 290(1) 135, 146, 155–6, 158, 175, 202, 243–4, 245–6, 405 Article 290(2) 434 Article 290(3) 104, 404, 436 Article 290(5) 115, 156–7, 202, 241, 246–8, 251, 272, 311, 312, 313, 322, 360, 388, 389, 413, 450 Article 290(6) 104 Article 292 242, 312 Article 293 361 Article 298 312 Annex VI 97, 101, 334, 400, 403, 408, 428 Annex VII 4, 6, 7, 82, 97, 99, 100, 105–6, 117, 121, 145, 155, 156, 157, 167, 171, 186, 202, 218, 240, 243, 245, 246, 247, 248, 249, 251, 252, 254, 272, 311, 312, 313, 314, 315, 316, 317, 318, 319, 322, 329, 336, 360, 361, 384, 388, 389, 390, 391, 400, 407, 410, 411, 413, 416, 436, 449, 450, 462

legislation

lvii

Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 183, 233, 288, 289, 290, 291, 293, 353, 354, 355, 356, 361, 420 Optional Protocol Concerning the Compulsory Settlement of Disputes, 24 April 1963, 596 UNTS 487 183, 289, 355, 420 Vienna Convention on the Law of Treaties, 29 May 1969, 1155 UNTS 331 291, 292, 298

B Legislation

Australia International Arbitration Act 1974 (Cth)

119

Canon Law Corpus iuris canonici, 1585 Corpus iuris canonici, 1917 Corpus iuris canonici, 1983

19–20 19–20 19–20

France Grande ordonnance de proc´edure civile, 1667 Code civil des franc¸ais, 1804 25 Code de procedure civile, 1806 27 Code de commerce, 1807 26

26

Germany Zivilprozessordnung, 1877 27–9, 193 Reich Law of 9 July 1921 28

Switzerland Loi sur la proc´edure civile, 1819 (Geneva) 29 Federal Law of 22 November 1850 (Switzerland) 29 Federal Constitution of the Swiss Confederation, 1874 (Switzerland) 30 Federal Law of 22 March 1898, as amended 6 October 1911 (Switzerland) Code de proc´edure civile, 1911 (Vaud) 25, 27, 29, 48 Federal Constitution of the Swiss Confederation, 1999 (Switzerland) 30

Spain Ley de Enjuiciamiento Civil, 2000

193

31

lviii

treaties and documents

United Kingdom Common Law Procedure Act 1854, 17 & 18 Vict, c 125 Judicature Act 1873, 36 & 37 Vic, c 66 24 Judicature Act 1875, 38 & 38 Vic, c 77 24 Arbitration Act 1996 (England and Wales) 327

23

United States Alien Tort Statute, 28 USC §1350 327 Federal Arbitration Act, 9 USC §1 340

C Documents of International Courts, Tribunals and Organizations

Central American Court of Justice Regulations of the Central American Court of Justice, 20 December 1907 (1914) 8 AJIL Supp 179 36, 40 Procedural Ordinance of the Central American Court of Justice, 6 November 1912 (1914) 8 AJIL Supp 194 36, 40

Mixed Arbitral Tribunals Procedural Rules of the Franco–German Tribunal, 2 April 1920, 1 TAM 44 48 Procedural Rules of the Greco–German Tribunal, 16 August 1920, 1 TAM 61 48 Procedural Rules of the Anglo–German Tribunal, 4 September 1920, 1 TAM 109 49 Procedural Rules of the Austro–Belgian Tribunal, 19 October 1920, 1 TAM 171 55 Procedural Rules of the Japanese–German Tribunal, 12 November 1920, 1 TAM 124 49 Procedural Rules of the German–Thai Tribunal, 22 December 1920, 1 TAM 182 48 Procedural Rules of the Franco–Austrian Tribunal, 9 May 1921, 1 TAM 242 48 Procedural Rules of the Anglo–Austrian Tribunal, 16 August 1921, 1 TAM 622 49 Procedural Rules of the Anglo–Bulgarian Tribunal, 16 August 1921, 1 TAM 639 49 Procedural Rules of the Anglo–Hungarian Tribunal, 18 August 1921, 1 TAM 655 49 Procedural Rules of the German–Czech Tribunal, 9 November 1921, 1 TAM 948 49 Procedural Rules of the Japanese–Austrian Tribunal, 1 December 1921, 1 TAM 821 49 Procedural Rules of the German–Italian Tribunal, 20 December 1921, 1 TAM 796 49

Permanent Court of International Justice Amended Rules of Court, 31 July 1926, (revised 1st edn, 1926) PCIJ Ser D No 1 55 Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (London: League of Nations, 1920) 63

documents of courts, tribunals and organizations

lix

Elaboration of the Rules of Court of March 11th, 1936 (1936) PCIJ Ser D No 2 Add 3 276 Modification of the Rules (1931) PCIJ Ser D No 2 Add 2 55–8, 181 Preparation of the Rules of Court: Minutes of Meetings held during the Preliminary Session of the Court, with Annexes (January 30th to March 24th 1922) (1922) PCIJ Ser D No 2 78 Proc`es-Verbaux of the Proceedings of the Committee, June 16th–July 24th 1920, with Annexes (The Hague: van Langenhuysen Brothers, 1920) 51 Ninth Report of the Permanent Court of International Justice (1932–1933) PCIJ Ser E No 9 68, 72 Rules of Court, 24 March 1922, (1st edn, 1922) PCIJ Ser D No 1 1, 55 Rules of Court, 21 February 1931, (2nd edn, 1931) PCIJ Ser D No 1 1, 55–56 Rules of Court, 11 March 1936, (3rd edn, 1936) PCIJ Ser D No 1 1, 55–56, 58 Sixteenth Report of the Permanent Court of International Justice (1939–1945) PCIJ Ser E No 16 72, 75–6, 82

Union of American Republics Preliminary Recommendation on Post-War Problems of the Inter-American Juridical Committee, 2 November 1942, reprinted in (1944) 38 AJIL Supp 11 83

United Nations Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice, 10 February 1944, reprinted in (1945) 39 AJIL Supp 1 80 Proposals for the Establishment of a General International Organization, 9 October 1944, reprinted in (1945) 39 AJIL Supp 42 84 Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945) 84–6

International Law Commission ILC Articles on the Law of the Sea, ILC Ybk 1956/II, 285ff 94 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Ybk 2001/II(2), 26ff 146, 233, 319–26, 329, 336, 369, 465 ILC Draft Articles on Diplomatic Protection, ILC Ybk 2006/II(2), 26ff 353 ILC Draft Articles on the Responsibility of International Organizations, Official Records of the General Assembly, Sixty-sixth Session, Supplement No 10, UN Doc A/66/10 (2011), §§77ff 320

lx

treaties and documents

ILC Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, ILC Ybk 2006/II(2), 161ff 235

International Court of Justice Rules of Court, 6 May 1946, ICJ Acts and Documents No 1 (1947) 54 77, 88 Rules of Court, 10 May 1972, ICJ Acts and Documents No 3 (1977) 93 89 Rules of Court, 14 April 1978, ICJ Acts and Documents No 5 (1989) 93, in Basic Documents: Settlement, doc 17.b General 101, 114 Article 73 1, 90–1, 135, 186 Article 74 1, 90–1, 232 Article 75 1, 90–1, 211, 355, 363, 404 Article 76 1, 90–1, 215, 308, 434, 435, 438, 439 Article 77 1, 90–1 Article 78 1, 90–1 Article 97 334

International Tribunal for the Law of the Sea Rules of the Tribunal, ITLOS Basic Texts (1998) 120, 158, 399 Rules of the Tribunal, ITLOS Basic Texts (2nd edn, 2005) 399 Rules of the Tribunal, 17 March 2009, in Basic Documents: Settlement, doc 47.c General 101 Article 89 101–4, 135, 186, 308 Article 90 101–4 Article 91 101–4, 105 Article 92 101–4 Article 93 101–4, 434 Article 94 101–4 Article 95 101–4 301 Article 138 399, 400, 403

UNCLOS Annex VII ARA Libertad (Argentina v Ghana), PCA Case No 2013-11 (Annex VII) (Rules of Procedure, 31 July 2013) 106, 313 Barbados/Trinidad and Tobago, PCA Case No 2004-02 (Annex VII) (Rules of Procedure, 16 February 2004) 105 Guyana v Suriname, UNCLOS Annex VII (PCA) (Rules of Procedure, 24 February 2004) 105, 167

documents of courts, tribunals and organizations

lxi

MOX Plant (Ireland v United Kingdom of Great Britain and Northern Ireland), PCA Case 2002-01 (Annex VII) (Rules of Procedure, 25 October 2001) 106 OSPAR Arbitration (Ireland v United Kingdom of Great Britain and Northern Ireland), PCA (Rules of Procedure, 15 June 2001) 106

Iran–United States Claims Tribunal Tribunal Rules of Procedure, 3 May 1983, in Basic Documents: Settlement, doc 62.b 120

International Centre for Settlement of Investment Disputes Arbitration (Additional Facility) Rules, 1979, 1 ICSID Reports 249 115 Arbitration (Additional Facility) Rules, April 2006, in Basic Documents: Investment, doc 75 110, 115–16, 135 Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 1 ICSID Reports 23 159 Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of ICSID, April 2006, in Basic Documents: Investment, doc 72 108 Rules of Procedure for Arbitration Proceedings, January 1968, 1 ICSID Reports 63 218, 427 Rules of Procedure for Arbitration Proceedings, September 1984, 1 ICSID Reports 157 108 Rules of Procedure for Arbitration Proceedings, April 2006, in Basic Documents: Investment, doc 71 General 109, 430 Rule 28 337 Rule 39 113–15, 116, 135, 187, 205, 287, 434, 435 Rule 41 168, 451, 453 Rule 53 427, 428 Rules 55 424

United National Commission on International Trade Law 1976 UNCITRAL Arbitration Rules in Basic Documents: Investment, doc 77 General 7, 8, 108, 118–21, 168, 453 Article 26 1, 113, 123–4, 134, 135, 161, 176, 192, 222, 263, 265, 269, 287, 299, 339 Article 30 408 Article 35 415, 416

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1985 UNCITRAL Model Law on International Commercial Arbitration, in Basic Documents: Investment, doc 78 119 2006 UNCITRAL Model Law on International Commercial Arbitration, in Basic Documents: Investment, doc 80 119 2010 UNCITRAL Arbitration Rules, in Basic Documents: Investment, doc 81 General 7, 8, 121–3, 129, 371, 453 Article 26 1, 113, 124–7, 135, 137, 162, 193, 207, 223, 266, 271, 299, 304, 434, 435, 453 Article 30 408 Article 37 415, 416 Possible Future Work in the Area of International Commercial Arbitration, UNCITRAL, 32nd session, UN Doc A/CN.9/460 (6 April 1999) 339 Register of Texts of Conventions and Other Instruments Concerning International Trade Law, 2 vols (New York, UN, 1973) 51, 120 Report of the Working Group on Arbitration on the Work of its Fortieth Session, UN Doc A/CN.9/547 (23–27 February 2004) 259

Permanent Court of Arbitration Arbitration Rules, December 2012, www.pca-cpa.org/ 50, 121 Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State, in Basic Documents: PCA, 69 121 Optional Rules for Arbitrating Disputes between Two States, in Basic Documents: PCA, 41 121 Optional Rules for Arbitration Involving International Organizations and States, in Basic Documents: PCA, 97 121

International Commercial Arbitration 1966 Arbitration Rules of the UN Economic Commission for Europe, 2 UNCITRAL Register 100 120 1966 Rules for International Commercial Arbitration of the UN Economic Commission for Asia and the Far East, 2 UNCITRAL Register 95 120 2010 Arbitration Rules of the Arbitration Institution of the Stockholm Chamber of Commerce, in Basic Documents: Investment, doc 87 120, 129 2011 Australian Centre for International Commercial Arbitration Arbitration Rules, www.acica.org.au/acica-services/acica-arbitration-rules 130 2012 ICC Rules of Arbitration, in Basic Documents: Investment, doc 85 120, 129, 491 2012 Swiss Rules of International Arbitration, www.swissarbitration.org/sa/download/ SRIA english 2012.pdf 130 2013 American Arbitration Association International Arbitration Rules, www.adr.org/ aaa/faces/rules 130

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2013 Arbitration Rules of the Singapore International Arbitration Centre, www.siac .org.sg/our-rules/rules/siac-rules-2013 129 2013 Hong Kong International Arbitration Centre Administered Arbitration Rules, www.hkiac.org/en/arbitration/arbitration-rules-guidelines 130 2014 LCIA Arbitration Rules, www.lcia.org/Dispute Resolution Services/ lcia-arbitration-rules-2014.aspx 129 2015 China International Economic and Trade Arbitration Commission Arbitration Rules, http://cn.cietac.org/rules/rule E.pdf 129

Other Courts, Tribunals and Committees Rules of Court of the European Court of Human Rights, 1 June 2015, www.echr.coe .int/Documents/Rules Court ENG.pdf 128 Rules of Procedure of the Inter-American Commission on Human Rights, 1 August 2013, www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp 129 Rules of Procedure of the Inter-American Court of Human Rights, 31 January 2009, www.corteidh.or.cr/sitios/reglamento/ene 2009 ing.pdf 128 Rules of Procedure of the Committee against Torture, UN Doc CAT/C/3/Rev.6 (13 August 2013) 129 Rules of Procedure of the Court of Justice of the European Union, [2012] OJ L 265/1 204 Rules of Procedure of the Human Rights Committee, UN Doc CCPR/C/3/Rev.10 (11 January 2012) 129

1 Introduction

I Provisional Measures in International Law A Definition and Character of Provisional Measures This study is concerned with provisional measures as awarded by international courts and tribunals, being orders requiring the parties to a dispute to do (or not do) something so as to preserve the subject matter of the dispute pending resolution.1 Described by a variety of terms2 – including ‘provisional measures’,3 interim measures,4 ‘interim protection’5 and ‘interim measures of protection’6 – the function of this device was described by the ICJ in the Fisheries Jurisdiction cases as follows: Whereas the right of the Court to indicate provisional measures [ . . . ] has as its object to preserve the respective rights of the Parties pending the decision of the Court, and presupposes that irreparable prejudice 1

2 3 4

5 6

R¨udiger Wolfrum, ‘Interim (Provisional) Measures of Protection’, MPEPIL (2006) §7. The literature on the topic as a whole is vast, but for earlier substantial studies in the field, see Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932); Jerome B Elkind, Interim Protection: A Functional Approach (The Hague: Martinus Nijhoff, 1981); Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer, 1931); Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992) 234 Hague Recuiel 9; Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005); Mehmet Semih Gemalmaz, Provisional Measures of Protection in International Law (Istanbul: Legal Kitapevi, 2011). For the sake of convenience, this study will use the term ‘provisional measures’ throughout, occasionally interchanged with ‘interim relief’. ICJ Statute, Art 41; ICJ Rules, Arts 73–8; UNCLOS Art 290; ICSID Convention, Art 47. Rules of the European Court of Human Rights, Art 39, in Basic Documents: Settlement, doc 31.b; 1976 UNCITRAL Rules, Art 26; 2010 UNCITRAL Rules, Art 26; Rules of the Iran–US Claims Tribunal, Art 26, in Basic Documents: Settlement, doc 62.b. ICJ Rules, Section D, subsection 1; Rules of Court (1922) PCIJ Ser D No 1, Art 57 (1st edn). Rules of Court (1931) PCIJ Ser D No 1, Art 57 (2nd edn); Rules of Court (1936) PCIJ Ser D No 1, Art 61 (3rd edn).

1

2

introduction should not be caused to rights which are the subject of dispute in judicial proceedings and that the Court’s judgment should not be anticipated by reason of any initiative regarding the measures which are in issue.7

In this light, provisional measures in international law may be seen to play broadly the same role as municipal equivalents such as the AngloAmerican interlocutory injunction, the French ordonnance de r´efer´e and the German einstweilige Verf¨ugung (i.e. to preserve rights that are the subject of litigation between the parties until such time as the dispute can be resolved, or pendente lite). In international law, this function takes on special importance due to the relatively slow pace of proceedings, in which years may elapse before disputes are finally adjudicated. Provisional measures may be said to serve a number of related objectives beyond the protection of rights pendente lite.8 Some sources assert that the purpose of interim relief is preservation of the status quo, and indeed this was the position taken in the constitutive instrument of one of the earliest permanent international tribunals, the CACJ.9 Others still speak of the need to safeguard the jurisdiction of the court or tribunal such that any final decision will be effective as between the parties.10 Such motivations, however, express the same prophylactic impulse as demonstrated by the ICJ in the Fisheries Jurisdiction cases – the desire to temporarily protect the subject matter of the dispute. An exception to this unity of purpose is seen in the pronouncement of the PCIJ in Electricity Company, which referred to provisional measures as reflecting: [T]he principle universally accepted by international tribunals [ . . . ] to the effect that the parties to a case must abstain from any measures capable of exercising a prejudicial effect in regard to the execution of the decision to 7 8 9 10

Fisheries Jurisdiction (UK v Iceland), Interim Measures, ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (FRG v Iceland), Interim Measures, ICJ Reports 1972 p 30, 34. Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2007) 121–3. Convention for the Establishment of a Central American Court of Justice, 20 December 1907, 206 CTS 78, Art XVIII. Further: Chapter 2, §III.B.2. Aegean Sea Continental Shelf (Greece v Turkey), Interim Measures, ICJ Reports 1976 p 3, 16 (President Jim´enez de Ar´echaga); Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64, 79–80 (Judge ad hoc Thierry, diss). Further: Bernard Oxman, ‘Jurisdiction and the Power to Indicate Provisional Measures’, in L F Damrosch (ed), The International Court of Justice at a Crossroads (Dobbs Ferry: Transnational Publishers, 1987) 323, 324–6; M H Mendelson, ‘Interim Measures of Protection in Cases of Contested Jurisdiction’ (1972–1973) 46 BYIL 259, 259.

provisional measures in international law

3

be given and, in general, not allow any step of any kind to be taken which might aggravate and extend the dispute.11

This might very well be seen as yet another example of a measure designed, after a fashion, to preserve rights pendente lite. But an examination of the origins of interim relief indicates that although related to the need to protect rights subject to litigation, measures designed to prevent aggravation or extension of a dispute have a separate legal and historical basis, and so retain an independent existence as a general directive to the parties not to do anything that might worsen the dispute – even if the relevant act does not directly damage the subject matter of the proceedings.12 Accordingly, they may be awarded alongside more specific measures of protection so as to enhance stability of relations between the parties.13 Beyond the general purposes for which interim relief might be awarded, specific courts or tribunals may be authorized to protect additional rights by way of provisional measures. Most prominently, UNCLOS Article 290 permits bodies exercising powers under Part XV of the Convention to issue orders ‘for the prevention of serious harm’ to the marine environment – even if rights pertaining to the marine environment are not directly the subject of litigation.14 Other bodies might develop expertise in particular manifestations of the general function, such as the practice of investor-state arbitration tribunals awarding provisional measures that restrain parallel proceedings before domestic courts so as to preserve the exclusivity of the tribunal’s jurisdiction.15 11 12 13

14

15

Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79, 199. Cf. Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, ICJ Reports 2007 p 3, 13, 16. Further: Chapter 5, §III.B.1. See e.g. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, ICJ Reports 2008 p 353, 398–9. See e.g. Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 163–4. Cf. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3, Art 31(2), permitting the award of interim relief to prevent damage to relevant fish stocks. See e.g. E-Systems Inc v Iran (1983) 2 Iran–US CTR 51, 57; SGS Soci´et´e G´en´erale de Surveillance SA v Pakistan, Procedural Order No 2 (2002) 8 ICSID Reports 388, 391–7; Chevron Corporation and Texaco Petroleum Company v Ecuador, PCA Case No 2009– 23 (First Interim Award on Interim Measures, 25 January 2012) 16. Further: Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6 ICSID Rev – FILJ 431. Further: Chapter 8, §II.C.

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introduction

B Provisional Measures and the Inherent Powers of International Courts and Tribunals When ordering provisional measures, most courts or tribunals rely expressly on a provision in their constitutive instrument or procedural rules – the ICJ refers to Article 41 of its Statute, ITLOS and Annex VII tribunals to UNCLOS Article 290, an ICSID tribunal to Article 47 of the ICSID Convention, a NAFTA tribunal to NAFTA Article 1134, ad hoc investor-state bodies to Article 26 of the 1976 or 2010 UNCITRAL Arbitration Rules as required, and so forth. As a matter of the general practice of international courts and tribunals, however, the express words of a constitutive instrument do not embody the source of the power to award provisional measures in its entirety. Rather, the authority to grant interim relief may be seen as one of the inherent powers of international courts and tribunals, descending implicitly from their judicial function and their need to protect their jurisdiction and procedure from being undermined.16 Consequently, to the extent that such provisions do not seek to modify that inherent power by way of lex specialis, the express grant of the power to order provisional measures does no more that ‘in effect give life and blood to a rule that already exists in principle’.17 As the ICSID tribunal in Biwater Gauff v Tanzania observed: It is now settled in both treaty and international commercial arbitration that an arbitral tribunal is entitled to direct the parties not to take any step that might (1) harm or prejudice the integrity of proceedings, or (2) aggravate or extend the dispute. Both may be seen as a particular type of provisional measure [ . . . ] or simply as a facet of the tribunal’s overall procedural powers and its responsibility for its own process.18 16

17

18

Northern Cameroons (Cameroon v UK), Preliminary Objections, ICJ Reports 1963 p 15, 103 (Judge Fitzmaurice); See also: Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 259–60; Nuclear Tests (New Zealand v France), ICJ Reports 1974 p 457, 463; Legality of the Use of Force (Serbia and Montenegro v UK), Preliminary Objections, ICJ Reports 2004 p 1307, 1361–2 (Judge Higgins). Further: Dinah Shelton, ‘Form, Function and the Powers of International Courts’ (2009) 9 CJIL 537, 548–50. Edvard Hambro, ‘The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice’, in W Sch¨atzel and H-J Schlochauer (eds), Rechtsfragen der Internationalen Organisation – Festschrift f¨ur Hans Wehberg zu seinem 70 Geburtstag (Frankfurt am Main: Vittorio Klostermann, 1956) 152, 167. The ICJ has made a similar pronouncement with respect to its ability to determine its own jurisdiction (comp´etence de la comp´etence): Nottebohm (Liechtenstein v Guatemala), Preliminary Objections, ICJ Reports 1953 p 111, 119. Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 3, 29 September 2006) §135 (emphasis added).

scope of the book

5

In implying that there is a common source for the power to award interim relief, this statement and others like it invite the inference that there exists in international law a unified approach to provisional measures, wherein international courts and tribunals draw on each other’s practice in order to comprehend the scope and limitations of the power.

II Scope of the Book A Overall Purpose In his 2007 book, A Common Law of International Adjudication, Chester Brown put forward a persuasive argument for the existence of an inherent power to award interim relief, by reference to what he called the practice of ‘cross-fertilization’ between international courts and tribunals.19 This study aims to expand on that position to argue that not only is there a common and comparative body of principles with respect to the grant of interim relief in international law but that it has rapidly developed in scope and complexity.20 The catalyst for this development, it is suggested, was the landmark decision of the ICJ in LaGrand, wherein it was determined that provisional measures ordered under Article 41 of the ICJ Statute were binding on the parties to a dispute.21 This determination, in turn, prompted the Court to develop its jurisprudence on interim measures so as to enhance the legitimacy of its orders and increase the pull towards compliance. These elaborations were subsequently adopted by a variety of other international courts and tribunals – or, in some cases, those courts or tribunals developed similar devices sua sponte to address similar needs. The intuition that the practice of international courts and tribunals has cohered so as to provide a uniform model for the award of interim relief forms the overarching thesis of this book. At the same time, the book also seeks to provide a comprehensive overview of provisional measures in international law – at least with respect to those courts and tribunals that are the subject of analysis. This entails the examination of a far larger body of case law than has been available to previous studies of the question, 19 20

21

Brown, Common Law, 119–51. Cf. Bernhard Kempen and Zen He, ‘The Practice of the International Court of Justice on Provisional Measures: The Recent Development’ (2009) 69 Za¨oRV 919; Yoshiyuki LeeIwamoto, ‘The Repercussions of the LaGrand Judgment: Recent ICJ Jurisprudence on Provisional Measures’ (2012) 55 JYIL 237. LaGrand (Germany v US), ICJ Reports 2001 p 466, 501–2. Further: Cameron A Miles ‘LaGrand (Germany v United States of America)’, in E Bjorge and C A Miles (eds), Landmark Cases in Public International Law (Oxford: Hart, 2017) ch 23 (forthcoming).

6

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the result not only of an increasing recourse to international adjudication on the part of states but a parallel increase in the number of international forums in which such disputes can be heard. Whereas studies of interim relief published in the early 1980s had to make do with the six decisions of the PCIJ and seven decisions of its successor, the modern scholarship may have recourse to orders emerging from more than thirty disputes before the ICJ as well as a further nine disputes arising under UNCLOS Part XV and dozens of orders emerging from the various modes of investor-state dispute settlement.22 The result is a substantial comparative jurisprudence that this book seeks to identify, evaluate and consolidate. Furthermore, the evolution of provisional measures has led to the development of a new suite of contemporary issues. Although earlier texts gave substantial consideration to matters such as whether provisional measures could be awarded where jurisdiction had yet to be decided or whether such measures were binding,23 the field has moved on. New questions abound. How may the rights that are to be the subject of final adjudication figure in an application for provisional measures? What is the appropriate threshold of merits review at the provisional measures stage? What is the relationship between measures for the protection of a right pendente lite and measures for the non-aggravation of the dispute? If provisional measures are binding, what are the consequences of a breach from the point of view of state responsibility and the procedure of international courts and tribunals? How do provisional measures interact with other aspects of international procedure? What role might provisional measures play in international litigation strategy? This book seeks to provide answers to such questions.

B Coverage of International Courts and Tribunals This book is concerned with international courts and tribunals.24 It is not, however, concerned with every international court and 22

23

24

The increase in judicial and arbitral output has been exponential. Even the most recent substantive study produced by a major publisher on the topic, Rosenne’s Provisional Measures, was only able to draw on 23 ICJ and four ITLOS/Annex VII orders. See e.g. Elkind, Interim Protection, chs 6 and 7; Sztucki, Interim Measures, ch 5. These in their own right represented a significant advance on the thinking of the first part of the twentieth century, in which a great deal of time was spent attempting to ground international forms of interim relief in procedural science and domestic legal orders: Dumbauld, Interim Measures, chs 1 and 2. For a general overview of the field, see Ruth Mackenzie et al., The Manual on International Courts and Tribunals (Oxford: Oxford University Press, 2nd edn, 2010). A wider survey of international dispute settlement can be found in J G Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 5th edn, 2011).

scope of the book

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tribunal – and the inclusion of some bodies at the expense of others will impact the conclusions reached. Consequently, some insight into the reasons for selection should be given. The present study confines itself to the provisional measures practice of four categories of international court or tribunal: (1) the ICJ (as it emerged from that of the PCIJ); (2) bodies which have exercised jurisdiction under UNCLOS Part XV, i.e. ITLOS and the various Annex VII tribunals; (3) ad hoc inter-state arbitral tribunals that have issued provisional measures, of which there is currently only one example, namely the Court of Arbitration convened under the Indus Waters Treaty25 in Kishenganga;26 and (4) investor-state arbitration tribunals arising under a variety of international regimes, including the Iran–US Claims Tribunal, the ICSID system and its associated Additional Facility, NAFTA Chapter 11 and ad hoc investor-state tribunals convened under the 1976 or 2010 UNCITRAL Rules. These courts and tribunals have been selected because of their international character, backed by treaty and in large part decoupled from any domestic regime. The bodies in question also bear a measure of commonality in that the provisional measures practice of each is linked – directly or indirectly – to that of the ICJ, which continues to function as a uniform point of reference (and occasional point of opposition) for the courts and tribunals considered. This leaves to the side a number of other bodies that might be thought worthy of inclusion. In the first place, there are the international human rights bodies, such as the European Court of Human Rights, the InterAmerican Court of Human Rights, the African Court of Human and People’s Rights and the various UN committees. By virtue of their subject matter, these bodies have developed a slightly different tradition of interim relief that has been the subject of extensive review elsewhere.27 In the second, there is the Court of Justice of the European Union, empowered to prescribe any necessary interim measures by its constitutive instrument. The law of the EU is such that although it is a creature of international law (in the sense that a series of treaties provide its legal foundation), 25 26 27

19 September 1960, 419 UNTS 215. Indus Waters Kishenganga Arbitration (Pakistan v India), Interim Measures (2011) 150 ILR 311. Eva Reiter, Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication (Antwerp: Intersetia, 2010). See also Jo M Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38 Vand JTL 1; Helen Keller and Cedric Marti, ‘Interim Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court of Human Rights’ (2013) 73 Za¨oRV 325.

8

introduction

the CJEU may be said to have developed its own distinct character such that it does not necessarily interact (or ‘cross-fertilize’, to use Brown’s terminology) with other international bodies at all or at least to the same degree. A third category that might be mentioned is that of international commercial arbitration.28 Although these bodies share certain similarities with investor-state bodies – and may even use the same procedure in the event that the 1976 or 2010 UNCITRAL Rules are selected – they are distinct from the other courts and tribunals considered in that they do not include a state as a party, and may therefore be said to lack a footing in international law. Furthermore, although this book argues for the existence of an inherent power on the part of international courts and tribunals to award provisional measures, it will not hypothesize how those courts and tribunals that have not displayed an inclination to award interim relief might go about doing so. This excludes from consideration the WTO panels and Appellate Body29 and international criminal bodies such as the International Criminal Court, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Lebanon and so on.

III Outline of the Book This book consists of ten chapters, divided into three parts. Part I on ‘Preliminary Matters’ seeks to introduce the subject of provisional measures and provide essential background to the field. To this end, Chapter 2 seeks to revisit the historical origins of provisional measures. The commonly understood conception of interim relief in international disputes arises from the PCIJ and several earlier, now-forgotten, international courts and tribunals, most notably the CACJ and the mixed arbitral tribunals formed to resolve disputes between states and natural or juridical persons following the First World War. Within these early precedents, moreover, domestic analogies may perhaps, hesitantly, be detected. If this be the case, then the signal achievement of the PCIJ was the merging of two previously separate traditions of interim relief – the domestic and the international – to create the first ‘modern’ law of provisional 28

29

Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (The Hague: Kluwer, 2005); Gary Born, 2 International Commercial Arbitration (Alphen aan den Rijn: Kluwer, 2nd edn, 2014) ch 17. Cf. Brown, Common Law, 133–5.

outline of the book

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measures capable of dealing appropriately with a wide range of international disputes, inter-state and otherwise. Chapter 3 will introduce the courts and tribunals that are the subject of analysis in Parts II and III, chart their formation as international institutions and analyze those elements of their constituent instruments and procedural rules that govern the award of interim relief. Given the predominant focus in Parts II and III on concerns of substance (which very often are not the subject of express reference in the relevant documents), this investigation will focus on the procedural aspects of provisional measures. This chapter will also extract the relevant provisions from treaties and procedural rules that shape the award of interim relief – which may also be found set out in the Appendix. Part II, entitled ‘Provisional Measures in General’, seeks to set out the manner in which interim relief functions before international courts and tribunals. In particular, it will focus on the preconditions for interim relief that have been developed through consistent international practice, as well as considering both the binding character of provisional measures and the consequences that flow therefrom. Five broad preconditions may be identified in international judicial and arbitral practice, though the extent to which each has been adopted varies from body to body. These are: (1) prima facie jurisdiction (and perhaps admissibility); (2) a link between the measures requested and the rights that fall to be adjudicated in the final judgment; (3) some form of oversight of the merits, whether through determination that the rights to be protected are ‘plausible’ or a more exacting prima facie review; (4) risk of ‘irreparable’ prejudice; and (5) urgency. Chapter 4 concerns a variety of issues that must be addressed before a wider application for interim relief can be considered by an international court and tribunal. In the first place, it addresses the overall character of provisional measures as incidental proceedings; that is to say proceedings that are ancillary to a main claim and that cannot be launched independent of some wider dispute that is already before the international court or tribunal in question. It will also consider the source of the power to award provisional measures. In the second, it will consider the extent to which the jurisdiction of the court or tribunal must be established, focusing on the widespread adoption of the prima facie standard first promoted by Judge Lauterpacht in Interhandel.30 Third, it will consider the 30

Interhandel (Switzerland v US), Interim Relief, ICJ Reports 1957 p 105, 118–19 (Judge Lauterpacht).

10

introduction

question of whether, in addition to the jurisdiction of the court or tribunal, the admissibility of the claim must also be proved to some preliminary level. Finally, it will consider the extent to which the admissibility of the application for interim relief itself will have some bearing on its final outcome. Chapter 5 will consider a range of issues in the uniform approach to provisional measures that have gained further traction in the wake of the ICJ’s decision in LaGrand. These are, in the main, linked to the overall purpose for which provisional measures may be awarded, which is twofold. In the first place, we have those measures that may be awarded for the protection of rights pendente lite. Two vital corollaries emerge from this purpose, being the need for the rights to be protected through interim relief to be ‘linked’ to the subject of the main proceedings, and the need for some form of preliminary review of the applicant’s prospects of success on the merits. In the second, we have measures that may be awarded for the non-aggravation of a dispute. Whilst there is no need for linkage or merits review with respect to such measures, being designed to protect an objective as opposed to subjective interest, questions have arisen as to whether such measures can be awarded independently of measures for the protection of rights pendente lite. Chapter 6 will consider the dual requirements that most often will decide a request for interim relief, being the need for prejudice to rights pendente lite and the need for such prejudice to occur prior to the likely date of judgment – also called the requirement of urgency. This chapter will attempt to determine precisely what the ICJ and other international tribunals mean when they speak of ‘irreparable’ prejudice and the difference, if any, between this concept and that the putatively separate standard of ‘significant’ prejudice that has been advanced by certain ICSID tribunals. With respect to urgency, attention will be paid in particular to the jurisprudence of ITLOS and the extent to which the precautionary principle has modified the consideration of urgency by that tribunal in the context of serious harm to the marine environment. Chapter 7 considers a suite of issues that arise following the decision to award interim relief. This firstly includes brief commentary on the question of whether provisional measures are binding, which, although their status as such is now the status quo is nonetheless deserving of reprisal. With this in mind, the chapter turns to the question of the content of provisional measures and also addresses questions of proportionality and duration. Finally, it will address the question of how provisional measures might best be enforced in the event that they are ignored by

outline of the book

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a party against whom they are ordered, with particular emphasis on the intersection between a breach of provisional measures and the law of state responsibility. Part III, on ‘Specific Aspects of Provisional Measures’, considers questions of provisional measures that do not fit within the generic parameters of interim relief described in Part II. Chapter 8 considers certain sui generis issues relating to provisional measures. This includes the way that international courts and tribunals tend to respond in the context of provisional measures when the subject matter of the dispute touches on a particular set of concerns, such as human rights, armed conflict, UN Security Council jurisdiction, and so on. It also addresses question of procedure, such as the correct response of courts and tribunals when a party does not appear, whether provisional measures can be awarded in advisory, interpretation or annulment proceedings (and if they can, what issues arise therefrom) and the procedure by which provisional measures can be modified or revoked once awarded. Chapter 9 addresses strategic concerns arising from an application for provisional measures as a phase of litigation or arbitration. It is increasingly becoming apparent that provisional measures are being treated as litigants as more than a method by which rights can be protected or the status quo preserved pending judgment. Rather, they have a wider value as the subject of proceedings in their own right or as a method to gain a ‘sneak peek’ at the respondent’s arguments, particularly in the context of jurisdiction. This chapter will examine these and other aspects and assess their legitimacy in light of the wider settlement of international disputes. Chapter 10 concludes the book. It will reaffirm what has come before, setting out in outline the contours of the uniform approach to provisional measures. It will also offer some (tentative) predictions as to how the field might develop in the future, with a particular focus on how the cross-fertilizing jurisprudence of international courts and tribunals will continue to unify the law of provisional measures.

PAR T I Preliminary Matters

2 Origins of Provisional Measures

I Introduction In reading the first indication of provisional measures by the Permanent Court of International Justice – the Order of 8 January 1927 made in the Sino-Belgian Treaty case1 – it is clear that its author, President Max Huber, was drawing from an already coherent corpus of rules on the provision of interim relief in international disputes. The order, moreover, makes reference to concepts that would be familiar to most modern observers, such as preservation of the rights of the parties pending resolution of the dispute,2 the requirement of irreparable harm,3 and the idea that the order so given was without prejudice to the merits.4 The familiarity only grows when examining the PCIJ’s later consideration of provisional measures, which is of a steadily increasing sophistication.5 The jurisprudence of the PCIJ, therefore, comes not at the beginning of the development of provisional measures as a distinct area of inquiry and not at the end – but somewhere in the middle. The aim of this chapter is to trace developments prior to 1947 and the emergence of the modern system of international dispute settlement.6 In so doing, it will establish 1 2 5

6

Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v China) (1927) PCIJ Ser A No 8. 3 4 Ibid, 6. Ibid, 7. Ibid. Factory at Chorz´ow (Indemnities) (Germany v Poland) (1927) PCIJ Ser A No 12; Legal Status of the South-Eastern Territory of Greenland (Norway v Denmark) (1932) PCIJ Ser A/B No 48; Administration of the Prince von Pless (Germany v Poland) (1933) PCIJ Ser A/B No 54; Polish Agrarian Reform and the German Minority (Germany v Poland) (1933) PCIJ Ser A/B No 58; Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79. The subject as it existed prior to the PCIJ is given only transitory treatment in later texts: see e.g. Jerome B Elkind, Interim Protection: A Functional Approach (The Hague: Martinus Nijhoff, 1981) ch 3; Jerzy Sztucki, Interim Measures in the Hague Court (Deventer: Kluwer, 1983) chs 1 and 2. Cf. Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) chs 2 and 3; Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) ch 1.

15

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two propositions: firstly, that the decided cases of the PCIJ emerged out of the practice of earlier municipal and international adjudicatory bodies; it was the first international court to successfully merge those two traditions; and secondly, that far from being a post-1947 phenomenon, the law of provisional measures was already well articulated by the time that the PCIJ ceased to exist in 1946. The chapter will first briefly consider the municipal law origins of provisional measures, and give a snapshot of how these had developed by the latter part of the nineteenth century and thus were available for international courts and tribunals in the early twentieth century. It will then relate the experience of the early international courts and tribunals, most notably the experience of the short-lived Central American Court of Justice and the mixed arbitral tribunals which were a feature of the inter-war landscape. Finally, it will survey how these earlier tribunals influenced the drafting of the Statute of the Permanent Court of International Justice, and chart the further development of provisional measures in the jurisprudence of that body.

II Municipal Law Origins A Provisional Measures in Antiquity and the Middle Ages 1 Greco-Roman Origins The notion that the administration of justice requires that relief be available to safeguard contested rights pendente lite is not a modern invention.7 In a Greek code of laws dating to the fifth century bce,8 the following procedural guarantee was set out: 7 8

Dumbauld, Interim Measures, 33–42. The code was uncovered at the site of the city-state of Gortyn on Crete, and is one of the most complete extant reproductions of a Greek legal code: HJ Roby, ‘The 12 Tables of Gortyn’ (1886) 2 LQR 135; J Davies, in M Gagarin and DJ Cohen (eds), The Cambridge Companion to Ancient Greek Law (Cambridge: Cambridge University Press, 2005) 305. The earlier Babylonian Code of Hammurabi (c. 1772 bce) contains substantial commentary as to the procedure to be followed in cases of contested ownership of property, but does not make any provision for relief pendente lite: The Code of Hammurabi (tr King, 1915) §§9–12. There is evidence that during the Middle Babylonian Period (c. 1532–1000 bce), parties were able to distrain persons pending settlement of a dispute over the purchase of a slave, though this may not have taken the form of a formal procedure: K Slanski, ‘Middle Babylonian Period’ in R Westbrook (ed), 1 A History of Ancient Near Eastern Law (Leiden: Brill, 2003) 485, 492. Although the Egyptian legal code exhibited considerable procedural complexity, there is no evidence of interlocutory relief,

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Whoever is going to contend about a freeman or slave, shall not lead him away before trial. And if he lead him away [the judge] shall adjudge [a fine of] ten staters in case of a freeman, five in case of a slave for leading him away, and shall judge that he let him go within three days. And if he shall not let him go, he shall adjudge [a fine of] a stater in case of a freeman, a drachm in case of a slave for each day until he let him go, and with respect to the time the judge shall decide on oath.9

Most modern accounts of the history of provisional measures begin, however, with Roman law, which contained procedural protections for rights under dispute. These centred on the praetor, an administrative office competent to decide cases submitted to it by private parties – in effect an early form of arbitration.10 As part of his authority, the praetor had the capacity to issue an interdict, being an order requiring the person to whom it was addressed to do or not do the thing indicated in the order. It possessed three principal forms: production (exhibeas), restoration (restituas), and prohibition (veto).11 For the most part, the interdict – especially when directed towards the protection of public rights – was a form of final relief. It could, however, be made to reflect provisional characteristics, especially in cases of contested private ownership. These possessory interdicts were as a class12 directed towards acquiring, retaining or regaining possession. They possessed two forms: uti possidetis (to be used in cases of chattels) and utrubi (concerning real property).13 These were ordinarily employed to determine which of the parties was to be considered the nominal defendant for the purposes of the proceeding – and thus who was entitled to remain in possession for

9 10 11 12 13

at least on the basis of the sparse materials available: see Th´eodorid`es, ‘The Concept of Law in Ancient Egypt’ in JR Harris (ed), The Legacy of Ancient Egypt (Oxford: Oxford University Press, 2nd edn, 1971) 291, especially in relation to Papyrus Berlin 9010 (Old Kingdom, Dynasty VI, c. 2345 bce) (295–6) and Papyrus Brooklyn 35.1146 (Middle Kingdom, Dynasty XIII, c. 1785 bce) (303–4); R Jasnow, ‘Old Kingdom and First Intermediate Period’ in Westbrook, 1 Ancient Near Eastern Law, 93, 108–10; R Jasnow, ‘Middle Kingdom and Second Intermediate Period’ in Westbrook, 1 Ancient Near Eastern Law, 254, 267; R Jasnow, ‘New Kingdom’ in Westbrook, 1 Ancient Near Eastern Law, 289, 308–10; R Jasnow, ‘Third Intermediate Period’ in Westbrook, 2 Ancient Near Eastern Law, 777, 793–4. Roby, ‘Twelve Tables’, 142. Dumbauld, Interim Measures, 33; RW Lee, The Elements of Roman Law (London: Sweet and Maxwell, rev edn, 1946) 10–13. Justinian, Institutes (tr Moyle, 4th edn, 1906) IV.xv.1; Gaius, Institutes (tr Gordon and Robinson, 1988) IV.143. Justinian, IV.xv.2; Gaius, IV. 144. Further: Lee, Roman Law, 459. Justinian, IV.xv.4; Gaius, IV.149.

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its duration.14 As the question of right could not be raised in possessory proceedings, this gave the interdict a provisional character – due not to the character of such orders per se, but rather the provisional nature of the possession conferred.15 This species of order is thought to be the inspiration for the AngloAmerican concept of the equitable injunction as a form of final relief, from which evolved a procedural analogue, the interim injunction – the latter, as will be discussed, is a possible influence on the concept of provisional measures in international law. There are, however, significant differences:16 whilst injunctions operate according to principles such as irreparable harm and the undertaking as to damages, the interdict was issued according to a simple pronouncement of fact. If the pronouncement was correct (e.g. ‘release slave X who is the property of citizen Y’) then it was to be complied with; if incorrect, it could be ignored. Another institution of Roman law in which provisional instincts can be sensed is security for the execution of the judgment (cautio iudicatum solvi).17 When considering actions in personam, such security prior to the determination of the merits could be ordered either by reason of the particular action or the suspect character of the defendant. When considering actions in rem (such as those which might be susceptible to a possessory interdict), the party which retained possession during the trial when his right of ownership was in doubt could be required to give security such that, in the case of defeat, the property or its value would be returned.18 As Gaius states, ‘[t]he amount of the wager is not what we seek to exact; it is not a penalty but a legal preliminary, and is made solely to provide a foundation for the judgment’.19 Where security was not given, the property would pass into the hands of the plaintiff, again on payment of a bond; if this was not given, then possession would default to the defendant. If the defendant was of suspect character, however, the 14

Gaius, IV.148–50: If the interdict concerns land or buildings, the praetor lays down that the party with the superior claim is the one who, at the time the interdict was issues, was in possession without force, stealth or license from his opponent. If it concerns moveables, the party with the superior claim is the one who was in possession for the greater part of a year without force, stealth or license from his opponent.

15 16 18

WW Buckland and AD McNair, Roman Law and Common Law: A Comparison in Outline (Cambridge: Cambridge University Press, 2nd edn, 1965) 421. 17 Ibid, 420–3. Dumbauld, Interim Measures, 34–5. 19 Justinian, IV.xi.1, 2; Gaius, IV.89, 102. Ibid, IV.94.

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property could be passed into the possession of a third person as custodian (sequestratio).20

2 Provisional Measures in Canon Law A more exact early analogy to the modern understanding of provisional measures arises in canon law, which proved particularly influential in the development of medieval civil law. Until 1917, the code of the Holy Roman Church was contained in the Corpus iuris canonici (CIC), a progressive compilation of several earlier texts.21 The earliest of these, the mid-twelfth century Decretum of Gratian, contained several allusions to interim relief in contested proceedings, most notably the concept of de restitutio spoliatorum (Title XIII), being the restoration of a violently displaced status quo prior to litigation. This procedural rule provided in part that before any complaint could be heard against a clerk deprived of his benefice, the benefice would first be restored to him.22 The rule of ut lite pendente nihil innovetur (Title XVI) is similarly illuminating, providing that ‘whilst a lawsuit is pending, no new element may be introduced’.23 Although useful early on for the prevention of (further) violence between disputants, it was later pushed to unjustifiable lengths and (ab)used as a dilatory apparatus.24 The principle remains unchanged in the 1917 (Canon 1725, 5°) and 1983 (Canon 1512, 5°) reinventions of the CIC, with the following comment being made with respect to the latter: While the suit is pending no changes may be made regarding the object of the dispute which could damage the interests of the parties: thus e.g. if the ownership of a piece of property is in dispute, once the suit is pending 20

21

22 23

24

Justinian, Digest (tr Mommsen, Krueger and Watson, 1985) XVI.iii.17.1. Further: Dumbauld, Interim Measures, 35; Lee, Roman Law, 288 Buckland and McNair, Roman Law and Common Law, 71, 331; WW Buckland, A Textbook of Roman Law: From Augustus to Justinian (Cambridge: Cambridge University Press, 3rd edn, 1963) 469. There exists no readily available English translation of the Corpus iuris canonici prior to 1917, and so this section relies heavily on the translation and analysis of Dumbauld, Interim Measures, 40–2. For an overview of the ‘codification and progressive development’ of canon law, see Constant van de Wiel, History of Canon Law (Louvain: Peeters, 1992). CIC 1585, II.xiii.7 (spoliatus ante omnia restituendus). Ibid, II.xvi.1. Thus, when the Archbishop of York challenged the Archbishop of Canterbury with respect to the latter’s right (bestowed by papal decree) to proceed through former’s territory preceded by a man bearing a large crucifix, the latter was entitled to continue the practice prior to litigation. This actually countermanded a previous order restraining the practice pendente lite: Dumbauld, Interim Measures, 41. John G Phillimore, An Inaugural Lecture on Jurisprudence, and a Lecture on Canon Law (London: W Benning and Co, 1851) 61.

20

origins of provisional measures this property may not be sold or leased nor may its value be in any way reduced.25

Additionally, Titles XV and XVII of the medieval code are reminiscent of the Roman law concepts discussed earlier: the object of the litigation must be kept out of the hands of the malfeasant plaintiff;26 and property and income in litigation may be the subject of sequestration.27 CIC 1917 (Canon 1672) and CIC 1983 (Canon 1496) contain similar provisions for the sequestration of contested property and the inhibition of rights pendente lite. The latter, translated, provides: §1 A person who advances arguments, which are at least probable, to support a right to something held by another, and to indicate an imminent danger of loss unless the object itself is handed over for safekeeping, has a right to obtain from the judge the sequestration of the object in question. §2 In similar circumstances, a person can obtain a restraint on another person’s exercise of a right.28

B Provisional Measures in the Common and Civil Law Traditions Whilst these examples are useful in tracing the origins of provisional measures as a historical phenomenon, it does not seem likely that they exercised direct influence over the doctrine as it was applied in the SinoBelgian Treaty case.29 In all likelihood, the early international understanding of provisional measures was derived from principles of interim relief as they had come to exist in both common and civil law jurisdictions at the turn of the twentieth century. Both traditions developed a strong doctrine of relief pendente lite, on the basis that the effective protection 25 26

27 28

29

Canon Law Society of Great Britain and Northern Ireland, The Canon Law, Letter and Spirit (London: G Chapman, 1995) 868. CIC 1585, II.xv.1 (de eo qui mittitur in possessionem causa rei servandae). On the inter´ penetration of the Roman interdict into canon law, see Debi Church and Roman Law ˛ nski, (Lublin: Wydawnictwo KUL, 2010) 152 (fn 518). CIC 1585, II.xvii.1 (de sequestratione possessionum et fructuum). The 1983 code further provides in Canon 1498 that sequestration may not be ordered where a guarantee is given that where the loss identified in Canon 1496, §1 can and will be repaired. Canon 1499 also requires a provision of an undertaking as to damages by the plaintiff. The possibility cannot, however, be discounted entirely – Huber lectured in canon law at the University of Zurich from 1902–1914: Deitrich Schindler, ‘Max Huber – His Life’ (2007) 18 EJIL 81, 84–5.

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of private rights is the quid pro quo for the prohibition of self-help by individuals.

1 The Common Law and the Interlocutory Injunction The most widely recognized form of interim relief in the common law30 arises, in fact, from equity.31 The equitable injunction, as mentioned earlier, owes its origins in part to the Roman law concept of the interdict.32 But another potential inspiration was the capacity of the early English kings (c. 1066–1258)33 to issue writs with respect to private disputes between individuals.34 This formed the basis of an early concept of equity, for although England did not yet possess the peculiar institution of the Court of Chancery (at least not as an adjudicative body),35 it nonetheless ‘possessed a judge in equity in the king’.36 If the regular courts proved frustrating, litigants had the capacity to appeal to the king for relief, who then possessed two options: (1) to command the local manorial lord (or some other person) to do justice to the plaintiff; or (2) address an order or mandate directly to the defendant instructing him to do as the plaintiff requested, as modified by the desires of the king.37 As Raack 30

31

32

33 34

35

36

‘Common law’ in this context serves as a convenient umbrella term for those jurisdictions arising out of the English legal tradition. Cf. Dumbauld, Interim Measures, 59ff, who refers to the interlocutory injunction as reflecting ‘Anglo-American’ law, a term which unfairly singles out the importance of US jurisprudence at the expense of other, equally developed common law jurisdictions (e.g. Canada, Australia, South Africa, New Zealand). For two relatively brief and accessible histories of equity and the common law tradition, see W J V Windeyer, Lectures on Legal History (Sydney: Law Book Co, 2nd rev edn, 1954) ch 24; R P Meagher, J D Heydon and M Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: LexisNexis Butterworths, 4th edn, 2002) ch 1. On the emergence of the Chancery as an adjudicative body, see Joseph Parkes, A History of the Court of Chancery (London: Longmans, Green and Co, 1827); Duncan M Kerly, A Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (Cambridge: Cambridge University Press, 1890). See e.g. George Spence, 1 The Equitable Jurisdiction of the Court of Chancery (London: V and R Stevens, 1846) 673, referring to the ‘praetorian jurisdiction’ of the Chancellor to secure custody to the party in rightful possession, prima facie, pending litigation. Ibid, 107–8; David W Raack, ‘A History of Injunctions in England before 1700’ (1985– 1986) 61 Ind LR 539, 541–4. This practice was terminated with the promulgation of the Provisions of Oxford in 1258: Melvin M Bigelow, History of Procedure in England, from the Norman Conquest: The Norman Period (1066–1204) (London: Macmillan, 1880) 197–8. Although it would become the principal court of equity, the Court of Chancery was not the only court with equitable jurisdiction – the Exchequer possessed equity jurisdiction until 1842, and a variety of other courts and tribunals possessed it at different times: Windeyer, Lectures, 252 (fn 6). 37 Bigelow, History of Procedure, 19. Ibid, 152.

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notes, ‘[t]hese latter writs [ . . . ] deserve attention as possible forerunners of injunctions’.38 With the Court of Chancery not firmly established as such until the early fifteenth century, the common law courts (the King’s Bench, Exchequer and the Court of Common Pleas) administered both the law and an early species of equity.39 With respect to the latter, the courts developed wide discretionary powers so as to do whatever equity required.40 This included the development of what Hazeltine identifies as ‘decree[s] in personam’,41 one of which was the common law writ of prohibition.42 This, like an injunction, operated as a directive from the court to one of the parties to do or refrain from doing a particular thing. One development was the use of a writ of prohibition to restrain exorbitant proceedings before the ecclesiastical or common law courts, not by instructing the court to surrender the matter, but by directing the plaintiff to abandon its action. In time, this would evolve into the modern anti-suit injunction.43 More relevantly, a manifestation of prohibition was estrepment, which prohibited waste by a possessor of land who was not entitled to it by reason of a judgment against him: the writ was thus issued after judgment and the confirmation of a better claim, but before execution.44 In its original form, the writ could not be issued prior to judgment, thus creating a procedural weakness in cases where the defendant ran down the property prior to determination of the merits. The Statute of Gloucester of 1278 remedied this deficiency,45 prompting Hazeltine and others to identify the resulting writ as inspiration for the interlocutory injunction.46 38 39

40 41 43

44 46

Raack, ‘History of Injunctions’, 541. Although to refer to it in this way is something of an anachronism, as the judges of the period did not conceive of their actions as applying two separate bodies of law: ibid, 544. Also: George B Adams, ‘The Origin of English Equity’ (1916) 16 Col LR 87, 89. H D Hazeltine, ‘The Early History of English Equity’ in Paul Vinogradoff (ed), Essays in Legal History (London: Oxford University Press, 1913) 261, 262. 42 Ibid. Ibid, 270–84; Raack, ‘History of Injunctions’, 545–8. Spence, 1 Equitable Jurisdiction, 673–6; Hazeltine, ‘Early History’, 277–8. These injunctions eventually became extremely common, and formed part of the wider battle for supremacy between common law and equity, in which equity eventually triumphed: Windeyer, Lectures, 259–61. On the content of the injunction as it now stands, see Steven Gee, Commercial Injunctions (London: Sweet and Maxwell, 5th edn, 2004) ch 14; Richard Fentiman, International Commercial Litigation (Oxford: Oxford University Press, 2010) ch 15. 45 Hazeltine, ‘Early History’, 275. 6 Ed I, c 13. Hazeltine, ‘Early History’, 276–7. Also: Walter Ashburner, Principles of Equity (London: Butterworth, 1902) 464. Cf. Raack, ‘History of Injunctions’, 550.

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By the sixteenth century, equity had fashioned its own generalist version of estrepment, resulting in what is now known as an interlocutory injunction, prompting the Court of Common Pleas to attempt to expand the reach of its earlier writ. This counterattack proved ineffectual, however, and in 1594 Chancery acquired exclusive control over interim relief, gaining the capacity to intervene in both common law and equitable proceedings.47 But it is highly unlikely that the equity judges of this period conceived of a uniform doctrine of interlocutory injunction.48 This remained the case well into the eighteenth century.49 Nonetheless, some familiar (albeit disorganized) themes were beginning to emerge in the jurisprudence.50 By the nineteenth century the remedial advantages of interlocutory relief, combined with an expanding Chancery bench made it necessary to develop principles of general application.51 The strands of thought developed in earlier case law included the need for the plaintiff to show a prima facie case on the merits,52 the concept of irreparable harm and the balance of convenience,53 and an emphasis on the preservation of the status quo as the main object of interim relief.54 By the 1860s, a coherent and unified doctrine of interlocutory injunctions had more or less emerged, with Kerr offering the following synthesis:

47

48 49

50

51 52 53

54

Spence, 1 Equitable Jurisdiction, 672; Hazeltine, ‘Early History’, 277; Meagher et al., Doctrines and Remedies, 32–3. Cf. Common Law Procedure Act 1854, 17 and 18 Vict, c 125, s 79, reintroducing the injunction to the common law arsenal. Further: Gee, Commercial Injunctions, 3. Generally: John Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Harv LR 525. A review of the juridical and scholarly authorities by Leubsdorf, indicates that contemporary ‘writers about Chancery were more concerned with the substantive principles created to correct defective rules of law than with the special procedures and remedies available in equity’: ibid, 528. See e.g. Mogg v Mogg (1786) 21 ER 432; Johnson v Goldswaine (1795) 145 ER 1027 (irreparable harm); Tonson v Walker (1752) 36 ER 1017; Field v Jackson (1782) 21 ER 404 (strength of the plaintiff’s case on the merits); Ryder v Bentham (1750) 27 ER 1194 (preservation of the status quo). Leubsdorf, ‘Preliminary Injunctions’, 532. Shewsbury and Chester Railway v Shewsbury and Birmingham Railway (1851) 61 ER 159; Glascott v Lang (1838) 40 ER 1000. Although invoked on occasion in the eighteenth century, by the nineteenth century irreparable harm was seen as an essential component in almost all interlocutory applications of this kind, reflecting a functional view of equity’s role: e.g. Wynstanley v Lee (1818) 36 ER 643; Crowder v Tinkler (1816) 34 ER 645; Hill v Thompson (1817) 36 ER 239. Blakemore v Glamorganshire Canal Navigation (1832) 39 ER 639.

24

origins of provisional measures The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object of the interlocutory injunction is merely the preserve the property in dispute in statu quo until the hearing or further order [ . . . ] [T]he Court does not in general profess to anticipate the determination of rights [ . . . ] A man who comes to the Court for an interlocutory injunction is not required to make out a case which will entitle him at all events to relief at the hearing. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the Court that the property should be preserved in its present actual condition.55

Shortly after this crystallization, the Judicature Acts of 1873–187556 were passed, merging the courts of common law and equity and giving the amalgamated judiciary the ability to apply both bodies of law under the same set of procedural rules.57 This position, broadly speaking, would have been familiar to those in the common law jurisdictions who were considering provisional measures in the context of international courts and tribunals in the formative years of international dispute settlement. Providing a countervailing approach was the concept of interim relief as it had evolved in civilian jurisdictions, which will now be analyzed.

2 The Civil Law Tradition and the Codifying Impulse The history of provisional measures in civil law jurisdictions is necessarily more abbreviated than that of the common law owing to two events of 55

56 57

William W Kerr, A Treatise on the Law and Practices of Injunctions in Equity (London: W Maxwell and Son, 1867) 11–12. The passage notably omits the requirements of irreparable injury and the balance of convenience. Kerr’s US editor, Herrick, remedied this: William A Herrick (ed), A Treatise on the Law and Practice of Injunctions in Equity (Boston: Little, Brown and Co, rev edn, 1871) 12 (fn 1). The text remained unamended as of the sixth English edition: John M Paterson (ed), Kerr on Injunctions (London: Sweet and Maxwell, 6th edn, 1927) 2. These concepts were, however, analyzed in a more detailed discussion of the issues in play: ibid, 15–30. Also: Leubsdorf, ‘Preliminary Injunctions’, 536 (fn 70–1). The current leading view of the test for the grant of an interlocutory injunction arises from the judgment of Lord Diplock in American Cynamid Co v Ethicon Ltd [1975] AC 396. Further: McGhee (gen ed), Snell’s Equity (London: Sweet and Maxwell, 32nd edn, 2010) 542–74. Judicature Act 1873, 36 and 37 Vic, c 66; Judicature Act 1875, 38 and 38 Vic, c 77. Windeyer, Lectures, 286–90; Meagher et al., Doctrines and Remedies, 24–39, ch 2. Other common law countries have adopted similar legislation, such that law and equity are now merged in all relevant jurisdictions, though some were notably tardy in this respect – the courts in New South Wales applied separate procedures for law and equity until 1972: see Law Reform (Law and Equity) Act 1972 (NSW); Meagher et al., Doctrines and Remedies, 11–18.

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the late eighteenth and early nineteenth centuries: the French Revolution of 1789, and the enactment of the Code civil des franc¸ais of 1804.58 In the interests of brevity, only three jurisdictions will be assessed: France, Germany and Switzerland.59 At the outset, it should be noted that within the civil law tradition the prevalent means of securing the enforcement of claims is the preliminary seizure and attachment of assets in the case of money claims, or sequestration when dealing with moveable or immoveable objects.60 However, basically all civilian jurisdictions also provide for measures granting interim performance or regulating the status quo. These bear the greatest resemblance to the modern doctrine of provisional measures at the international level61 and will be the primary focus of this section. (a) France and the Code de Proc´edure Civile Although the Civil Code was designed to eradicate the preexisting law of the ancien r´egime, it nonetheless included some ideas that were clearly referable to Roman and canon law. Chief amongst these was the notion of judicial sequestration, which was codified under §1961(2). That provision allowed a court to order that immoveable or moveable objects be placed in the hands of a third party where property therein or possession thereof was disputed between two or more persons.62 Further development of interim measures in French law would have to wait, however, until 1806, when the Code de proc´edure civile (CPC) was 58 59

60

61

62

Known also as the Code Napol´eon: Windeyer, Lectures, ch 35. These jurisdictions have been selected as having the greatest bearing on the thinking of President Huber in the Sino-Belgian Treaty case. The French and German codifications of civil procedure were the most influential during the nineteenth and early twentieth centuries, and Huber himself was a Swiss national. For a more comprehensive overview of the civilian jurisdictions at this time, see Dumbauld, Interim Measures, 42–81. Alexander Bruns, ‘Provisional Measures in European Civil Procedure Laws – Preservation of Variety or Need for Harmonisation?’ in R St¨urner and M Kawano (eds), Comparative Studies on Enforcement and Provisional Measures (T¨ubingen: Mohr Siebeck, 2011) 183, 184–5. Ibid, 187–9. Orders to prevent the dissipation of assets are of course well known in the English common law, principally through the so-called Mareva or ‘freezing’ injunction arising from the decision in Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509 and now contained within Part 25 of the Civil Procedure Rules 1998 (UK). The freezing injunction was known to English common law before 1975 and applied to foreign entitles, but was effectively abandoned in the late nineteenth century: London Joint Stock Bank v Mayor of London (1881) LR 6 App Cas 393. On the modern practice, see Gee, Commercial Injunctions, chs 3, 12, 13; Fentiman, International Commercial Litigation, ch 17. On deposit and sequestration in general, see Book III, Title XI of the Civil Code.

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enacted.63 The CPC, unlike the Civil Code and the Code p´enal, was not intended to eradicate the pre-revolutionary practice,64 but was in fact a hybrid of Napoleonic values and the Grande ordonnance de proc´edure civile (the Code Louis) of 166765 – it therefore incorporated certain principles of Roman and canon law. A further elaboration was the Code de commerce of 1807, which set down special rules for commercial litigation. The CPC and the Commercial Code remained relatively stable during the nineteenth century. For the most part, interim relief under these statutes consisted of various forms of property seizure and sequestration (saises) – principally for the execution of judgments, but also on occasion for the preservation of the final determination on the merits (conservatories).66 Significantly, seizure in this context was considered to be the exercise by the plaintiff of a statutory right, rather than the consequence of a judicial order in personam.67 More relevantly for the present discussion, the CPC also endorsed the pre-revolutionary practice of relief en r´ef´er´e, where the president of the tribunal could make urgent and immediately enforceable interlocutory orders without prejudice to the merits.68 Applications for such relief could be made to the president of the relevant tribunal at a special hearing.69 The measures so ordered could not prejudice the principal action70 and were not susceptible to immediate objection, although an appeal could be

63

64

65 66

67

68 69 70

On the development of the CPC, see A Wijffels, ‘French Civil Procedure (1806–1975) in C H van Rhee, European Traditions in Civil Procedure (Antwerp and Oxford: Intersetia, 2005) 25, 25–40. For a summary history of French civil procedure in general, see Peter E Herzog and Martha Weser, Civil Procedure in France (The Hague: Martinus Nijhoff, 1967) 39–53. And was indeed a reaction against precisely this instinct, as embodied in the Decree of 3 Brumaire Year II (24 October 1793), which reduced civil procedure to a handful of rules: Wijffels, ‘French Civil Procedure’, 26–8. Ibid, 31. Dumbauld, Interim Measures, 70. Saises conservatories were not widely available outside of commercial matters until 1955, leading to a wide range of other actions for seizure to emerge. For a summary of these, see ibid, 71–5; Herzog and Weser, Civil Procedure, 237–8. An exception arises in the case of the saises conservatoire commerciale, under which the court could require that the plaintiff furnish security or proof of solvency: Dumbauld, Interim Measures, 71. CPC §806. Further: Dumbauld, Interim Measures, 71, 75–7; Herzog and Weser, Civil Procedure, 238–9. CPC §§807, 808. Though this did not mean that they could not cause irreparable harm to the subject of the litigation, or cause damage that could not be remedied by the final judgment: Dumbauld, Interim Measures, 75.

municipal law origins

27

filed within two weeks of the order being given.71 The provisions on relief en r´ef´er´e were phrased in extremely general terms, enabling the procedure to be used in a wide range of cases.72 Relief was for the most part directed by the applicant, reflecting the general principle that litigation was the tool of the parties – whilst the court could do less than what was asked for, it could not do more, and was thus bound by the principle of ne ultra petita.73 In 1975, a new CPC74 was enacted which broadly replicated the earlier process for relief en r´ef´er´e.75 (b) Germany and the Zivilprozessordnung Enacted in 1877, the German Zivilprozessordnung (ZPO) is widely regarded as the most sophisticated of the nineteenth century civil procedure codifications.76 The influence of the French CPC on the ZPO was profound,77 not only as the leading foreign model at the time of codification, but also because the CPC formed part of the domestic law of those territories which came under French rule in the early nineteenth century.78 Prior to this time, there was broad procedural uniformity – the civil procedure of the germeines Recht – between the German-speaking territories, including Austria and some of the Swiss cantons.79 The provisions on interim relief in the ZPO are found in Book 8, Chapter 5, entitled Arrest und einstweilige Verf¨ugung (seizure and injunction). In these, Dumbauld80 identifies four classes of provisional measure: 71 73 74 75 76

77

78

79

72 CPC §809. Herzog and Weser, Civil Procedure, 239. Dumbauld, Interim Measures, 75. Generally: L Cadiet, ‘The New French Code of Civil Procedure (1975)’ in C H van Rhee (ed), European Traditions in Civil Procedure (Antwerp and Oxford: Intersetia, 2005) 49. Nouvelle code de procedure civile, Arts 808–13 (ordinary matters), 872–6 (commercial matters). On the development of the ZPO, see P Oberhammer and T Domej, ‘Germany, Switzerland and Austria (ca. 1800–2005) in C H van Rhee (ed), European Traditions in Civil Procedure (Antwerp and Oxford: Intersetia, 2005) 103. The ZPO was also widely exported, with its 1877 iteration forming the basis for the 1890 codification of civil procedure by Japan during the Meiji Restoration: Wilhelm R¨ohl, ‘Law of Civil Procedure’ in W R¨ohl (ed), History of Law in Japan Since 1869 (Leiden: Brill, 2004) 655. On the wider influence of the French Code, see R van Rhee, ‘The influence of the French Code de proc´edure civile (1806) in 19th Century Europe’ in L Cadiet and G Canivet (eds), De la Comm´emoration d’un code a` l’autre: 200 ans de proc´edure civile en France (Paris: LexisNexis Litec, 2006) 129. And indeed, Prussia and Bavaria were thereby influenced by French concepts of civil procedure from within: Oberhammer and Domej, ‘German, Switzerland and Austria’, 108. 80 Ibid, 103 Dumbauld, Interim Measures, 42–3.

28

origins of provisional measures

(1) pure seizure or arrest securing the execution of a money claim or a claim liable to transform into a money claim;81 (2) an injunction or einstweilige Verf¨ugung, granted in light of ‘the concern that a change of the status quo might frustrate the realization of the right enjoyed by a party, or might make its realization significantly more difficult’;82 (3) another species of injunction for the provision of a ‘temporary status’, to be granted ‘[where] necessary in order to avert significant disadvantages, to prevent impending force, or for other reasons, in particular in the case of legal relationships of a long-term nature existing’;83 and (4) a form of practice arising under (3) which provides provisional satisfaction with respect to an undetermined money claim, and therefore amounts to an interim judgment.84 Whilst measures (1)–(3) can be seen in each of the systems previously examined, measure (4) represents an innovation,85 based on the words ‘to avert significant disadvantages’ in ZPO §940. The logic behind this position, as revealed by the German pleadings in the Chorz´ow Factory (Indemnities) case,86 is that the deterioration of the rights of the parties may be mitigated by the payment of damages prior to judgment, with the assurance that the money will be refunded in the event of an adverse determination. Germany’s experience postunification also generates additional interest due to its status as a federated state. This permitted litigation between the individual German states before the Staatsgerictshof, an organ established by Article 108 of the 1919 Weimar Constitution and the Reich Law of 9 July 1921. By virtue of §23 of the latter, the Court was given the capacity to develop its own procedural rules and asserted thereby a power to award relief pendente lite.87 In the L¨ubeck Bay case in 1925,88 the Court ordered that Mecklenberg-Schwerin refrain from exercising fisheries or police 81 83 85 86

82 ZPO §916. Ibid, §935. 84 Ibid, §940. Dumbauld, Interim Measures, 43. Cf. Bruns, ‘Provisional Measures in European Civil Laws’, 188–9. (1927) PCIJ Ser A No 12, 5:

The German Government emphasizes that it is not only the amount of compensation which is essential, but, at least to an equal extent, the date of payment. Seeing that opportunities of resuming economic activity do not arise every day, the damage caused by the [allegedly wrongful act] increased every month; and moreover, the prejudice caused through further delay cannot be made good in actual form. 87 88

Dumbauld, Interim Measures, 83 (fn 6). The Staatsgerichtshof ordered provisional measures in inter-state matters on several other occasions, but none of these preceded the order of President Huber in the Sino-Belgian Treaty case, and could not have influenced his decision: ibid, 84–92.

municipal law origins

29

jurisdiction in the contested area until such time as the merits could be addressed.89 Significantly, this was done by reference to the provisions of the ZPO, indicating that the Court saw domestic civil procedure as fit to regulate what was effectively a territorial conflict between two German states. It said: In this respect, ZPO §940 is the primary consideration, according to which interim decrees are also permissible for the purpose of regulating an interim status quo in relation to a contested legal relationship, to the extent that the regulation – particularly in the context of long-term legal relationships – avoids substantial disadvantage or appears necessary to discourage imminent violence or appears necessary on other grounds.90

(c) Switzerland and the Conflation of Traditions The Swiss codification essentially amalgamated French and German thinking on civil procedure, with the process further complicated by the relative independence of the individual cantons within the Confederation.91 Geneva was the first to codify its civil procedure, issuing the Loi sur la proc´edure civile in 1819. This event must be viewed against the background of Geneva’s incorporation into the French Republic in 1798, and the consequent introduction of the French CPC into its law, with Geneva’s experience influencing the Francophone cantons generally. The German-speaking cantons, on the other hand (and especially Zurich) were influenced by the civil procedure of the gemeines Recht and the long-running debates surrounding the drafting of the ZPO. A further group of cantons developed a uniquely Swiss form of civil procedure based on their own domestic precedents.92 This multifarious approach has only just been abandoned with the entry into force of a federal Code de proc´edure civile in 2011, superseding the canon codes. In the eighteenth century, however, Switzerland developed a code of civil procedure for use in federal matters,93 which incorporated elements 89

State of L¨ubeck v State of Mecklenburg-Schwerin, 25 October 1925, RGZ 111, Appendix, 21. The operative part of the order provides: [T]he state of Mecklenburg-Schwerin is prohibited from exercising sovereign fishing rights and maritime policing in the Travem¨under Bay up to the line from C¨omnitzer Tower – Bohnsdorfer Mill – Steinrifftonne – Mouth of the Hartenbeck [River]. The exercise of these rights to the line described stands for this time solely to the Free Hanseatic City of L¨ubeck.

90 91 92

Ibid, 22. As reflection of this, as many as 92 Swiss codes of civil procedure were enacted between 1819 and 2001: Oberhammer and Domej, ‘Germany, Austria and Switzerland’, 124. 93 Ibid. Federal Law of 22 November 1850.

30

origins of provisional measures

acceptable to both systems. The Code provided in §199 for the grant of interim relief by the examining magistrate or the Bundesgericht, with the president empowered to issue the necessary orders if the latter had not convened. Under the terms of the Code, such measures could be ordered: (1) to protect a threatened asset; (2) to prevent alteration to the cause of action or subject of litigation; and (3) to prevent imminent and not easily repairable damage, i.e. that which cannot be made good through monetary relief.94 It provided that ‘provisional decrees [are] intended merely to ensure the existing conditions and should therefore not go further than is necessary for that purpose’.95 This was a departure of sorts from the French approach, which gave a greater measure of latitude to the applicant vis-`a-vis the content of the measures. Finally, the Code provided that orders so given were without prejudice to the resolution of the question at issue, and could not alter the legal status of the parties. Where the harm apprehended disappeared or the circumstances justifying the relief changed, the order could be revoked or modified.96 Similar provisions appeared in the late-nineteenth and early-twentieth century cantonal codes97 of Bern, Vaud and Fribourg. An additional gloss was added in the contemporaneous statutes of Lucern, Obwalden and Zug, which provided that provisional measures could be ordered ex parte by the president of a competent tribunal where harm (1) was imminent, and (2) could only be prevented by timely judicial action. This introduced the requirement of urgency in a manner reminiscent of the French practice of relief en r´ef´er´e. Where the matter was not urgent, a hearing was to be held prior to the order, and the parties given the opportunity to present submissions. As in the case of Germany, provision was made in the Swiss Constitution of 187498 for the Bundesgericht to adjudicate both public and private disputes between the cantons, or between the cantons and the Confederation.99 In such cases, federal law provided first, that in

94 95 96 97 98 99

Ibid, §199. The applicant, moreover, was required to give security if the respondent would suffer damage by reason of the order: ibid, §200. Ibid, §201. Dumbauld, Interim Measures, 53–5, sets out the relevant canon codes and their provisions at length, and this section accordingly relies on his analysis. Federal Constitution of the Swiss Confederation 1874, Arts 110–113. Similar provision is made in the Federal Constitution of the Swiss Confederation 1999, Art 189. On the contours of inter-cantonal dispute settlement in the early twentieth century, see Max Huber, ‘The Intercantonal Law of Switzerland’ (1909) 3 AJIL 62, 87–91; Dietrich

development by early international courts and tribunals 31

the absence of any special procedure the substantive and procedural rules governing civil litigation applied mutatis mutandis at the intercantonal level,100 and second, that the President of the Bundesgericht could take provisional steps to maintain the status quo or threatened legal interests.101 There is no indication, however, that this provision was ever utilized or elaborated in the period under consideration.102

III Development by Early International Courts and Tribunals Section II of the chapter set out the broad themes of interim relief as they existed in the common and civil law traditions in the late nineteenth and twentieth centuries – in other words, at the point at which the nascent courts and tribunals of the international system were beginning to order interim measures. The thinking of these tribunals lead in turn to the 1927 order in the Sino-Belgian Treaty case, which inaugurated the dominant strand of jurisprudence on provisional measures in international law today, that of the International Court of Justice. Prior to the establishment of the PCIJ, provisional measures were granted on a quasi-regular basis by the CACJ and by the mixed arbitral tribunals that emerged from the Peace of Versailles to adjudicate investor-state and inter-state claims on an ad hoc basis. These will now be examined, along with several ‘false starts’ by other institutions.

A The Early International Codification Projects: 1873–1907 The first consideration of provisional measures at the international level was through the work of the Institut de droit international.103 Founded in 1873, the Institut – encouraged by the increasing use of arbitration to settle the international disputes104 – adopted as one of its first projects the codification of arbitral procedure, appointing Levin Goldschmidt as Rapporteur.105 During the ensuing debate, an amendment was proposed Schindler, ‘The Administration of Justice in the Swiss Federal Court in Intercantonal Disputes’ (1921) 15 AJIL 149, 149–59. 100 Federal Law of 22 March 1898, as amended 6 October 1911, §22. 101 102 Ibid, §185. Dumbauld, Interim Measures, 83. 103 Rosenne, Provisional Measures, 12–13. 104 See e.g. the mixed claims commissions established by the Jay Treaty of 1794: Treaty of Amity, Commerce and Navigation, 19 November 1794, 52 243. 105 1 Ann de l’Inst 31 (Geneva, 1974).

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origins of provisional measures

by T M C Asser to insert the sentence ‘[t]he arbitral tribunal may render interlocutory or preparatory judgments’. Precisely what Asser meant by jugements interlocutories ou pr´eparatoires is not elaborated in the record,106 but the proposal was accepted and inserted in the Institut’s 1875 draft regulations as Article 19.107 Later commentary by M´erignac interpreted the provision as giving the tribunal jurisdiction to prescribe interim relief, ‘such as the sequestration of a disputed territory, or [of] captured ships and cargo the seizure of which causes difficulties’.108 The fact that M´erignac’s thoughts immediately ran to sequestration indicates that he was drawing on predominantly civil law concepts of interim relief rather than the common law tradition of injunction. The work on arbitral procedure by the Hague Peace Conferences of 1899 and 1907 is similarly opaque.109 The Third Commission of the 1899 Conference – of which Asser was a member – was responsible for the preparation of the Convention for the Pacific Settlement of International Disputes,110 which established the Permanent Court of Arbitration (Title IV, Chapter II) and set out the first internationally agreed code of arbitral procedure (Title IV, Chapter III). This code made no express or implied grant of jurisdiction to order provisional measures.111 The Convention that emerged from the 1907 Conference (Part IV, Chapter III) similarly made no reference to provisional measures,112 and in no case under either the procedure established in the 1899 or 1907 Conventions was the question of interim relief raised.113 106 107 108

109 111

112 113

Extracted: (1874) 6 RDILC 421, 588. Project de r´eglement pour la proc´edure arbitrale internationale, 1 Ann de l’Inst 126 (The Hague, 1975). A M´erignac, Trait´e th´eorique et pratique de l’arbitrage international (Paris: L Larose, 1895) 275. Rosenne, Provisional Measures, 13, further notes that the first use of the verb prescrire to describe the nature of the interlocutory decision on provisional measures occurred in this passage. 110 Ibid, 13–17. 29 July 1899, 187 CTS 410. A draft of the code put forward by the Russian delegation made reference in Art 21 provided that ‘[e]very decision whether final or interlocutory’ was to be taken by a majority of the members of the tribunal present: extracted in James Brown Scott (ed), The Reports of the Hague Conferences of 1899 and 1907 (Oxford: Clarendon Press, 1917) 104. Again, was provided as to the meaning of ‘interlocutory’ in this context. The wording was removed without explanation by the Committee of Examination, and Art 51 of the Convention simply provided that decisions of the tribunal would be taken by majority vote: Rosenne, Provisional Measures, 13. Convention on the Pacific Settlement of International Disputes, 18 October 1907, 205 CTS 233. Rosenne, Provisional Measures, 14.

development by early international courts and tribunals 33

B The American Experience: 1902–1918 1 The Treaty of Corinto The efforts of the Hague Peace Conferences overlapped in part with the development of international dispute settlement in Central America, a process that may be viewed against the background of attempts at unification by the former constituents of the Captaincy General of Guatemala.114 An early but ultimately unsuccessful example of provisional measures in this context arose from the 1902 Treaty of Corinto115 amongst Costa Rica, El Salvador, Honduras and Nicaragua, which provided in Article 2 for the compulsory arbitration of disputes by Central American arbitrators,116 a system which went considerably further than that agreed at The Hague in 1899.117 This was reinforced by Article XI, which provided that: The governments of the states in dispute solemnly engage not to execute any act of hostilities, preparations for war, or mobilization of forces, in order not to impede the settlement of the difficulty or question by the means established in the present convention.

In 1906, conflict broke out between Honduras and Nicaragua, with the former asserting that the latter had sponsored a revolution within its borders. Honduran troops, moreover, had crossed the Nicaraguan border in pursuit of revolutionaries.118 Both states immediately placed their armed forces on a war footing. An intervention by the Foreign Minister of Costa Rica, Luis Anderson, saw the matter referred to arbitration under the Treaty of Corinto, with a tribunal empaneled at San Salvador on 1 February 1907.119 The following order was issued: The court considers [ . . . ] that its principal duty is to see that the judgment it is going to deliver should become effective, removing thereby any circumstance which in any manner should distract the competitors from 114

115 116

117 118

The history of the region was set out in the award of the King of Spain in Border Dispute between Honduras and Nicaragua (Honduras/Nicaragua) (1906) 11 RIAA 101. Also: James Brown Scott, ‘The Central American Peace Conference of 1907’ (1908) 2 AJIL 121, 121–8. Convention of Peace and Arbitration, 20 January 1902, 190 CTS 537. A contrary system, the so-called Peace of the Marblehead and San Jos´e, referred certain disputes to Mexican-American arbitration: Treaty of Peace, 20 July 1906, 202 CTS 217, Art V; General Treaty of Peace and Friendship, Arbitration and Commerce, 25 September 1906, 202 CTS 428, Art III. The latter grandfathered in the arbitral procedure of the Treaty of Corinto (including Art XI) until such time a further procedure could be agreed. Further: (1917) 7 WPF 115–19. Ibid, 114–15; Dumbauld, Interim Measures, 92–5. 119 2 US Foreign Relations (1907) 607–13. (1917) 7 WPF 120–1.

34

origins of provisional measures the faithful execution and fulfillment of all and each of the clauses of the Corinto Pact of 1902 [ . . . ]

Whereas and in accordance with Article XI, the tribunal directed El Salvador to: [Request] in the most friendly manner from the Governments of Honduras and Nicaragua the most immediate disarmament and disbandment of forces, so that affairs may return to the peaceable status which the arbitral compromis contemplates.120

The tribunal’s order is recognizable as a form of interim relief, intended to preserve the status quo between the parties and prevent thereby escalation of the dispute. It was not well received. Whilst Honduras indicated that it was willing to comply with the terms of the order, Nicaragua saw disarmament as a humiliation and refused to comply, alleging new offences by Honduras.121 El Salvador and Honduras, for their part, saw Nicaragua’s recalcitrance as a fundamental breach of the Treaty of Corinto, and terminated the agreement. The tribunal dissolved accordingly, citing a failure of the parties to desist from ‘warlike preparations pending the arbitration’.122

2 The Central American Court of Justice Following the termination of the Treaty of Corinto, the dispute between Honduras and Nicaragua was brought to an end through the good offices of Mexico and the United States.123 One of the principal consequences of this mediation was the realization that further multilateral efforts were required to guarantee peace in the region. This led to the convening of the Central American Peace Conference in Washington, DC, in late 1907 ‘in order to devise the means of preserving the good relations among [the Central American Republics] and bring about permanent peace in those Countries’.124 120 122 123 124

121 Extracted in ibid, 120–1 (fn 2). Further: Dumbauld, Interim Measures, 94. Ibid. See the letter of 11 February 1907 from US President Theodore Roosevelt to Nicaraguan President Jos´e Santos Zelaya: 2 US Foreign Relations (1907) 616. Ibid, 606–35; (1917) 7 WPF 123. Central American Peace Protocol, 2 US Foreign Relations (1907) 644, Preamble. On the Conference generally, see the report of 20 March 1908 of William Buchanan, the US delegate to the Conference: ibid, 665–727. Also: Scott, ‘Central American Peace Conference’; Luis Anderson, ‘The Peace Conference of Central America’ (1908) 2 AJIL 144; Dumbauld, Interim Measures, 95–6.

development by early international courts and tribunals 35

The delegates in Washington were influenced by the proceedings of the recently adjourned 1907 Hague Conference, and particularly by the latter’s incomplete project for the creation of a Permanent Court of Arbitral Justice.125 Although a Honduran proposal to revive the failed Federal Republic of Central America created sharp division,126 an alternative proposition by El Salvador for the creation of a regional judicial institution was approved, and prompted the drafting of the Convention for the Establishment of a Central American Court of Justice127 as one of the nine instruments that emerged from the negotiations.128 This included Article XVIII, which provided: From the moment in which any suit is instituted against one or more governments up to that in which a final decision has been pronounced, the court may at the solicitation of any one of the parties, fix the situation in which the contending parties must remain, to the end that the difficulty shall not be aggravated and that things shall be conserved in statu quo pending a final decision.

The report of the Nicaraguan delegates described Article XVIII as a provision intended to give the Court the necessary authority to do that which it was unable to do under the Treaty of Corinto, i.e. order the withdrawal of armed forces, the return of property and the temporary suspension of measures liable to cause grave harm.129 Thus, Article XVIII does not appear to have been developed by express reference to any municipal concept of provisional measures, but rather from the immediate desire to prevent the escalation of armed conflict pending adjudication, which would have been relatively fresh in the minds of the Washington delegates. Its express reference to ensuring that ‘the difficulty shall not be aggravated’ is therefore an entirely novel international development, and derives not from the need to prevent private self-help as between individuals, but rather to separate warring states. Other relevant provisions of the Convention included Article XXIII, which required that all final or interlocutory decisions of the Court had to be rendered via a concurrence of at least three members, and Article XXIV, which provided that all decisions of the Court were to be reduced to writing and signed by all the judges. The compulsory character of interim relief under Article XVIII was rendered somewhat uncertain by 125 126 128

Anderson, ‘Peace Conference of Central America’, 146; Manley O Hudson, ‘The Central American Court of Justice’ (1932) 26 AJIL 759, 760; Rosenne, Provisional Measures, 17. 127 2 US Foreign Relations (1907) 669–73. 20 December 1907, 206 CTS 78. 129 2 US Foreign Relations (1907) 673–4. Dumbauld, Interim Measures, 95–6.

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origins of provisional measures

Article XXV, however, as this provision only expressly mentioned the judgments of the Court as binding.130 The ambit of Article XVIII was further modified by the terms of the Court’s governing regulations, as adopted on 20 December 1907.131 Article 17(4) of the Regulations of the Central American Court provided that its ordinary jurisdiction included the power to fix measures in accordance with Article XVIII, and to modify, suspend or revoke them according to the circumstances. As such, the Court clearly considered that an express power to grant interim relief included by implication the power to amend or rescind it as required. Article 1 of its Procedural Ordinance of 6 November 1912132 further subjected requests for provisional measures to the ordinary procedure of the Court. Taken as a whole, the CACJ was a failure.133 In hindsight, its jurisdiction was too wide to be effective,134 including all questions and controversies arising between the parties that could not be resolved through high-level negotiation (Article I), as well as cases where a national of one state party alleged denial of justice by the government of another (Article II). In addition, the Court had jurisdiction to determine any question mutually submitted by its signatory governments, or by one of them and one of its citizens or the citizen of another (Article III). More importantly, the conference was in part driven by a US desire to establish a permanent mechanism of dispute resolution in the region, as hinted by Elihu Root in his opening address to the Convention.135 As identified by Scott, the agreement was only given force by the fact that ‘the two great Republics to the north [ . . . ] [were] prepared by peaceful and proper means to guarantee [the] execution’136 of the Court’s decisions. In reality, what Scott (an incurable optimist) meant was that the credit of the Court was only made good by the fact that its judgments were putatively backed by the hegemonic clout of the US137 – when the activities of the Court, perhaps inevitably, came to conflict with the US national interest, this support

130 131 133 134 136

137

Rosenne, Provisional Measures, 18. 132 (1914) 8 AJIL Supp 179. (1914) 8 AJIL Supp 194. Generally: Hudson, ‘Central American Court’; Jean Allain, A Century of International Adjudication: The Rule of Law and its Limits (The Hague: TMC Asser, 2000) ch 3. 135 Ibid, 70–3. 2 US Foreign Relations (1907) 697–9. Scott, ‘Central American Peace Conference’, 143. In a later paper, Scott referred to the US as the Court’s ‘sponsor’: James Brown Scott, ‘The Closing of the Central American Court of Justice’ (1918) 12 AJIL 380, 381. And to a far lesser extent, Mexico, which appears to have been willing to follow the US lead: Allain, International Adjudication, 69, 77.

development by early international courts and tribunals 37

evaporated and the Court was allowed to fail, closing its doors finally in 1918.138 Nonetheless, the Court does provide several early precedents for the award of provisional measures, engaging its jurisdiction under Article XVIII on several occasions. These cases may now be considered in turn. (a) Honduras v El Salvador and Guatemala The Court’s first case followed almost immediately the conclusion of its Convention. In essence, disturbances in Honduras were seen to constitute a threat to international peace. Revolutionaries sponsored by El Salvador and Guatemala were suspected of inflaming the situation. On 8 July 1908, the Court took the remarkable step of telegraphing the disputants and suggesting that the dispute be submitted to the Court.139 This was taken up, with Honduras and Nicaragua submitting the dispute to the Court on 10 July 1908.140 The Court then moved on 13 July 1908 to issue interlocutory decrees fixing the status quo between the parties and imposing extensive rules of conduct upon them.141 In the main, these measures were directed towards the cessation of military activity and the progressive drawing down of armed forces. The Court seems to have done this proprio motu, and in apparent defiance of the words ‘at the solicitation of any one of the parties’ as they appeared in Article XVIII. Whatever their legitimacy, however, the orders appeared to have had the desired effect, and the revolution quickly subsided.142 In its final award,143 the Court responded to a Guatemalan argument that the Honduran complaint and the request for provisional measures based upon it were inadmissible due to a failure to exhaust negotiations in the following terms: 138 139 140

141 142

143

Ibid, 78–91. Also: Hudson, ‘Central American Court’, 777–82. Editorial Comment, ‘The First Case before the Central American Court of Justice’ (1908) 2 AJIL 835, 836–7. Interestingly, this was also the first time in international dispute settlement that documents initiating proceedings were communicated to a court or tribunal via telegram: ibid, 838. Extracted in ibid, 838–41. Ibid, 841; Editorial Comment, ‘The First Decision of the Central American Court of Justice (1909) 3 AJIL 434, 436; Hudson, ‘Central American Court’, 769; Allain, International Adjudication, 74. This may have been due to the fact that the US made it unofficially known that it expected unquestioning compliance with the Court’s orders: ibid, 77. Honduras v El Salvador and Guatemala, Award of 19 December 1908 (1909) 3 AJIL 729. Only three judges of the Court signed the award, rendering it non-compliant with Article XXIV of the Convention – however, no protest appears to have been raised.

38

origins of provisional measures [T]he function assigned to this Court by article XVIII [ . . . ] of arresting [ . . . ] the course of an armed conflict by determining, from the very moment the claim is filed, the situation in which the contending governments are to remain pending the rendition of an award, presupposes the right to have recourse to the court without delay in matters of urgency, as occurred in the case under consideration, and if we accepted the [Guatemalan] view of the matter, the humanitarian and unquestionably utilitarian purpose for which this important article was inserted would be essentially frustrated, the article being reserved perhaps for emergencies of minor risk and significance or converted perhaps into a simple error of wish. [T]his error becomes obvious, moreover, if we observe that it would often shut off the nations from the path of judicial controversy, compelling them to accept war or humiliation as the only alternative.144

This passage provides insight as to how the Court viewed its jurisdiction under Article XVIII of the Convention. Plainly, it did not consider the admissibility of the claim145 as relevant to the grant of provisional measures. This conclusion, however, was based on the Court’s origins in the Treaty of Corinto and on ‘humanitarian and utilitarian’ concerns. Fundamentally, from the perspective of the Court the purpose of measures ordered under Article XVIII was the summary prevention or termination of armed conflict pendente lite. The Court may have acted differently if the issue under consideration was a non-violent request for a maritime delimitation or a complaint over transboundary environmental harm, both common bases for provisional measures in the modern era of international dispute settlement. (b) The Bryan-Chamorro Treaty Cases The Article XVIII jurisdiction of the Central American Court would only again be activated in its final two cases.146 Both concerned the so-called Bryan-Chamorro Treaty, under which Nicaragua purported to grant to the US in perpetuity and free from encumbrance ‘the exclusive proprietary rights necessary and convenient for the construction, operation, and interoceanic canal by way of the 144 145

146

Ibid, 730. Although given the wording of Art I of the Convention, the Guatemalan complaint would better be phrased as an attack on the Court’s jurisdiction. Later cases arguing a similar point adopted this characterization. For an overview of the balance of the Court’s docket, see Hudson, ‘Central American Court’, 768–77.

development by early international courts and tribunals 39

San Juan River’.147 The central complaint of the other Central American republics was that the treaty essentially subverted Nicaraguan sovereignty such that it became a US catspaw, frustrating further attempts to unify the isthmus.148 (i) Costa Rica v Nicaragua On 24 March 1916, Costa Rica commenced an action in the CACJ against Nicaragua, alleging that the obligations assumed by the latter under the Bryan-Chamorro Treaty were contradicting Costa Rica’s rights under several other international instruments.149 In particular, Costa Rica alleged that the Bryan-Chamorro Treaty violated the 1858 Treaty of Limits150 concluded between Costa Rica and Nicaragua and asked that it be annulled. Costa Rica’s rights with respect to San Juan del Norte and Salinas Bay were also said to be in jeopardy. Furthermore, on lodging its application Costa Rica invoked Article XVIII and requested interim relief providing that ‘with relation to a canal across Nicaraguan territory, and with relation to anything that may interfere generally with the waters of that Republic, that the status quo of the right that existed in Costa Rica prior to the Bryan-Chamorro Treaty [ . . . ] be maintained’.151 On 1 May 1916, the Court accepted jurisdiction over the matter, and awarded interim relief.152 Justice Nevas, the Nicaraguan representative on the Court, appended a dissenting opinion to the majority’s order. This argued that the matter should have been dismissed and provisional measures denied, noting that Costa Rica had failed to surmount the negotiation threshold contained in Article I of the Convention.153 The majority had reached the opposite conclusion on this point.154 147

148

149 150

151 152 153

Treaty concerning the Construction of an Interoceanic Canal through the Territory of the Republic of Nicaragua, 5 August 1914, 1 IELR 554, Art I. Further: George A Finch, ‘The Bryan Peace Treaties’ (1916) 10 AJIL 344. Ibid, 345. In reality, however, the US had functioned as de facto suzerain over Nicaragua since 1911 – the Bryan-Chamorro Treaty only formalized the terms of this arrangement: Allain, International Adjudication, 79–80. Costa Rica v Nicaragua, Award of 30 September 1916 (1917) 11 AJIL 181, 192–6. 15 April 1858, 118 CTS 439. Art 6 of the Treaty of Limits gave Costa Rica perpetual freedom of navigation along the San Juan River, whilst Art 8 required Nicaragua to consult with Costa Rica in relation to any proposed programme of ‘canalization or transit’. Art 6 would come to be re-litigated by the International Court in Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213. Costa Rica v Nicaragua (1917) 11 AJIL 181, 202. US Foreign Relations (1916) 841. It held, however, that its jurisdiction could be not extended so as to restrain the US, as it was not a party to the litigation: ibid. 154 Ibid, 844–5. Ibid, 841.

40

origins of provisional measures

By engaging in this dialogue, Judge Nevas and the majority might be thought to have invoked an early form of the prima facie jurisdiction test that features in the modern law of provisional measures. But this was not the case. The Court’s actions instead reflected the peculiar requirements of Articles 16 and 17(1) of the Regulations of the Court, and Article 7 of its Ordinance of Procedure, which gave the Court the power to assess the requirement of negotiation at the point at which the suit was filed. The focus of the Court was therefore not on its capacity to order provisional measures155 but on its jurisdiction to determine the merits – although Judge Nevas argued that jurisdiction over the merits was a vital precondition to interim relief.156 The Court’s approach in Costa Rica v Nicaragua would appear to contradict its earlier pronouncement in Honduras v El Salvador and Guatemala that provisional measures represented a question preceding to and separate from jurisdiction over the merits. In accounting for this apparent shift, it may be noted that neither the Court’s Regulations nor its Ordinance of Procedure had entered into force when that statement was made. Moreover, the ramifications of the Court’s decision to shackle itself via the Regulations and the Ordinance were limited by the fact the only real barrier to its jurisdiction under the Convention was the negotiation requirement, and applicants were required to provide evidence of this at the time of application.157 Accordingly, an assessment of Article I could take place shortly after the dispute was first brought, and timely interim relief provided if required. Nicaragua refused to appear before the Court or acknowledge its decision. On 22 June 1916, it exchanged ratifications of the Bryan-Chamorro Treaty with the US.158 On 30 September 1916, the Court rendered judgment on the merits, further confirming its jurisdiction and upholding

155 156 157

158

Which were in any event given a separate jurisdictional basis under Article 17(3) of the Regulations. US Foreign Relations (1916) 845. Art 63 of the Ordinance of Procedure required that ‘[t]he plaintiff shall present, together with the libel that initiates the action, the evidence upon which he shall base his claim’. This evidentiary requirement presumably included all elements of the claim, including proof that Art I of the Convention was satisfied. Art 6 of the Ordinance set out the evidentiary threshold required vis-`a-vis Art 17 of the Regulations and Art I of the Convention, with Art 10 providing that interim relief would only be considered on provision of the required proof. US Foreign Relations (1916) 848–9.

development by early international courts and tribunals 41

Costa Rica’s claim, although it refused to annul the treaty.159 Nicaragua refused to accept the judgment.160 (ii) El Salvador v Nicaragua Running parallel to Costa Rica v Nicaragua was a similar complaint filed by El Salvador on 28 August 1916. For its part,161 El Salvador argued that Article II of the Bryan-Chamorro Treaty, which granted a concession for the purposes of establishing a US naval base, violated its rights of condominium in the Gulf of Fonseca162 arising from its status as a ‘historic bay’. It was further asserted that the Treaty violated Article II of the General Treaty of Peace and Amity163 concluded alongside Court’s constitutive instrument, as well as Article II of the Constitution of Nicaragua. Pending determination of the complaint, El Salvador requested that ‘in conformity with the text and spirit of Article XVIII [ . . . ], the Court fix the situation in which the Government of Nicaragua must remain and that the things treated of in the Bryan-Chamorro Treaty be conserved in statu quo pending a final decision’.164 On 6 September 1916, the Court admitted the claim and ordered provisional measures in the same manner as in Costa Rica v Nicaragua, holding that an exchange of correspondence between the Nicaraguan and El Salvadorian Foreign Ministers was sufficient demonstration that prior settlement was impossible, establishing Article I jurisdiction. It further ordered that the status quo be maintained until the matter was determined.165 To this, Judge Nevas appended a dissenting opinion, again arguing that the requirement of negotiation had not been met.166 Following the filing of the pleadings and an amendment of El Salvador’s position, the Court issued judgment on 9 March 1917,167 affirming its jurisdiction, upholding the El Salvadorian claim, and cementing its provisional measures as 159 160 162

163 165 167

Costa Rica v Nicaragua (1917) 11 AJIL 181, 229. Further: C C Hyde, ‘Costa Rica v Nicaragua’ (1917) 11 AJIL 156. 161 US Foreign Relations (1916) 888. Ibid, 853–62. The Court’s judgment in this respect was also considered by a Chamber of the International Court in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening), ICJ Reports 1992 p 351. 164 20 December 1907, 206 CTS 72. US Foreign Relations (1916) 862. 166 5 Anales 229–31. 6 Anales 7–9. In contrast to its position in Costa Rica v Nicaragua, Nicaragua appeared before the Court, although it confined its arguments to reiterating its challenge to the Court’s Art I jurisdiction, and substantially refused to address the merits: El Salvador v Nicaragua, Award of 9 March 1917 (1917) 11 AJIL 674, 686.

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a permanent state of affairs.168 Again, Nicaragua refused to acknowledge the Court’s decision as legitimate169 and immediately afterwards indicated its refusal to renew its 10-year mandate, precipitating the Court’s closure under Article XXVII of its Convention.170

3 Provisional Measures in the Bryan Treaties A contemporaneous development was the series of treaties for the advancement of peace concluded between the US and a series of states at the instigation and direction of Secretary of State William Jennings Bryan.171 The Bryan Treaties generally aimed to refer all international disputes between the US and a contracting party to a commission for investigation and report when diplomatic efforts to resolve the dispute had failed and no other method of compulsory arbitration was available.172 Pending the release of the commission’s report, moreover, the parties were obligated not to declare war or otherwise initiate hostilities.173 The standard form of the Bryan Treaties made no provision for provisional measures as ordered by a commission. Exceptionally, however, the treaties with China,174 France175 and Sweden176 each contained a common Article 4, which provided in part: 168

Ibid, 730: [T]he Government of Nicaragua is under an obligation – availing itself of all possible means provided by international law – to reestablish and maintain the legal status that existed prior to the Bryan-Chamorro Treaty between the litigant Republics in so far as it related to the matters considered in this section [ . . . ]

169

170

171

172 174 175 176

See the letter of 24 November 1917 from the Nicaraguan Minister of Foreign Affairs, Jos´e Andr´es Urtecho, to the other Central American governments, rearguing both BryanChamorro Treaty cases at length: US Foreign Relations (1917) 1104. Further: Allain, International Adjudication, 85–7. See the letter of 10 March 1917 from Urtecho to the Central American governments: US Foreign Relations (1917) 30. Also: Hudson, ‘Central American Court’, 781; Allain, International Adjudication, 88–91. Generally: Finch, ‘Bryan Treaties’ (1916) 10 AJIL 882; Hans-J¨urgen Schlochauer, ‘Bryan Treaties (1913–14)’, MPEPIL (2007). See also the Editorial Comment, ‘Mr Bryan’s Proposed Commissions of Inquiry’ (1913) 7 AJIL 566, 823; Editorial Comment, ‘Secretary Bryan’s Peace Plan’ (1914) 8 AJIL 565, 853. The treaties may be found collected in James Brown Scott (ed), Treaties for the Advancement of Peace between the United States and Other Powers (New York: Oxford University Press, 1920). Those treaties in effect before 1917 may be found in (1916) 10 AJIL Supp 263ff. 173 Finch, ‘Bryan Treaties’, 882. Ibid, 883. 15 September 1914 (1916) 10 AJIL Supp 268. 15 September 1914 (1916) 10 AJIL Supp 278. 13 October 1914 (1916) 10 AJIL Supp 304.

development by early international courts and tribunals 43 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 be taken provisionally and pending the delivery of its report.

No indication appears in the preliminary materials as to why a provision on interim relief was included in these agreements specifically,177 and Finch’s overview of the Bryan Treaties does not clarify the point.178 Rosenne179 argues that measures indicated under Article 4 would not have been binding due to Article 5, which provided in part that the parties ‘reserve full liberties as to the action to be taken on the report of the commission’. This reading would appear to be incorrect, however, as Article 5 appears to contemplate the behaviour of the parties on or after the receipt of the commission’s report.180 No express comment is made on the expected behaviour of the parties before the report was so rendered, although it would appear strange if provisional measures ordered by the commission were binding when the judgment was not. But, as noted by Jessup, the primary purpose of the Bryan Treaties was not the settlement of disputes per se, but the avoidance of war through the calculated imposition of a ‘cooling off’ period.181 This would tend to weigh in favour of Article 4 measures being considered binding.182 In any event, a definitive answer is unlikely to be provided, as only one of the Bryan Treaties entered into force, and it did not make provision for interim relief.183

4 Assessing the Central American Experience A variety of perspectives exist on the development of provisional measures in the Americas during the period considered. One view is that of Dumbauld, who described both the Treaty of Corinto and the Convention establishing the CACJ as having established ‘fruitful precedents’ in the sphere of provisional measures.184 The alternative view, advanced by 177 178 180

181 183 184

Rosenne, Provisional Measures, 20 (fn 45). 179 Finch, ‘Bryan Treaties’, 888. Rosenne, Provisional Measures, 20. This would appear to be affirmed by the clearer wording of other Bryan Treaties (which admittedly did not provide for interim relief), viz. ‘[t]he high contracting parties reserve the right to act independently on the subject matter of the dispute after the report of the commission shall have been submitted’: Finch, ‘Bryan Treaties’, 889 (citing the treaties with Bolivia, Costa Rica, the UK, Guatemala, Honduras, Italy, Paraguay, Peru, Portugal and Uruguay). 182 (1929) 12 WPF 671. Dumbauld, Interim Measures, 100–1. Re Letelier and Mofitt (Chile/US) (1992) 88 ILR 727. Dumbauld, Provisional Measures, 99.

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Guggenheim185 and Rosenne,186 sees the putatively ‘non-binding’ interim relief provisions of the Bryan Treaties as a reaction to overreach by the CACJ in attempting to address political disputes through legal means. Rosenne, notably, states that the decline of the Court was hastened by ‘[t]he Court’s insistence on issuing orders on provisional measures, apparently on its own initiative’.187 In addressing the overall significance of the Central American experience the better view – perhaps predictably – lies somewhere between these two positions. In the first place, it may be said that the jurisprudence on provisional measures that emerged from the Central American courts of the early twentieth century did not draw overtly on municipal law, but rather the desire to forestall conflict between the various republics of the isthmus. As such, the Central American experience produced a line of jurisprudence regarding interim relief that was distinctively international. The measures so ordered were fruitful, to be sure, but were not as influential as Dumbauld would suggest. The tribunals did not focus on considerations such as the preservation of particular rights prior to litigation, but solely on freezing the situation between international actors so as to prevent violent self-help and escalation of the dispute.188 This resulted in a jurisprudence that was notably less sophisticated than that which emerged from earlier municipal systems and which would later emerge from the PCIJ: in all of the cases considered by the Central American tribunals, provisional measures were ordered with very little analysis, particularly where the parties were already engaged in conflict, as in the Honduras v Nicaragua arbitration under the Treaty of Corinto and Honduras v El Salvador and Guatemala before the CACJ. The (relative) complexity of the Bryan-Chamorro Treaty cases may be attributed first to the fact that the parties were not hurtling towards war when the actions were brought, and second, to the later introduction of the Regulations and Ordinance of Procedure by the Court, which required that Article I jurisdiction be established prior to the grant of provisional measures. 185 186 187

188

Paul Guggenheim, ‘Les mesures conservatoires dans la procedure arbitrale et judiciaire’ (1932) 40 Hague Recueil 648, 670. Rosenne, Provisional Measures, 20–1. Ibid, 19. This statement is curious, given that measures were only awarded proprio motu in Honduras v El Salvador and Guatemala, with the only complaint being that they were unnecessary. Whilst municipal law systems saw such preservation of the status quo as worthy of interim relief, this objective was not focused on to the exclusion of all others: see above §II.

development by early international courts and tribunals 45

In the second place, the Bryan Treaties did not emerge in opposition to the experience of the Central American tribunals as suggested by Guggenheim and Rosenne, but incorporated it into certain agreements. All of the Bryan Treaties – concluded prior to the controversial Bryan-Chamorro Treaty cases – included a direction similar to that found in Article XI of the Treaty of Corinto (i.e. that armed conflict should not occur prior to the release of the commission’s report) and certain others incorporated a common Article 4 similar to Article XVIII of the Convention establishing the CACJ, granting the commission the capacity to order binding interim relief proprio motu.189 The Bryan Treaties, in turn, would serve as inspiration to the drafters of the PCIJ Statute,190 grafting the experience of the Central American tribunals onto the institution that would establish the modern law of provisional measures.

C Provisional Measures and Inter-War Arbitration 1 Inter-State Arbitration Treaties Further development of the law of provisional measures was occasioned by the growth of arbitration as a form of dispute settlement between the European states in the inter-war period. To this end, a large number of treaties for the pacific settlement of international disputes were concluded,191 beginning with the 1921 agreement between Switzerland and Germany192 establishing procedures of conciliation and arbitration. Article 18 provided: The Contracting Parties shall undertake during the course of the arbitration or conciliation proceedings to refrain as far as possible from any action liable to have a prejudicial effect on the execution of the award or on the acceptance of the proposals of the [conciliation commission]. They shall refrain from any act of violent self-help in connection with the 189

190 191 192

The continued good credit of the Central American tribunals in this respect may be seen in the 1923 Treaty to Avoid or Prevent Conflicts between the American States, 3 May 1923, 33 LNTS 36 which replicated Art XI of the Treaty of Corinto in Art I, and Art XVIII of the Convention establishing the Central American Court in Art V of its Appendix: Dumbauld, Interim Measures, 101–2. This agreement was signed without reservation and ratified by the US, which would have had the power to excise both provisions had it found them offensive. Rosenne, Provisional Measures, 20. Generally: Max Habicht, Post-War Treaties for the Pacific Settlement of International Disputes (Cambridge MA: Harvard University Press, 1931). Treaty of Conciliation, Arbitration and Compulsory Adjudication, 3 December 1921, 12 LNTS 277.

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origins of provisional measures conciliation proceedings until the expiration of the time limit fixed by the [conciliation commission] for the acceptance of its proposals. At the request of one of the Parties, the Tribunal may order provisional measures to be taken in so far as the Parties are in a position to secure their execution, through administrative channels; the [conciliation commission] may also formulate proposals to this effect.193

Article 18 would become something of a feature in subsequent German treaties, and also in other agreements of this kind.194 Its debt to the Central American experience is relatively clear, although it has a slightly different emphasis, expressly seeking to preserve the execution of the award, rather than preventing further deterioration in the status quo. Its language is also somewhat weaker, only requiring that the status quo be preserved ‘as far as possible’, and seemingly limiting interim relief to that which the parties can undertake ‘through administrative channels’. A further iteration of this formula appears in the Locarno Treaties concluded between Germany and several other European powers in 1925.195 Article 19, common to each of these agreements, demonstrates the influence of the League of Nations and the PCIJ on the system of international dispute settlement, giving each the capacity to intervene in the dispute so as to order provisional measures. The spirit of this provision was in turn adopted in Article 33 of the 1928 General Act for the Pacific Settlement of International Disputes,196 although this omits reference to action taken by the League. These provisions indicate that interim relief was considered very much to be a part of the inter-war landscape of dispute settlement as a continuation of the Central American experience mediated through the Bryan Treaties, the League Covenant and the Statute of the Permanent Court. 193

194

195

196

The difference in language seen in the final clause of Art 18 indicates that provisional measures ‘proposed’ by the conciliation commission were not binding, as opposed to measures ‘ordered’ by an arbitral tribunal: Dumbauld, Interim Measures, 126. See e.g. the Germany–Sweden Agreement, 29 August 1924, 42 LNTS 125, Art 23; the Finland–Germany Agreement, 14 March 1925, 43 LNTS 367, Art 20; the Estonia– Germany Agreement, 10 August 1925, 62 LNTS 124, Art 20. Further: Dumbauld, Interim Measures, 127–9. See the Belgium–Germany Agreement, 16 October 1925, 54 LNTS 305; the Czechoslovakia–Germany Agreement, 16 October 1925, 54 LNTS 343; the France– Germany Treaty, 16 October 1925, 54 LNTS 317; and the Germany–Poland Agreement, 16 October 1925, 54 LNTS 329. Further: Julian Lindley-French, ‘Locarno Treaties’ (2007), MPEPIL, §E. 26 September 1928, 93 LNTS 344.

development by early international courts and tribunals 47

However, as they were not relied upon in practice and did little to illuminate the requirements of interim relief in either a procedural or substantive sense, they possessed little influence on the development of the law of provisional measures by the PCIJ. At this stage, what was required for the evolution of the law was not further treaties, but judicial elaboration of underlying concepts.

2 The Mixed Arbitral Tribunals Such judicial elaboration – at least at an early stage – would come through the advent of the mixed arbitral tribunals (MATs). These were constituted pursuant to Treaty of Versailles197 to settle claims between states and natural persons arising out of the First World War. Unlike the Bryan Treaties or the inter-state agreements presented earlier, the MATs were composed in order to fulfil a preexisting need and ‘presented an example of compulsory arbitration not as a Utopian wish but as a practical necessity’.198 It was part of this sense of practical necessity that the tribunals advanced considerably the notion of interim relief in international dispute settlement. Article 304(a) of the Treaty of Versailles provided that ‘a Mixed Arbitral Tribunal shall be established between each of the Allied and Associated Powers on the one hand and Germany on the other hand’. Under Article 304(b), the jurisdiction of such tribunals was to include ‘all questions, whatsoever their nature, relating to contracts concluded before the coming into force of the present Treaty between nationals of the Allied and Associated Powers and German nationals shall be decided by the Mixed Arbitral Tribunal, always excepting questions which, under the laws of the Allied, Associated or Neutral Powers, are within the jurisdiction of the National Courts of those Powers’, thereby establishing the MATs as a forum for the hearing of investor-state disputes in a similar manner to other postconflict claims commissions, preceding modern institutions such as the US–Iran Claims Tribunal and ICSID. The Treaty gave the tribunals so composed considerable latitude in the formulation of their procedural rules, providing in Article 304(d) that each MAT was competent to settle its own procedure, subject to the caveat that any rules so adopted were ‘in accordance with justice and equity’, per §2 of the Annex to Section VI. Similar provisions were contained in the Treaty of

197

28 June 1919, 225 CTS 188.

198

Dumbauld, Interim Measures, 130.

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Saint-Germain-en-Laye199 with respect to Austria and the Treaty of Trianon200 with respect to Hungary.201 Many of the procedural codes so adopted made reference to provisional measures and, moreover, drew on municipal precedents as part of the drafting process. The Franco-German MAT, for example, based its procedure on the 1911 Code de proc´edure civile of the Swiss canton of Vaud, no doubt due to the influence of its President, Andr´e Mercier.202 The resulting debt to the civilian concept of provisional measures – and particularly as they evolved in Switzerland – may be seen in the regulations.203 The Franco–German Rules provided in Article 31 that: At the request of a party or its agent, the tribunal may, in addition to measures already envisaged by the Treaty, order any precautionary or provisional measures which it considers fair and necessary to protect the rights of the parties.

Articles 32–6 of the Rules provided a procedural rigour to this basic power which was not seen in earlier international jurisprudence. Provisional measures could be requested prior to the filing of an application, provided that the application was subsequently introduced in the shortest time possible. The respondent was ideally to be heard, and if not, could ask the tribunal to reconsider its decision. Any grant of provisional measures was without prejudice to the merits. Third parties affected by provisional measures had the opportunity to present a petition to the tribunal. The applicant could be required to provide a bond or make a deposit to guarantee any damages resulting from measures ordered. Measures shared the same binding force as a decision of the tribunal. The Franco–German Rules proved a popular starting point for the other MATs, and were repeated with only slight variation by, inter alia, the Franco–Austrian,204 Greco–German,205 German–Thai,206 199 201 202

203 205

200 10 September 1919, 226 CTS 8, Art 258. 4 June 1920, 6 LNTS 188, Art 239. See also the Treaty of Neuilly-sur-Seine, 27 November 1919, 226 CTS 332, Art 188 (Bulgaria); Treaty of Lausanne, 24 July 1923, 128 LNTS 11, Art 95 (Turkey). Similarly, Giuseppe Ciovenda took account of both Swiss and Austrian law in drafting the procedure of the German–Italian tribunal. The Anglo–German Rules – which made no mention of provisional measures – were derived from a comparison of the civil procedure of the eponymous states: Ernst Rabel, ‘Rechtsvergleichung und internationale Rechsprechung’ (1927) 1 RabelsZ 5, 13. 204 2 April 1920, 1 TAM 44. 9 May 1921, 1 TAM 242, Part XII. 206 16 August 1920, 1 TAM 61, Part XII. 22 December 1920, 1 TAM 182, Part XII.

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German–Czech207 and German–Italian208 tribunals. Other rules, such as those of the Anglo–German209 and Japanese–German210 tribunals, made no reference to provisional measures whatsoever. This did not pose a significant difficulty, however, with the Anglo–German MAT quick to confirm that it possessed an implied jurisdiction to offer interim relief on the basis that the jurisdiction of the Tribunal extended to such further provisions as related directly, and gave rise to questions related directly, to the provisions expressly establishing the jurisdiction of the Tribunal.211 Further elaboration was provided by the decisions of the tribunals themselves.212 Although the cases largely concern the modality of sequestration,213 a number of points of more general interest present themselves – especially insofar as the MATs awarded or declined relief on the basis of necessity. In Electric Tramway Company of Sofia v Bulgaria and Municipality of Sofia, the claimant was not concerned about administration of the contested assets, and was interested only in restitution to the extent that it could not obtain damages. As a consequence, the MAT held that interim relief could not be obtained.214 Similarly, in Central Agricultural Union of Poland v Poland, the claimant was uninterested in the return of its land, prompting the Tribunal to remark: The tribunal has for now noted that the claimant, leaving out any claim for restitution, is only asking for money and the tribunal has drawn the consequences from this [ . . . ] Noting that the claimant is not interested in 207 208 209

210 211 212 213

214

9 November 1941, 1 TAM 948, Part IX. 20 December 1921, 1 TAM 796, Arts 70–80. These add that the measure must consist in sequestration of administration or custody of the disputed property. 4 September 1920, 1 TAM 109. A lack of a specific provision regarding interim relief appears to have been a feature of the English rules in general: but cf. the Anglo–Austrian Rules, 16 August 1921, 1 TAM 622; the Anglo–Bulgarian Rules, 16 August 1921, 1 TAM 639; and the Anglo–Hungarian Rules, 18 August 1921, 1 TAM 655, which made provision for measures of protection and sequestration to be ordered as part of the procedure on preliminary hearings (common Arts 60–2). 12 November 1920, 1 TAM 124. See also the Japanese–Austrian Rules, 1 December 1921, 1 TAM 821. Gramophone Co Ltd v Deutsch Grammophon Aktiengesellschaft and Polyphonwerke Aktiengesellschaft (1922) 1 TAM 857, 859. For an overview of the relevant decisions, see Dumbauld, Interim Measures, 129–44; Sztucki, Interim Measures, 20. See e.g. Hallyn v Basch (1920) 1 TAM 10 (Franco–German); Re Monplanet and Thelier (1920) 1 TAM 12 (Franco–German); Re Majo and Brother (1922) 1 TAM 937 (Franco– Bulgarian); Societ´e Tissages de Proisy v Farchy (1922) 2 TAM 338 (Franco–Bulgarian); Electricity Company of Sofia and Bulgaria v Municipality of Sofia and Bulgaria (1923) 3 TAM 593 (Belgian–Bulgarian). (1923) 2 TAM 928, 929 (Belgian–Bulgarian).

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origins of provisional measures the management of the enterprise and the only utility which will attend sequestration is to ensure the payment of the partial indemnity [claimed], [t]his use of sequestration is not [such as to be] necessary under Article 45 [of the relevant Rules].215

Another question of interest advanced by the mixed arbitral tribunals concerned the relationship between provisional measures and jurisdiction over the merits. In Tiedemann v Poland, the claimant alleged that as he had acquired Polish nationality, he was protected from liquidation under Polish land expropriation laws under Article 297(b) of the Treaty of Versailles. A further basis of jurisdiction for the MAT was Article 305, which permitted it to award reparation where a competent tribunal issued a decision not in conformity with the terms of the treaty – here, the tribunal in question was the Polish expropriations board. The claimant requested interim measures from the German–Polish MAT to suspend the liquidation, forbid further disposal of the property and determine its value. In response to the respondent’s argument that the Tribunal lacked jurisdiction, he asserted that the test at this stage of the proceedings was not whether the Tribunal possessed jurisdiction per se, but rather whether it was manifestly incompetent to decide the merits.216 The Tribunal noted that at least some inquiry as to jurisdiction was necessary when awarding provisional measures, as the relief ordered had to bear some resemblance to that which would be available as a primary remedy. Thus, if the Tribunal was empowered only to award damages for the value of the land as opposed to full restoration, it would be far less likely to award provisional measures.217 When assessing its jurisdiction in relation to provisional measures, the Tribunal rejected its competence under Article 297(b), but indicated that scope for the interim relief existed under Article 305, on the basis that the Tribunal’s jurisdiction under that provision was not manifestly lacking, agreeing in effect with the claimant.218 However, it was not minded to order provisional measures, on the basis that Article 305 only permitted the parties to be placed in the position they occupied prior to the offending decision where the judgment was rendered by a German court – if the court was of some other nationality, the claimant was only entitled to ‘redress’.219 215 216 219

(1925) 6 TAM 329, 330 (German–Polish). 217 218 (1923) 3 TAM 596, 599–600. Ibid. Ibid, 607. Ibid, 608. The Tribunal was to adopt a contrary interpretation in a later ruling on the same case: (1924) 9 TAM 321, 322–3. Later still the Tribunal determined that it possessed

the permanent court of international justice

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IV The Permanent Court of International Justice A The Statute of the Permanent Court of International Justice In 1919, the participants emerged from the First World War convinced that future peace and international security could only be guaranteed by an international organization backed by a system of laws which could reliably be the subject of adjudication. The early proponents of the League of Nations thus realized that if the League were to be effective, an affiliated judicial institution was essential.220 It was this impetus that led to the creation of the PCIJ and, through it, the modern understanding of the law of provisional measures, as set out in Article 41 of its Statute and elaborated in its procedural rules and jurisprudence.

1 The Advisory Committee of Jurists On 13 February 1920, the Council of the League established, pursuant to Article 14 of its Covenant, the Advisory Committee of Jurists to prepare plans for the formation of the PCIJ and report back to the Council.221 The Committee took as its basic working text on procedural matters a proposal assembled by five neutral states.222 An additional memorandum prepared by the League Secretariat further requested that the Committee consider whether the Court would be competent ‘to decree, as regards the subject matter of the dispute, the fixation of the status quo pending its decision’, and further referred the Committee to, inter alia, Article XVIII

220

221

222

no jurisdiction over claims against Poland by Polish nationals: Kunkel v Poland (1925) 3 ILR 263. This caused it to issue a further decision dismissing Tiedemann v Poland for lack of jurisdiction, and holding that its previous holding as to jurisdiction was erroneous and not binding upon it: (1926) 3 ILR 402. For some thoughts as the jurisdiction of the mixed arbitral tribunals in general, see P de Auer, ‘The Competence of the Mixed Arbitral Tribunals’ (1927) 13 GST xvii. Manley O Hudson, The Permanent Court of International Justice, 1920–1942 (New York: Macmillan, 1943) †93; Rosenne, Provisional Measures, 21. As it happened, this turned out to be a necessary but not sufficient condition for success. Hudson, Permanent Court, 114–16; Elkind, Interim Protection, 43–6; Rosenne, Interim Measures, 22–6. The proceedings of the Committee were published shortly after the conclusion of its work: Proc`es-Verbaux of the Proceedings of the Committee (1920). A collection of documents presented to the Committee was also published: Documents presented to the Committee relating to existing plans for the establishment of a Permanent Court of International Justice (1920). For a reassessment of the Committee and its work, see Ole Spiermann, ‘“Who Attempts too Much Does Nothing Well”: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’ (2002) 73 BYIL 187. Denmark, Norway, Sweden, the Netherlands and Switzerland. All members of the Committee were required to respond to the text individually: Proc`es-Verbaux, 342–3.

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of the Convention establishing the Central American Court of Justice.223 Another clear influence that was not mentioned in the memorandum was Article 4 of the Bryan Treaties with China, France and Sweden. The Committee’s Draft Statute of 19 July 1920224 set out a proposal for awarding interim relief in Article 2bis. This arose from a suggestion by the Brazilian member of the Committee, Raoul Fernandes, that intended to replicate the procedural effect of the Roman Law interdict225 as reflected in the Bryan Treaties. The proposal was adopted in principle during debate, although a separate suggestion by Fernandes that interim relief ‘be supported by effective penalties’ was rejected as ‘unwise’.226 Article 2bis emerged from the Drafting Committee as follows: If the dispute arises out of an act which has already taken place or which is imminent, the Court shall have the power to suggest, if it considers that the circumstances so require, the provisional measures that should be taken to preserve the respective rights of either party. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Council.227

Following further discussion and additional minor amendments, the provision was included in the Committee’s Draft Statute of 22 July 1920 as Article 39.228 In its report to the Council, the Committee appended a lengthy commentary to Article 39, noting that the Committee was indebted to the Bryan Treaties. It further noted that it did not consider provisional measures ordered under Article 39 to be binding on the parties and further asserted (erroneously) that the Bryan Treaties shared this characteristic.229 223 224 225

The Committee was also referred to Art 12 of the 1918 Draft Convention prepared under the Phillimore Plan, and Art 34 of an alternative German proposal: Documents, 127. Proc`es-Verbaux, 524. Ibid, 608–9: In case the cause of the dispute should consist of certain acts already committed or about to be committed, the Court may, provisionally and with the least possible delay, order adequate provisional measures be taken, pending the final judgment of the Court.

226 229

Ibid, 637. Ibid, 735–6:

227

Ibid, 567–8.

228

Ibid, 681.

There is no question here of a definite order, even of a temporary nature, which must be carried out at once. Great care must be exercised in any matter entailing the limitation of sovereign powers. It is sufficiently difficult to ensure compliance with a definite decision; it would be much more difficult to ensure the putting into effect of a purely temporary decision. [ . . . ] [T]he Bryan treaties, from which the idea of giving such a power to the Court is borrowed, were also very prudent in their expressions, and only gave the Court the right of suggesting the measures to be taken provisionally,

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A further connexion was made with the work of the League’s Advisory and Technical Committee for Communications and Transit,230 which the Committee had felt demonstrated commendable prudence, albeit in an institutional as opposed to a judicial capacity.231

2 Adoption of the Statute From the Committee, the Draft Statute was presented to the first Assembly of the League in 1920, which in turn passed the document to its Third Committee for consideration. Before a further Sub-Committee of the latter,232 the substance of the provision remained intact, although the word ‘indicate’ was substituted for ‘suggest’ in the English text and the introductory phrasing removed so that all possible cases would be covered, i.e. to include omissions infringing international rights as well as acts.233 Similarly, in the passage ‘measures which should be taken’, ‘should’ was replaced by ‘ought to’. Several other minor amendments were also made. The provision adopted as Article 41 of the Statute on 13 December 1920 read as follows: The Court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either party. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Council.

This reproduction of Article 41 is not entirely a happy one. In the first place, the printer’s error ‘reserve’ has been introduced in place of ‘preserve’.234 In the second, the French and English versions of the text are ‘not in total harmony’,235 an error that was carried over to the Statute pending the report of the international commission of inquiry, entrusted with the task of reporting on the dispute. 230 231 232

233

234 235

Ibid, 735. On provisional measures in the practice of the League, see Dumbauld, Interim Measures, 103–25. Huber was one of the members of the Sub-Committee. On its proceedings, see Hudson, Permanent Court, 198–9; Rosenne, Provisional Measures, 26–7. See also the discussion in LaGrand (Germany v US), ICJ Reports 2001 p 466, 501. This was earlier proposed by Ricci-Busatti of Italy in the Advisory Committee of Jurists and rejected: Proc`es-Verbaux, 619. The Locarno Treaties achieved the same objective through the addition of words: Dumbauld, Interim Measures, 129. See also the German request for interim relief in Factory at Chorz´ow (Indemnities) (1927) PCIJ Ser A No 12, 6–7. Hudson, Permanent Court, 199. LaGrand, ICJ Reports 2001 p 466, 502. See also Arbitral Award of 31 July (Guinea-Bissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64, 78 (Judge ad hoc Thierry).

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of the International Court of Justice and creates confusion as to whether measures ordered under Article 41 are to be considered binding – although the contemporary view was that they were not.236 This provision is not the only instance of disagreement between the two equally authentic versions of the Statute, but whilst some attempt was made in 1945 by the Washington Committee of Jurists and the San Francisco Conference to resolve the various discrepancies, Article 41 remained untouched.237 When the Statute of the Permanent Court was appended to its Protocol of Signature,238 it reflected a model of provisional measures directly referable to the Bryan Treaties and the experience of the Central American Court before it. These prototypes – notwithstanding Fernandes’ references in the Committee to the interdict – owed their existence to a single objective: to preserve the status quo between the parties and prevent inter-state disputes from descending into armed conflict. Unlike municipal concepts of interim relief developed in the common and civil law, neither Article 41 nor the jurisprudence on which it was based gave any guidance of how provisional measures were to be ordered in practice. Article 41 was thus prima facie unfit for purpose when dealing with more complex questions of interim relief. Moreover, it had been drafted on the understanding that the PCIJ would enjoy compulsory jurisdiction vis-`a-vis the parties, an aspiration that was abandoned in favour of a requirement of consent ad litem when the Committee’s Draft was submitted to the Assembly for approval.239 From its earliest cases on provisional measures, therefore, the PCIJ co-opted principles of municipal law to elucidate Article 41. In 1929, the amendment of the Statute was discussed by the reconvened Committee. It was decided, however, that Article 41 remain as it was, due principally to the fact that a large number of treaties had incorporated interim measures by the Court into their procedures.240 As such, the Committee was loath to risk affecting these agreements through the amendment of the provision.241 236

237 239 240 241

˚ Hammarskj¨old: ‘Quelques aspects de la See e.g. the views of the Court’s Registrar, Ake question des mesures conservatoires en droit international positif’ (1935) 5 Za¨oRV 5. Further: Rosenne, Provisional Measures, 27–9. 238 Ibid, 27 (fn 15). 16 December 1920, 6 LNTS 379. Rosenne, Provisional Measures, 27. For an overview of these agreements, see Sztucki, Interim Measures, 4. Committee of Jurists on the Statute of the Permanent Court of International Justice, Minutes (1929) 63–4.

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B Procedural Rules of the Permanent Court of International Justice 1 The 1922 Rules The first interaction between the Court and Article 41 came with the adoption of its first set of procedural rules in 1922.242 Article 57 of the 1922 Rules of Court, entitled ‘Interim Protection’ gave little guidance as to how Article 41 was to operate, providing only that ‘[w]hen the Court is not sitting, any measures for the preservation in the meantime of the respective rights of the parties shall be indicated by the President’, and further noting that ‘[a]ny refusal by the parties to conform to the suggestions of the Court or of the President, with regard to such measures, shall be placed on record’. The proc`es-verbaux of the meetings to draft the 1922 Rules reveal a great deal about how the Court itself viewed Article 41 – though this is by no means clear from the final product. The original Draft Rules prepared by the League Secretariat for the Court’s consideration contemplated the further articulation of Article 41, including a provision apparently based on the procedure of the mixed arbitral tribunals.243 However, this was discarded by the Court’s Committee of Procedure on the basis that as provisional measures were non-binding, there was no need for special procedures regulating their issue, beyond noting that a failure to abide by the Court’s directive could lead to an award of damages.244 The draft article prepared by the Secretariat was therefore substituted for the provision that became Article 57 of the final orders, and remained uncontroversial for the remainder of the Court’s deliberations.245 2 The 1931 Rules Article 57 was untouched by the amendment of the Rules in 1926.246 However, a comprehensive overhaul of the Court’s procedure in 1931, as prompted by the 1929 recommendations of the Advisory Committee of 242 243

244 245 246

Rules of Court, 24 March 1922 (1st edn, 1922) PCIJ Ser D No 1. Preparation of the Rules of Court, 30 January 1922 (1922) PCIJ Ser D No 2, Annex 1(c), Art 35. The provision in question functioned as a stripped down version of the usual formulation, and so resembled the Austrian–Belgian Rules, 19 October 1920, 1 TAM 171, Art 45. Under the proposed Art 35, provisional measures could be requested by either party or ordered proprio motu, the party against whom the measures were ordered was entitled to a hearing, and third parties damaged by the order could request reconsideration of the issue. (1922) PCIJ Ser D No 2, Annex 21(b), Art 35. Also: ibid, 77 (Finlay and Nyholm). Ibid, 617. Amended Rules of Court, 31 July 1926 (rev 1st edn, 1926) PCIJ Ser D No 1.

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Jurists, saw the provision significantly modified both in substance and procedure. Article 57 in the 1931 Rules was modified to read: An application made to the Court by one or both of the Parties, for the indication of interim measures of protection, shall have priority over all other cases. The decision thereon shall be treated as a matter of urgency, and if the Court is not sitting it shall be convened without delay by the President for the purpose. If no application is made, and if the Court is not sitting, the President may convene the Court to submit to it the question whether such measures are expedient. In all cases, the Court shall only indicate measures of protection after giving the parties an opportunity of presenting their observations on the subject.247

The proc`es-verbaux of this series of meetings provide further clues as to the Court’s perception of Article 41 of its Statute.248 Its deliberations were based on a new draft of Article 57 by Judge Fromageot,249 who identified two live issues in the Court’s practice: firstly, the role of the President in the award of provisional measures when the Court was not sitting; and secondly, the question of whether the Court could award interim relief proprio motu.250 With respect to the first issue, it was pointed out that the 1922 formulation of Article 57 placed a heavy burden on the President president – one that might have political consequences.251 Concerns were further raised that the provision as worded might be inconsistent with Article 41 of the Statute, which permitted interim relief by the Court alone.252 Thus, the provision was changed so as to permit the urgent convening of the Court with a view to obtaining a curial decision.253 With respect to the second issue, the point was made that Article 41 of the Statute did not expressly require that provisional measures be ordered only on application by the parties.254 What the Court feared, however, was a crisis of legitimacy.255 The decision was made, therefore, to omit any reference to measures proprio motu in Article 57 (leaving the point 247 248 249 250 252 253

Rules of Court, 21 February 1931 (2nd edn, 1931) PCIJ Ser D No 1. Summarized by Elkind, Interim Protection, 59–68. (1931) PCIJ Ser D No 2 Add 2, Annex 35. 251 Ibid, 181–2. Ibid, 182 (Anzilotti). Ibid, 184–5 (Rolin-Jaequemyns), 185 (Rostworowski), 186 (Fromageot). 254 255 Ibid, 188–9. Ibid, 186 (Fromageot), 186–7 (Negulesco). Ibid, 186 (Hurst).

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ambiguous), and instead introduce a requirement that the parties be heard. Two further items of interest also emerge from the proc`es-verbaux. Firstly, the Court appears to have considered it uncontroversial that measures ordered under Article 41 of the Statute were not binding.256 VicePresident Guerrero noted, however, that thanks to the League of Nations, ‘the notion of sovereignty had been substantially abridged since the days of the Bryan Treaties’,257 rendering it regrettable the Court’s capacity to order interim relief was effectively frozen in a pre-League model. Judge van Eysinga expressed similar regrets in light of the role played by effective provisional measures in the maintenance of peace,258 a point with which Judge Sch¨ucking concurred, drawing an analogy with the Reichskammergericht of the Holy Roman Empire, a tribunal which was notorious for the glacial pace of its proceedings but which through its interim measures ‘staved off many a crisis, by depriving disputes of their acuteness’.259 It is not without irony that the Court considered provisional measures ordered under the Bryan Treaties to be non-binding, despite sharing the same attribute by design. Nonetheless, the Court clearly considered that its options were limited, and so set about enhancing the moral obligation for states to comply with measures ordered through the urgent convening of the entire Court where required,260 and the provision of a hearing to both parties.261 Some comfort was afforded from the fact that the League Council would be competent to enforce provisional measures if necessary. Finally, the Court gave some insight into its views of the utility of municipal law analogies in the award of provisional measures. Judge Sch¨ucking noted that the proprio motu question could be resolved by analogy with German civil procedure. If the parties were considered to be conducting the action through the Court, then provisional measures could not be awarded sua sponte. If, however, the Court was seen as actively involved in the resolution of the dispute – the German procedure of Offizialverfahren – then this presumably included the power to award provisional measures of its own volition.262 Domestic analogies were again raised by Judge Negulesco when considering the overall purpose of provisional measures: some systems, he said, regarded interim relief as preserving rights prior to adjudication, whilst others sought to protect or reestablish the status quo.263 In response to this, Judge Sch¨ucking drew a further 256 257 261

Ibid, 183 (Hammarskj¨old, Registrar), 183 (Fromageot), 183 (Sch¨ucking). 258 259 260 Ibid, 184. Ibid. Ibid, 185. Ibid, 183 (Hurst). 262 263 Ibid, 184 (Guerrero). Ibid, 185–6. Ibid, 192.

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analogy with the German system, which as described above provided for both the former (arrest) and latter (einstweilige Verf¨ugung) functions considered by Judge Negulesco, noting that measures of protection as described in Article 41 appeared to fall into the latter category.264 Judge Anzilotti forestalled the discussion, however, noting that ‘[t]he position and interests of Parties which were States were very different from those of an ordinary debtor and creditor’ and that ‘to attempt to define the conception of measures of protection in international proceedings would be more likely to complicate the question than to solve it’.265 Further discussion of the character of provisional measures was therefore left to development though jurisprudence – which, as seen in the practice of the mixed arbitral tribunals, was already drawing on domestic models to provide procedural rigour.

3 The 1936 Rules Prior to the practical cessation of its activities in 1939, the Court engaged in a further revision of its Rules in 1936,266 aiming to address the balance of the comments made by the Committee of Jurists in 1929. The deliberations of the Court267 resulted in a provision with greater articulation than the 1922 and 1931 Rules, with the overt purpose of the revision being to codify the Court’s practice.268 The provision, renumbered as Article 61, provided: (1) A request for the indication of interim measures of protection may be filed at any time during the proceedings in the case in connection with which it is made. The request shall specify the case to which it relates and the interim measures of which the indication is proposed. (2) A request for the indication of provisional measures shall have priority over all other cases. The decision thereon shall be treated as a matter of urgency. (3) If the Court is not sitting, the members shall be convened by the President forthwith. Pending the meeting of the Court and a decision 264 266 267 268

265 Ibid, 193. Ibid, 194. Rules of Court, 11 March 1936 (3rd edn, 1936) PCIJ Ser D No 1. Summarized by Hudson, Permanent Court, 290–2; Elkind, Interim Protection, 69–77. (1936) PCIJ Ser D No 2 Add 3, 5. As part of this process, the Court was divided into Commissions to consider certain issues. The Third Commission was charged with the consideration of Art 57, with its work then inserted into a unified draft prepared by a central Coordination Commission. The Court as a whole then considered the Coordination Commission’s draft.

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(6)

(7) (8)

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by it, the President shall, if need be, take such measures as may appear to him necessary in order to enable the Court to give an effective decision. The Court may indicate interim measures of protection other than those proposed in the request. The rejection of a request for the indication of interim measures of protection shall not prevent the party which has made it from making a fresh request in the same case based on new facts. The Court may indicate interim measures of protection proprio motu. If the Court is not sitting, the President may convene its members in order to submit to the Court the question whether it is expedient to indicate such measures. The Court may at any time by reason of a change in the situation revoke or modify its decision indicating interim measures of protection. The Court shall only indicate interim measures of protection after giving the parties an opportunity of presenting their observations on the subject. The same rule applies when the Court revokes or modifies a decision indicating interim measures of protection. When the President has occasion to convene the members of the Court, [judges ad hoc] shall be convened if their presence can be assured by the date fixed by the President for hearing of the parties.

The content of Article 61 is by now uncontroversial, despite the appearance during the Court’s deliberations of a strongly argued counterproposal by Count Rostworowski.269 This criticized the 1922 and 1931 Rules on the basis that the first gave the President acting alone the power to order provisional measures whilst the second required the entire Court to be convened without any consideration to exigencies of law or fact speaking to the likely success of the application, potentially giving rise to frivolous or vexatious requests. Other members of the Court, however, were concerned that requiring the Court to be empanelled prior to the indication of measures might prejudice an application and lead to further damage to the status quo.270 On voting, the Court refused to reintroduce the power of the President to order provisional measures,271 but brokered a compromise position whereby the President could order temporary 269 270 271

(1936) PCIJ Ser D No 2 Add 3, Appendix 6. Ibid, 285 (Sch¨ucking), 287–8 (Fromageot), 288 (Anzilotti), 288 (Rolin-Jaequemyns). Huber as President held the casting vote, and was in favour of the proposal personally. As his casting vote was the tiebreaker though, he refused to use it to alter the status quo: ibid, 288.

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interim relief until such time as the Court could be empaneled – such relief, however, could not be awarded proprio motu.272 Court Rostworowski further desired that the Court be generally prevented from ordering measures proprio motu, concerned that it might raise the implication that measures could be indicated without a case being brought.273 The other members of the Court, however, took note of the fact that such a power was not outside the confines of Article 41 of the Statute, and voted to introduce what became Article 61(6), providing expressly for the awarding of measures on the initiative of the Court alone.274 In this, the Court went well beyond its previous practice, as reflected in the debates over Article 57 in the 1931 Rules and in the final provision itself.

C The Jurisprudence of the Permanent Court of International Justice Not withstanding the articulation of the law of provisional measures seen in Article 61 of the PCIJ’s 1936 Rules and the considered debate that this provision and its predecessors occasioned between its members, it should be remembered that both phenomena were driven by experience derived from the cases before the Court. This reasoning in part can be seen in Judge Urrutia’s reservations when considering the issue of proprio motu orders in the context of the 1931 Rules, viz. that ‘the question whether the Court could [so] act [ . . . ] appeared to him so grave that it would be a mistake to regulate it in advance by a general rule; it would be wiser to leave it for decision when a case actually arose’.275 The Court’s approach – as reflected in the steadily increasing complexity of its procedure – was to develop the law when required to do so, and then to codify any advancements made. This again raises the question first posed at the beginning of this chapter in relation to the award of provisional measures in the Sino-Belgian Treaty case: from what source was the Court’s understanding of interim relief drawn? The answer – although the evidence supporting it appears largely circumstantial – is twofold: in the first place, the international notion of preserving the status quo in inter-state conflicts, as developed in the experience of the Central American Court of Justice and mediated through the Bryan Treaties; in the second, municipal concepts of the preservation of rights pendente lite as internationalized through the work of the mixed arbitral tribunals. 272 275

273 274 Ibid, 291. Ibid, 912. Ibid, 297. (1931) PCIJ Ser D No 2 Add 2, 187.

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1 The Sino-Belgian Treaty Case The Sino-Belgian Treaty case276 concerned the Treaty of Peace, Commerce and Navigation277 concluded between Belgium and China in 1865. The agreement granted Belgium certain rights of extraterritorial jurisdiction in China, as well as most favoured nation treatment through a tariff schedule of imports and exports. It further offered certain protections for Belgian nationals operating within China, and vice versa. When China, under pressure from the Nationalist movement, asked that Belgium consider the renegotiation of the agreement, Belgium conceded to the request; a breakdown in the negotiations, however, led China to terminate the agreement by way of a presidential decree on 6 November 1926, with retrospective operation from 27 October 1926.278 Belgium, for its part, considered the termination unlawful and continued to extend reciprocal protection to Chinese nationals within its territory. China’s refusal to refer the matter to the PCIJ by way of a joint compromis prompted Belgium to make a unilateral application to the Court on 25 November 1926 under the optional clause jurisdiction of Article 36(2) of the Statute. In this, it asked that the Court ‘give judgment [ . . . ] to the effect that the Government of the Chinese Republic is not entitled unilaterally to denounce the Treaty’ and furthermore ‘[t]o indicate, pending judgment, any provisional measures to be taken for the preservation of rights which may subsequently be recognized as belonging to Belgium or her nationals’.279 Submitted as it was in the winter of 1926–27, the application arrived whilst the Court was in recess, requiring President Huber to act independently on the request for provisional measures under Article 57 of the 1922 Rules. He was not, however, deprived entirely of counsel, and was in informal correspondence with Judge Loder of the Netherlands, President of the Court from 1922–24, and Vice-President Weiss of France.280 On 20 December 1926, the Registrar informed the Belgian delegation that, on 276

277 278

279 280

Generally: Dumbauld, Interim Measures, 147–53; Verzijl, 1 The Jurisprudence of the World Court (Leyden: A W Sijthoff, 1965) 295–7; Elkind, Interim Protection, 88–90; Sztucki, Interim Measures, 35–6. 2 November 1865, 131 CTS 373. (1927) PCIJ Ser C No 16-I, 75. On the process of negotiation and termination in general, see generally L H Woolsey, ‘China’s Denunciation of Unequal Treaties’ (1927) 21 AJIL 289. (1927) PCIJ Ser A No 8, 5. Revealed during the Court’s deliberations during the 1931 reform of its Rules: (1931) PCIJ Ser D No 2 App 2, 182 (Anzilotti).

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the basis of the documents filed with the Court at that point, the President was not minded to offer interim relief.281 In response, on 3 January 1927, Belgium submitted a memorandum to the Court providing further evidence for its claims.282 This, in part, argued that even if revenues and tariffs wrongly collected by the Chinese government and the wrongful treatment of Belgian nationals could be compensated through damages, this would involve a long and complicated procedure. Moreover, it was said, the damage caused with respect to consular, judicial and criminal matters would be irreparable. It therefore requested measures effectively replicating the provisions of the abandoned Treaty whenever China’s denunciation of the agreement resulted in the loss of most favoured nation status for its nationals in China.283 The President was persuaded by the Belgian supplement, and indicated provisional measures in his Order of 8 January 1927. No formal hearings were held, and China was ex parte – although it was kept apprised of events through the Registry.284 The Order given was brief, but striking in its modernity. Having set out the procedural history, the President stated that ‘the object of the measures of interim protection contemplated by the Statute of the Court is to preserve the respective rights of the parties pending the decision of the Court; [ . . . ] in the present case, the rights in question are those reserved to Belgium and to Belgian nationals in China, by the Treaty of November 2nd, 1865’.285 The Order then established provisional jurisdiction over the merits, noting that both parties had made optional clause declarations under Article 36(2) of the Statute.286 It further noted that the breach of certain rights under the Treaty would result in harm which ‘could not be made good simply by the payment of an indemnity or by compensation or restitution in some other material form’.287 Finally, the Order stated that provisional measures were awarded without prejudice to the final decision of the Court on both jurisdiction and the merits.288 As to the substance of the measures, the President indicated that certain protections should be extended vis-`a-vis Belgian nationals, property and 281 284

285

282 283 (1927) PCIJ Ser C No 16–1, 305. Ibid, 17. Ibid, 23–4. (1931) PCIJ Ser D No 2 App 2, 182 (Hammarskj¨old, Registrar). The Registry did receive several ‘purely private’ communications from the Chinese envoy to The Hague regarding the dispute. In relation to the award of interim measures, it was simply pronounced that ‘during the course of negotiations for the conclusion of a new treaty with Belgium, the Chinese government cannot do anything about the Court’s Order of 8 January 1927’: (1927) PCIJ Ser C No 16–1, 322. Further: Sztucki, Interim Measures, 36. 286 287 288 (1927) PCIJ Ser A No 8, 6–7. Ibid, 7. Ibid. Ibid.

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shipping and judicial safeguards.289 With respect to nationals, China was asked to guarantee consular protections under Article 10 of the Treaty; to protect Belgian missionaries who had proceeded into the interior of China and Belgian nationals more generally from insult or violence in accordance with Articles 15 and 17; and to guarantee that Belgian nationals would only be arrested through a consul, and subjected only to those forms of physical punishment that would be accepted under Belgian law in accordance with Article 19. As regards property and shipping, it was requested that China provide protection from sequestration and seizure otherwise than in accordance with international law, and to protect said objects from non-accidental damage in accordance with Article 14 of the Treaty. Finally, regarding judicial safeguards, it was requested that China ensure that any matter in which a Belgian national was a party proceed in a ‘modern’ court in accordance with principles of procedural justice. The second element of the operative part of the Order is curious. On the one hand, the President clearly considered relevant the fact that, with respect to some injuries, an indemnity would not provide adequate compensation, and ordered relief on this basis. On the other, the protections indicated in relation to property and shipping are worded sufficiently broadly to include all forms of seizure and sequestration, even those remediable through damages. This discrepancy was relied on by Lauterpacht in arguing that the Court had ‘clearly rejected’ the proposition that interim relief would only be available where damages were insufficient.290 Although this reading of the Court’s jurisprudence – as will be seen – did eventually come to pass, it is difficult to think that Huber did not mean what he said. As such, it is better to view the Order in the present instance as deriving from the President’s desire to ensure the effectiveness of the measures ordered: it might be argued that, given the scale of Belgian investments in China, it would have been impossible to distinguish – both from the President’s perspective and that of the Chinese government – which wrongful seizures could be compensated through damages, and which could not, necessitating a blanket order. The principles employed by the President in determining whether provisional measures should be awarded were clearly drawn from the civil law 289 290

Ibid, 7–8. Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens and Sons, 1958) 252. This analysis was not proffered in Lauterpacht’s earlier version of the same text, The Development of International Law by the Permanent Court of International Justice (London: Longmans, Green and Co, 1934).

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tradition. Not only did the terms of the Order bear a strong resemblance to the nineteenth century codes of civil procedure from jurisdictions such as Germany and Switzerland,291 but they also omit central considerations present in the common law notion of the interlocutory injunction, most notably the need to prove a prima facie case on the merits and the balance of considerations. In retrospect, it is clear why Huber decided to move the jurisprudence of the Court in this direction. In the first place, he was a Swiss lawyer familiar not only with the Swiss code of civil procedure, but its earlier roots in canon law. In the second, civil law notions of interim relief had been road-tested comprehensively at both a federal (through the jurisprudence of the German Staatsgerictshof and the jurisdiction of the Swiss Bundesgericht in inter-cantonal disputes) and international (through the procedure of the mixed arbitral tribunals) levels. Finally, it is worth noting, though the point is circumstantial, that the individuals with whom Huber conferred – Judge Loder and Vice-President Weiss – were both civil lawyers, preventing any common law voices from being heard.292 The Order of 8 January 1927 was short-lived. On 3 February 1927, the Belgian delegation notified the Court that it had reached agreement with China on a provisional regime with respect to Belgian nationals that effectively reinstituted the Treaty. Pursuant to this, Belgium further noted that the removal of the Order would be agreeable to China, and thus assist a negotiated settlement.293 Accordingly, on 15 February 1927, the President issued another Order providing that: (1) due to the provisional regime, the circumstances justifying the original Order no longer applied;294 and (2) there was no other situation which demanded the maintenance of protective action. As a consequence, the original Order ceased to be operative, although it was not formally revoked. The Order of 15 February 1927, however, was at pains to point out that interim relief was only lifted for ‘purely legal reasons’ and furthermore, that measures of protection ‘cannot be dependent [ . . . ] upon the position 291

292

293 294

The French CPC and its procedure of en r´ef´er´e exhibited less procedural articulation than the terms of the Order in the Sino-Belgian Treaty case, and in any event seems to have been largely party-driven: see above §II.B.2(a). However, Loder was president of the Anglo–Austrian, Anglo–Bulgarian and Anglo– Hungarian Tribunals, presumably giving him additional exposure to English civil procedure through the drafting of their rules: above n 209. (1927) PCIJ Ser C No 16–1, 324. It was also noted that the same effect would be achieved if Belgium renounced the disputed rights voluntarily: (1927) PCIJ Ser A No 8, 11.

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of negotiations that may be in progress between the parties’.295 This statement is rather vague, but might be taken as an allusion to the Court’s – and President’s – power to award interim measures proprio motu without placing a premium on the position of the parties, although their attitudes were clearly to be taken into account on some level. The Order of 8 January 1927 ceased to operate on 25 May 1929 when the matter was removed from the Court’s docket at Belgium’s request following successful negotiations.296

2 Factory at Chorz´ow (Indemnities) The second case in which the Court was required to consider the operation of Article 41 was part of the celebrated series of cases concerning Germany and Poland in the context of Polish Upper Silesia.297 The relevant phase of proceedings followed the ruling by the Court in Certain German Interests in Polish Upper Silesia298 that Polish expropriation of industrial properties ´ constituted a violation of Convention Concerning Upper at Chorzow Silesia.299 Germany and Poland then began negotiations with a view to determining the amount of compensation payable. On 8 February 1927, Germany, citing a breakdown of negotiations, made a new application to the Court requesting a determination that Poland was under an obligation to provide compensation in the amount of 76 million Reichsmarks to certain Germany companies.300 On 26 July 1927 the Court affirmed its jurisdiction.301 On 14 October 1927, prior to the submission of written proceedings, Germany lodged a request for provisional measures with the Court requesting the payment by Poland of 30 million Reichsmarks within one month.302 The logic of the German position was that, following its 295 297

298 299 301 302

296 Ibid. (1929) PCIJ Ser A No 18. Generally: Dumbauld, Interim Measures, 153–4; Verzijl, 1 World Court, 297; Elkind, Interim Protection, 90–2; Sztucki, Interim Measures, 36–7. Other cases in the series – which were part of wider German efforts to discredit the Polish treatment of minorities – include the Prince von Pless and Polish Agrarian Reform cases, to be discussed presently. Further: Gudmundur Alfredsson, ‘German Minorities in Poland, Cases Concerning the’, MPEPIL (2010). Certain German Interests in Polish Upper Silesia (Germany v Poland) (1926) PCIJ Ser A No 7, 81. 300 15 May 1922, 9 LNTS 466. (1927) PCIJ Ser C No 13-I, 107–8. (1927) PCIJ Ser A No 9, 33. The sum was apparently derived from that which ‘the two Governments had all but agreed in January this year’ plus ‘the value of patents, licenses, etc. wrongfully used by the Polish Government up to the present time’: (1927) PCIJ Ser A No 12, 7–8.

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determination in Polish Upper Silesia, Polish liability had been fixed at ‘a certain minimum’, leading to the conclusion that in the case at bar, only the upper amount of the award was in question.303 Moreover, it was said, the German companies affected by Poland’s behaviour had recently been presented with ‘a very favourable opportunity [that] had arisen which would have permitted the Companies in question to re-establish the economically sound position which they had lost’ that was allegedly in danger of evaporation, causing thereby further irreparable damage to the companies’ interests.304 Accordingly, it was said: In these circumstances, seeing that the principle of compensation is recognized, and that only the maximum sum to be paid by the Polish Government is still in doubt, and seeing that unless payment be immediate, the amount of the damage and that of the compensation would considerably increase, and seeing that the prejudice caused by further delay would be irreparable, the German Government consider that an interim measure of protection whereby the Court would indicate to the respondent Government the sum to be paid immediately, as a provisional measure and pending final judgment, is essential for the protection of the rights of the Parties, whilst the affair is sub judice.305

In light of the preceding discussion on the origin of interim relief in the context of Article 41, the German litigation strategy is clear. Firstly, German civil procedure – a source for the PCIJ – considered provisional satisfaction with respect to an undetermined money claim as a valid basis for interim relief.306 Secondly, Germany would doubtlessly have been aware that the Polish–German Tribunal – another source of direction – had three years before held that it possessed the power to grant interim payment as a protective measure.307 Third, Germany noted that the wording of Article 41 had been amended to include not only acts, but also omissions – here, a failure by Poland to pay the amount requested.308 This notwithstanding, the Court unanimously rejected the request by way of an Order of 21 November 1927, without requesting submissions from Poland and without consulting with either of the ad hoc judges.309 The Court’s reasoning was perfunctory, noting only that ‘the request of the German government cannot be regarded as relating to the indication of measures of interim protection, but as designed to obtain an interim judgment in favour of a part of the [German] claim’.310 303 307 309

304 305 Ibid, 4. Ibid, 4–5. Ibid, 6. Ellermann v Poland (1924) 5 TAM 457, 459. 310 Ibid, 10. Ibid.

306

See above §II.B.2(b). (1927) PCIJ Ser A No 12, 6–7.

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The case was concluded when the Court eventually determined that the Polish government was under an obligation to compensate the affected companies.311 Following the agreement of an amount between the parties – forestalling the work of the Committee of Experts appointed by the President of the Court – Germany requested that the matter be withdrawn. It was removed from the list by the Order of 25 May 1929.312

3 South-Eastern Greenland The South-Eastern Greenland case313 produced what was arguably the most sophisticated of the PCIJ’s pronouncements on provisional measures, in the context of a territorial dispute between Denmark and Norway. The case proceeded on the basis of two successive occupations by Norway – in July 1931 and July 1932, respectively – of the eastern and southeastern coasts of Greenland. The first such occupation was met on 11 July 1931 by an application to the Court by Denmark requesting a declaration that the Norwegian action was unlawful: this led to the parallel proceeding of Legal Status of Eastern Greenland.314 The second – in reality an assertion of sovereignty by royal decree – was prompted by the dispatch of a Danish expedition to the region and resulted in unilateral applications to the Court by both parties under the optional clause. Denmark again asked the Court to declare the Norwegian occupation illegal,315 whilst Norway asked for a declaration that the contested territory was subject to its sovereignty.316 The Norwegian application, furthermore, asked the Court ‘to order the Danish Government, as an interim measure of protection, to abstain from any coercive measure directed against Norwegian nationals in the said territory’.317 The jurisdiction of the Court was uncontested. The Court consolidated the proceedings on 2 August 1932.318 The application for interim relief was framed in terms of the preservation of the status quo and the non-escalation of the dispute. As described by the Court in its Order of 3 August 1932, the catalyst was the expedition, which Denmark had equipped with police powers over both Danish and Norwegian nationals. The Danish press, moreover, had indicated that acts of violence against any Norwegian nationals that the expedition 311 313

314 316

312 (1928) PCIJ Ser A No 17, 63. (1929) PCIJ Ser A No 19, 13. Generally: Edward Dumbauld, ‘Relief Pendente Lite in the Permanent Court of International Justice’ (1945) 39 AJIL 391, 391–4; Verzijl, World Court, 297–9; Elkind, Interim Protection, 92–3; Sztucki, Interim Measures, 37–8. 315 (1931) PCIJ Ser C No 62, 9–11. (1932) PCIJ Ser C No 69, 10. 317 318 Ibid, 12. Ibid, 10. (1932) PCIJ Ser A/B No 48, 271.

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came across were likely.319 Norway, for its part, had conferred similar police powers on one of its own expeditions to the region.320 As a result, Norway asserted that frequent contact between Norwegian and Danish nationals in the region was likely, and that violence would result. Denmark disputed this, pointing out that the odds of two small expeditions crossing paths in so vast an area were slim.321 The Court’s Order of 3 August 1932 is notable for a number of reasons. Firstly, it was the first decision of the Court to be handed down under Rule 57 as it appeared in the 1931 Rules, resulting in several interesting procedural considerations.322 Notably, the Court continued its earlier practice of issuing its decision in the form of an order rather than a judgment, although the latter form was available.323 In addition, the Court agreed to a Norwegian request that ad hoc judges be permitted to participate in the deliberations, a pattern which persists to this day and which was incorporated in Article 61(9) of the 1936 Rules.324 Secondly, the Order in question demonstrates far greater complexity than those issued in the Court’s earlier cases, and is similar in this respect to the modern practice. In the substance of the Order, the Court first addressed the further interpretation of Article 41 of the Statute, noting that there was no need for it to decide whether it had the power to indicate provisional measures where there was no controversy pending before it other than the application for interim relief itself as the dispute between Norway and Denmark clearly constituted a live and substantive issue on the merits.325 The Court also made clear that it was qualified to indicate relief proprio motu,326 and its conclusion on this point led to the eventual codification of this power in Article 61(6) of the 1936 Rules. Finally, it noted that it did not need to resolve the question of whether relief could be ordered solely in order to prevent the non-aggravation of the dispute as opposed to the protection of specific rights, as in the present case analysis of both strands of relief yielded the same result.327 319 322 323

324 325

320 321 Ibid, 278. Ibid, 283. Ibid, 283. Dumbauld, ‘Relief Pendente Lite’, 392. The Court attributed this to a desire to maintain a distinction between provisional measures and final decisions. A further factor was that provisional measures could be awarded proprio motu, whereas judgments clearly could not: PCIJ Report 9 (1932–1933) PCIJ Ser E No 9, 171. (1932) PCIJ Ser A/B No 48, 280. Further: PCIJ Report 9 (1932–1933) PCIJ Ser E No 9, 162. 326 327 (1932) PCIJ Ser A/B No 48, 284. Ibid. Ibid.

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In relation to Norway’s specific request, the Court declined to award interim relief on the basis that no protection was required. In the first place, the incidents that Norway sought to prevent (i.e. violence against its nationals in the disputed area) could not on any reasoning affect the existence of or value of the sovereign rights claimed in South-Eastern Greenland.328 Such incidents, moreover, could not adversely affect any rights that the Court might finally recognize as belonging to Norway.329 In the second place, each party had made declarations to the effect that they intended to refrain from acts of violence against citizens of the other so long as they were not first provoked,330 rendering it highly unlikely that the events to be prevented (and any consequential escalation of the dispute) would have actually occurred. Having denied the Norwegian request, the Court turned its attention to the question whether relief was nonetheless appropriate proprio motu. The Court’s grounds were largely similar: (1) both parties had stated that they did not intend to provoke violence; (2) provisional measures could not preserve or otherwise affect the rights which were the subject of the ligation and even if they could, the damage caused by a failure to indicate would not be irreparable; and (3) in any event, the parties were already under an obligation to abstain from measures likely to ‘aggravate or extend the dispute’ by virtue of the 1928 General Act for the Pacific Settlement of International Disputes.331 Notwithstanding its dismissal of the request, the Court stated explicitly that it ‘reserv[ed] its right subsequently to consider whether circumstances had arisen requiring the indication of provisional measures’.332 The matter was finally disposed of by the Court’s decision in Eastern Greenland, in which Danish sovereignty over the contested territory was confirmed.333 As a consequence, the litigation in South-Eastern Greenland was deprived of its object and both governments withdrew their applications. The case was formally removed from the list on 11 May 1933.334

4 The Prince von Pless Case The next consideration by the Court of Article 41 of its Statute occurred in the Prince von Pless case,335 which was at its core a taxation dispute 328 332 333 335

329 330 331 Ibid, 285. Ibid, 287. Ibid, 285–7. Ibid, 288–9. Ibid, 289. For the General Act, see 26 September 1928, 93 LNTS 343. 334 (1933) PCIJ Ser A/B No 53, 75. (1933) PCIJ Ser A/B No 55, 157–9. Generally: Dumbauld, ‘Relief Pendente Lite’, 394–5; Elkind, Interim Protection, 93–4; Sztucki, Interim Measures, 38–9.

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between Poland and a Polish national of German ethnic origin. The Prince operated several mines in Upper Silesia, and lodged several complaints with the League of Nations regarding the actions of Polish taxation authorities. This dispute eventually led to Germany’s application to the Court of 18 May 1932, which requested judgment to the effect ‘that the attitude of the Polish government and authorities towards the Pless Administration [ . . . ] is in conflict with Articles 67 and 68 of the Geneva Convention [of 1922]’ and that acts committed pursuant to that attitude under Article 65 of the same.336 Germany’s claim was lodged in its capacity as a member of the Council of the League of Nations under Article 72(3) of the 1922 Convention. On 4 February 1933, the Court ordered that Poland’s preliminary objections be joined to the merits.337 The question of interim relief was raised following the issue by the Polish taxation office on 20 April 1933 of two orders requesting that the Prince pay some 1.8 million zlotys within 15 days on account of income tax unpaid between 1927 and 1930. Simultaneously, the tax office decreed the attachment of the Prince’s claim against the Polish State Railways, an amount nearly equaling the debt allegedly outstanding. This prompted Germany to lodge a request for provisional measures with the Court on 2 May 1933, wherein the Court was requested: [T]o indicate to the Polish Government, as an interim measure of protection, pending the delivery of judgment [ . . . ] that it should abstain from any measure of constraint in respect of the property of the Prince von Pless on account of income tax.338

With the revision of the Rules in 1931, Article 57 no longer gave the President the power to order interim relief unilaterally pending the convening of the Court as a whole. As a result, and with the taxation orders soon to take effect, President Adachi wrote to the Polish government in a bid to have the time limit extended,339 and then on 5 May 1933 convened an emergency session of the Court for 10 May 1933, setting aside the following day for both parties to give their views on the application. Although no harm appeared to result from this course of action, the perception of a ‘near-miss’ when the Court was out of session may have prompted the return of the President’s unilateral power to order provisional measures on a limited basis in Article 61(3) of the 1936 Rules. 336 338 339

337 (1932) PCIJ Ser C No 70, 201. (1933) PCIJ Ser A/B No 52, 16. It was also suggested that ‘measures of constraint would irremediably prejudice the rights and interests forming the subject of the dispute’: (1933) PCIJ Ser C No 70, 202–3. Ibid, 430.

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On 8 May 1933, Poland informed the Registrar that the attachment order was erroneously issued and had been annulled, and that furthermore that the Prince’s taxes would not be collected until the Court had resolved the dispute. Accordingly, it was requested that the Court cancel the hearings.340 Germany agreed with this approach.341 As a consequence, the Court issued a brief order declaring that ‘the request for the indication of interim measures of protection [ . . . ] has ceased to have any object’.342 With the merits pending, Germany withdrew from the League of Nations, and thus informed the Court on 27 October 1933 that it did not intend to pursue the matter. The Court declared the proceedings terminated on 2 December 1933.343

5 The Polish Agrarian Reform Case The Polish Agrarian Reform case344 prompted another relatively sophisticated consideration of provisional measures by the Court. The case occurred in the same context as the Prince von Pless case, the alleged exploitation of ethnic Germans by Poland in a manner contrary to Articles 7 and 8 of the Minorities Treaty.345 Significantly, Article 12 of the Treaty provided that any Member of the Council of the League of Nations could refer to the Court any difference of opinion with Poland regarding the interpretation or application of the provisions of the Treaty regarding the protection of minorities. It was again in its capacity as a Council member that Germany brought its application. On this occasion, the offending act was agricultural reform in the voivodeships of Posnania and Pomereilia, which Germany claimed was carried out in a manner that discriminated against Polish nationals of German origin. In its application filed on 3 July 1933, the Court was asked ‘to declare that violations of the Treaty of June 28th, 1919, have been committed to the detriment of Polish nationals of German race and to order reparations to be made’.346 Germany also requested that interim measures be awarded to preserve the status quo, noting generally the increasing disparity between the minority and majority regarding 340 342 344 345 346

341 Ibid, 431–2. Ibid, 432. 343 (1933) PCIJ Ser A/B No 54, 154. (1933) PCIJ Ser A/B No 59, 194–6. Generally: Dumbauld, ‘Relief Pendente Lite’, 395–9; Elkind, Interim Protection, 94–7; Sztucki, Interim Measures, 40. Minorities Treaty between the Principal Allied and Associated Powers and Poland, 28 June 1919, 25 CTS 413. (1933) PCIJ Ser C No 71, 11.

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compulsory participation in the agrarian ‘reform’ and further listing three recent compulsory actions against members of the German minority.347 On 29 July 1933, the Court issued a lengthy order denying interim relief. Significantly, this was the first time that dissenting opinions were appended to such an order, establishing a precedent for the future practice of the International Court.348 The rejection was premised on the argument that the interim measures asked for would result in a general suspension of the Polish agrarian reforms, ‘and cannot therefore be regarded as solely designed to protect the subject of the dispute and the actual object of the principal claim’,349 establishing that the power to order provisional measures was inherently limited to protection of the rights which were subject to the actual claim. Put another way, although a formally separate proceeding from the point of view of the Court’s procedure, a request for provisional measures remained predicated on a request for final relief – the stream could not rise higher than its source.350 The conclusion, however, was a curious one, as the Court refused also to offer a more limited form of relief proprio motu, e.g. directed towards the three specific examples of expropriation mentioned in the German application.351 The Court offered no explanation for this, but the dissent of Judge Anzilotti indicated that notwithstanding the allusion of the German government to specific cases, these were not identified with particularity in the pleadings, leaving the Court unable to craft a more specific form of relief.352 Three dissenting opinions were attached to the Order. The first, by Baron Rolin-Jaequemyns, did not answer the central contention of the majority, but instead noted that ‘the indication of such “interim measures” would considerably facilitate the reparation – so far as may be necessary – of those rights in the form of their preservation, rather than 347 348

349 350

351

Ibid, 13–14. Notwithstanding the modern practice, this does not appear to have been a universal right of the judges under the Statute or Rules of the Permanent Court: the practice had developed whereby dissents could be appended to orders concerning important questions of law, but this was subject to the consent of Court as a whole. In Electricity Company, a member of the Court wished to attach a dissenting opinion to an order setting the date for commencement of oral proceedings. The body of the Court refused to authorize this: PCIJ Report 16 (1939–1945) PCIJ Ser E No 16, 198–9. (1933) PCIJ Ser A/B No 58, 178. To adopt mutatis mutandis an analogy employed by another author in relation to the Sino-Belgian Treaty case, the aegis of the Court ‘is always commensurate with the rights it is designed to protect, like the trees of Troy which by command of the gods never grew higher than the walls of the city’: Dumbauld, Interim Relief, 153. 352 (1933) PCIJ Ser A/B No 78, 178–9. Ibid, 182.

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by compensation for their loss’.353 This position would appear to ignore the principle already established in the Court’s jurisprudence that relief could not be awarded to prevent damage that could be remedied through monetary compensation – even if it was subsequently to be abandoned. The second dissent was appended by Judge Anzilotti, who declared that he found it ‘difficult to imagine any request for the indication of interim measures more just, more opportune or more appropriate than the one we are considering’.354 Whilst Judge Anzilotti agreed with the Court that the German pleading was inadequate on both a general and specific level, he took a different view of the German application for final relief, interpreting it as a request for a declaration that the whole body of the Polish legislation directed towards agrarian reform was applied in a manner inconsistent with Poland’s obligations under the Minorities Treaties. On such an interpretation, the Court could have awarded relief whereby the application of the reform legislation to the German minority was suspended in its entirety pending the resolution of the dispute – in other words, by identifying a still higher source for the stream that the descendent watercourse could then be made to match.355 Had the majority adopted such an approach, it would have been entirely consistent with its earlier practice. Ultimately, however, Judge Anzilotti felt that a party should be responsible for the wording of its own pleadings, and supported the majority opinion on that basis, but further noted that such a denial of relief should be without prejudice to an amended German application,356 which appears to have been the inspiration for Article 61(5) of the 1936 Rules. A third dissent was registered jointly by Judges Sch¨ucking and van Eysinga, who considered the subject of the dispute to be the same as that which had been subject to a lengthy investigation by the League, which had provided detailed evidence through the Nagaoka Committee on Polish expropriation.357 They concurred with Baron Rolin-Jaequemyns that provisional measures could be awarded in order to facilitate reparation through preservation, rather then through compensation – although again this was contrary to the Court’s earlier practice. They were further in favour of the award of relief proprio motu.358 The most significant point of the dissent, however, from the perspective of modern inter-state practice, was the dissent’s response to the Polish assertion that interim relief was not possible where the claim was founded on Article 12 of 353 356

354 Ibid, 180. Ibid, 181. 357 Ibid. Ibid, 185–6.

355 358

Ibid, 182. Ibid, 187.

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the Minorities Treaty. In other words, where a state could claim standing without any direct involvement in the dispute, and thus without any actual injury whatsoever – much less one that could be deemed ‘irreparable’. This argument was not addressed by the minority, and the dissenters did not proceed beyond simply disagreeing with the point, but it raises interesting parallels with the modern interaction of provisional measures with obligations erga omnes.359 The case was eventually terminated for the same reasons as that of the Prince von Pless, and removed from the list on 2 December 1933.360

6 Electricity Company The final case heard by the Court, and the only decision on provisional measures under the 1936 Rules, was Electricity Company.361 The dispute, between Belgium and Bulgaria, had its roots in the First World War. In short, the company was a Belgian entity expropriated by Bulgaria during that conflict, with respect to which the Belgian–Bulgarian MAT adopted two awards providing for reparation.362 The Belgian application of 26 January 1938 alleged that certain actions of the Bulgarian government in the context of a rate controversy had deprived the company of the benefits of those awards, whilst alleging further breaches of the Treaty of Neuilly. As such, the Court was asked to ‘declare that [ . . . ] Bulgaria has failed in its international obligations [ . . . ] and to order the requisite reparation in respect of the above-mentioned acts to be made’.363 Jurisdiction was founded on the optional clause and on the 1931 Treaty of Conciliation, Arbitration and Judicial Settlement364 between the parties. The Belgian application was followed by two requests for interim measures. The first was made on 2 July 1938, where Belgium requested that compulsory execution against the company by virtue of proceedings against it in the Bulgarian courts be postponed until after judgment.365 The request was withdrawn following the granting of assurances by Bulgaria in a telegram of 28 July 1938.366 Significantly, the Bulgarian response also contested the substantive jurisdiction of the 359 361 362

363 365

360 Ibid, 187–8. (1933) PCIJ Ser A/B No 60, 201–3. Generally: Dumbauld, ‘Relief Pendente Lite’, 399–401; Elkind, Interim Protection, 97–8; Sztucki, Interim Measures, 40–2. See Electricity Company of Sofia and Bulgaria v Bulgaria and the Municipality of Sofia (1923) 3 TAM 308; Electricity Company of Sofia and Bulgaria v The Municipality of Sofia and Bulgaria (1925) 5 TAM 759. 364 (1938) PCIJ Ser C No 88, 14. 23 June 1931, 137 LNTS 191. 366 (1938) PCIJ Ser C No 88, 17. Ibid, 463–4, 475.

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Court367 – had submissions actually been made, it would have been the first time that the Court considered the relationship between its jurisdiction over the merits and its jurisdiction to offer interim relief. On 4 April 1939, the Court upheld its jurisdiction, rejecting two of the three preliminary objections raised by Belgium.368 Prior to the hearing on the merits, however, the Municipality of Sofia launched an action in the Bulgarian courts for execution against the company. This prompted the second request for interim relief on 17 October 1939, in which Belgium requested that the Court ‘indicate as an interim measure of protection that the new proceedings in the Bulgarian Court [ . . . ] be suspended until the [PCIJ] has delivered judgment on the merits’.369 By this stage, however, events had overtaken the Court. Poland had already been invaded and occupied by Germany and the Soviet Union, and Europe was descending into war. When asked to furnish the Court with observations on the Belgian request, the Bulgarian delegation stated (whilst maintaining that the request should not be granted) via telegram that it was impossible for them to confer with foreign counsel and thus prepare a defence. Moreover, due to the international situation, the Bulgarian government had forbidden both the delegation and the Bulgarian ad hoc judge from travelling to The Hague.370 As a consequence, Bulgaria was unrepresented when the Court met to consider the question of interim relief on 2 December 1939, which resulted in its Order of 5 December 1939. By this stage, the situation had deteriorated further still, and the Court appears to have been well aware of the events that were likely to (and in fact did) follow.371 The exigent circumstances surrounding Electricity Company appear to have prompted an unusually broad order on the part of the Court. Referring to Article 41 of its Statute and Article 61(4) of the 1936 Rules, the Court held that these provisions applied the: [ . . . ] principle universally accepted by international tribunals [ . . . ] to the effect that the parties to a case must abstain from any measures capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate and extend the dispute.372 367 369 371 372

368 Ibid, 459. (1939) PCIJ Ser A/B No 77, 84. 370 (1939) PCIJ Ser A/B No 79, 196. Ibid, 197. Cf. the statement given by President Guerrero at the opening of the Court’s hearing on 4 May 1939: PCIJ Report 16 (1939–1945) PCIJ Ser E No 16, 8. (1939) PCIJ Ser A/B No 79, 199.

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This pronouncement is intriguing. In the first place, it is strongly referable to the experience of the CACJ. In the second, it appears to contradict the narrower view of the Court in cases such as South-Eastern Greenland and Polish Agrarian Reform, in which the only power acknowledged by the Court was the power to protect the specific rights inherent in the dispute.373 In those cases, however, it can be argued that no risk of escalation was immediately apparent, forestalling the need for broader additional measures. Although it is true that, taken in isolation, no risk of escalation was manifest in the facts as presented in the Belgian application, the Court apparently felt that given the international situation the matter was incapable of resolution in a timely fashion and so elected to freeze the proceedings to the greatest extent possible.374 Thus, the Court provided: Whereas, in this case, present conditions and the successive postponements and resulting delays and, finally, the actions as demandant [sic] above mentioned, justify in the view of the Court the indication of measures calculated to prevent, for the duration of the proceedings before the Court, the performance of acts likely to prejudice, for either of the Parties to the case or for the interests concerned, the respective rights which may result from the impending judgment [ . . . ] The Court, indicates as an interim measure, that pending the final judgment of the Court [ . . . ] the State of Bulgaria should ensure that no step of any kind is taken capable of prejudicing the rights claimed by the Belgian Government or of aggravating or extending the dispute [ . . . ]375

On 26 February 1940, the Court indicated that the case was ready to proceed.376 Before hearings could occur, however, Germany invaded the Netherlands and the Court’s activities were brought to a halt.377 The matter was never resumed.378 373 374 375 377

378

Dumbauld, ‘Relief Pendente Lite’, 401. PCIJ Report 16 (1939–1945) PCIJ Ser E No 16, 152. 376 (1939) PCIJ Ser A/B No 79, 199. (1939) PCIJ Ser A/B No 80, 9. PCIJ Report 16 (1939–1945) PCIJ Ser E No 16, 152–3. The Court decamped to Geneva on 16 June 1940. Judge van Eysinga and certain other members of the Registry remained in The Hague to defend the Court’s interests for the remainder of the war: ibid, 10–11. On 3 September 1945, the Registrar inquired as to the further intentions of the parties. Belgium stated that it did not intend to pursue the case. Bulgaria, by now under Soviet occupation, never replied: ibid, 146.

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V Conclusions A Towards a Modern Law of Provisional Measures This was the corpus of jurisprudence that was inherited by the International Court when it came to consider its first application for provisional measures in 1951.379 The Court in Anglo-Iranian Oil clearly considered it a necessity to take into account the decisions of the PCIJ, as reflected most clearly in the dissenting opinion of Judges Winiarski and Badawi Pasha.380 Moreover, the Court applied its 1946 rules, which adopted Article 61 of the 1936 Rules wholesale, with the exception of paragraph 9, which was omitted so as to allow the attendance of ad hoc judges in all cases involving provisional measures.381 The codified practice of the PCIJ was thus translated into the procedure of its successor. The results of the PCIJ’s endeavours vis-`a-vis interim relief are occasionally described in mildly derogatory terms. The Court, after all, considered the issue on six occasions, and awarded provisional measures only twice.382 But its jurisprudence nonetheless acts as a bridge between the nineteenth century international and municipal origins of provisional measures on the one hand, and the modern understanding of the topic on the other: the achievement of the PCIJ was in merging these previously separate traditions. As noted, much of the procedural practice of the Court was reflected in the 1936 Rules, notably the capacity of the Court to order relief proprio motu. However, many of the substantive matters surrounding provisional measures were not so codified, and these remain the most controversial elements of the field today, due largely to their sensitivity to the facts. It is therefore worth examining exactly which elements of the modern practice were already in place when the Court was wound up in 1946, and which were absent or underdeveloped. When considering which elements of the modern doctrine were present, the jurisprudence of the PCIJ first demonstrates a clear understanding of the purpose of provisional measures. As Judge Negulesco 379 380 381 382

Anglo-Iranian Oil Company (UK v Iran), Interim Measures, ICJ Reports 1951 p 89. Ibid, 96–8. Rules of Court, 6 May 1946, ICJ Acts and Documents, No 1 (2nd edn, 1947) 74. Further: Rosenne, Provisional Measures, 68. See e.g. Shigeru Oda, ‘Provisional Measures: The Practice of the International Court’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge: Cambridge University Press, 1996) 541, 541.

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remarked when considering the 1931 revision of the Rules, provisional measures ‘sometimes [ . . . ] were regarded as designed to preserve rights claimed in an action at law, sometimes their object was to re-establish or safeguard to status quo’.383 This may be seen to reflect the dual municipal and international origins of provisional measures, with the latter emerging in an inter-state context through the experience of the CACJ, and the latter through domestic law as mediated by the mixed arbitral tribunals.384 Examples of both species of order may be seen, with provisional measures awarded in order to safeguard rights under litigation in the Sino-Belgian Treaty case, and to maintain the status quo in Electricity Company. The Court, however, saw its jurisdiction as limited to protecting those rights that were specifically the subject of the dispute, hence the rejection of measures in the South-Eastern Greenland and Polish Agrarian Reform cases. Secondly, the Court adopted from the mixed arbitral tribunal the concept of imminent and irreparable harm as a prerequisite to the award of provisional measures. In the Sino-Belgian Treaty case, President Huber’s award was predicated on the likelihood that inaction would result in harm that could not be compensated by monetary relief. The opposite may be taken as implied in the Court’s rejection of the request for an ‘interim judgment’ in the Factory at Chorz´ow (Indemnities) case – although a delay in relief could have led to additional damage to the German minority, it would have been compensable through damages, and thus provisional measures of protection were inappropriate. In addition, the Court’s conclusion in this case indicated that it did not conceive of provisional measures as a method by which the merits of the dispute could be resolved before they had been adjudicated fully. The Court also alluded to factors which were not yet significant, but which would become so in the jurisprudence of the ICJ and the modern tribunals. The first was the need for prima facie jurisdiction over the merits. This was hinted at – though not in any considered fashion – in the 383 384

(1931) PCIJ Ser D No 2 Add 2, 192. Although some taxonomies may attempt to identify additional rationales for the award of provisional measures, these may be taken as subsets of these two broad categories. Thirlway, for example, identifies some four rationales for provisional measures which are additional to the two identified. Of these, three can be seen as deriving from the need to protect the rights of the parties (prevention of irreparable prejudice, non-anticipation of the Court’s decision, preservation of evidence) and one as deriving from the protection of the status quo (non-aggravation or extension of the dispute): H W A Thirlway, ‘The Indication of Interim Measures by the International Court of Justice’ in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer, 1994) 1, 5–16.

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Order in the Sino-Belgian Treaty case, in which President Huber stated that his conclusions on jurisdiction were reached without prejudice to any conclusion on the subject that the Court as a whole might eventually reach. On the whole, however, the Court was never called upon to award provisional measures in a case in which an outright challenge to jurisdiction remained unresolved, unlike in the modern era of international dispute resolution, where such challenges are almost de rigeur. In the closest analogy to such a case, Electricity Company, Bulgaria’s preliminary objections were denied and the Court’s jurisdiction established prior to the award of interim relief. But that is not to say that an award of provisional measures on the basis of prima facie jurisdiction alone would have been unheard of at the time. As stated, the MATs had already established a precedent in this respect which would subsequently be noted in the Anglo-Iranian Oil case, even if the dissenters there claimed that ‘as joint organs of two States, [these tribunals] differ both as to their character and as to their procedure from [ . . . ] the International Court of Justice, and there is, consequently, nothing to be learned from their precedents’.385 A second point was that of an application for provisional measures where the claimant was not directly affected by the actions of the respondent, i.e. in the sense that its own interests were not prejudiced per se. Such situations are obviously of increasing importance where provisional measures are requested in order to protect the interests of the international community, i.e. in cases concerning the preservation of rights erga omnes. In both the Prince von Pless and Polish Agrarian Reform cases, Germany’s actions were grounded in its ability to bring a claim against Poland as a concerned member of the League of Nations that had suffered no immediate injury. In the latter case, Poland’s argument that this should prevent the award of interim relief was not addressed by the majority, and was rejected by the dissenting Judges Sch¨ucking and van Eysinga in only a perfunctory manner. A final point in this respect is the conception of provisional measures as binding. The Court’s internal conversations regarding the amendment of its Rules in 1931 indicate that at that stage the Court did not consider interim relief to impose any obligations on the parties, a conclusion based in part on a misreading of the antecedent language in the Bryan Treaties. Discussions surrounding the drafting and adoption of Article 41 of its Statute lead to a similar conclusion, as does the inclusion of the 385

ICJ Reports 1951 p 89, 98 (Judges Winiarski and Badawi Pasha, diss).

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word ‘ought’ as opposed to ‘must’ in its language. In 1927, the Court’s ˚ Hammarskj¨old,386 published an article emphatically then-Registrar, Ake denying the binding nature of interim relief, and Judge Hudson’s 1934 study of the Court’s practice concluded that Article 41 measures ‘clearly lack[ed] the binding force attributed to a “decision” by Article 59’.387 Dumbauld was of the view that such measures could only be made binding on the intervention of an additional legal matrix rendering it so, such as the Locarno Treaties or the General Act for the Pacific Settlement of International Disputes.388 But this view had its opponents: Niemeyer389 argued vociferously that provisional measures were binding, basing his argument in part on the practice within municipal legal systems, and Hudson changed his view in the 1943 version of his study390 before reverting to a studied agnosticism in 1952.391 In any event, the PCIJ was not required to rule on the question.

B Revisiting Two Premises This chapter has sought to establish two things. Firstly, that the PCIJ – and by extension, the ICJ – did not establish a unique brand of interim relief; rather its jurisprudence was part of a wider tradition of provisional measures in international and municipal law. As to the former, the wording of Article 41 of the Court’s Statute was influenced by the experience of the CACJ and its power to ‘fix the situation in which the contending parties must remain, to the end that the difficulty shall not be aggravated 386

387 388

389 390 391

Hammarskj¨old, ‘Queques aspects’. Hammarskj¨old’s argument, in effect, hinged on: (a) the fact that Art 41 was in the section of the Statute dealing with ‘procedure’; (b) the text of Art 41 required that provisional measures be ‘indicated’ rather than ‘ordered’; (c) in the event of a breach of interim relief, the option was open to refer the matter to the League; and (d) the text held interim relief to be separate from interlocutory and definitive decisions. Manley O Hudson, The Permanent Court of International Justice (New York: Macmillan, 1934) 415. Dumbauld, Interim Measures, 168–71. The Court would have been unlikely to agree. In its subsequent decision in South-Eastern Greenland, the Court cited the intervention of the General Act as rendering Norway’s request for provisional measures moot: (1932) PCIJ Ser A/B No 48, 288–9. Hans Gerd Niemeyer, Einstweilige Verf¨ugungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen (Leipzig: R Noske, 1932) 11ff. Further: Elkind, Interim Protection, 154–5. Hudson, Permanent Court, 425–6. ‘The Court’s own jurisprudence can hardly be said to have resolved this point with finality’: Manley O Hudson, ‘The Thirtieth Year of the World Court’ (1952) 36 AJIL 1, 23.

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and that things shall be conserved in statu quo pending a final decision’, as mediated through the Bryan Treaties. This general power, however, proved unsuitable for use in cases requiring a more nuanced analysis, causing the Court to have recourse to domestic concepts of interim relief, as translated through the smixed arbitral tribunals arising out of the Treaty of Versailles and its associated agreements. It may be tentatively inferred that due to the experience of the jurists involved (especially President Huber), and the principles evidenced in the PCIJ’s jurisprudence that the civilian model of provisional relief – and specifically as was developed in Germany and Switzerland – was preferred over the common law tradition of the interlocutory injunction. Secondly, the chapter has sought to establish that the jurisprudence of the PCIJ provided a foundation for the modern law of provisional measures that remains more or less undisturbed. Aside from setting down detailed procedural guidelines, the Court established as central several substantive conditions for the award of provisional measures – especially as concerned the purpose of such relief, the protection of rights subject to litigation and the need for imminent, irreparable injury – and introduced several other areas of perpetual concern to the debate, some of which only recently have appear to have been resolved – e.g. the binding nature character of the measures adopted. In short, in the PCIJ, we see for the first time a recognizably modern law of provisional measures that draws upon both municipal and international experience. Although the rapid growth of international courts and tribunals that followed the Second World War elaborated its jurisprudence, perhaps in certain cases beyond recognition, it was here that provisional measures had their modern genesis.

3 Constitutive Instruments and Procedural Rules

I Introduction This chapter serves as an introduction to provisional measures within the postwar system of international dispute resolution. More particularly, it seeks to introduce the constitutive instruments and procedural rules – as well as their drafting history, context and content – that enable the award of interim relief by international courts and tribunals. It also serves to introduce those international courts and tribunals the practice of which will be analyzed in Part II, namely: (a) the ICJ; (b) dispute settlement bodies operating under UNCLOS Part XV, i.e. ITLOS and arbitration tribunals governed by UNCLOS Annex VII; (c) investor-state arbitration tribunals applying the ICSID Convention and associated instruments; and (d) various inter-state and investor-state arbitration tribunals that apply either the 1976 or 2010 UNCITRAL Arbitration Rules or some variant thereof.

II The International Court of Justice A Succeeding the Permanent Court of International Justice The ICJ is the only permanent international tribunal of plenary subjectmatter jurisdiction. Its history is very much as a continuation of its predecessor, the PCIJ. Closed for business1 following its 1939 determination in Electricity Company2 and with its third general election of judges suspended indefinitely,3 the PCIJ was obsolete before it was formally wound up in 1946. However, the migration of President Guerrero and the Registry to Geneva, and the continued presence of Judge van Eysinga in The 1

2

Although cf. the continued optimistic pronouncements of the Supervisory Committee of the League of Nations that ‘[t]he Permanent Court of International Justice continues to exist as the chief judicial tribunal of the world’: PCIJ Report 16 (1939–1945) PCIJ Ser E No 16, 11. 3 Further: Chapter 2, §IV.C.6. PCIJ Report 16 (1939–1945) PCIJ Ser E No 16, 21–4.

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Hague, ensured that the archives and institutional architecture of the Court remained intact.4 Accordingly, the stage was set in 1945 for a new institution to take up its mandate.5 Suggestions for the establishment of a new world court first arose in November 1942, with the publication of a preliminary recommendation of the Inter-American Juridical Committee by the Governing Board of the Pan-American Union. This included the suggestion that: The jurisdiction of the Permanent Court of International Justice be extended, and procedure before the Court should be coordinated with that of regional judicial tribunals, if any should be created; the jurisdiction of these regional tribunals being determined by the place and subject matter of the controversy.6

This was followed by a suggestion by the UK in 1943 that an informal expert committee be established to consider the future of the PCIJ.7 The resulting Inter-Allied Committee held 19 meetings throughout 1943 and 1944, and produced a final report concluding that the PCIJ Statute had, on the whole ‘worked well’ and that it was ‘desirable to make full use of an existing structure which has proved well adapted for its purpose’. Accordingly, it was recommended that any successor institution adopt a similar general structure.8 The first serious preliminaries for the establishment of a successor to the PCIJ arose in the so-called ‘Dumbarton Oaks’ Proposals for the Establishment of a General International Organization. These arose from informal discussions between several of the Allied powers9 and were 4 5

6 7

8 9

Rosalyn Higgins and Robert Jennings, ‘General Introduction’ in ICJ Commentary, 4; Ole Spiermann, ‘Historical Introduction’, in ICJ Commentary, 69. On the process of succession, see Manley O Hudson, ‘The Succession of the International Court of Justice to the Permanent Court of International Justice’ (1957) 51 AJIL 596; Shabtai Rosenne, 1 The Law and Practice of the International Court of Justice, 1920–2005 (Leiden: Martinus Nijhoff, 4th edn, 2006) 42–65; Robert Kolb, The International Court of Justice (Oxford: Hart, 2013) 51–9. (1944) 38 AJIL Supp 11, 28–9. On the work of the Inter-Allied or ‘London’ Committee, see Geoffrey Marston, ‘The London Committee and the Statute of the International Court’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996); Rosenne 1 Law and Practice, 46–52; Higgins and Jennings, ‘General Introduction’, 4–6; Kolb, International Court, 53–4. (1945) 39 AJIL Supp 1, 2–3. Discussions between the US, UK and USSR took place from 21 August 1944 to 28 September 1944. Discussions between the US, UK and China followed immediately until 7 October 1944: Rosenne, 1 Law and Practice, 52. On the Proposals themselves and their development, see ibid, 52–5; Edwin Borchard, ‘The Dumbarton Oaks Conference’ (1945) 39 AJIL 97;

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published on 9 October 1944. The Proposals identified the need for an international court ‘which should constitute the principal judicial organ of the Organization’, and further suggested in Chapter VII, paragraph 3 that: The statute of the court of international justice should be either (a) the Statute of the Permanent Court of International Justice, continued in force with such modifications as may be desirable, or (b) a new statute in the preparation of which the Statute of the Permanent Court of International Justice should be used as a basis.10

The balance of the Dumbarton Oaks Proposals concerning the proposed ‘international court of justice’11 signaled a major constitutional change in the way in which the institution would be viewed against the backdrop of its parent organization.12 The court was to be considered one of the principal organs of the Organization per Chapter IV, paragraph 1 of the Proposals,13 and all members of the Organization were to be ipso facto parties to the court’s constituent instrument, per Chapter VII, paragraph 1.14 This was a marked contrast to the model adopted by the PCIJ vis-`a-vis the League of Nations.15 Following on from Dumbarton Oaks, the US, on behalf of the Sponsoring Powers, convened a Committee of Jurists in Washington, DC, on 9 April 1945 in order to prepare a new draft statute. The work of the Washington Committee may be seen as an extension of that of the InterAllied Committee – it was not empowered to take definitive action, but only to prepare a basis for formal negotiation at the UN Conference on International Organization in San Francisco.16 As such, it did not take a view on the central question of whether the PCIJ should be folded into the UN system, or whether an entirely new successor institution should

10 11

12 13 16

Manley O Hudson, ‘An Approach to the Dumbarton Oaks Proposals’ (1945) 39 AJIL 95; Hans Kelsen, ‘The Old and the New League: The Covenant and the Dumbarton Oaks Proposals’ (1945) 39 AJIL 45; Bardo Fassbender, ‘Dumbarton Oaks Conference (1944)’, MPEPIL (2007). (1945) 39 AJIL Supp 42, 50–1. Cf. Kelsen, ‘Dumbarton Oaks’ 70, referring to alternative (a) as ‘hardly practicable’. The use of lowercase letters for the Court in the Proposals was deliberate, so as not to prejudge the question of whether said institution was to be a continuation of the PCIJ, or an entirely new tribunal: Ruth B Russell and Jeannette E Muther, A History of the United Nations Charter: The Role of the United States, 1940–1945 (Washington, DC: Brookings Institution, 1958) 430. Kelsen, ‘Dumbarton Oaks’, 58–71; Rosenne, 1 Law and Practice, 52–5. 14 15 (1949) 39 AJIL Supp 42, 47. Ibid, 51. Kelsen, ‘Dumbarton Oaks’, 69–71. Rosenne, 1 Law and Practice, 56.

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be established – rather, the Committee simply acknowledged that on any view Chapter VII, paragraph 3 of the Dumbarton Oaks Proposals established that the PCIJ Statute was to be used as a basis for any future action, and set about revising it,17 producing a draft on 20 April 1945.18 As was later noted at San Francisco, the draft adopted many provisions of the preexisting Statute without modification, particularly those relating to procedural questions.19 At San Francisco, a decision was finally taken as to the form of the proposed court. Committee 1 of Commission IV was charged with the consideration of both Chapter VII of the Dumbarton Oaks Proposals and the Draft Statute prepared by the Washington Commission.20 SubCommittee IV/1/A, in turn, examined the question of continuity of the PCIJ and its attendant problems. In its final report of 21 May 1945, the Sub-Committee recommended the creation of a new court and the conclusion of a new statute, principally on the basis that this would be the easiest way for the court to be integrated into the new Organization without breaching accepted rules of international law vis-`a-vis existing members of the PCIJ Statute that might not wish to be parties to the UN system.21 The Sub-Committee proposed the following additions to the nascent Charter: (1) A tribunal to be called the International Court of Justice is hereby established as the principal judicial organ of the United Nations. (2) The Court shall be constituted and shall function in accordance with the annexed Statute which forms an integral part of the Charter of the United Nations. (3) Nothing in this Charter shall prevent the parties from entrusting the solution of their differences to other Tribunals by virtue of agreements already in existence or which may be concluded in the future.22

These suggestions were adopted by Committee IV/1, which presented an expanded version thereof to Commission IV in its final report of 17 18 19 20

21 22

14 UNCIO 52. Ibid, 714. Art 1 of the Draft Statute, concerning the precise status and constitutional position of the proposed court, was left blank pending a decision at San Francisco. 13 UNCIO 396. Ibid, 135–7. The composition of Committee IV/1 was substantially similar to that of the Washington Commission, with many of the 44 nations participating in the earlier summit sending the same representatives to San Francisco: ibid, 386–7. Ibid, 524–5. Further: ICJ Ybk 1946–7, 20; Manley O Hudson, ‘The Twenty-Fourth Year of the World Court’ (1946) 40 AJIL 1, 6–11. 13 UNCIO 527.

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12 June 1945.23 This survives, substantially unchanged, in Articles 92–5 of the Charter. The Committee also submitted for adoption a further draft statute, which followed the approach of the Washington Committee in carrying over without any more than cosmetic amendment the procedural provisions of the PCIJ Statute. Following further discussion, the draft was unanimously approved by Commission IV,24 and incorporated into the Charter itself.25 Following San Francisco all that was left was for the ICJ to displace its predecessor.26 The PCIJ, having not met since 1940, held its final session in The Hague at the end of October 1945, adopting two resolutions on the measures to be taken to preserve the continuity of international justice.27 The judges of the PCIJ then tendered their resignations to the SecretaryGeneral of the League through President Guerrero on 31 January 1946, prior to the first elections for the ICJ on 6 February 1946. On 18 April 1946, the Assembly of the League, adopting a report of its First Committee, dissolved the PCIJ.28 Its successor held its inaugural session on the same day, with Guerrero sitting as its first President.

B Article 41 of the ICJ Statute Article 41 of the PCIJ Statute fell into that group of provisions that the Washington Committee considered to be purely procedural, and thus not requiring drastic amendment. The only proposed alterations were (a) the correction of the printer’s error ‘preserve’ in place of ‘reserve’, (b) the insertion of the word ‘Security’ in front of ‘Council’, and (c) the renumbering of the resultant paragraphs.29 This amendment was approved – by way of an en bloc vote concerning Articles 40–43 of the Washington Committee’s draft – without objection.30 Article 41 proved similarly uncontroversial at San Francisco, with Committee IV/1 approving Articles 39–64 of the Washington Committee’s draft without discussion.31 Notwithstanding certain deficiencies in its language32 and the fact that 23 26 27 28 29 30 32

24 25 Ibid, 394–5. Ibid, 59. 17 UNCIO 90. Further: ICJ Ybk 1946–7, 25–38; Hudson, ‘Twenty-Fourth Year’, 49–50; Manley O Hudson, ‘The Twenty-Fifth Year of the World Court’ (1947) 41 AJIL 1, 1–6. Extracted: ICJ Ybk 1946–7, 26 (fn 1). A further resolution commended the Registry staff to the UN Preparatory Commission: ibid, 26 (fn 2). LN Doc A.35.1946 (17 April 1946). 14 UNCIO 813. Further: Hudson, ‘Twenty-Fourth Year’, 37. 31 14 UNCIO 172. 13 UNCIO 170. Notably over the failure of the provision to clearly indicate whether provisional measures could be considered binding under Art 41. See e.g. comments by Lauterpacht as part of a

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the English and French versions of the text are not in total harmony33 the provision remains unchanged: (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 of either party. (2) Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

As such, there is little to be said about Article 41 of the ICJ Statute that has not already been said in relation to the drafting of its predecessor.34 What may be noted, however, is that the ICJ also considered itself to have inherited the PCIJ’s jurisprudence, reflected in the use of the latter’s jurisprudence by parties appearing before the former, and indeed by the Court itself 35 – as noted by the dissenting Judge Read in the Peace Treaties advisory opinion, Article 92 of the Charter permits no doubt that: [T]he United Nations intended continuity in jurisprudence, as well as in less important matters. While this does not make the decisions of the Permanent Court binding, in the sense in which decisions may be binding in common-law countries, it does make it necessary to treat them with the utmost respect, and to follow them unless there are compelling reasons for rejecting their authority.36

In the specific context of provisional measures, this point was made clear early on in the Anglo-Iranian Oil case, the ICJ’s first consideration of the question of provisional measures. In a dissenting opinion, Judges Winiarski and Badawi Pasha dismissed the decisions of the inter-war mixed arbitral tribunals, saying ‘there is [ . . . ] nothing to be learned from

33

34 35 36

wider plea for the revision of the ICJ Statute in 1955: Hersch Lauterpacht, ‘The Revision of the Statute of the International Court of Justice’ (2002) 1 LPICT 55, 94–6. The matter was eventually settled in LaGrand (Germany v US), ICJ Reports 2001 p 466. Further: Chapter 7, §II. LaGrand, ICJ Reports 2001 p 466, 502. See also Arbitral Award of 31 July 1989 (GuineaBissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64, 78 (Judge ad hoc Thierry). Further: Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) 32–3. Further: Chapter 2, §IV.A. Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens and Sons, 1958) 11–13; Rosenne, 1 Law and Practice, 73–6. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase), ICJ Reports 1950 p 221, 232–3. The majority signaled its attachment in a more subtle way, by distinguishing the case from the PCIJ’s decision in Status of Eastern Carelia (1923) PCIJ Ser B No 5.

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their precedents’, but when presented with arguments based on the Sino-Belgian Treaty case and Electricity Company felt the need to distinguish these cases on the facts, indicating a measure of allegiance.37 Similarly, Judge Lauterpacht in Interhandel referred to the Polish Agrarian Reform case with approval,38 and mention was made of numerous other Permanent Court decisions by individual judges in Aegean Sea.39 Insofar as majority opinions are concerned, hints of continuity with the jurisprudence of the Permanent Court appeared in the unanimous decision on provisional measures in Tehran Hostages, in which the Chorz´ow Factory (Indemnities) case was distinguished.40 The relevant connection was only made clear in a positive sense, however, by the Chamber in Burkina Faso/Mali,41 which referred with approval to the South-Eastern Greenland case.

C Provisional Measures and the ICJ Rules 1 The 1946 and 1972 Rules As discussed in Chapter 2, Article 41 of the ICJ Statute, like its predecessor, is skeletal – a ‘sparse, axiomatic statement’42 that has resulted in a law of provisional measures that is largely judge-made. Certain elements of this law – those relating to its procedural operation – have been codified by the Court in its Rules. Whilst Article 57 of the PCIJ’s 1922 Rules was very sparse indeed, Article 57 of the 1931 Rules and Article 61 of its 1936 Rules reveal the growing complexity of the Court’s jurisprudence on interim relief, as well as the extent of its self-defined power to intervene.43 Article 61 of the 1936 Rules provided the basis on which the ICJ was to proceed with respect to provisional measures in 1946. At its first session, the Court proceeded to draft its new rules of procedure,44 and referred to the 1936 Rules for that purpose.45 Article 61 was replicated in its entirety, but for paragraph (9), which permitted the attendance of judges ad hoc in provisional measures hearings ‘if their presence can be assured by the 37 38 39 40 41 42 44 45

Anglo-Iranian Oil (UK v Iran), Interim Measures, ICJ Reports 1951 p 89, 97–8. Interhandel (Switzerland v US), Interim Measures, ICJ Reports 1957 p 105, 118. Aegean Sea Continental Shelf (Greece v Turkey), Interim Protection, ICJ Reports 1976 p 3, 16 (Judge Jim´enez de Ar´echaga), 28–9 (Judge Elias). United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, ICJ Reports 1979 p 6, 16. Frontier Dispute (Burkina Faso/Mali), Provisional Measures, ICJ Reports 1986 p 3, 9. 43 Rosenne, Provisional Measures, 62. Further: Chapter 2, §IV.B.3. ICJ Acts and Documents, No 1 (2nd edn, 1947) 54. ICJ Ybk 1946–7, 102; Hudson, ‘Twenty-Fifth Year’, 15–16.

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date fixed by the President for hearing of the parties’. Such a provision was unnecessary in an age of modern air travel,46 and judges ad hoc have since then held an unrestricted right to sit on applications for interim relief. The adoption of the 1936 Rules in 1946 was intended to give the Court the procedural space to conduct a more thorough revision. However, although the matter remained subject to continuous review, the Rules were not revisited at length until 1972.47 Even then, the revision was piecemeal – the Court had initiated a full review of the Rules in 1967, but ultimately abandoned this in favour of the more modest reworking that appeared in 1972.48 Aside from being renumbered as Article 66, Article 61 of the 1946 Rules remained untouched by the amendments.

2 The 1978 Rules Following its regular elections in February 1973 the Court returned to the question of the Rules, eventually approving the long-awaited complete revision in 1978,49 which remains current.50 The process of revision, moreover, took particular account of the law of provisional measures. Article 66 of the 1972 Rules became Articles 73–8, six provisions housed within Part III (Proceedings in Contentious Cases), Section D (Incidental Proceedings), Subsection 1 (Interim Protection) of the 1978 Rules. Again, the Court through this revision sought to codify within these articles its practice regarding provisional measures.51 Although only one request for interim relief – Electricity Company – had been heard under the 1936 Rules, the Court had occasion to apply its model on multiple occasions 46 47

48 49

50

51

Rosenne, Provisional Measures, 63. ICJ Acts and Documents, No 3 (1977) 93. On the process of revision, see Eduardo Jim´enez de Ar´echaga, ‘The Amendments to the Rules of Procedure of the International Court of Justice’ (1973) 67 AJIL 1; Shabtai Rosenne, ‘The 1972 Revision of the Rules of the International Court of Justice’ (1973) 8 Israel LR 197. Ibid, 197–201. ICJ Acts and Documents, No 5 (1989) 93. On the process of revision, see ICJ Ybk 1977–8, 111–19; Manfred Lachs, ‘The Revised Procedure of the International Court of Justice, in F Kalshoven et al. (eds), Essays on the Development of the International Legal Order in Memory of Haro F van Panhuys (Alphen ann den Rijn: Sijthoff and Noordhoff, 1980) 21; Shabtai Rosenne, ‘Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice (The Hague: Martinus Nijhoff, 1983) 1–8. The Rules were re-released, with minor updating in 2005: ICJ Ybk 2004–5, 3–4. The most recent version of the Rules can be found on the Court’s website: www.icj-cij.org/ documents/index. Rosenne, Provisional Measures, 68.

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between 1946 and 1978, leading to a wealth of new experience that largely reinforced the old.52 The provisions are as follows: Article 73 (1) A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made. (2) A request shall specify the reasons therefore, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party. Article 74 (1) A request for the indication of provisional measures shall have priority over all other cases. (2) The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency. (3) The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the close of oral proceedings. (4) Pending a meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effect. Article 75 (1) The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties. (2) When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested or that ought to be taken or complied with by the party which has itself made the request.

52

Relevant cases included Anglo Iranian Oil, ICJ Reports 1951 p 87; Interhandel, ICJ Reports 1957 p 105; Fisheries Jurisdiction (UK v Iceland), Interim Protection, ICJ Reports 1972 p 12; Fisheries Jurisdiction (Germany v Iceland), Interim Protection, ICJ Reports 1972 p 31; Nuclear Tests (Australia v France), Interim Protection, ICJ Reports 1973 p 99; Nuclear Tests (New Zealand v France), Interim Protection, ICJ Reports 1973 p 135; Trial of Pakistani Prisoners of War (Pakistan v India), Interim Protection, ICJ Reports 1973 p 328; and Aegean Sea, ICJ Reports 1976 p 3.

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(3) The rejection of a request for the indication of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts. Article 76 (1) At the request of a party the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification. (2) An application by a party proposing such a revocation or modification shall specify the change in circumstances considered to be relevant. (3) Before taking any decision under paragraph 1 of this Article the Court shall afford the parties an opportunity of presenting their observations on the subject. Article 77 Any measures indicated by the Court under Articles 73 and 75 of these Rules, and any decision taken by the Court under Article 76, paragraph 1, of these Rules, shall forthwith be communicated to the Secretary-General of the United Nations for transmission to the Security Council in pursuance of Article 41, paragraph 2, of the Statute. Article 78 The Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated.

Articles 73–78 of the 1978 Rules do not do much more than articulate the capacity of the Court to award provisional measures. Article 73 describes the form that the application should take, as well as the time at which an application may be made, expanding on Article 66(1) of the 1972 Rules and its predecessors. Article 74 replicates paragraphs (2) and (3) of the same, with Article 74(3) preserving the long-standing preference of the Court that both parties be given the opportunity to express a view on an application for interim relief – although this may be abandoned in extreme circumstances, e.g. LaGrand, where provisional measures were awarded ex parte on the basis of Germany’s submissions alone.53 Article 74(4) recasts slightly Article 66(3) of the 1972 Rules, concerning the capacity of the President ‘to take such measures as may appear to him to be necessary in order to enable the Court to give an effective decision’ pending the Court’s composition.54 This expansion is based on 53 54

LaGrand, Provisional Measures, ICJ Reports 1999 p 9, 13. Shabtai Rosenne, ‘The President of the International Court of Justice’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge: Cambridge

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the actions of President Adatci in the Prince von Pless case55 and President Basdevant in Anglo-Iranian Oil.56 However, despite the change in wording, subsequent invocations of the power by the President do not exhibit a different timbre – in essence, all that the President is empowered to do is correspond with the parties and recommend that measures resembling an official declaration of interim relief be taken pending further judicial action. In Tehran Hostages, for example, President Waldock sent through the Registry a (conspicuously ineffective) telegram to the parties invoking Article 74(4), noting that the matter was sub iudice and requesting that any decision by the Court on interim relief ‘have its appropriate effects’.57 More recently, appeals to act so as to not prejudice the ability of the Court to award effective interim relief were made by Acting President Weeramantry in the Breard 58 and LaGrand 59 cases, though he did not (perhaps curiously) do so in Avena. Articles 75(1) and (2) of the 1978 Rules reserve respectively the power of the Court to award provisional measures other than those indicated in the request and to, moreover, do so proprio motu – an authority present in Articles 66(4) and (6) of the 1972 Rules and its predecessors and which is exercised not infrequently. Article 75(3), in turn, replicates Article 66(5) of the earlier Rules, enabling the bringing of a new request for provisional measures based on fresh facts in the event of a rejection of the initial request. Parties before the Court have historically not been minded to make new requests in the face of a rejection. They have, however, availed themselves of Article 76 (based on Article 66(7) of the 1972 Rules), which permits the revocation or modification of any extant order on provisional measures based on a change in the underlying situation. The provision is based on the jurisprudence of the Fisheries Jurisdiction cases regarding

55 56

57 58 59

University Press, 1996) 406, 416–17; Rosenne 3 Law and Procedure, 1391–2; Rosenne, Provisional Measures, 168–70. See Chapter 2, §IV.C.4. In that case, the President sent a telegram to Iran requesting that steps be taken to prevent any measures that might render impossible or difficult the implementation of any final judgment, or otherwise aggravate or extend the dispute. This was promptly ignored: Anglo-Iranian Oil, ICJ Reports 1951 p 87, 91; Anglo-Iranian Oil, ICJ Pleadings 1951, 707. Tehran Hostages, ICJ Reports 1979 p 6, 10; Tehran Hostages, ICJ Pleadings 1979, 495–6. Vienna Convention on Consular Relations (Paraguay v US), Provisional Measures, ICJ Reports 1998 p 248, 252. LaGrand, ICJ Reports 1999 p 9, 13.

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the continuation of provisional measures.60 The Court clearly considers Articles 75(3) and 76 to be based on allied considerations (i.e. material additions to the factual matrix) and thus operating in a similar fashion.61 However, despite multiple requests under Article 76, the Court has never seen fit to revoke or modify an earlier award of interim relief.62 Finally, Article 77 of the 1972 Rules gives form to Article 41(2) of the Court’s Statute, and prescribes a procedure under which measures indicated by the Court are communicated to the Security Council through the Secretary-General. Article 78, in turn, comprises an additional power to request information from the parties on the implementation of provisional measures, and any further matter connected thereto, reproducing a power first adduced by the Court in the two Fisheries Jurisdiction cases.63

III Dispute Settlement Under UNCLOS A UNCLOS Part XV and the System of Compulsory Dispute Settlement 1 UNCLOS III and the Codification of the Law of the Sea UNCLOS has been described as ‘the greatest international legislative effort undertaken by the United Nations and probably the greatest ever undertaken in the annals of international law as a whole’64 and further ‘the most important development in the settlement of international disputes since the adoption of the UN Charter and the Statute of the International Court of Justice’.65 The Convention itself was the product of the Third UN Conference on the Law of the Sea (UNCLOS III), the most recent 60 61

62

63 64 65

Fisheries Jurisdiction (UK v Iceland), Interim Measures, ICJ Reports 1973 p 302, 304; Fisheries Jurisdiction (Germany v Iceland), Interim Measures, ICJ Reports 1973 p 313, 315. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Provisional Measures, ICJ Reports 1993 p 325, 337. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), ICJ Reports 1986 p 14, 144; Bosnian Genocide, ICJ Reports 1993 p 325, 342–50; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, ICJ Reports 2013 p 230, 239–40. Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 18; Fisheries Jurisdiction (Germany v Iceland), ICJ Reports 1972 p 31, 35. XVII UNCLOS III Off Rec 27 (Norway). Alan Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46 ICLQ 37, 37.

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(and likely definitive) in a series of attempts to codify the law of the sea stretching back to the 1930 League of Nations Conference for the Codification of International Law.66 This process encompassed not only a set of ILC articles,67 but the First and Second UN Conferences on the Law of the Sea (UNCLOS I and II), resulting in the four Geneva Conventions addressing various aspects of the field.68 UNCLOS III was convened in part to address an area that had not been covered by the earlier international conferences, viz. the exploration and exploitation of the seabed in areas beyond national jurisdiction. Consideration of the issue was prompted by a speech to the First Committee of the General Assembly by the Maltese ambassador to the UN, Arvid Pardo, in 1967,69 which resulted in the creation of the Committee on the Peaceful Uses of the Seabed.70 The Committee’s work, in turn, led to the adoption of the 1970 Declaration of Deep Seabed Principles by the General Assembly.71 This document was not intended to be the final word on the subject, but rather anticipated the establishment of an international regime that would implement its contents.72 To this end, adoption of the Declaration was accompanied by a further resolution, convening UNCLOS III.73 The Conference was not, however, limited to consideration of the seabed, but was rather instructed to ‘adopt a convention dealing with all matters relating to the law of the sea’.74 What was intended, therefore, was not a new Geneva Convention on seabed issues, but a comprehensive 66

67 68

69 70 71 73 74

Shabtai Rosenne, 1 League of Nations Conference for the Codification of International Law (1930) (Dobbs Ferry: Oceana, 1975) xiii–lvi; Shabtai Rosenne and Julia Gebhard, ‘Conferences on the Law of the Sea’, MPEPIL (2008) §§9–10; James Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge: Cambridge University Press, 2011) 29–31. On earlier, non-governmental efforts at codification, see Robin Churchill and Vaughan Lowe, The Law of the Sea (Manchester: Manchester University Press, 3rd edn, 1999) 13–14. Articles on the Law of the Sea, ILC Ybk 1956/II, 285. Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 UNTS 206; Convention on the High Seas, 29 April 1958, 450 UNTS 82; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 286; Convention on the Continental Shelf, 29 April 1958, 499 UNTS 312. These were all the product of UNCLOS I, and were based on the ILC’s 1956 codification – the earlier efforts of the League of Nations and the later efforts of UNCLOS II were largely unsuccessful. Further: Churchill and Lowe, Law of the Sea, 14–15; Rosenne and Gebhard, ‘Conferences’, §§11–21; Harrison, Making the Law of the Sea, 31–7. UN Doc A/C.1/PV.1515 (1 November 1967). GA Res 2340 (XXII) (18 December 1967). 72 GA Res 2749 (XXV) (17 December 1970). Ibid, §9. GA Res 2750C (XXV) (17 December 1970). GA Res 3067 (XXVIII) (16 November 1973).

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convention negotiated according to three key principles, namely that the convention: (1) be an exhaustive code for the law of the sea as a whole, covering all legal issues in a single text; (2) attain the widest possible level of participation by the international community and reflect a consensus on the relevant law; and (3) be a ‘package deal’ which could only be ratified fully, without reservations.75 At the core of this ambitious brief was a system of compulsory dispute resolution – ‘the cement [that would] hold the whole structure together and guarantee its continued acceptability and endurance for all parties’.76 Such a system had previously been suggested by certain delegates at UNCLOS I, particularly in relation to the delimitation of the then-novel continental shelf,77 but had been abandoned in the face of concerted opposition.78 Dispute settlement was neglected early on in UNCLOS III, resulting in the creation of an informal working group to consider the core issues and to develop potential models.79 Four principles emerged as central to the proposed system, as summarized by the delegation of El Salvador: (1) the settlement of disputes by legal, effective means in order to avoid political and economic pressures; (2) the need for uniformity in the interpretation of the proposed convention; (3) the recognition of the advantages offered by obligatory settlement of disputes, 75

76 77

78

79

Boyle, ‘Dispute Settlement’, 38. On the consensus-building strategy employed at UNCLOS III, see Hugo Caminos and Michael R Molitor, ‘Progressive Development of International Law and the Package Deal’ (1985) 79 AJIL 871; Tommy B Koh and Shanmugam Jayakumar, ‘Negotiating Process of the Third United Nations Conference on the Law of the Sea’, in 1 Virginia Commentary, 29; Jens Evensen, ‘Working Methods and Procedures in the Third United Nations Conference on the Law of the Sea’ (1986) 199 Hague Recueil 415; Harrison, Making the Law of the Sea, 40–6. Boyle, ‘Dispute Settlement’, 38. See e.g. VI UNCLOS I Off Rec 44 (Germany): ‘In the absence of a proper definition of the continental shelf, and without any judicial body to which points of interpretation could be referred, States would place on the provision whatever construction suited them’. Cf. Ibid, 99 (Argentina). UNCLOS I had concluded the 1958 Optional Protocol on the Settlement of Disputes Arising from the Law of the Sea Conventions, 29 April 1958, 450 UNTS 170, referring certain disagreements to the ICJ, but this was by its very nature non-compulsory, and in any event was never relied as a basis for jurisdiction in any matter brought between its conclusion in 1958 and the adoption of UNCLOS in 1982 – it was accordingly a failure. Further: Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005) 15–18; Donald Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010) 444–5. Koh and Jayakumar, ‘Negotiating Process of UNCLOS III’, 110; Andronico O Adede, The System for the Settlement of Disputes under the United Nations Convention for the Law of the Sea (Dordrecht: Martinus Nijhoof, 1987) 13–69.

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taking into account some exceptions which had to be determined with the greatest care; and (4) the firm conviction that if the future convention was to be signed and ratified, then the system of the settlement of disputes must be an integral part and must constitute an essential element of that convention.80 Thus, the El Salvadoran ambassador continued: It was [ . . . ] assumed that the law was the most appropriate method of regulating international relations and preserving the quality of States, regardless of their political, economic and military might. That principle of strict legality, which implied the effective application of agreed rules, should be the principal element on which the future convention on the law of the sea would be based.81

At the Conference session in 1976, its President took the initiative to include a section on dispute settlement in the Informal Single Negotiating Text that was to serve as the basis for future discussions.82 From here, the issue was considered by the Conference as a whole, culminating in the adoption of UNCLOS as a whole in 1982.83 It included, in Part XV, an extensive regime of compulsory dispute settlement.

2 Dispute Settlement Architecture Under UNCLOS A brief explanation of the system of dispute settlement contained within UNCLOS is now desirable.84 As stated, the core of the system is contained within Part XV (Settlement of Disputes) of the Convention, Section 1 (General Provisions) of which establishs certain thematic parameters. Parties are under an obligation to settle disputes via peaceful means85 and are not prevented from settling disputes via means other than those provided for in the Convention.86 Where a dispute arises between parties concerning the interpretation or application of UNCLOS, they are under an obligation to proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.87 Section 2 (Compulsory Procedures Entailing Binding Decisions) acts as the entry point to the UNCLOS dispute settlement system. Article 287(1) provides that a state becoming a party to UNCLOS may choose by 80 82 84

85

81 I UNCLOS III Off Rec 213 (El Salvador). Ibid. 83 V UNCLOS III Off Rec 111. Adede, Settlement of Disputes under UNCLOS, 71–198. Further: Churchill and Lowe, Law of the Sea, ch 19; John Collier and Vaughan Lowe, The Settlement of Disputes in International Law (Oxford: Oxford University Press, 1999) ch 5; Klein, Dispute Settlement in UNCLOS, ch 2; Rothwell and Stephens, Law of the Sea, ch 18; Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University Press, 2012) ch 13. 86 87 UNCLOS Art 279. UNCLOS Art 280. UNCLOS Art 283.

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written declaration to have one of four tribunals determine disputes concerning the interpretation or application of the Convention.88 The most significant of these – within the UNCLOS system at least – is ITLOS, a permanent international tribunal established by Annex VI of the Convention and charged by Article 21 thereof with jurisdiction over all disputes and applications submitted in accordance with UNCLOS and all matters specifically provided for in other agreements which confer jurisdiction upon it, e.g. the Straddling Stocks Agreement.89 In terms of organization and procedure, the resulting body is similar to the ICJ. Special provision is also made for a Seabed Disputes Chamber with jurisdiction over disputes concerning certain activities occurring in areas of the seabed beyond national jurisdiction.90 Subject to the agreement of the parties, ITLOS is also capable of creating special chambers for the hearing of a particular dispute.91 Also significant is UNCLOS Annex VII, which provides for the creation of ad hoc arbitral tribunals to hear inter-state disputes, as well those disputes involving international organizations, e.g. the European Community.92 UNCLOS Annex VIII provides for so-called ‘special’ arbitration with respect to certain technical areas, and was inserted during UNCLOS III as a concession to the Soviet states, which wanted a greater degree of control over the composition of arbitral tribunals through the selection of expert members.93 It has, however, proved to be something of a dead letter, and has never been used. 88

89

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Namely: (a) ITLOS, (b) the ICJ, (c) an Annex VII arbitral tribunal, or (d) an Annex VIII arbitral tribunal. Parties not making a recommendation are deemed to have accepted Annex VII arbitration: UNCLOS Art 297(3). A compendium of the relevant declarations is maintained by the UN Division for Ocean Affairs and the Law of the Sea: www.un.org/ Depts/los/settlement of disputes/choice procedure.htm. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, 2167 UNTS 88, Art 30. UNCLOS Part XI, Section V; Annex VI, Art 14 and Section IV. To date, the Chamber has only been composed once: see Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area (2011) 150 ILR 244. Further: Joseph Akl, ‘The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea’, in P C Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 75. UNCLOS, Annex VI, Art 15. To date, a special chamber has been assembled once: Delimitation of the Maritime Boundary between Ghana and Cˆote d’Ivoire in the Atlantic Ocean (Ghana/Cˆote d’Ivoire), ITLOS Case No 23. Generally: Karin Oellers-Frahm, ‘Arbitration – A Promising Alternative of Disputes Settlement under the Law of the Sea Convention?’ (1995) 55 Za¨oRV 547. Klein, Dispute Settlement in UNCLOS, 56–7.

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The ‘compulsory’ nature of Part XV dispute settlement is established, prima facie, by UNCLOS Article 286, which compels the application of the regime where any alternative means of resolution chosen by the parties has failed. There are, however, certain exceptions per Section 3 (Limitations and Exceptions to Applicability of Section 2).94 Disputes concerning the exercise by a coastal state of sovereign rights or jurisdiction provided for in the Convention shall not be subject to compulsory dispute settlement save in certain specified circumstances.95 Certain additional limitations also apply to a state’s refusal to give permission for marine scientific research to be conducted on its continental shelf or in its exclusive economic zone (EEZ).96 A similar regime exists with respect to certain EEZ fisheries disputes.97 UNCLOS also permits a state to opt out of the compulsory regime with respect to disputes concerning: (a) delimitation and claims to historic waters; (b) military and law enforcement activities; and (c) matters of which the Security Council is seized.98

B UNCLOS Article 290 Provisional measures within the UNCLOS system of dispute resolution are regulated principally by Article 290. The ICJ had been in operation for some 35 years prior to the conclusion of UNCLOS and had as a result established itself as the dominant model for the granting of provisional measures in international disputes. Consequently, it is unsurprising that the delegates to the UNCLOS III turned to Article 41 of the ICJ Statute when seeking to define the scope for provisional measures within the dispute resolution provisions of UNCLOS. The informal working group, however, departed from the wording of Article 41, on the basis that, inter alia, the word ‘indicate’ as used in the provision did not clearly convey the binding nature of provisional measures.99 A further consideration that emerged over the course of UNCLOS III was how to adapt the precedent set by the ICJ to the scheme of dispute resolution contained in UNCLOS Part XV, which as said permits parties to submit disputes concerning the interpretation or application to a number of different forums. The result is a somewhat lengthy provision available to all courts and tribunals that have jurisdiction under UNCLOS:100 94 95 98 100

Churchill and Lowe, Law of the Sea, 454–5; Rothwell and Stephens, Law of the Sea, 454–6. 96 97 UNCLOS Art 297(1). UNCLOS Art 297(2). UNCLOS Art 297(3). 99 UNCLOS Art 298(1). 5 Virginia Commentary, 53. Bernard Oxman, ‘Jurisdiction and the Power to Indicate Provisional Measures’ in L F Damrosch (ed), The International Court of Justice at a Crossroads (Dobbs Ferry, NY:

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(1) If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. (2) Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist. (3) Provisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard. (4) The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers appropriate, of the prescription, modification or revocation of provisional measures. (5) Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4. (6) The parties to the dispute shall comply promptly with any provisional measures prescribed under this article.

Although more complicated than Article 41 of the Statute, UNCLOS Article 290 is still clearly descended from it. Its complexity in part derives from a desire on the part of UNCLOS III to codify the practice of the ICJ and to avoid those areas of uncertainty thrown up by the Court’s jurisprudence since 1947. In the first place, both Articles 290(1) and (5) make reference to the need for the court or tribunal seized to establish Transnational, 1987) 179 avers to the potential that the use of UNCLOS Art 290 could ‘harmonize’ the practice of the ICJ with respect to provisional measures. This has not come to pass. Under UNCLOS Art 287(5), if the parties elect different methods of dispute resolution, the matter is to be referred to Annex VII arbitration, which together with a relatively low number of states selecting the ICJ under UNCLOS Art 287(1) has led to a situation in which the Court has never considered a referred matter.

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its jurisdiction on a prima facie basis prior to the granting of provisional measures, a point not mentioned expressly in Article 41 and which had generated considerable controversy in the Anglo-Iranian Oil case.101 In the second, Article 290(6) clearly provides for the automatic binding effect of provisional measures on the parties, thereby forestalling a debate that was still very much alive in relation to the ICJ in 1982.102 The binding nature of provisional measures under Article 290 is also reflected in the wording of paragraphs (1), (3), (4), (5) and (6), which refer to the ‘prescription’ of provisional measures, rather than their ‘indication’. Finally, Article 290(1) is phrased in similar terms to Article 41 of the ICJ Statute in that it describes the purpose of provisional measures as being to ‘preserve the respective rights of the parties to the dispute’.103 Two further features of Article 290 may be pointed out. Firstly, the provision broadens the rights with respect to which provisional measures may be ordered to include measures designed to ‘prevent serious harm to the marine environment’ in paragraph (1). Thus, interim relief may be ordered not in relation to rights under dispute, but ‘mainly or even solely’ to prevent harm to the environment.104 Secondly, Article 290(5) provides that, absent contrary agreement by the parties, ITLOS (or its Seabed Disputes Chamber as required) may order provisional measures pending the constitution of an Annex VII or VIII tribunal. The capacity to order interim relief on behalf of another court or tribunal is one that is not usually available to international adjudicative bodies,105 and may be seen to raise particular issues of legitimacy when utilized.106 Lastly, it should be noted that Article 31 of the Straddling Stocks Agreement,

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Anglo-Iranian Oil Co, ICJ Reports 1951 p 89, 92–3, 96–8 (Judges Winiarski and Badawi Pasha, diss). Further: Oxman, ‘Jurisdiction’; Maurice Mendelson, ‘Interim Measures of Protection in Cases of Contested Jurisdiction’ (1972–1973) 46 BYIL 257. Thomas Mensah, ‘Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS)’ (2002) 62 Za¨oRV 43, 44–6. R¨udiger Wolfrum, ‘Provisional Measures of the International Tribunal for the Law of the Sea’, in P C Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 175–8. Mensah, ‘Provisional Measures in ITLOS’, 45–6. Cf. the Locarno Treaties (e.g. France–Germany Agreement, 16 October 1925, 54 LNTS 317), which in Art 19 permitted the award of provisional measures by the PCIJ in place of an unconstituted conciliation commission: Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) 128. Mensah, ‘Provisional Measures in ITLOS’, 46–7.

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which refers certain disputes to settlement under UNCLOS, supplements Article 290 – although to date it has not been used.107

C Provisional Measures and the Procedural Rules of UNCLOS Part XV Dispute Settlement Bodies 1 The International Tribunal for the Law of the Sea Article 16 of UNCLOS Annex VI gives ITLOS the capacity to develop its own rules, and in this capacity the Tribunal has seen fit to produce and continually revise its procedure since the first meeting of its judges in 1996. The first version of the ITLOS Rules108 was based on the Final Draft Rules prepared by the UNCLOS Preparatory Commission.109 These, in turn, were based on the ICJ Rules – the only appropriate precedent available – although as with UNCLOS Article 290, certain amendments were required to accommodate the Tribunal’s multifaceted jurisdiction.110 As a result, the provisions of the ITLOS Rules as they relate to interim relief are substantially similar to those of the ICJ Rules – a situation that was not altered by the further amendment of the ITLOS Rules and their republication in 2005.111 The relevant provisions are contained in Part III (Procedure), Section C (Incidental Proceedings), Subsection 1 (Provisional Measures):112 107

The article provides: (1) Pending the settlement of a dispute in accordance with [Part VII of the Agreement], the parties to the dispute shall make every effort to enter into provisional arrangements of a practical nature. (2) Without prejudice to [UNCLOS Art 290], the court or tribunal to which the dispute has been submitted under [Part VII] may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent damage to the stocks in question, as well as in the circumstances referred to in article 7, paragraph 5 and article 16, paragraph 2. (3) A State Party to this Agreement which is not a Party to [UNCLOS] may declare that, notwithstanding [UNCLOS Art 290(5)], [ITLOS] shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State.

108 109 110

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ITLOS Basic Texts (1st edn, 1998) 16. UN Doc LOS/PCN/SCN.4/WP.16/Add.1 (28 April 1995). Tullio Treves, ‘The Rules of the International Tribunal for the Law of the Sea’, in P C Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 135, 135; Rosenne, Provisional Measures, 75. ITLOS Basic Texts (2nd edn, 2005) 16. ITLOS has not prepared a third official publication, but the most recent round of amendments occurred in 2009. The most recent version of the Rules may be found on the ITLOS website: www.itlos.org/fileadmin/itlos/documents/ basic texts/Itlos 8 E 17 03 09.pdf. Further: P Chandrasekhara Rao and Philippe Gautier, The Rules of the International Tribunal for the Law of the Sea: A Commentary (The Hague: Martinus Nijhoff, 2006) 245–61.

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constitutive instruments and procedural rules Article 89 (1) A party may submit a request for the prescription of provisional measures under article 290, paragraph 1, of the Convention at any time during the course of the proceedings in a dispute submitted to the Tribunal. (2) Pending the constitution of an arbitral tribunal to which a dispute is being submitted, a party may submit a request for the prescription of provisional measures under article 290, paragraph 5, of the Convention: (a) at any time if the parties have so agreed; (b) at any time after two weeks from the notification to the other party of a request for provisional measures if the parties have not agreed that such measures may be prescribed by another court or tribunal. (3) The request shall be in writing and specify the measures requested, the reasons therefore and the possible consequences, if it is not granted, for the preservation of the respective rights of the parties or for the prevention of serious harm to the marine environment. (4) A request for the prescription of provisional measures under article 290, paragraph 5, of the Convention shall also indicate the legal grounds upon which the arbitral tribunal which is to be constituted would have jurisdiction and the urgency of the situation. A certified copy of the notification or of any other document instituting the proceedings before the arbitral tribunal shall be annexed to the request. (5) When a request for provisional measures has been made, the Tribunal may prescribe measures different in whole or in part from those requested and indicate the parties which are to take or to comply with each measure. Article 90 (1) Subject to article 112, paragraph 1,113 a request for the prescription of provisional measures has priority over all other proceedings before the Tribunal. (2) The Tribunal, or the President if the Tribunal is not sitting, shall fix the earliest possible date for a hearing. (3) The Tribunal shall take into account any observations that may be presented to it by a party before the closure of the hearing. (4) Pending the meeting of the Tribunal, the President of the Tribunal may call upon the parties to act in such a way as will enable any order the Tribunal may make on the request for provisional measures to have its appropriate effects.

113

Concerning applications for the prompt release of vessels and crews under UNCLOS Art 292. Further: David H Anderson, ‘Prompt Release of Vessels and Crews’, MPEPIL (2008).

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Article 91 (1) If the President of the Tribunal ascertains that at the date fixed for the hearing referred to in article 90, paragraph 2, a sufficient number of Members will not be available to constitute a quorum, the Chamber of Summary Procedure shall be convened to carry out the functions of the Tribunal with respect to the prescription of provisional measures. (2) The Tribunal shall review or revise provisional measures prescribed by the Chamber of Summary Procedure at the written request of a party within 15 days of the prescription of the measures. The Tribunal may also at any time decide proprio motu to review or revise the measures. Article 92 The rejection of a request for the prescription of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts. Article 93 A party may request the modification or revocation of provisional measures. The request shall be submitted in writing and shall specify the change in, or disappearance of, the circumstances considered to be relevant. Before taking any decision on the request, the Tribunal shall afford the parties an opportunity of presenting their observations on the subject. Article 94 Any provisional measures prescribed by the Tribunal or any modification or revocation thereof shall forthwith be notified to the parties and to such other States Parties as the Tribunal considers appropriate in each case. Article 95 (1) Each party shall inform the Tribunal as soon as possible as to its compliance with any provisional measures the Tribunal has prescribed. In particular, each party shall submit an initial report upon the steps it has taken or proposes to take in order to ensure prompt compliance with the measures prescribed. (2) The Tribunal may request further information from the parties on any matter connected with the implementation of any provisional measures it has prescribed.

A reading of Articles 89–95 of the ITLOS Rules reveals an understanding of the procedural power to award interim relief similar to that of the ICJ. Under Article 89(5), the Tribunal is not required to mirror the content of the initial request for provisional measures. The treatment of such proceedings as urgent (subject to proceedings relating to prompt release) is also preserved in Article 90(1), as is the capacity for the President to enter into correspondence with the parties so as to recommend measures that will render any interim relief effective under Article 90(4), although

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its only use to date has been by President Yanai in ARA Libertad.114 In the event of a rejection, parties are able to issue a fresh request for provisional measures based on additional facts per Article 92, and may also request the modification or revocation of provisional measures per Article 93. Finally, under Article 95, parties are required to report compliance with provisional measures prescribed, and the Tribunal may request any further information required. There are, however, important differences between the ITLOS and ICJ Rules.115 In the first place, the Tribunal is not empowered to engage in initial consideration of interim relief proprio motu – although per Article 91(2) it has the capacity to renew or revise measures ordered at any time. This reflects UNCLOS Article 290(3), according to which ‘[p]rovisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute’. This difference appears to be driven by the fact that under UNCLOS Article 290(6), provisional measures awarded under this provision are considered binding,116 leading to additional level of caution when awarding interim relief so as to forestall any crisis of legitimacy.117 It is to be remembered that at the time at which UNCLOS Article 290 and later the ITLOS Rules were drafted, the ICJ had not yet determined whether its own provisional measures could be considered binding. Since confirmation of this fact in LaGrand, the Court has not amended its procedural rules. In the event of such an amendment, however, it seems unlikely that its power to award interim relief proprio motu would be restricted – the Court has long acknowledged its ability to award provisional measures of its own volition and so long as this is not abused, it is not prima facie inconsistent with the notion of such relief being binding. Another difference arises from Article 91(1) of the ITLOS Rules, which provides for the composition of a Chamber of Summary Procedure in the event that the President ascertains that on the date fixed for the hearing of an application for interim relief, a quorum of Tribunal members will not be present. Although the judges of ITLOS – unlike their ICJ counterparts – are not expected to sit permanently, a situation has yet to arise in which such a Chamber has been required, and the provision has lain dormant accordingly.118

114 115 116

ARA Libertad (Argentina v Ghana), Provisional Measures (2001) 156 ILR 186, 191. Treves, ‘Rules of ITLOS’, 148–52; Rosenne, Provisional Measures, 79–80. 117 118 Treves, ‘Rules of ITLOS’, 149–50. Ibid, 151–2. Ibid, 150–1.

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The final substantial difference between ITLOS and the ICJ results from the former’s capacity to award provisional measures on behalf of an unconstituted Annex VII tribunal. Applications for such relief are attended by specific procedural requirements in Article 89(4). The applicant must not only indicate the legal grounds of the claim and basis of the tribunal’s prima facie jurisdiction, but must provide evidence that the proceedings in question have been instituted.

2 Annex VII Arbitration Under Article 5 of UNCLOS Annex VII, Annex VII tribunals have the capacity to determine their own procedure subject to the agreement of the parties. As a matter of practice, tribunals have tended to adopt some variation of the 1976 UNCITRAL Rules,119 but these have proved lacking in detail on the question of interim relief. For example, the procedural rules adopted by the tribunals in Barbados/Trinidad and Tobago120 and ARA Libertad121 make no reference to interim relief. In MOX Plant122 and Guyana v Suriname123 the Procedural Rules were the subject of earlier agreement between the parties, preventing the tribunals from adopting their own procedure, but these too remain silent on the question. This may be reflective of a deliberate decision on the part of Annex VII tribunals and the parties appearing before them to avoid contradicting UNCLOS Article 290, with the capacity of an Annex VII tribunal to adopt its own procedure on provisional measures naturally subject to this provision.124 Thus, such a tribunal would not be able to adopt rules inconsistent with UNCLOS Article 290, e.g. rules providing that the tribunal had the capacity to award interim relief proprio motu. This may explain why the procedural rules adopted by Ireland and the UK before

119 120 121 122 123 124

Collier and Lowe, Settlement of Disputes, 91. Barbados/Trinidad and Tobago, PCA Case No 2004-02 (Annex VII) (Procedural Rules, 2004). ARA Libertad, PCA Case No 2013-11 (Annex VII) (Procedural Order No 1, 31 July 2013). MOX Plant (Ireland v UK), PCA Case No 2002-01 (Annex VII) (Procedural Rules, 25 October 2001). Guyana v Suriname, PCA (Annex VII) (Procedural Rules, 2004). See e.g. the ARA Libertad, PCA Case No 2013-11 (Annex VII) (Procedural Order No 1, 31 July 2013) Art 1.1: These Rules shall apply in these proceedings on a supplemental basis, subject to the UNCLOS (including its Annex VII), the Terms of Appointment dated 21 May 2013, and subsequent Procedural Orders of the Arbitral Tribunal.

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a PCA tribunal in the OSPAR Arbitration,125 concerning substantially the same questions as in the parties’ parallel dispute in MOX Plant, make provision for interim relief whilst the MOX Plant rules remain silent. As such, in MOX Plant the Tribunal’s decision on provisional measures is drafted solely in term of UNCLOS Article 290.126

IV International Investment Arbitration A Treaty-Based Investor-State Arbitration 1 Bilateral and Multilateral Investment Treaties It may fairly be said that the treaty-based system of investor-state arbitration is now a prime mover in the practice of international courts and tribunals.127 Such arbitrations are conducted between a foreign investor (which may be a natural or juridical person) and the ‘host’ state in which its investment is located. Famously described by Paulsson as ‘arbitration without privity’,128 investor-state arbitration does not require the intervention of the home state by way of diplomatic protection – consequently, the system may be said to have hybrid foundations that do not correspond directly with conventional notions of public or private international law.129 The jurisdiction of an investor-state arbitral tribunal is usually established by way of a bilateral investment treaty (BIT) concluded between the host state and the ‘home’ state of the investor130 – the first such agreement was concluded between the Federal Republic of Germany and 125

126 127

128 129

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OSPAR Arbitration (Ireland v UK), PCA (Procedural Rules, 15 June 2001) Art 15: ‘The tribunal may, at the request of one of the parties, recommend essential interim measures of protection under such conditions as it may deem appropriate’. MOX Plant (Ireland v UK), Procedural Order No 3 (2003) 123 ILR 310, 321–30. Generally: Jan Paulsson, ‘Arbitration without Privity’ (1995) 10 ICSID Rev – FILJ 232; Christoph Schreuer, ‘Investment Disputes’, MPEPIL (2007); Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (Oxford: Oxford University Press, 2nd edn, 2012) ch 1. Paulsson, ‘Arbitration without Privity’, 254–7. Zachary Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151; Zachary Douglas, The International Law of Investment Claims (Cambridge: Cambridge University Press, 2009) 6–10. An investment treaty is not the only method by which jurisdiction may be established. See e.g. Art 25 of the ICSID Convention, which requires only that consent to arbitrate be registered in writing, phrasing which has been interpreted to encompass contracts between an investor and the host state (either prior to or following the emergence of the dispute) and host state legislation in addition to bilateral and multilateral treaties: ICSID Commentary, 190–253.

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Pakistan in 1959131 and nearly 3,000 are currently in effect.132 BITs generally guarantee foreign investments via the imposition of certain substantive obligations on the host state, e.g. fair and equitable treatment, full protection and security, national treatment and freedom from illegal expropriation and denial of justice.133 Jurisdiction may also be furnished by a multilateral investment treaty concluded between more than two states, often on a regional basis. From the present point of view, NAFTA is the most significant of these, but other notable agreements include the 1994 Energy Charter Treaty134 (ECT), the 2004 Dominican Republic– Central American–United States Free Trade Agreement135 (DR–CAFTA) and the 2012 Association of South-East Asian Nations Comprehensive Investment Agreement136 (ASEAN). BITs and multilateral investment agreements will generally contain a section on dispute resolution giving an investor137 various options in the event of a disagreement with the host state.138 Article 24 of the 2004 US Model BIT,139 for example, permits the submission of disputes to arbitration under (a) the ICSID Convention and the ICSID Rules,140 (b) the ICSID Additional Facility141 or (c) ad hoc arbitration under the 1976 131 132

133 134 136

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138 139

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25 November 1959, 457 UNTS 23. See further the UNCTAD investment database: investmentpolicyhub.unctad.org/IIA. On the rapid expansion of the network of BITs, see Zachary Elkins et al., ‘Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960–2000’, in M Waibel et al. (eds), The Backlash Against Investment Arbitration: Perceptions and Reality (Alphen aan den Rijn: Kluwer, 2009) 369. August Reinisch (ed), Standards of Investment Protection (Oxford: Oxford University Press, 2008); Dolzer and Schreuer, Principles of Investment Law, chs 6 and 7. 135 17 December 1994, 2080 UNTS 95. 17 December 1992, 43 ILM 514. Basic Documents: Investment, doc 40. See also the earlier 1987 ASEAN Agreement on the Protection and Promotion of Investments, 15 December 1987, 27 ILM 612, its Protocol to Amend, 12 December 1996, Basic Documents: Investment, doc 36 (not in force) and the Framework Agreement on the ASEAN Investment Area, 7 October 1998, Basic Documents: Investment, doc 37. While it is possible for a host state to bring an investment claim against an investor, such instances are comparatively rare. See further Gustavo Laborde, ‘The Case for Host State Claims in Investment Arbitration’ (2010) 1 JIDS 97. Douglas, Investment Claims, 3–6. Basic Documents: Investment, doc 48. See also the 2004 Canadian Model BIT, Basic Documents: Investment, doc 45, Art 27; the 2004 Indian Model BIT, Basic Documents: Investment, doc 46, Art 9; the 2004 Netherlands Model BIT, Basic Documents: Investment, doc 47, Art 9; the 2007 Norwegian Model BIT, Basic Documents: Investment, doc 50, Art 15; the 2008 German Model BIT, Basic Documents: Investment, doc 51, Art 10; and the 2008 UK Model BIT, Basic Documents: Investment, doc 52, Art 8. Basic Documents: Investment, doc 71. Basic Documents: Investment, doc 72. Further: §IV.A.3.

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UNCITRAL Rules.142 As a consequence, the instrument in question effectively subordinates itself to an external process of dispute resolution. As a general rule, this will include questions of interim relief. Exceptions may, however, arise – it is possible for an investment treaty to include some sui generis provisions on dispute settlement whilst still undertaking an external reference. The chief example of this is NAFTA Chapter 11 (Investment), which sets out in Section B (Settlement of Disputes Between a Party and an Investor of Another Party) detailed procedures for the composition of an arbitral tribunal,143 governing law,144 and the giving and enforcement of final awards.145 It further includes, in Article 1134, a provision on the granting of interim relief.146 At the same time, however, Article 1120(1) again provides for the submission of disputes to ICSID, the ICSID Additional Facility or to ad hoc UNCITRAL arbitration. In such cases and as provided for in Article 1120(2), the applicable arbitration procedures shall apply except to the extent modified by Chapter 11, Section B. Such modifications will usually be drafted with the applicable arbitration procedures in mind.

2 ICSID and the ICSID Convention The ICSID Convention is one of the most common systems of arbitration referred to by bilateral and multilateral investment treaties. The Convention creates ICSID, an arbitral institution that provides logistical and administrative support for investment disputes.147 It is closely affiliated with the International Bank for Reconstruction and Development (more commonly known as the World Bank) with the Bank’s board of executive directors and its general counsel, Aron Broches, playing a key role in the drafting and negotiation of the Convention.148 142

143 146

147 148

On distinctions between the options, see Stephen Jagusch and Jeffrey Sullivan, ‘A Comparison of ICSID and UNCITRAL Arbitration: Areas of Divergence and Concern’, in M Waibel et al., The Backlash Against Investment Arbitration: Perceptions and Reality (The Hague: Kluwer, 2010); Judith Levine, ‘Navigating the parallel universe of investor-State arbitrations under the UNCITRAL Rules’, in C Brown and K Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge: Cambridge University Press, 2011). 144 145 NAFTA Arts 1123–26. NAFTA Art 1131. NAFTA Arts 1135–6. Other multilateral agreements also provide for additional procedures, but these generally do not include an independent procedure for interim relief: see e.g. ECT Part V; DR– CAFTA Ch 10; ASEAN Sec B. On arbitral institutions in general: Redfern and Hunter, 54–65. On the history of the ICSID Convention, see Aron Broches, ‘The Convention on the Settlement of Investment Disputes between States and Nationals of Other States’ (1972) 136 Hague Recueil 330, 342–8; Lucy Reed et al., Guide to ICSID Arbitration (Alphen aan den Rijn: Kluwer, 2nd edn, 2011) 1–6; Antonio R Parra, The History of ICSID

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Although investment treaty arbitration certainly existed prior to the advent of the ICSID Convention,149 the Convention expanded and systematized what had come before such that, as Elihu Lauterpacht put it: For the first time a system was instituted under which non-State entities – corporations or individuals – could sue States directly; in which State immunity was much restricted; under which international law could be applied directly to the relationship between the investor and the host State; in which the operation of the local remedies rule was excluded; and in which the tribunal’s award would be directly enforceable within the territories of the States parties.150

Notwithstanding the advantages of the ICSID system, investment arbitration pursuant to investment treaties did not become popular until 1990, when the first BIT-based arbitration award was rendered.151 The ICSID Convention operates in addition to the requirements of an investment treaty and so adds an additional layer of complexity to its requirements – e.g. the relevant investor must satisfy the jurisdictional requirements ratione personae and ratione materiae of both the treaty and Article 25 of the ICSID Convention.152 Beyond this, the Convention provides a comprehensive procedural framework for, inter alia, the composition of tribunals, the hearing of cases, the enforcement and challenge of awards, and so forth – this includes the granting of interim relief where required per Article 47 of the Convention. It is supported in this by the ICSID Rules.

3 The ICSID Additional Facility In 1974, the World Bank created the ICSID Additional Facility to extend ICSID arbitration to certain disputes not covered by the ICSID Convention proper.153 The Additional Facility applies where one of either the home or host state of the relevant investment is not a member of the

149 150 151 152 153

(Oxford: Oxford University Press, 2012). See further the 1965 Report of World Bank’s Executive Directors, which acts as an introductory commentary to the Convention: 4 ILM 524. See especially the inter-war mixed arbitral tribunals: Chapter 2, §III.B. Elihu Lauterpacht, ‘Foreword’, in ICSID Commentary, ix. Asian Agricultural Products Ltd v Sri Lanka, Award (1990) 4 ICSID Reports 245. This is referred to by some commentators as the ‘double keyhole’ requirement: ICSID Commentary, 82–3. It further applies in cases which do not arise directly from an investment, and fact finding: Reed et al, Guide to ICSID, 17–19; Dolzer and Schreuer, Principles of Investment Law, 240–1. Further: Parra, History of ICSID, 141–50.

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ICSID Convention, and therefore outside its ambit.154 This is particularly significant in the context of NAFTA, where the US and Canada are members of the ICSID Convention, but Mexico is (presently) not.155 As such, NAFTA Article 1120(1)(b) provides for the referral of investment disputes to the Additional Facility. Similarly, ECT Article 26(4)(a)(ii) enables the use of the Additional Facility where necessary. Where the Additional Facility is activated, the ICSID Convention does not apply.156 As such the Additional Facility utilizes a separate set of ICSID Arbitration (Additional Facility) Rules (ICSID (AF) Rules).157 The nonapplicability of the Convention deprives the parties of certain protections, most notably Chapter IV (Arbitration), Sections 5 (Interpretation, Revision and Annulment of the Award) and 6 (Recognition and Enforcement of the Award). In such cases, annulment and enforcement will instead be governed by the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards158 (New York Convention) and awards may be subject to review by domestic courts.

B Treaty Provisions Governing Provisional Measures in International Investment Law 1 Article 47 of the ICSID Convention Article 47 of the ICSID Convention governs the award of provisional measures by ICSID tribunals. It provides that: Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.

The wording of Article 47 of the ICSID Convention is much more closely referable to Article 41 of the Statute than UNCLOS Article 290, and Article 41 indeed served as a model for the provision.159 The fact, however, that the text of Article 41 emerged from the ICSID drafting process with what appears to be only minor alteration fails to reflect its controversial character. Early drafts of the provision reveal that much stronger wording was originally envisioned guaranteeing these measures as binding and including a power to impose sanctions for 154 155

156 158

ICSID (AF), Art 2. NAFTA Art 1120(1)(a) makes provision for reference to ICSID in the event that either Mexico or Canada eventually join the ICSID Convention – Canada signed the Convention in 2006 but did not ratify until 2013: icsid.worldbank.org/ICSID/Index.jsp. 157 ICSID (AF), Art 3. Basic Documents: Investment, doc 75. 159 10 June 1958, 330 UNTS 3. II-1 ICSID History, 668, 813.

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non-compliance.160 These proposals encountered considerable opposition, and although a countervailing proposal to excise the provision entirely was dropped,161 the compromise position was a text that suffered from the same ambiguity as Article 41, i.e. in its use of the terms ‘recommend’ (similar in meaning to the term ‘indicate’ in Article 41) and ‘should be taken’ when describing the grant of interim relief.162 This ambiguity was resolved in much the same way as in LaGrand by the tribunal in Maffezini v Spain, which in 1999 declared that its authority ‘to rule on provisional measures was no less binding than that of the final award’.163 In practical terms, Article 47 differs from the other provisions considered in that much of its early use was as a variant of anti-suit injunction, used to restrain parallel proceedings in national courts.164 In this, the experience of ICSID tribunals has been similar to that of the Iran–US Claims Tribunal, which suffered from a similar problem.165 As will be seen, this has modified how Article 47 is applied in modern proceedings. A further difference arises in relation to the capacity of ICSID tribunals to award provisional measures in circumstances where the jurisdiction of the tribunal has not been definitively established. Unlike the ICJ and dispute settlement under UNCLOS, ICSID contains a mechanism by which a tribunal’s jurisdiction might be reviewed through the agency of the Centre’s Secretary-General. Article 36(3) of the Convention provides that the Secretary-General shall register a request for arbitration unless he or she finds that the dispute is manifestly outside the Centre’s jurisdiction.166 160 163

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161 162 I ICSID History, 206. II-1 ICSID History, 814. ICSID Commentary, 759. Emilio Agust´ın Maffezini v Spain, Procedural Order No 2 (2001) 5 ICSID Reports 393, 394. Also: Victor Pey Casado and President Alliende Foundation v Chile, Provisional Measures (2001) 6 ICSID Reports 373, 381. Collins estimates that two thirds of the early cases were directed towards the prevention of parallel proceedings: Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992) 234 Hague Recueil 9, 99. Further: Paul Friedland, ‘Provisional Measures and ICSID Arbitration’ (1986) 2 Arb Int’l 335, 339–47; Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6 ICSID Rev – FILJ 431. Such action was taken pursuant to Art 26 of the ICSID Convention, which provides:

Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy [...] 165 166

David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran–US Claims Tribunal’ (1986) 46 Za¨oRV 465, 504–8. Brower and Goodman, ‘Jurisdictional Exclusivity’, 452–6; ICSID Commentary, 772.

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2 NAFTA Article 1134 Although the initial stance taken in NAFTA negotiations was that Chapter 11 tribunals not have the capacity to award interim relief,167 this position was altered over the course of the discussions to reflect the approach now taken in Article 1134. This provides that: A Tribunal may order an interim measure of protection to preserve the right of a disputing party, or to ensure that the Tribunal’s jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party and to protect the Tribunal’s jurisdiction. A Tribunal may not order attachment or enjoin the application of the measures alleged to constitute a breach referred to in Article 1116 or 1117. For the purposes of this paragraph, an order includes a recommendation.

Given the synergy between NAFTA Chapter11 and ICSID dispute settlement, it is unsurprising that Article 1134 was drafted with Article 47 of the ICSID Convention in mind – notwithstanding that to date only the Additional Facility has been utilized by Chapter 11 tribunals and thus Article 47 has not been applied. When a NAFTA tribunal is composed under the ICSID Convention, Article 1134 is deemed to modify the content of Article 47. It is broader than Article 47, expressly including the power to award interim relief to ensure a NAFTA tribunal’s jurisdiction remains fully effective, e.g. through orders for the protection of evidence or the use of provisional measures protect jurisdictional exclusivity over the merits.168 In this, Article 1134 mirrors the practice of the early ICSID tribunals, as well as that of the Iran–US Claims Tribunal.169 The use of the word ‘including’ indicates that a NAFTA tribunal would not be limited to only these two varieties of order; however, Article 1134 removes some options from the tribunal, preventing orders for attachment (provisional seizure) of property or the enjoining (provisional prohibition) of measures purportedly contrary to NAFTA’s investment protections, a 167 168

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Meg Kinnear et al, Investment Disputes under NAFTA: An Annotated Guide to Chapter 11 (Alphen aan den Rijn: Kluwer, 2006) 1134–1. Earlier drafts of the provision made express mention of orders to preserve ‘jurisdictional exclusivity’, but this language was eventually abandoned in favour of the current formulation: ibid, 1134–1–1134–2. The shift in language, however, does not appear to confer on a NAFTA tribunal an exclusive right to award interim relief once seized, and such a reading would appear to contradict the waiver provision in NAFTA Art 1121, which permits a party to obtain injunctive, declaratory or other extraordinary relief before municipal courts without compromising the arbitral bargain: ibid, 1134–2. Cf. ICSID Rules, Rule 39(6); ICSID (AF) Rules, Art 46(4); 1976 UNCITRAL Rules, Art 26(3); 2010 UNCITRAL Rules, Art 26(9).

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position consistent with the decision of the states parties in Article 1135 to limit Chapter 11 relief to damages or the restitution at the election of the claimant.170 Indeed, in both the Pope & Talbot v Canada171 and Feldman v Mexico,172 Chapter 11 tribunals operating under the Additional Facility rejected applications for provisional measures on the basis that they called for the enjoining of measures. A final difference between NAFTA Article 1134 and Article 47 of the ICSID Convention arises from the final sentence of the former which states that an ‘order’ within the meaning of the provision includes a ‘recommendation’. This is a direct response to uncertainty at the time at which NAFTA was drafted as to whether a ‘recommendation’ of interim relief under Article 47 could be considered binding. The clause therefore acts as a deeming provision to unequivocally affirm the obligatory nature of provisional measures where a NAFTA tribunal is acting within the ICSID system. However, since the decision by the ICSID tribunal in Maffezini v Spain that Article 47 measures are binding and the adoption of this position by many successor tribunals this element of NAFTA Article 1134 has largely lost its meaning.

C Provisional Measures Under the ICSID Rules and ICSID (AF) Rules 1 Rule 39 of the ICSID Rules Since the conclusion of the ICSID Convention, several iterations of the ICSID Rules have appeared, with the first set formally issued by the Administrative Council in 1968.173 In each of these, Rule 39 concerning provisional measures has remained substantially unaltered, save for the addition of two paragraphs. The Rule provides substantial guidance in the award of interim relief by ICSID tribunals, and reads as follows: (1) At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its right be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures. 170 171 172 173

Kinnear et al., NAFTA Chapter 11, 1134–4. Pope and Talbot Inc v Canada, Interim Measures (2000) 122 ILR 301, 301. Marvin Roy Feldman Karpa v Mexico, ICSID Case No ARB(AF)/99/1 (Procedural Order No 2, 3 May 2000) §5. 1 ICSID Reports 63. See also the 1984 Rules: 1 ICSID Reports 157. Further: Antonio R Parra, ‘The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes’ (2007) 22 ICSID Rev – FILJ 55.

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constitutive instruments and procedural rules (2) The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1). (3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations. (4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party the opportunity of presenting its observations. (5) If a party makes a request pursuant to paragraph (1) before the constitution of the Tribunal, the Secretary-General shall, on the application of either party fix time limits for the parties to present observations on the request, so that the request and observations may be considered by the Tribunal promptly on its constitution. (6) Nothing in this rule shall prevent the parties, provided they have so stipulated in the agreement recording their consent, from requesting any judicial or other authority to order provisional measures, prior to or after the institution of the proceeding, for the preservation of their respective rights and interests.

As with Article 47 of the ICSID Convention, Rule 39 is clearly referable to the practice of the ICJ as it existed in the 1960s. Unlike the ICJ Rules, however, the ICSID Rules (or at least Rule 39) have not undergone a comprehensive revision since they were first issued, and as such the precedent reflected in Rule 39 is with some additions that of Article 61 the 1948 ICJ Rules, itself replicating Article 61 of the 1936 PCIJ Rules, and reflecting an understanding of provisional measures that was extant at that time. Rule 39(1) sets out the timing and content of an application for provisional measures in a similar manner to Article 61(1), with Rule 39(2) replicating Article 61(2) in giving priority to such applications over other matters. Rule 39(3) gives a tribunal the capacity to award provisional measures proprio motu and otherwise than in accordance with the application, conflating thereby Articles 61(4) and (6). It also gives the tribunal to the ability to modify or revoke measures as in Article 61(7). Rule 37(4), in turn, prohibits the granting of interim relief completely ex parte in a similar manner to Article 61(8). Rules 37(5) and (6), however, reflect the sui generis character of the ICSID system. Rule 37(6), added in 1984 as paragraph 5, concerns interim measures issued by a municipal court. Unless the parties otherwise provide (an unlikely outcome), the tribunal – even constituted – retains exclusive jurisdiction over interim relief, an addition that reflects the general exclusivity of ICSID arbitration per Article 26 of the ICSID

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Convention.174 Given the absence of a mechanism similar to UNCLOS Article 290(5), the withholding of interim relief until composition of the tribunal has the potential to permit damage to be done to the status quo, and Rule 37(6) has been criticized accordingly.175 Rule 39(5) was inserted during the 2006 revision of the ICSID Rules in an effort to ameliorate this situation and is intended to ensure that the tribunal is in a position to consider the observations of both claimant and respondent immediately on its constitution,176 utilizing the office of the ICSID Secretary-General to this effect.

2 Article 46 of the ICSID (AF) Rules Within the Additional Facility, Article 46 (formerly Article 47177 ) of the ICSID (AF) Rules provides a streamlined version of Rule 39. It provides as follows: (1) Unless the arbitration agreement otherwise provides, either party may at any time during the proceeding request that provisional measures for the preservation of its rights be ordered by the Tribunal. The Tribunal shall give priority to the consideration of such a request. (2) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations. (3) The Tribunal shall order or recommend provisional measures, or any modification or revocation thereof, only after giving each party an opportunity of presenting its observations. (4) The parties may apply to any competent judicial authority for interim or conservatory measures. By doing so, they shall not be held to infringe the agreement to arbitrate or to affect the powers of the Tribunal.

Paragraphs (1)–(3) of Article 46 are distilled from paragraphs (1)–(4) of Rule 39 of the ICSID Rules, and preserve the conceptual core of a 174 175

176 177

Thomas H Webster, Handbook of Investment Arbitration (London: Sweet and Maxwell, 2012) 541–2; ICSID Commentary, 399–400. Jagusch and Sullivan, ‘ICSID and UNCITRAL Arbitration’, 90; Piero Bernardini, ‘ICSID versus non-ICSID Investment Treaty Arbitration’, in M A Fernandez-Ballesteros and D Arias (eds), Liber Amicorum Bernardo Cremades (Buenos Aries: La Ley, 2010) 159, 173–4. Webster, Handbook, 540. The original Rules were released in 1974 by the Administrative Council before a revision in 2003: 1 ICSID Reports 249. Further: Parra, ‘ICSID Regulations and Rules’, 52–5; Parra, History of ICSID, 145–9, 246–9.

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tribunal’s power to award provisional measures, with one interesting exception – under Article 46(1), a party may request that provisional measures be ordered, but when acting pursuant to Article 46(2) so as to award relief proprio motu or otherwise than in accordance with the application, a tribunal may only recommend provisional measures. From a purely linguistic standpoint, this would tend to indicate that Article 46(2) measures should not be considered binding, but the paragraph has yet to be the subject of interpretation by a tribunal. However, given the overt position taken by other ICSID tribunals in applying Article 47 of the ICSID Convention, as well as the general trend of other international courts and tribunals, it seems unlikely that a tribunal applying Article 46(2) would deem its efforts to be merely hortatory. A more substantial difference lies in Article 46(4), which abandons the exclusivity of interim relief seen in Rules 39(5) and (6). This is similar in scope to the waiver provision of NAFTA Article 1121, and allows a party to seek interim relief before municipal court prior to (and indeed after) the composition of the arbitral tribunal.

V Arbitral Tribunals and the UNCITRAL Arbitration Rules A Arbitration and International Dispute Settlement 1 The Permanent Court of Arbitration Since the Alabama Claims arbitration of 1872,178 states have regularly resolved their differences via the use of arbitral tribunals, empowered by treaty to resolve a particular dispute or category of disputes.179 With respect to inter-state arbitration in particular, these proceedings may be administered by the Permanent Court of Arbitration (PCA),180 which, as is often said, is not permanent, is not a court and does not arbitrate. 178

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Alabama Claims (US/Great Britain) (1871) 29 RIAA 125. Further: John Bassett Moore, 1 History and Digest of the International Arbitrations to which the United States Has Been a Party (Washington, DC: Government Printing Office, 1898) 495–680; Tom Bingham, ‘The Alabama Claims Arbitration’ (2005) 54 ICLQ 1. Other early successes include Behring Sea Fur Seals (US/Great Britain) (1893) 28 RIAA 263 and British Guiana–Venezuela Boundary (Venezuela/Great Britain) (1899) 28 RIAA 331. See e.g. Great Britain–United States, Treaty for the Amicable Settlement of All Causes of Difference between the Two Countries, 8 May 1871, 143 CTS 145, on which the Alabama Claims arbitration was based. Collier and Lowe, Settlement of Disputes, 35–8; Nisuke Ando, ‘Permanent Court of Arbitration’, MPEPIL (2006); Ruth Mackenzie et al., Manual, ch 4.

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Like ICSID, the PCA is an arbitral institution, albeit one specifically conceived to deal with inter-state matters, and was established by the 1899 Hague Convention on the Pacific Settlement of International Disputes.181 In hearing some 20 disputes between 1900 and 1932, the PCA was the dominant forum for the resolution of international disputes – the advent of the PCIJ, however, prompted some seven decades of hibernation, during which time any inter-state arbitrations were largely resolved on an ad hoc basis.182 Since 1981, however, the PCA has undergone something of a revival, in part due to its willingness to administer UNCLOS Annex VII and non-ICSID investor-state arbitrations, as well as a wide variety of other international disputes.183 This has led to a somewhat unlikely situation in which the PCA has in the immediate past had, for the first time in the joint history of the two bodies, more inter-state matters on its docket than the ICJ.

2 International Claims and Compensation Bodies Disputes arising from inter-state relations do not always endear themselves to a simple declaration of liability or non-liability, or to the award of a single lump sum amount in damages – a single relationship or incident may result in a multitude of smaller claims. In such cases, states have on occasion opted to establish ad hoc dispute resolution bodies for the settlement of a suite of claims between states. As they are convened to deal with a specific situation, the existence of such bodies may be prolonged. The first such body was established by the US and Great Britain by the 1794 Jay Treaty for the resolution of certain boundary disputes along the northeastern border between the US and Canada.184 A more modern example is the Eritrea–Ethiopia Claims Commission,185 which 181 182 183 184

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29 July 1899, 187 CTS 410. This was amended in turn by the Convention on the Pacific Settlement of International Disputes, 18 October 1907, 205 CTS 233. In such cases, the facilities of the PCA were occasionally used, but its legal architecture was largely neglected: Collier and Lowe, Settlement of Disputes, 36–7. Ando, ‘PCA’, §§29–35; Jacomijn J Haersolte-van Hof, ‘The Revitalization of the Permanent Court of Arbitration’ (1997) 54 NILR 395; Mackenzie et al., Manual, 121–2. Treaty of Amity, Commerce, and Navigation between His Brittanick Majesty and the United States of America, 19 November 1794, 52 CTS 249. Further: Katja S Zeigler, ‘Jay Treaty (1794)’, MPEPIL (2007). Agreement between the Government of the Federal Democratic Republic of Ethiopia and the State of Eritrea, 12 December 2000, 40 ILM 260. Further: Natalie Klein, ‘Ethiopia– Eritrea Claims Commission’, MPEPIL (2010).

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over nine years of operation determined a range of questions resulting from the two-year armed conflict relating to the land border between the two countries. A related category of tribunal is that established to deal with mass claims between states and the nationals of other states with respect to a particular international situation. The most prominent of these is the Iran–US Claims Tribunal, which was established following the 1979 Iranian Revolution to deal with claims arising from the nationalization of US-owned assets in Iran during the overthrow of the Shah.186 Over the life of the Tribunal, more than 3,800 cases have been filed, with the majority now concluded.

3 Non-ICSID Investment Arbitration Finally, some mention should be made outside of investor-state arbitration that occurs outside the ICSID system. In such cases, the sole instrument for the composition of the tribunal and the hearing of the claim is the investment treaty itself – the additional framework of the ICSID Convention or the Additional Facility will not apply. Such matters may be administered by an arbitral institution such as the PCA, the International Chamber of Commerce (ICC) and others, or by no arbitral institution at all. In both cases, however, enforcement of the award is guaranteed by the New York Convention. B The UNCITRAL Arbitration Rules 1 Drafting and Proliferation The aforementioned forms of dispute resolution encompass a wide range of international tribunals, many of them sui generis in character and with no apparent common connection beyond being rooted generally in public international law. Nonetheless, many of these bodies have adopted or adapted a single set of procedural rules for their own use. Unlike the other procedural rules considered in this chapter, the 1976 UNCITRAL Arbitration Rules (UNCITRAL Rules) were not prepared with any particular tribunal or dispute in mind. Indeed, they were not even drafted with a view to application in inter-state disputes, but were intended to 186

Declaration of the Government of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, 20 ILM 224. Further: Christopher Pinto, ‘Iran–United States Claims Tribunal’, MPEPIL (2005).

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apply to international commercial arbitration between natural or juridical persons. The UNCITRAL Rules developed as part of a wider evolution of an effective and trustworthy system of international commercial arbitration over the past six decades. This system is built upon three columns, with UNCITRAL itself playing a central role in the evolution of all three.187 The first column is the New York Convention, which in essence allows private parties to utilize the national courts of one country to implement arbitral awards issued in another country. The second is the 1985 UNCITRAL Model Law on International Commercial Arbitration188 as amended in 2006.189 As its name suggests, this provides a model for a municipal arbitration statute capable of producing an award compliant with the New York Convention.190 The third column is the UNCITRAL Rules themselves. The UNCITRAL Rules developed out of a review commissioned in the wake of the successful conclusion of the New York Convention. At its second session in 1969, UNCITRAL directed Ion Nestor of Romania to act as Special Rapporteur to prepare a report on significant issues arising from the application and interpretation of instruments concerning international commercial arbitration.191 Nestor duly prepared an interim report in 1970192 and a final report in 1972,193 in which he recommended the formation of a working group for the creation of a model set of uniform arbitration rules that would reflect and harmonize the world’s predominant legal traditions. When this proposal was put to state representatives on the Commission, the response was positive,194 and the UNCITRAL Secretary-General was accordingly directed to prepare a set of draft rules in consultation with leading experts in the field.195 The draft, which was presented to the Commission in 1975,196 took account of the New York Convention, the ICSID Convention and the 1961 European Convention on International Commercial Arbitration,197 but special attention was paid to two extant sets of arbitral rules formulated by the UN – the 1966

187 188 189 190 192 193 195

David D Caron and Lee M Caplan, The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2nd edn, 2013) 1–2. Annexed to GA Res 40/72 (11 December 1985). Annexed to GA Res 61/33 (4 December 2006). 191 See e.g. International Arbitration Act 1974 (Cth). UNCITRAL Ybk 1970/I, 108. UN Doc A/CN.9/42 (18 February 1970), Annex, §74. 194 UNCITRAL Ybk 1972/III, 247. UNCITRAL Ybk 1973/IV, 130–1. 196 197 Ibid, 21. UNCITRAL Ybk 1975/VI, 163. 12 April 1961, 484 UNTS 349.

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Arbitration Rules of the UN Economic Commission for Europe198 (ECE Rules) and the 1966 Rules for International Commercial Arbitration of the UN Economic Commission for Asia and the Far East199 (ECAFE Rules). Following certain suggestions, a revised set of draft rules with commentary was prepared the following year,200 and following consideration, adopted.201 The General Assembly recommended the Rules to the UN membership shortly thereafter. The drafters of the UNCITRAL Rules do not appear to have considered that their work might apply to a situation in which a state was involved, at least not overtly. A review piece by Pieter Sanders, perhaps the foremost expert relied upon by the Secretariat in the preparation of the original draft, makes no reference to the application of the rules to anything more than international business transactions.202 More widely, there does not appear to have been much faith that the Rules would be successful at all. They had been deliberately designed to operate independently in a world then dominated by established arbitral institutions such as the ICC, each with their own procedural rules.203 In 1981, however, Article III(2) of the Claims Settlement Declaration establishing the Iran–US Claims Tribunal directed the Tribunal to utilize the Rules, save to the extent modified by the parties and the Tribunal itself. The Rules of the Tribunal were adopted on 3 May 1983, and reflected the terms of the UNCITRAL Rules, amended so as to be consistent with the Claims Settlement Declaration.204 However, the core procedures of the rules – including those pertaining to interim relief – remained untouched. The practice of the Iran–US Claims Tribunal simultaneously created an extensive jurisprudence for the application of the UNCITRAL Rules205 198 199

200 202 203 204

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UNCITRAL Register, 100. Further: Ernst J Cohn, ‘The Rules of Arbitration of the United Nations Economic Commission for Europe’ (1967) 16 ICLQ 946. UNCITRAL Register, 95. Further: Pieter Sanders, ‘ECAFE Rules for International Commercial Arbitration’, in P Sanders (ed), International Arbitration: Liber Amicorum for Martin Domke (The Hague: Martinus Nijhoff, 1967). 201 UNCITRAL Ybk 1976/VII, 157. Ibid, 21. Pieter Sanders, ‘Procedures and Practices under the UNCITRAL Rules’ (1979) 27 AJCL 453. Caron and Caplan, UNCITRAL Commentary, 4. Ibid, 4–6; Howard M Holtzmann, ‘Drafting the Rules of the Tribunal’, in D D Caron and J R Crook, The Iran–United States Claims Tribunal and the Process of International Claims Resolution (Ardsley, NY: Transnational, 2000) 81–91. See e.g. Jacomijn J van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran–US Claims Tribunal (Deventer: Kluwer, 1991); Stewart A Baker and Mark D Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran–United States Claims Tribunal (Deventer: Kluwer, 1992); Charles N Brower

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and promoted their use in investor-state dispute resolution. In the BIT context, arbitration according to the UNCITRAL Rules is now referenced as a dispute settlement mechanism more often than any other save ICSID arbitration.206 A similar picture emerges in the multilateral context.207 With reference to inter-state matters, variants of the UNCITRAL Rules have been adopted with regularity by Annex VII tribunals under UNCLOS, and the Rules further formed the basis for the four sets of Optional Rules developed by the PCA in the early 1990s,208 with the 2010 revision of the Rules influencing the drafting of the consolidated PCA Arbitration Rules of 2012.209

2 The 2010 Amendments In 2010, the UNCITRAL Arbitration Rules underwent revision, a process prompted by a 2004 article by Sanders that advocated reform of the Rules in order to bring them into line with the Model Law.210 This was followed by a wider report on the topic by Paulsson and Petrochilos in 2006, which generally concurred and added that although widely used in investor-state arbitration, the Rules in their original format were not entirely suited to that context.211 UNCITRAL accordingly directed its Working Group II to undertake a review of the Rules, although, due to the success of the Rules to date, the Commission was ‘generally of the view that any revision of the UNCITRAL Arbitration Rules should not alter the structure of the text, its spirit or its drafting style, and should respect the flexibility of the text rather than make it more complex’.212 Over several years, Working

206

207 208

209 210 211 212

and Jason D Brueschke, The Iran–United States Claims Tribunal (The Hague: Martinus Nijhoff, 1998). On average, the UNCITRAL Rules govern 25 per cent of investment arbitrations in a given year, though this may vary in particular cases – for example, the Rules governed 52 per cent of investor-state arbitration claims commenced in 2006: Levine, ‘Navigating the parallel universe’, 375–6. Caron and Caplan, UNCITRAL Commentary, 7–8. PCA Basic Documents, x. Further: PCA Optional Rules for Arbitrating Disputes between Two States, PCA Basic Documents, 41; PCA Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State, PCA Basic Documents, 69; PCA Optional Rules for Arbitration Involving International Organizations and States, PCA Basic Documents, 97. PCA Arbitration Rules 2012, Introduction, www.pca-cpa.org. Pieter Sanders, ‘Has the Moment Come to Revise the Arbitration Rules of UNCITRAL?’ (2004) 20 Arb Int’l 243. Jan Paulsson and Georgios Petrochilos, Revision of the UNCITRAL Arbitration Rules (unofficial report, 2006) §§3–8, www.uncitral.org/pdf/english/news/arbrules report.pdf. UN Doc A/61/17 (14 July 2006) §184. For its part, Working Group II saw its brief as follows (UN Doc A/CN.9/614 (15 September 2006) §16):

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Group II produced a comprehensive draft, which was adopted by the Commission in 2010.213 Within the international commercial arbitration sphere, the adoption of the 2010 UNCITRAL Rules has been enthusiastic. This cannot as yet be said to the same extent in the context of investor-state disputes, due principally to the fact that the jurisdiction of these tribunals is usually established by treaties or other instruments pre-dating the 2010 amendment that refer simply to ‘the Arbitration Rules of [UNCITRAL]’, as opposed to such Rules ‘as amended from time to time’.214 The same position applies to inter-state disputes, at least those which are based on treaties concluded pre-2010. Whilst an argument might perhaps be made that such treaties should be interpreted dynamically such that what would previously have been taken as a reference to the 1976 Rules should instead be deemed a reference to the 2010 amendment,215 this does not seem like a plausible reading of such texts, given the ease with which clarificatory wording might have been added. Nonetheless, it is to be expected that use of the 2010 Rules in the investor-state context will increase over time as new investment agreements are concluded per Article 1(2) of the 2010 Rules themselves. Thus, in the case of ASEAN, concluded in 2012, the [The Group] viewed the UNCITRAL Arbitration Rules as one of the most successful instruments of UNCITRAL and therefore cautioned against any unnecessary amendments or statements being included in the travaux pr´eparatoires that would call into question the legitimacy of prior applications of the Rules in specific cases. It was considered that the focus of the revision should be on updating the Rules to meet changes that had taken place over the last thirty years in arbitral practice, not on simply making them more complex. 213 214

215

UN Doc A/65/17 (9 July 2010) §187. See e.g. the UK–Argentina BIT, 11 December 1990, 1765 UNTS 33, Art 8(3)(b); the Germany–Argentina BIT, 9 April 1991, 1910 UNTS 198, Art 10(4); the Netherlands– Czech Republic BIT, 29 April 1991, 2242 UNTS 224, Art 8(5); the France–Argentina BIT, 3 July 1991, 1728 UNTS 298, Art 8(3); the US–Ecuador BIT, 27 August 1993, Basic Documents: Investment doc 64, Art VII(a)(iii). A similar picture emerges in the case of the major multilateral agreements: ECT Art 26(4)(b); DR–CAFTA Arts 10.16(3)(c) and 10.28. In the case of NAFTA, Art 1139 specifically defines ‘UNCITRAL Arbitration Rules’ as meaning only the 1976 Rules. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971 p 16, (1971) 31; Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213, 242–4. Further: Martin Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties’ (2011) 24 LJIL 201; James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) 246–50.

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reference to the UNCITRAL Rules in Article 33(1)(d) should be taken as a reference to the 2010 Rules. Similarly, in the case of bilateral agreements based on the 2012 US Model BIT, the reference to the UNCITRAL Rules in Article 24(3)(c) must be taken to refer to the 2010 Rules. But that is not to say that, notwithstanding the wording of the relevant agreement, the parties cannot themselves agree to use the 2010 Rules. For example, in Philip Morris v Australia, the relevant investment agreement, the 1993 Australia–Hong Kong BIT, declared the UNCITRAL Rules to be the default procedural law of the arbitration.216 As discussed, this would ordinarily require the use of the 1976 Rules. The parties, however, agreed to the use of the 2010 Rules.217

C Provisional Measures Under the UNCITRAL Rules 1 Article 26 of the 1976 Rules Article 26 of the 1976 Rules provides as follows: (1) At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods. (2) Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to security for the costs of such measures. (3) A request for interim measures addressed by a party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

The travaux pr´eparatories of the 1976 Rules indicates that this provision was developed from an amalgam of Article VI(6) of the ECAFE Rules, and the more specific provision of Article 27 of the ECE Rules.218 As it is intended to reflect the requirements of international commercial arbitration (e.g. in the reference to sale of goods in paragraph (1)) it evinces a more commercial flavour than other rules that could conceivable apply to a broader range of situations. Nonetheless, it remains generally 216 217 218

15 September 1993, [1993] ATS 30, Art 10. Philip Morris Asia Ltd v Australia, PCA Case No 2012–12 (Procedural Order No 1, 7 June 2012) §4.1. UNCITRAL Ybk 1976/VII, 176.

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applicable – the reference to sale of goods and sequestration is an afterthought to the dominant general reference to the preservation of the subject matter of the dispute, with the tribunal being given the power to ‘take any interim measures it deems necessary’. Moreover, the binding nature of the rules is placed beyond doubt by paragraph 2, which gives the tribunal the option to establish interim relief in the form of an interim award. Per Article 32(2), such an award is final and binding on the parties. Finally, paragraph 3 again reflects the notion that the arbitral process may be backed by a national court, and that recourse to such a court in the context of interim relief does not undermine the arbitral bargain as a whole, in a similar manner to other arbitral rules that may function independently of an arbitral institution, i.e. in situations where interim relief may be required prior to the constitution of the arbitral tribunal. It may be noted that Article 26 of the 1976 Rules possesses less procedural articulation than that furnished, for example, by Article 47 of the ICSID Convention and Article 39 of the ICSID Rules operating in conjunction. Any deficiency in this respect, however, is remedied by Article 15(1), giving the tribunal a general power to full procedural lacuna, subject to the equality of the parties and due process. The travaux pr´eparatoires provide an additional source of illumination, noting that under Article 26 measures may not be ordered proprio motu, but must be requested by one of the parties.219

2 Article 26 of the 2010 Rules In contrast to the somewhat skeletal Article 26 of the 1976 Rules, its amended equivalent has expanded to become the longest provision in the 2010 Rules, somewhat undermining the Working Group’s claim that it would ‘respect the flexibility of the text rather than make it more complex’. But it is to be remembered that one of the prime movers behind the amendment was the desire to align the Rules with the New York Convention and the Model Law. It is this that explains the elaboration of Article 26.220 Indeed, rather than use Article 26 of the 1976 Rules as a point of departure, Article 26 of the 2010 Rules is based on Article 17 of the 2006 Model Law.221 The provision reads:

219 221

220 Ibid. Caron and Caplan, UNCITRAL Commentary, 515. UN Doc A/CN.9/614 (11–15 September 2006) §105. This was one of the recommendations made by Paulsson and Petrochilos, Revision of the UNCITRAL Rules, §206.

arbitral tribunals and the uncitral arbitration rules 125 (1) The arbitral tribunal may, at the request of a party, grant interim measures. (2) An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute. (3) The party requesting an interim measure under paragraphs 2(a) to (c) shall satisfy the arbitral tribunal that: (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination. (4) With regard to a request for an interim measure under paragraph 2 (d), the requirements in paragraphs 3(a) and (b) shall apply only to the extent the arbitral tribunal considers appropriate. (5) The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative. (6) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure. (7) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the interim measure was requested or granted. (8) The party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings. (9) A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

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As may be appreciated, Article 26 of the 2010 Rules provides the procedural complexity that was lacking in its 1976 equivalent.222 It reflects closely Article 17 of the 2006 Model Law, which was itself expanded so that municipal courts might feel more comfortable in awarding interim relief.223 Article 17, however, was not copied exactly, with certain amendments made in order to account for the difference in function and scope between the Rules and the Model Law. Beyond this, however, the provision broadly reflects the procedural standard for provisional measures seen in the other instruments in this chapter. Paragraph 1 establishes the power to award interim relief, but states that this may only occur on the request of a party, thereby rendering express what had previously only been implied in the travaux. Paragraph 2 preserves the general power of the tribunal to order whatever provisional measures it sees fit, and provides a list of illustrative examples that are ‘without limitation’. Notably, the reference to the ‘subject matter of the dispute’ that was present in the 1976 Rules was omitted, giving the provision a less restrictive focus, and permitting the granting of wider measures, i.e. those designed for the prevention of the further escalation of the dispute. Paragraph 3 of Article 26 introduces substantive considerations to the application of the provision by requiring the party seeking relief to demonstrate irreparable harm, that the grant of relief would not unduly burden the other party, and a reasonable prospect of success on the merits. Interestingly, no specific mention is made of the need to demonstrate prima facie jurisdiction – although such an element could easily be subsumed within the wider need to demonstrate a prima facie case on the merits. Paragraph 5 provides the tribunal with the power to modify or terminate its earlier decisions, either on the application of one of the parties or proprio motu, but places a restriction on the latter in requiring modification with notice and only in exceptional cases. Significantly, the provision also indicates that a frivolous request for provisional measures may have adverse consequences – paragraph 6 provides for the pledging of security against an award of interim relief, and paragraph 8 that a party may be liable for costs and damages arising out of provisional measures at 222

223

For detailed commentary on the substance of Art 26, see Caron and Caplan, UNCITRAL Commentary, 513–32; Clyde Croft et al., A Guide to the UNCITRAL Arbitration Rules (Cambridge: Cambridge University Press, 2013) 266–97. James Castello, ‘Generalizing About the Virtues of Specificity: The Surprising Evolution of the Longest Article in the UNCITRAL Model Law’ (2012) 6 W Arb Med R 7; Croft et al., UNCITRAL Guide, 271–8.

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a later date. Paragraph 9 preserves the role of domestic courts in awarding interim relief under the UNCITRAL regime. One further notable omission from the 2010 Rules is any express reference to provisional measures as interim awards. Accordingly, it is open to doubt as to whether provisional measures are binding, at least on the wording of the text. As Caplan and Caron note, however, it is highly likely that such measures remain binding224 – Article 34 gives tribunals the ability to make ‘separate awards on different issues at different times’, a form of wording that seems likely to include interim relief. Moreover, the notion that provisional measures are not binding under the 2010 Rules is not supported by discussions within the Working Group.225

VI Other International Courts and Tribunals Clearly, the above rules do not exhaust the range of international courts and tribunals capable of awarding provisional measures. Nonetheless, for the reasons detailed in the introduction,226 they are the focus of this book, to the exclusion of other traditions. For the sake of completeness, however, those courts and tribunals that have been excluded will be discussed briefly.

A The European Court of Justice One of the more prominent excluded regimes is that of the European Court of Justice (ECJ), which forms part of the Court of Justice of the European Union. Established in 1952 and based in Luxembourg, the ECJ is the highest authority on questions of EU law. The Court is governed, inter alia, by the Treaty on the Functioning of the European Union227 (TFEU). This contains one of the broadest powers to award binding interim relief within the system of international courts and tribunals, with TFEU Article 278 giving the Court the power to suspend a contested measure, and TFEU Article 279 providing simply that ‘[t]he Court 224 225 226 227

Caron and Caplan, UNCITRAL Commentary, 524–5. Ibid, 525. Cf. UN Doc A/CN.9/547 (23–27 February 2004) §§70–71. Chapter 1, §II.B. Consolidated Version of the Treaty on the Functioning of the European Union, 26 October 2012, [2012] OJ C 326/47, Part VI, Title I, Chap 1, Section 6.

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of Justice of the European Union may in any cases before it prescribe any necessary interim measures’.228 Further rigour is provided by Articles 160–166 of the ECJ’s procedural rules.229 Naturally, the Court has interpreted these provisions extremely broadly, and has produced abundant case law to match. As with the ICJ, substantive limitations to the ECJ’s power to award interim relief have been introduced: applications must demonstrate urgency,230 a probability of irreparable prejudice231 and a prima facie case on the merits.232

B International Human Rights Regimes Another group of courts and tribunals that utilizes provisional measures in the settlement of disputes are those composed according to the various human rights regimes,233 including the European Court of Human Rights,234 the Inter-American Court of Human Rights,235 the UN Human

228

229 230 231 232 233 234

235

For an examination of the law on interim relief under the previous treaty regime, see Francis G Jacobs, ‘Interim Measures in the Law and Practice of the Court of Justice of the European Communities’, in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer, 1994) 37; Dimitrios Sinaniotis, The Interim Protection of Individuals before European and International Courts (Alphen aan den Rijn: Kluwer, 2006) ch 2. On the ECJ’s practice under the current EU regime, see Bertrand W¨agenbaur, Court of Justice of the EU: Commentary on the Statute and Rules of Procedure (Munich: Verlag CH Beck, 2013) 442–54. 2012 Rules of Procedure of the European Court of Justice [2012] OJ L 265/1 (ECJ Rules). Case 44/88R, De Compte v Parliament [1988] ECR 1670, §§30–1; Case C-656/II, UK v Council [2012] ECLI:EU:C:2012:211 (Interim Measures, 18 April 2012) §31. Case C-377/98R, Netherlands v Parliament and Council [2000] ECR-I 6231, §51. ECJ Rules, Art 160(3). Generally: Jo M Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38 Vand JTL 1. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, Part II; 2013 Rules of Court of the European Court of Human Rights, www.echr.coe.int/Documents/Rules Court ENG.pdf, Rule 39. Further: Rudolf Bernhardt, ‘Interim Measures of Protection under the European Convention on Human Rights’, in R Berhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer, 1994) 95. American Convention on Human Rights, 22 November 1969, 1144 UNTS 123, Art 63(2) (ACHR); 2009 Rules of Procedure of the Inter-American Court of Human Rights, www .corteidh.or.cr/sitios/reglamento/ene 2009 ing.pdf, Art 26. Further: Thomas Buergenthal, ‘Interim Measures in the Inter-American Court of Human Rights’, in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer, 1994) 69.

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Rights Committee,236 the UN Committee Against Torture237 and the Inter-American Commission on Human Rights.238 In terms of the subject matter of interim measures, these institutions share a common purpose, viz. the prevention or termination of human rights abuses pending resolution of a complaint. Applications are frequently made with respect to state-sponsored executions, extradition or deportment, the protection of threatened classes of person (e.g. witnesses, plaintiffs, lawyers, judges, journalists and opposition politicians) and so forth.239 Whilst provisional measures ordered by the European and Inter-American Courts may be considered binding on the parties, there persists some debates as to whether such relief ordered by the quasi-judicial committees possesses similar characteristics,240 although state compliance is the usual consequence of such orders.241 In terms of substantive preconditions, the human rights bodies have generally adopted the international standards of other courts and tribunals.242

C International Commercial Arbitration The final category of excluded tribunals concerns those bodies arbitrating international commercial disputes between two private parties. As discussed, some of these function on an ad hoc basis and award interim relief on the basis of Article 26 of the 1976 or 2010 UNCITRAL Rules. However, almost all institutional arbitration rules also grant tribunals the power to grant interim relief where required.243 Moreover, the 236

237

238 239 240 243

Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; 2012 Rules of Procedure of the Human Rights Committee, UN Doc CCPR/C/3/Rev.10 (11 January 2012) Rule 92. Further: Helen Keller and Cedric Marti, ‘Interim Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court of Human Rights’ (2013) 73 Za¨oRV 326. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, Part II; 2013 Rules of Procedure of the Committee against Torture, UN Doc CAT/C/3/Rev.6 (13 August 2013) Rule 114. ACHR Art 63(2); 2013 Rules of Procedure of the Inter-American Commission on Human Rights, www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp, Art 25. Pasqualucci, ‘Interim Measures in International Human Rights’, 26–35. 241 242 Ibid, 20–6. Ibid, 45–8. Ibid, 16–19. See e.g. 2012 ICC Rules of Arbitration, www.iccwbo.org/Products-and-Services/ Arbitration-and-ADR/Arbitration/ICC-Rules-of-Arbitration, Art 26; 1998 London Court of International Arbitration Rules, www.lcia.org/Dispute Resolution Services/ LCIA Arbitration Rules.aspx, Art 25; 2010 Stockholm Chamber of Commerce Arbitration Rules, www.sccinstitute.com/skiljedomsregler-4.aspx, Art 32; 2013 Arbitration Rules of the Singapore International Arbitration Centre, www.siac.org.sg/our-rules/ rules/siac-rules-2013, Art 26; 2010 China International Economic and Trade Arbitration

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substantive principles underpinning the award of provisional measures in such a context is not drawn from the lex fori, as might thought to be the case, but have taken on a relatively uniform international flavour irrespective of the selected forum. Applicants must demonstrate the usual criteria: the prima facie jurisdiction of the tribunal, a prima facie case on the merits, urgency, substantial or irreparable prejudice and proportionality.244

244

Commission Arbitration Rules, www.cietac.org/index.cms, Art 21; 2013 Hong Kong International Arbitration Centre Administered Arbitration Rules, www.hkiac .org/index.php/arbitration/arbitration-rules, Art 23; 2011 Australian Centre for International Commercial Arbitration Arbitration Rules, acica.org.au/acica-services/ acica-arbitration-rules, Art 26; 2013 American Arbitration Association Commercial Arbitration Rules, www.adr.org/aaa/faces/rules, Rule 37; 2012 Swiss Rules of International Arbitration, www.swissarbitration.org/sa/en/rules.php, Art 26. Fouchard, Gaillard and Goldman, 721–34; Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (The Hague: Kluwer, 2003) ch 5; Gary Born, 2 International Commercial Arbitration (Alphen aan den Rijn: Kluwer, 2014) ch 17.

PAR T II Provisional Measures in General

4 Power to Order Provisional Measures

I Introduction When presented with an application for interim relief, an international court or tribunal may take into account a number of factors in deciding whether such relief should be granted. These may be divided into three broad categories. The first concerns antecedent questions that must be answered affirmatively before further inquiries can be entered into: questions of the authority to award provisional measures, of consent to jurisdiction, and of admissibility. The second concerns the purpose of provisional measures, and the existence and relevance of the rights sought to be protected. The third addresses a set of circumstances slightly more open-ended and fact-sensitive in character, namely whether a failure to award interim relief would result in consequences too dire to be tolerated – the criteria of ‘irreparable’ prejudice and urgency. The present chapter addresses the first of these categories; the second (the purpose of provisional measures) is discussed in Chapter 5, the third (questions of urgency and ‘irreparability’) in Chapter 6. Questions of jurisdiction – and to a lesser extent, admissibility – have preoccupied provisional measures jurisprudence since the inauguration of the International Court of Justice. As was noted by the dissenting Judges Winiarski and Badawi Pasha in Anglo-Iranian Oil, provisional measures in international law ‘are exceptional in character to an even greater extent then they are in municipal law’ and as such ‘may easily be considered a scarcely tolerable interference in the affairs of a sovereign state’.1 To combat any perception of institutional overreach, the international courts and tribunals considered in this book – led to a great extent by the PCIJ and ICJ – have developed a series of preconditions to the award of interim relief that are intrinsically connected to the consensual character of jurisdiction 1

Anglo-Iranian Oil (Iran v UK), Provisional Measures, ICJ Reports 1951 p 89, 97 (Judges Winiarski and Badawi Pasha, diss).

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in international law. At the same time, however, these factors have been balanced against the fact that a request for provisional measures often precludes any searching inquiry as to either the jurisdiction of the tribunal or the merits of the dispute.

II Provisional Measures as Incidental Proceedings Provisional measures proceedings are inherently incidental – ‘engrafted onto a substantive case’2 – and share this characteristic with preliminary objections, third party applications for intervention and counterclaims.3 As a Chamber of the ICJ has said: Incidental proceedings by definition must be those which are incidental to a case which is already before the Court or Chamber. An incidental proceeding cannot be one which transforms the case into a different case with different parties.4

Incidental proceedings share a number of common features.5 With the exception of decisions on jurisdiction and admissibility (which take the form of judgments or awards) incidental proceedings are concluded by way of procedural order or, unusually, by way of interim award.6 2 3

4 5

6

Robert Kolb, The International Court of Justice (Oxford: Hart, 2013) 621–2. See Questions Relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v Australia), ICJ, Order of 3 March 2014, §6 (Judge Greenwood, diss). Further: V S Mani, International Adjudication: Procedural Aspects (The Hague: Martinus Nijhoff, 1980) 283; Shabtai Rosenne, 2 The Law and Practice of the International Court 1920– 2005 (The Hague: Martinus Nijhoff, 4th edn, 2006) 578–9; Hugh Thirlway, 1 The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford: Oxford University Press, 2013) 928. Some early commentators argued that the category also concerned proceedings for interpretation or revision, although the modern practice of the ICJ has been formally to treat such actions as entirely new proceedings: Manley O Hudson, The Permanent Court of International Justice, 1920–1942 (New York: MacMillan, 1943) 408. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, ICJ Reports 1990 p 92, 134. Bernard H Oxman, ‘Jurisdiction and the Power to Indicate Provisional Measures’, in L F Damrosch, The International Court of Justice at a Crossroads (Dobbs Ferry, NY: Transnational Publishers, 1987) 323, 333–4; Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) 9–10; Rosenne, 2 Law and Practice, 578–84; ICSID Commentary, 774–5. See e.g. 1976 UNCITRAL Rules, Rule 26(2). Interim awards are usually utilized in the investor-state arbitration context so as to render a provisional measure enforceable under the New York Convention, Art III: Caline Mouawad and Elizabeth Silbert, ‘A Guide to

provisional measures as incidental proceedings

135

Furthermore, the exercise of incidental powers by the court or tribunal does not formally require the consent of the parties – such consent, rather, is implicit in a state’s overall accession to the existence and functioning of the relevant court and tribunal, as well as its consent to the capacity of that court or tribunal to decide the dispute on the merits. When issued in this way, provisional measures do not constitute the final disposition of a case and indeed are often expressed to be without prejudice to either the parties’ submissions or the court or tribunal’s conclusions on the merits.7 Accordingly, they are without res judicata effect. As such, the basal requirement for the grant of a request for provisional measures is that the court or tribunal in question be seised of a case with respect to which judgment is pending.8 This assertion is confirmed by the wording of Article 41(2) of the ICJ Statute, which makes reference to actions taken ‘[p]ending resolution of the final decision’.9 Similarly, UNCLOS Article 290(1) frames the question in conditional terms, opening with the words ‘[i]f a dispute has been duly submitted to a court or tribunal’.10 Other international courts and tribunals have adopted wording that contemplates the existence of a primary dispute separate from a request for interim relief.11 In all cases, the language deployed is only

7

Interim Measures in Investor-State Arbitration’ (2013) 29 Arb Int’l 381, 417–23. Where a court or tribunal has a discretion to issue relief as either an order or interim award, it may be subsequent to issuing relief convert the former into the latter so as to maximize the enforcement options available to the beneficiary: see e.g. Chevron Corporation and Texaco Petroleum Corporation v Ecuador, PCA Case No 2009–23 (First Interim Award on Interim Measures, 25 January 2012) 16–17. Mani, International Adjudication, 285–6. See e.g. Fisheries Jurisdiction (UK v Iceland), Provisional Measures, ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (Germany v Iceland), Provisional Measures, ICJ Reports 1972 p 31, 34: Whereas the decision given in the course of the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the merits themselves and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction or in respect of such merits [ . . . ]

8

9 11

Cf. the various separate opinions of Judge Canc¸ado Trindade, who has argued for a ‘conceptually [ . . . ] autonomous legal regime of provisional measures of protection’: see e.g. Certain Documents and Data, ICJ, Order of 3 March 2014, §59–62 (Judge Canc¸ado Trindade). 10 Further: ICJ Rules, Art 73(1). Further: ITLOS Rules, Art 89(1). See e.g. ICSID Rules, Rule 39 (‘At any time after the institution of the proceeding’); ICSID (AF) Rules, Art 46 (‘either party may at any time during the proceeding’); 1976 UNCITRAL Rules, Art 26(1) (‘the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute’); 2010 UNCITRAL Rules Art 26(2) (‘An interim measure is any temporary measure by which, at any time prior to the issuance

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capable of being given meaning if interim relief is dependent on the court or tribunal already being seised.12 This point has not been the subject of an express judicial pronouncement,13 but parties tend automatically to ensure that any request for interim relief is at the very least made alongside an application for final relief – even where the raison d’ˆetre of that application is the request for provisional measures itself.14 The alternative would be to convert a court or tribunal’s capacity to award interim relief into an unlimited grant of jurisdiction inconsistent with the consent-based character of international dispute settlement.15

III Legal Source of the Power to Order Provisional Measures A Provisional Measures as a General Principle of International Law The character of provisional measures proceedings as incidental to a primary action is relatively uncontroversial. Less certain is the source of the capacity to award provisional measures and, more particularly, whether it is possible for an international court or tribunal to issue interim relief without the express authorization of the parties. However, given its widespread use in international law and the plethora of domestic law analogies readily identifiable,16 it may be argued that the power to order provisional measures constitutes a general principle of international law within the meaning of Article 38(1)(c) of the ICJ Statute,17 and is therefore generally available to adjudicators even in the absence of an express power – an argument made at length by Cheng.18 A number of

12 13

14 17 18

of the award by which the dispute is finally decided’); 2012 PCA Rules, Art 26(2) (‘An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided’). Kolb, International Court, 622. Cf. Legal Status of South-Eastern Greenland (Denmark v Norway) (1932) PCIJ Ser A/B No 48, 283–4; Aegean Sea Continental Shelf (Greece v Turkey), Provisional Measures, ICJ Reports 1976 p 3, 15 (President Jimenez de Ar´echaga). 15 16 See Chapter 9, §II. Kolb, International Court, 622. See Chapter 2, §II.B. Generally: R¨udiger Wolfrum ‘Sources of International Law’, MPEPIL (2011) §§33–9; Alain Pellet, ‘Article 38’, ICJ Commentary, 731, 832–41. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge University Press, 1953) 267–74. See also Mani, International Adjudication, 277; Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992) 234 Hague Recueil 9, 23–4, 214–15; ‘Discussion’, in R Bernhardt (ed), Interim Measures Indicated by International Courts and Tribunals (Berlin: SpringerVerlag, 1994) 117, 127–9 (Mosler), 137–9 (Jacobs), 140 (Bernhardt); Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2007) 126–7. Dumbauld earlier identified provisional measures as a general principle but stopped short

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factors support this assertion. In the first place, in the modern era of dispute settlement, it is widely accepted that international courts and tribunals require a broad power to regulate their proceedings. For this reason, it is common for the constituent instruments of such courts or tribunals to include the authority to award interim relief. The most prominent example of this is Article 41 of the ICJ Statute, and amongst the judicial bodies under consideration here, one may also point to UNCLOS Article 290, Article 47 of the ICSID Convention and NAFTA Article 1134 as exemplifying this paradigm, as do a number of other stand-alone agreements that exist to confer jurisdiction on another dispute resolution body.19 Another approach is for the power to grant interim relief to be included in a preexisting set of procedural rules to be drafted or nominated by the parties, as is the case with Article 26 of the 1976 and 2010 UNCITRAL Rules, as well as Article 26 of the PCA Arbitration Rules. A related case is where the parties agree to base the procedure of a dispute settlement body on an existing set of rules containing a provisional measures procedure, and then leave final settlement of the rules to the tribunal itself, as was the case with both the Iran–US Claims Tribunal (based on the 1976 UNCITRAL Rules20 ) and the Ethiopia–Eritrea Claims Commission (based on the PCA Optional Rules).21 In all cases, the court or tribunal’s capacity to award interim relief has been generated by the express (or at least strongly implied) consent of the parties, but may be said more broadly to reflect an extant general principle of law. More complicated is the situation in which a court or tribunal is given a general competence to define its own proceedings, and then arrogates unto itself the power to award interim relief. The most prominent example is the European Court of Human Rights, which has used its general power under ECHR Article 25(d) to supplement its procedural framework

19

20

21

of arguing for an automatic competence of international courts and tribunals to order them: Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) 180. See e.g. the General Act for the Pacific Settlement of International Disputes, 26 September 1928, 93 UNTS 343, Art 33; American Treaty of Pacific Settlement (Pact of Bogat´a), 30 April 1948, 30 UNTS 55, Art XVI; European Convention for the Peaceful Settlement of Disputes, 29 April 1957, 320 UNTS 243, Art 21. Declaration of the Government of the Democratic and Popular Government of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Claims Settlement Declaration), 19 January 1981, 20 ILM 1981, Art III(2). Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, 12 December 2000, 40 ILM 260, Art 5(7).

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sua sponte to introduce the capacity to order provisional measures.22 An older example arises in the context of the inter-war mixed arbitral tribunals,23 many of which undertook a similar exercise pursuant to a general grant of procedural creativity in the 1919 Treaty of Versailles24 and other postwar agreements. Again, these examples may be said to reflect the tribunal in question giving form to a general principle of international law through its power to develop its own procedure – though naturally it cannot go beyond the scope of its constituent instrument in so doing. A third variation is where an international court or tribunal orders interim relief without reference to any provision in its constitutive instrument or its procedural rules. An early example of this occurred in the order issued by the tribunal assembled according to the terms of the 1906 Treaty of Corinto, which purported to derive its authority from ‘its principal duty is to see that the judgment it is going to deliver should become effective’.25 Reference might also be made in this respect to the early practice of the UN Administrative Tribunals and the International Labor Organization.26 A further example was the Trail Smelter arbitration, in which the Tribunal established a ‘temporary regime’ that safeguarded the rights subject to litigation notwithstanding the absence of such a power in the Tribunal’s constitutive instrument.27 Certain aspects of the power to order provisional measures have been identified as a general principle of international law in the decisions of international courts and tribunals. The PCIJ in Electricity Company made reference to ‘the principle universally accepted by international tribunals [ . . . ] to the effect that the parties to the case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given’,28 thereby identifying measures for the 22

23 25 26 27 28

See 2014 Rules of the European Court of Human Rights, Rule 39. On the introduction of the power, see Rudolph Bernhard, ‘Interim Measures of Protection under the European Convention on Human Rights’, in R Bernhard (ed), Interim Measures Indicated by International Courts (Berlin: Springer-Verlag, 1994) 95, 97–100. 24 See Chapter 2, §III.B. 28 June 1919, 225 CTS 188, Art 304(d). See Chapter 2, §III.A.1. Further: Dumbauld, Interim Measures, 92–5. Karin Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit (Berlin: Springer-Verlag, 1975) 127ff. Trail Smelter (US/Canada) (1938) 3 RIAA 1911, 1934–7. Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79, 199. See also LaGrand (Germany v US), ICJ Reports 2001 p 466, 503. In the ICSID context, the Tribunal in Amco Asia Corporation v Indonesia, Provisional Measures (1983) 1 ICSID Reports 410, 412 made reference to the ‘good, practical rule’ of non-aggravation of the dispute. See also the similar decision of the Rennes Cour d’Appel in Guinea v Atlantic Triton Company (1984) 3 ICSID Reports 3, 5–6.

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non-escalation of a dispute as reflecting a general principle of international law. As for the power to issue provisional measures protecting rights pendente lite, individual opinions within the ICJ have identified a similar general principle,29 and furthermore, the Court’s finding in Pulp Mills that the capacity to order measures for non-escalation is dependent on the power to award measures for the protection of litigated rights tends to indicate that it at least considers the two species of measure to derive from the same source.30

B Provisional Measures as an Inherent Power of International Courts and Tribunals Another argument for the source of the power to award interim relief is that it is but one facet of an international court or tribunal’s inherent power to regulate its jurisdiction. This view was expressed by Judge Fitzmaurice in Northern Cameroons: Although much of this [ . . . ] incidental jurisdiction is specifically provided for in the Court’s Statute, or in the Rules of Court which the Statute empowers the Court to make, it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court – or of any court of law – being able to function at all.31

On this view, the inherent powers of international courts and tribunals arise from their judicial character, with parties who accede to the jurisdiction of such a body assumed also to accede to the potential exercise of certain implied powers deployed in order to guarantee the integrity of the judicial process.32 As such, the ICJ’s activity under Article 41 of its Statute 29 30

31

32

See e.g. Aegean Sea, ICJ Reports 1976 p 3, 15–16 (President Jim´enez de Arechaga). Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, ICJ Reports 2007 p 3, 16; cf. ibid, 21 (Judge Buergenthal). Further: Paolo Palchetti, ‘The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute’ (2008) 21 LJIL 623; Chapter 5. Northern Cameroons (Cameroon v UK), Preliminary Objections, ICJ Reports 1963 p 15, 103 (Judge Fitzmaurice); See also: Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 259–60; Nuclear Tests (New Zealand v France), ICJ Reports 1974 p 457, 463; Legality of the Use of Force (Serbia and Montenegro v UK), Preliminary Objections, ICJ Reports 2004 p 1307, 1361–2 (Judge Higgins). Further: Dinah Shelton, ‘Form, Function and the Powers of International Courts’ (2009) 9 CJIL 537, 548–50. Gerald Fitzmaurice, 2 The Law and Procedure of the International Court of Justice (Cambridge: Cambridge University Press, 1986) 533, 770–1; Elihu Lauterpacht, ‘“Partial” Judgments and the Inherent Jurisdiction of the International Court of Justice’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 465, 476–83; Paola Gaeta, ‘Inherent Powers of International Courts and Tribunals’, in L C Vohrah et al. (eds),

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does no more than ‘in effect give life and blood to a rule that already exists in principle’.33 Fitzmaurice extended this proposition further still arguing ‘if there is ever a case at all for conferring this faculty expressly on an international tribunal (be it the [ICJ] or another), there is automatically a case for regarding all international tribunals as inherently invested with it’.34 The ILC had the opportunity to deal with this question in the course of its early work on arbitral procedure.35 Discussing Draft Article 26 (concerning provisional measures) of the Commission’s proposed code of arbitral procedural, Jaroslav Zourek (Czechoslovakia) put forward the argument that as the powers of an international arbitral tribunal were dependent on the will of the parties, a tribunal could neither (a) award provisional measures absent an express power to do so, or (b) award provisional measures proprio motu. He secured the agreement of F I Kozhevnikov (USSR), but did not carry the remainder of the Commission, which rejected his proposal to insert wording supporting his views into the draft by a margin of 10 to 2.36 Reasoning such as that propounded by Fitzmaurice has been adopted by, inter alia, the Inter-American Court of Human Rights, which in Vel´asquez Rodriguez awarded interim relief on the basis of ‘Articles 63(2), 33 and 62(3) of the American Convention on Human Rights, Articles 1 and 2 of the Statute of the Court and Article 23 of the Rules of

33

34

35 36

Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese(The Hague: Kluwer Law International, 2003) 353; Rosenne, 2 Law and Practice, 579–84; Brown, Common Law, 55–81; Shelton, ‘Form, Function and the Powers’, 548–50; Brown, ‘Inherent Powers in International Adjudication’, in C P R Romano, K J Alter and Y Shany (eds), The Oxford Handbook of International Adjudication (Oxford: Oxford University Press, 2014) 828. Edvard Hambro, ‘The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice’, in W Sch¨atzel and H J Schlochauer (eds), Rechtsfragen der Internationalen Organisation – Festschrift f¨ur Hans Wehberg zu seinem 70 Geburtstag (Frankfurt am Main: Vittorio Klostermann, 1956) 152, 167. The ICJ has made a similar pronouncement with respect to its ability to determine its own jurisdiction (kompetenz-kompetenz): Nottebohm (Liechtenstein v Guatemala), Preliminary Objections, ICJ Reports 1953 p 111, 119. Fitzmaurice, 2 Law and Procedure, 542. See also Hudson, Permanent Court, 426; Jerome B Elkind, Interim Protection: A Functional Approach (The Hague: Martinus Nijhoff, 1981) 162–3. The argument appears to have been advanced first by Hans Gerd Niemeyer, Einstweilige Verf¨ugungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen (Leipzig: R Noske, 1932) 11–16, 23–4. Further: United Nations, 1 The Work of the International Law Commission (New York: United Nations, 8th edn, 2012) 134–7. ILC Ybk 1952/1, 65–6.

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Procedure and its character as a judicial body and the powers which derive therefrom’.37 In the context of ICSID, the Tribunal in Biwater Gauff v Tanzania observed that: It is now settled in both treaty and international commercial arbitration that an arbitral tribunal is entitled to direct the parties not to take any step that might (1) harm or prejudice the integrity of proceedings, or (2) aggravate or extend the dispute. Both may be seen as a particular type of provisional measure [ . . . ] or simply as a facet of the tribunal’s overall procedural powers and its responsibility for its own process.38

Although it may be agreed that such inherent powers exist within the law and practice of international courts and tribunals, commentators have lamented the failure of these bodies to identify their legal source with consistency and precision.39 In the case of provisional measures, this is exacerbated by the fact that most international courts and tribunals are expressly granted the power to award interim relief, and naturally prefer to rely on that power so as to avoid controversy. One hypothesis is that inherent powers are again merely a reflection of general principles of international law,40 and certainly the power to order provisional measures would appear to fit within this model. Other theories take a more elemental stance, and argue that the power emerges from the need of international courts and tribunals to fulfill the mandate granted in their constitutive instruments41 – an expression of the need for ‘effectiveness’ in international jurisdiction.42 37 38

39 40

41

42

Vel`asquez Rodriguez (1988) 95 ILR 259, 268. Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 3, 29 September 2006) §135 (emphasis added). See also and earlier E-Systems Inc v Iran (1983) 2 Iran–US CTR 51, 57. Gaeta, ‘Inherent Powers’, 354–5, 358–61; Brown, Common Law, 66–71. Gaeta, ‘Inherent Powers’, 355; Brown, Common Law, 67–9. As such, scholars tend to conflate the two without feeling the need to discuss any potential distinction: see e.g. Collins, ‘Provisional and Protective Measures’ 214–16; Chittharanjan F Amerasinghe, Jurisdiction of International Courts and Tribunals (The Hague: Kluwer, 2003) 347–8; Karin Oellers-Frahm, ‘Expanding the Competence to Issue Provisional Measures – Strengthening the International Judicial Function’ (2011) 12 German LJ 1279, 1282–4. Alexander Orakhelashvili, ‘Questions of International Judicial Jurisdiction in the LaGrand Case’ (2002) 15 LJIL 105, 107–8, 113–14; Gaeta, ‘Inherent Powers’, 364–8; Brown, Common Law, 71; R¨udiger Wolfrum, ‘Interim (Provisional) Measures of Protection’, in R Wolfrum (gen ed), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, online edn, 2006) §5; Oellers-Frahm, ‘Expanding the Competence’, 1283. Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge: Cambridge University Press, 1958) 243–56.

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C Provisional Measures as an Express Mandate In a purely functional sense, a conceptualization of the power to order provisional measures as either a general principle of international law or an inherent power of an international court or tribunal leads to the same result – the capacity to grant interim relief even in the absence of the parties’ express consent. Other scholars, however, argue that provisional measures can only ever be awarded pursuant to the express mandate of the parties. Insofar as general principles of law are concerned, the argument runs, a court or tribunal cannot obtain a jurisdictional power from a general principle, but only from the consent of the parties.43 Similar objections have been made with respect to the view that international courts and tribunals possess an inherent power to award provisional measures. If some powers are included and others not, then this is suggestive of an intention to omit: expressio unius est exclusio alterius.44 As Brown points out, however, such concerns are misplaced – courts and tribunals have never considered general principles of law arising from Article 38(3) of the ICJ Statute to exclude procedural powers and indeed the PCIJ’s pronouncement in Electricity Company would appear to directly contradict such a narrow reading in the case of provisional measures.45 With respect to inherent powers, if these are to be considered reflective of general principles of international law, then the argument against also collapses for reasons connected to the procedural character of such principles. If, however, inherent powers are linked to a criterion of ‘effectiveness’, then they may be justified through the capacity of an international court to protect the integrity of its final award, as supported by a considerable corpus of judicial authority46 – though one must be careful to draw a distinction between what is truly necessary for a tribunal to function effectively, and an act of judicial overreach that disparages party 43

See e.g. Dumbauld, Interim Measures, 180–1; Bernhardt (ed), ‘Discussion’, 126–7 (Herdegen); Rosenne, Provisional Measures, 11; Thirlway, 1 Law and Procedure, 966–7. Cf. Rosenne, 2 Law and Practice, 578–9. That being said, Thirlway is not completely hostile to the concept of inherent powers of international courts and tribunals. See Hugh Thirlway, ‘Dilemma or Chimera? Admissibility of Illegally Obtained Evidence in International Adjudication’ (1984) 78 AJIL 622, 626: If states in setting up an international body classify it as a court or tribunal, then there is no need for them to spell out in its constitutive instrument that it is under an obligation to hear both sides before deciding; by calling it a court they are already implicitly giving it that instruction.

44 45

Bernhardt (ed), ‘Discussion’, 123–4 (Golsong), 133 (Sinclair); Thirlway, 1 Law and Procedure, 704–5. 46 Brown, Common Law, 67–9, 127. Ibid, 127–33.

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consent, e.g. the use of incidental jurisdiction to stray beyond the prima facie jurisdiction of the court or tribunal or to otherwise fundamentally alter the proceedings.47

D Contours and Preconditions: Provisional Measures as Lex Specialis 1 Fixed Minimum Features of the Power If there arises in international law a general power to award provisional measures, what are the features of this power? As Brown has pointed out, a measure of uniformity may be detected as between international courts and tribunals when considering the preconditions for interim relief.48 This prompts the question: which of these preconditions must be adopted by international courts and tribunals as compulsory features of the power to award provisional measures? If it is presumed that the source of the power is a general principle of international law, then the preconditions inherent in the exercise of the power would appear to be minimal. As Pellet points out, the roots of such principles lie in the municipal law of states,49 and a certain commonality of practice must be observed if a coherent norm is to be identified. As seen in Chapter 2, however, although most legal systems acknowledge the capacity of a domestic tribunal to award interim relief, the conditions according to which such relief is awarded vary considerably. Furthermore, it is not sufficient for an international court or tribunal to simply apply municipal concepts under the rubric of general principles – a measure of transposition is required.50 As noted by Judge McNair in the South West Africa advisory opinion: The way in which international law borrows from [general principles of law] is not be means of importing private law institutions ‘lock, stock and barrel’, ready-made and fully equipped with a set of rules [ . . . ] [T]he true view of the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principles rather than directly importing these rules and institutions.51 47 48

49 51

Wolfrum, ‘Interim (Provisional) Measures’, §5. Brown, Common Law, 135–51. Further: Cameron A Miles, ‘The Influence of the International Court of Justice on the Law of Provisional Measures’, in M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence of International Law (Cambridge: Cambridge University Press, 2015) 218. 50 Pellet, ‘Article 38’, 834. Ibid, 840–1. International Status of South West Africa, ICJ Reports 1950 p 128, 148 (Judge McNair). See also Barcelona Traction, Light and Power Company Ltd (Belgium v Spain), ICJ Reports 1970 p 3, 66 (Judge Fitzmaurice).

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Accordingly – aside from the fact of the power itself – only the broadest contours of the capacity to award interim relief may be said to exist as a general principle within the meaning of Article 38(1)(c). Based on the pronouncements of courts and tribunals, these may be identified as (a) the character of provisional measures proceedings as incidental; and (b) the purpose for which provisional measures may be granted, i.e. to protect rights pendente lite or to ensure non-escalation of the dispute.52 A third factor may also be adduced which arises from the need to render municipal concepts of interim relief useable on the international plane, namely the need for some form of jurisdictional review by the court or tribunal prior to the granting of provisional measures, though the precise threshold of such a review is not necessarily fixed.53 Finally, the character of provisional measures as binding on the parties would now appear to be a minimum feature of the power to award interim relief, though this facet’s emergence as such was attended by significant controversy, discussed at length in Chapter 7. Similar conclusions may be drawn if we conceive of provisional measures as arising from the need for international courts and tribunals to protect the ‘effectiveness’ of their jurisdiction. The power, such as it is, is to be realized realised by each individual court and tribunal, in accordance with the provisions of its constituent instrument. Lauterpacht, in setting out the parameters of the power as an expression of effectiveness in the context of the ICJ, made note of the need for the Court to be seised and jurisdiction tentatively established prior to the granting of relief, as well as the need to ensure that provisional measures are only awarded in the service of a particular purpose.54

2 Constitutive Instruments and Lex Specialis Beyond the minimum requirements specified above, there is no formal uniform law of provisional measures that exists generally between international courts and tribunals. To the extent that a uniform law has developed, its spread is attributable to the underlying logic of its constituent elements. Courts and tribunals are free to adopt or discard these elements as they see 52 53 54

Although measures to prevent non-escalation may be said to arise from early international practice, rather than domestic notions of interim relief: Chapter 2, §V.B. Anglo-Iranian Oil, ICJ Reports 1951 p 89, 96–7 (Judges Winiarski and Badawi Pasha, diss). Given Lauterpacht’s well-known championing of the prima facie jurisdiction test (below §IV.A.2) his analysis sets the standard of review at this level: Lauterpacht, Development of International Law, 252–6.

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fit, although it should be noted that the existence of a jurisprudence constante with respect to the preconditions of provisional measures carries considerable weight. Additionally, when addressing the ICJ’s influential corpus of case law the argument that the Court’s jurisprudence should be applied by another body is somewhat stronger where Article 41 of the ICJ Statute has been used as a basis for that body’s authorization to award interim relief – though again this is not definitive. An example of the independence of different adjudicatory bodies in this respect may be seen in the emergence of a possible divide between the ICJ on the one hand and certain ICSID tribunals on the other on the question of prejudice to rights pendente lite.55 Historically, the former has required the possibility of ‘irreparable; prejudice in order for interim relief to be awarded.56 Recent instances of the latter, however, have moved away from such a standard to require a putatively lower threshold of ‘significant’ prejudice.57 Similar arguments have been made with respect to the provisional measures jurisprudence under UNCLOS, although the tribunals there have been less willing to strike out from the ICJ;58 indeed, the Annex VII tribunal in MOX Plant adopted the ICJ’s standard of irreparability on the basis of ‘international judicial practice’ alone.59 55 56

57

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59

Dan Sarooshi, ‘Provisional Measures and Investment Treaty Arbitration’ (2013) 29 Arb Int’l 361, 377–9. Denunciation of the Treaty of November 2nd, 1865 between China and Belgium (Belgium v China) (1927) PCIJ Ser A No 8, 7; South-Eastern Greenland (1932) PCIJ Ser A/B No 48, 284; Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 16; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Provisional Measures, ICJ Reports 1996 p 13, 23. City Oriente Ltd v Ecuador and Empesa Estatal Petr´oleos Del Ecuador, ICSID Case No ARB/06/21 (Decision on Revocation of Provisional Measures, 13 May 2008) §§70–2; Perence Ecuador Ltd v Ecuador and Empesa Estatal Petr´oleos Del Ecuador, ICSID Case No ARB/08/6 (Decision on Provisional Measures, 8 May 2009) §43; Burlington Resources Inc and Ors v Ecuador and Empesa Estatal Petr´oleos Del Ecuador, ICSID Case No ARB/08/5 (Procedural Order No 1, 29 June 2009) §51. M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea), Provisional Measures (1998) 117 ILR 111, 143 (Judge Liang); Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan) (1999) 117 ILR 148, 170 (Judge Laing). Further: Edward A Laing, ‘A Perspective on Provisional Measures under UNCLOS’ (1998) 29 NYIL 45. MOX Plant (Ireland v UK), Procedural Order No 3 (2003) 123 ILR 310, 328 (Annex VII). See also Sergei Paushok, CJSC Golden East Company, CJSC Vostokneftegaz Company v Mongolia, UNCITRAL (Interim Measures, 2 September 2008) §45 (making reference to the five ‘internationally recognized’ preconditions of interim relief). Cf. Sarooshi, ‘Provisional Measures’, 370–1, arguing that no ‘international jurisprudence’ of provisional measures can be said to exist.

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Given the amorphous nature of the power, states can modify its scope through the constitutive instrument of the court or tribunal in question. For example, whilst Article 41 of the ICJ Statute and Article 47 of the ICSID Convention are phased in terms so general as to do little more than confirm the existence of the power, UNCLOS Article 290(1) simultaneously broadens and narrows its parameters, requiring that jurisdiction be established prima facie prior to the award of interim relief but exceptionally permitting provisional measures for the prevention of serious harm to the marine environment. Such embellishments, when they occur, constitute a lex specialis that may supplement or displace the general power.60 The implications of this are seen in the order by the Court of Arbitration in Kishenganga.61 There, the constitutive instrument of the Court of Arbitration, the Indus Waters Treaty,62 contained a specific power to grant interim relief in Paragraph 28 of Annexure G. This provided: Either Party may request the Court at its first meeting to lay down, pending its Award, such interim measures as, in the opinion of that Party, are necessary to safeguard its interests under the Treaty with respect to the matter in dispute, or to avoid prejudice to the final solution or aggravation or extension of the dispute. The Court shall, thereupon, after having afforded an adequate hearing to each Party, decide by a majority consisting of at least four members of the Court, whether any interim measures are necessary for the reasons herein before stated and, if so, shall specify such measures: Provided that (a) the Court shall lay down such interim measures only for such specified period as, in its opinion, will be necessary to render the Award: this period may, if necessary, be extended unless the delay in rendering the Award is due to any delay on the part of the Party which requested the interim measures in supplying such information as may be required by the other Party or by the Court in connection with the dispute; and (b) the specification of such interim measures shall not be construed as an indication of any view of the Court on the merits of the dispute.

Faced with an application for provisional measures by Pakistan, India responded by referring the Court to ICJ authorities concerning questions of urgency and necessity, neither of which were the subject of express 60 61 62

ARSIWA Art 55. Further: James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) 103–5. Indus Waters Kishenganga Arbitration (Pakistan v India), Interim Measures (2011) 150 ILR 311. 19 September 1960, 419 UNTS 215.

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mention in Paragraph 28. Pakistan, in reply, asserted that the provision furnished a self-contained set of rules and that the Court was barred from even considering sources of law external thereto. Had the parties to the Indus Waters Treaty wished to incorporate the ICJ’s view on the matter, it was argued, they would have adopted Article 41 of the ICJ Statute as a model.63 India, for its part, argued that the jurisprudence of the ICJ and other institutions was available to the Court of Arbitration so as to aid in the interpretation of the ‘spare’ wording of Paragraph 28.64 The Court adopted a nuanced view, holding that the provision ‘functions as a kind of lex specialis prescribed by the framers of the provision that makes unnecessary the imposition of further requirements’.65 Despite this stance, however, the Court took note of the jurisprudence of other courts and tribunals, including the ICJ, when discussing its capacity to award interim relief ‘to avoid prejudice to the final solution’.66 It then referred to ‘the general practice of international courts and tribunals’, but was careful to note that its motivation in invoking such practice was not blind adherence, but policy concerns related to the extraordinary character of interim relief awarded in an international context.67

IV Prima Facie Jurisdiction As stated, one of the most significant international elaborations to interim relief arises from its interaction with consensual jurisdiction.68 The sine qua non of provisional measures is to prevent damage to rights subject to litigation or to otherwise forestall modification of the status quo between the parties. Given the cumbersome nature of the international legal process, the need to institute effective protection may preclude a full examination of the legal issues involved. However, the fundamental premise of the jurisdiction of international courts and tribunals is consent.69 How then, can an international court – which may lack jurisdiction – make 63 65 68

69

64 Kishenganga (2011) 150 ILR 311, 333–4. Ibid, 334–5. 66 67 Ibid, 350. Ibid, 351. Ibid, 351–2. Dumbauld, Interim Measures, 2–7; Elkind, Functional Approach, 167–8; Rosenne, Provisional Measures, 85–91; John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford: Oxford University Press, 1999) 169. Also: Interhandel (Switzerland v US), Provisional Measures, ICJ Reports 1957 p 105, 118–19 (Judge Lauterpacht). See e.g. Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US), Preliminary Objections, ICJ Reports 1954 p 19, 32; East Timor (Portugal v Australia), ICJ Reports 1995 p 90, 101; Fisheries Jurisdiction (Spain v Canada), Preliminary Objections, ICJ Reports 1998 p 432, 435. Further: Amerasinghe, Jurisdiction, 69–77.

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an order touching on rights subject to litigation before it has finally determined whether jurisdiction exists? The problem is only heightened further in the postwar era of dispute settlement, where jurisdictional challenges are relatively common. Clearly, some form of jurisdictional review is required prior to the awarding of interim relief – the question is one of threshold. Questions relating to the appropriate standard of jurisdictional review did not arise before the PCIJ.70 However, the problem attained considerable prominence before the ICJ, and whilst it was effectively resolved by the 1970s, dissent still lingered within the Court and was the subject of continued academic commentary.71 The threshold that emerged from the practice of the Court – prima facie jurisdiction – has been reliably adopted by the other international courts and tribunals that emerged following the brokering of the consensus. Given its status as one of the basic features of the power to award provisional measures in international law, the question of jurisdiction must be addressed if relief is to be granted. Whilst international courts and tribunals are able to dismiss applications for reasons unconnected to the absence of jurisdiction,72 if it is minded to award provisional measures, jurisdiction must be established to the required level.73 As noted

70 71

72

73

See Chapter 2, §IV.C. Further: Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer, 1983) 225–31. See e.g. M H Mendelson, ‘Interim Measures of Protection in Cases of Contested Jurisdiction’ (1972–1973) 46 BYIL 259; V S Mani, ‘On Interim Measures of Protection: ICJ Practice’ (1973) 13 IJIL 262, 268–71; Peter J Goldsworthy, ‘Interim Measures of Protection in the International Court of Justice’ (1974) 68 AJIL 258, 262–8; J G Merrills, ‘Interim Measures of Protection and the Substantive Jurisdiction of the International Court’ (1977) 36 CLJ 86; Elkind, Functional Approach, ch 7; Sztucki, Interim Measures, 221–60; D W Greig, ‘The Balancing of Interests and the Granting of Interim Protection by the International Court’ (1987) 11 AYIL 109, 110–19; J G Merrills, ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’ (1995) 44 ICLQ 90, 91–101; Collier and Lowe, Settlement of Disputes, 169–71. See e.g. Aegean Sea, ICJ Reports 1973 p 3, 13. That said, the practice of the Court, even if minded to dismiss applications, has been to address jurisdiction regardless: Interhandel, ICJ Reports 1957 p 105, 110; Passage through the Great Belt (Denmark v Norway), Provisional Measures, ICJ Reports 1991 p 12, 15; Pulp Mills, Provisional Measure, ICJ Reports 2006 p 113, 128–9; Pulp Mills, ICJ Reports 2007 p 3, 10–11; Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, ICJ Reports 2009 p 139, 147–50. Cf. Trial of Pakistani Prisoners of War (Pakistan v India), Provisional Measures, ICJ Reports 1973 p 328, 328–31. Shigeru Oda, ‘Provisional Measures: The Practice of the International Court’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of

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by Judge Mosler in Aegean Sea, ‘provisional affirmation of jurisdiction is [ . . . ] not “a circumstance” contributing to the necessity of provisional measures [ . . . ] but a precondition of the examination whether such “circumstances” exist’.74

A The International Court of Justice 1 Early Debates and Discarded Alternatives The problem was instantiated in Anglo-Iranian Oil, a politically complex case which concerned a claim brought by the UK against Iran with respect to the latter’s treatment of a British company following nationalization of the Iranian oil industry.75 The jurisdiction of the Court was putatively founded on an optional clause declaration made pursuant to Article 36(2) of the ICJ Statute. Iran objected to the Court’s jurisdiction on the basis that its declaration was limited to the application of agreements entered into after the declaration was ratified, and that any agreement on which the UK might substantively rely pre-dated that ratification. Faced with a British application for provisional measures, Iran refused to participate in this phase of proceedings, depriving the Court of the benefit of further argument. The Court awarded provisional measures nonetheless, noting that despite the reservations contained in Iran’s optional clause declaration, ‘it cannot be accepted a priori that a claim based on such a complaint falls outside the scope of international jurisdiction’.76 Judges Winiarski and Badawi Pasha’s dissent captured the character of the problem faced by the Court, and in this connection advocated a higher standard of jurisdictional review, indeed reaching the tentative conclusion that the Court lacked jurisdiction.77 In terms:

74

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Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 541, 548–51; OellersFrahm, ‘Article 41’, in ICJ Commentary, 1039. Cf. Thirlway, 1 Law and Procedure, 931; 2 Law and Procedure, 1772–7. Aegean Sea, ICJ Reports 1976 p 3, 25 (Judge Mosler). See also Interhandel, ICJ Reports 1957 p 105, 113 (Judge Wellington Koo); Request for Interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537, 542 (‘whereas the Court may indicate provisional measures in the context of proceedings for interpretation of a judgment only if it is satisfied that there appears prima facie to exist a ‘dispute’ within the meaning of Article 60 of the Statute’). Further: William W Bishop Jr, ‘The Anglo-Iranian Oil Company Case’ (1951) 45 AJIL 749. 77 Anglo-Iranian Oil, ICJ Reports 1951 p 89, 92. Ibid, 93.

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power to order provisional measures [T]he Court ought not to indicate interim measures of protection unless its competence, in the event of this being challenged, appears to the Court to be nevertheless reasonably probable. Its opinion in this point should be reached after a summary consideration: it can only be provisional and cannot prejudge its final decision after the detailed consideration to which the Court will proceed in the course of adjudicating on the question in conformity with all the Rules laid down for its procedure.78

The following year, the Court concurred with the dissenters and held that it lacked jurisdiction over the dispute. In explaining its reversal, the Court stated: While the Court derived its power to indicate these provisional measures from the special provisions contained in Article 41 of the Statute, it must now derive its jurisdiction to deal with the merits from the general rules laid down in Article 36 of the Statute. These general rules, which are entirely different from the special provisions of Article 41, are based on the principle that the jurisdiction of the Court to deal with and decide a case on the merits depends on the will of the Parties. Unless the Parties have conferred jurisdiction on the Court in accordance with Article 36, the Court lacks such jurisdiction.79

The Court therefore acknowledged that the application of the ‘special provisions’ of Article 41 required a standard of jurisdictional review apart from that ordinarily required by Article 36. Anglo-Iranian Oil in this sense generated two potential standards for jurisdictional review vis-`a-vis provisional measures: the majority’s negative test that the matter was a priori not outside the scope of international (i.e. the Court’s) jurisdiction, and the dissenters’ positive test that jurisdiction was reasonably probable.80 In the following years, multiple tests ranging across a spectrum of jurisdictional certainty would be proposed.81 Certain individual judges in 78 80

81

79 Ibid, 97. Anglo-Iranian Oil, Preliminary Objection, ICJ Reports 1952 p 93, 102. See also Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 22 (Judge Padilla Nervo, diss); Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1972 p 30, 38–9 (Judge Padilla Nervo, diss); Nuclear Tests (Australia v France), ICJ Reports p 99, 126 (Judge P´etren, diss); Nuclear Tests (New Zealand v France), ICJ Reports 1973 p 135, 161 (Judge P´etren, diss); Aegean Sea, ICJ Reports 1976 p 3, 18 (Vice-President Singh). A variety of taxonomies have been proposed to describe the spectrum of views. Collier and Lowe identify five views within the early jurisprudence of the ICJ: Settlement of Disputes, 169–71. Mendelson identifies 11 possible standards, not necessarily by reference to any case then extant: ‘Contested Jurisdiction’, 262–4. Thirlway identifies three: 1 Law and Procedure, 930. Most usefully, Oellers-Frahm summarizes the spectrum as encompassing ‘certain jurisdiction, quasi-certain jurisdiction, prima facie existing jurisdiction to prima facie lacking jurisdiction, doubtful jurisdiction, manifestly lacking jurisdiction, impossible jurisdiction etc’: ‘Article 41’, 1039.

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the Nuclear Tests and Aegean Sea cases advocated for near-certainty of jurisdiction82 – an implausible standard that undermined entirely the need for urgent action in awarding provisional measures. A further possibility was raised by President Jimenez de Ar´echaga in the same cases, who argued that the question of jurisdiction was but one factor to be taken into account when determining whether to award interim relief,83 a position which was clearly at odds with the essential character of jurisdictional review as described above.

2 Settled Practice of the International Court of Justice These alternatives notwithstanding, the Court eventually settled on a consensus position. This arose in Interhandel, not from the opinion of the majority – which merely acknowledged the formal possibility of its jurisdiction before rejecting the request on other grounds84 – but from the dissent of Judge Lauterpacht, who, relying on a principle ‘uniformly adopted in international arbitral and judicial practice’,85 proposed the following test: The Court may properly act under the terms of Article 41 provided that there is in existence an instrument such as a Declaration of Acceptance of the Optional Clause, emanating from the Parties to the dispute, which prima facie confers jurisdiction upon the Court and which incorporates no reservations obviously excluding its jurisdiction.86

Beginning with the Fisheries Jurisdiction cases,87 the substance of this statement has been deployed by majorities in, inter alia, the Nuclear 82

83

84 85

86

87

Nuclear Tests (Australia v France), ICJ Reports 1973 p 99, 111 (Judge Forster, diss); Nuclear Tests (New Zealand v France), ICJ Reports p 135, 148 (Judge Forster); Aegean Sea, ICJ Reports 1976 p 3, 21 (Judge Morozov). Nuclear Tests (Australia v France), ICJ Reports 1973 p 99, 107 (President Jimenez de Ar´echaga); Nuclear Tests (New Zealand v France), ICJ Reports 1973 p 135, 143 (President Jimenez de Ar´echaga); Aegean Sea, ICJ Reports 1976 p 3. See also Great Belt, ICJ Reports 1991 p 3, 30 (Judge Shahabuddeen). Interhandel, ICJ Reports 1957 p 105, 110. Lauterpacht gave no hint as to which ‘arbitral and judicial practice’ he was referring to in Interhandel. However, in elaborating his thoughts extracurially, he made reference to the jurisprudence of the MATs: Development of International Law, 254. Interhandel, ICJ Reports 1957 p 105, 118–19 (Judge Lauterpacht). Judge Klaestad proposed a reversal of the position eventually accepted, requiring examination ‘in a summary and provisional manner whether it appears prima facie that the Court lacks jurisdiction to take action’: ibid, 115 (emphasis added). Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1972 p 30, 34.

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Tests cases,88 Nicaragua,89 Pulp Mills,90 Georgia v Russia,91 and Obligation to Prosecute or Extradite,92 and forms the basis for a jurisprudence constante within the ICJ, effectively resolving the question of the threshold of review within that body once and for all. Early cases, however, raised the question of what exactly might constitute prima facie jurisdiction, with the apparent position being that the requirement would be satisfied if an applicant could point to an instrument on which the formal possibility of jurisdiction might be founded.93 Thus, in Interhandel, the majority was concerned only with the fact that the US had made an optional clause declaration under Article 36(2) of the Statute – it paid no attention to the issues surrounding the legality of the so-called Connally Reservation that purported to exclude the dispute. More recent decisions, however, have indicated that surmounting the threshold is not automatic, and that the Court is willing to involve itself to a greater extent in the legal issues that might surround jurisdiction in a particular case.94 In the Use of Force cases, for example, the Court was confronted with a Yugoslav claim against the NATO membership in which the principal basis of claim was Article XI of the Genocide Convention.95 The Court, acknowledging that Article XI could serve as a basis for those states who had not made any reservation thereto,96 went one step further in its analysis and determined that NATO’s bombing of Yugoslav territory did not constitute genocide within the meaning of the Convention. Consequently Article XI could not be used to found prima facie jurisdiction.97 Accordingly, the modern test of prima facie jurisdiction involves an examination of the ICJ’s jurisdiction in toto, taking into account not 88 89 90 91

92 93 95 96 97

Nuclear Tests (Australia v France), ICJ Reports 1973 p 99, 101; Nuclear Tests (New Zealand v France), ICJ Reports 1973 p 135, 137. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Provisional Measures, ICJ Reports 1984 p 169, 179. Pulp Mills, ICJ Report 2006 p 113, 128–9. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, ICJ Reports 2008 p 353, 377. Obligation to Prosecute or Extradite, ICJ Reports 2009 p 139, 151. 94 Goldsworthy, ‘Interim Measures’, 265–6. Thirlway, 1 Law and Procedure, 933–5. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. See e.g. Legality of Use of Force (Yugoslavia v Belgium), Provisional Measures, ICJ Reports 1999 p 124, 137. Ibid, 138.

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only the putative foundation of the jurisdiction (i.e. an optional clause declaration or compromissory clause) and the existence of a dispute, but also any legal complications that may arise, as specified by the respondent. That said, it should still be emphasized, as Judge Greenwood did in Georgia v Russia, that the ‘jurisdictional threshold which the applicant has to cross [at the provisional measures stage] is [ . . . ] set quite low and any ruling – whether as to fact or law – which the Court makes [ . . . ] is necessarily provisional’.98 For this reason, the benefit of the doubt when assessing jurisdiction vis-`a-vis provisional measures is given to the claimant, a reversal of the Court’s usual position when ascertaining its jurisdiction finally.99 Naturally, where the respondent concedes jurisdiction or fails to challenge it provisionally, the need for such an analysis disappears, such that the Court may simply take note of the concession before considering the other elements of the application.100 It need hardly be added that a failure to prove prima facie jurisdiction does not bode well for a subsequent full examination of the issue. Notwithstanding the formal declaration that a determination of prima facie jurisdiction (vel non) is without prejudice as to a determination of jurisdiction proper, the Court may reluctantly order a case be removed from its General List when a request for provisional measures fails for a manifest lack of jurisdiction such as to make a fuller examination of the question pointless. Such a fate befell the applications against the US and Spain in the Use of Force cases.101 98 99 100

101

Georgia v Russia, ICJ Reports 2011 p 70, 323 (Judge Greenwood). Nicaragua, ICJ Reports 1984 p 169, 207 (Judge Schwebel, diss). See e.g. Armed Activities in the Territory of the Congo (DRC v Uganda), Provisional Measures, ICJ Reports 2000 p 111, 123; Certain Criminal Proceedings in France (Congo v France), Provisional Measures, ICJ Reports 2003 p 102, 106–7; Pulp Mills, ICJ Reports 2006 p 113, 129; Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, ICJ Reports 2011 p 6, 17–18; Certain Documents and Data, ICJ, Order of 3 March 2014, §20. Further: Thirlway, 2 Law and Procedure, 1778. Legality of Use of Force (Yugoslavia v Spain), Provisional Measures, ICJ Reports 1999 p 761, 769; Legality of Use of Force (Yugoslavia v US), Provisional Measures, ICJ Reports 1999 p 916, 925. Cf. Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda), Provisional Measures, ICJ Reports 2002 p 219, 249; Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537, 544. Further: Rosenne, Provisional Measures, 132–4. An interesting question arises as to what might have happened in the Use of Force cases if the provisional measures application had not been made, and whether the respondents in those cases could have relied on some other procedural technique to establish a manifest lack of jurisdiction.

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However, the ICJ’s internal practice may indicate that – efforts to dissect the Court’s pronouncements aside – prima facie jurisdiction is in most cases little more than a convenient rubric, with the Court already having determined whether jurisdiction exists. Speaking extracurially on the plethora of review standards then hypothesized, President Jimenez de Ar´echaga remarked: No individual judge is in my experience satisfied with a mere possibility or even a probability of jurisdiction and does not follow a positive or negative test as to the likelihood of jurisdiction. In each subjective view, jurisdiction over the merits must exist before a vote for provisional measures is given. It follows that interim measures will not be granted unless a majority of judges believes at the time that there will be jurisdiction over the merits.102

Although this pronouncement only holds sway with respect to the period 1970–1979, when Jimenez de Ar´echaga was a judge of the Court, it remains disquieting nonetheless, revealing as it does a practice of concealing from the parties the fact that the Court in addressing interim measures has already reached a conclusion as to jurisdiction.103 The virtue of the prima facie approach at that point in time was thus to enable the expression of that consensus without the need to engage in the kind of forensic reasoning that would characterize a decision on jurisdiction proper. It is perhaps for this reason that it is relatively rare for the Court to find that it lacks jurisdiction once a determination of prima facie jurisdiction has been made.104 But whether this reflects the modern position of the Court is doubtful, with its more recent decisions being attended by a far greater degree of reasoning as to the existence of prima facie jurisdiction where preliminary objections have been raised.105

102 103 104 105

In the event that they could not, this raises some disturbing thoughts about the role of provisional measures, whereby the determination of the principle of the respondent’s consent at an early stage becomes dependent on the taking of a procedural step by the claimant that is formally supposed to be without prejudice to later determinations as to jurisdiction or the merits. This does not sit well with the ordinary conception of what provisional measures are supposed to do, and how they are supposed to operate: Alina Miron, ‘Working Methods of the Court’ (2016) 7 JIDS 371, 381. E Jimenez de Ar´echaga, ‘International Law in the Past Third of a Century’ (1978) 159 Hague Recueil 9, 161. Greig, ‘Balancing of Interests’, 116–17. A total reversal of this sort has only occurred in two cases: Anglo-Iranian Oil, ICJ Reports 1952 p 93, 102; Georgia v Russia, Preliminary Objections, ICJ Reports 2011 p 70, 140. See e.g. Georgia v Russia, ICJ Reports 2008 p 353, 378–88.

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B Dispute Settlement Under UNCLOS 1 UNCLOS Article 290(1) The prima facie standard of jurisdictional review developed by the ICJ has proved extremely influential within the wider network of international courts and tribunals. ITLOS and Annex VII tribunals have to an extent led this adoption,106 but this is hardly surprising – the standard is incorporated directly into UNCLOS Articles 290(1) and (5), effectively removing any choice of alternative. However, ITLOS has nonetheless turned to the ICJ when interpreting the bare words of the provision. In M/V Saiga (No 2), the Tribunal expressed the test in a form of words identical to that characteristically used by the ICJ, noting that: Considering that before prescribing provisional measures the Tribunal need not finally satisfy itself that it has jurisdiction on the merits and yet it may not prescribed such measures unless the provisions invoked by the applicant appear prima facie to afford a basis on which the jurisdiction of the tribunal might be founded [ . . . ]107

This formula was also invoked – though it was credited to M/V Saiga (No 2) – in M/V Louisa, the only other case (so far) in which provisional measures have been requested of ITLOS directly under UNCLOS Article 290(1).108 A broadly similar form of words was utilized by the Annex VII tribunal in MOX Plant, which noted that jurisdiction to order provisional measures exists under paragraph 1 of the provision where ‘there is nothing which manifestly and in terms excludes the Tribunal’s jurisdiction’.109 106

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108 109

R¨udiger Wolfrum, ‘Provisional Measures of the International Tribunal for the Law of the Sea’, in P C Rao and R Khan (eds), The International Tribunal for the Law of the Sea (The Hague: Kluwer, 2001) 173, 178–90; Thomas A Mensah, ‘Provisional Measures in the International Tribunal for the Law of the Sea’ (2002) 62 Za¨oRV 43, 50; Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005) 61–9; Rosenne, Provisional Measures, 126; Brown, Common Law, 137. M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea), Provisional Measures (1998) 117 ILR 111, 126. See further ibid, 133 (Judge Laing), drawing an express parallel with the jurisprudence of the ICJ. M/V Louisa (St Vincent and the Grenadines v Spain), Provisional Measures (2010) 148 ILR 459, 471. MOX Plant (Annex VII) (2003) 126 ILR 310, 317. Cf. the extracurial writings of Judge Ndiaye, who argues that the jurisdiction to award provisional measures only arises where ‘it is reasonably probable that the arbitral tribunal would have jurisdiction on the merits’: Tafsir Malick Ndiaye, ‘Provisional Measures Before the International Tribunal for the Law of the Sea’, in M H Nordquist and J N Moore (eds), Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (The Hague: Martinus Nijhoff, 2001) 97.

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Operating as it does within the confines of UNCLOS, the prima facie jurisdiction requirement of Article 290 throws up certain common issues, including the obligation of the parties to exchange views under Article 283(1), the presence of alternative dispute settlement procedures under Article 281, and exceptions to the UNCLOS regime of compulsory dispute resolution arising out of Part XV, Section 3 thereof.110

2 UNCLOS Article 290(5) The referred jurisdiction of ITLOS to award interim relief on behalf of another adjudicatory body has certain implications for the determination of prima facie jurisdiction. Express reference to the jurisprudence of the ICJ concerning prima facie jurisdiction has generally not been raised in cases in which ITLOS has considered provisional measures under UNCLOS Article 290(5), with the Tribunal usually content with citing paragraph 5 at length or otherwise alluding to its content.111 A determination by ITLOS of prima facie jurisdiction under Article 290(5) will not affect the capacity of an Annex VII tribunal or other designated body to determine its own jurisdiction prima facie under Article 290(1), though its findings will naturally carry some weight.112 Notwithstanding the formal equality of the prima facie jurisdiction test as between Articles 290(1) and (5), there is the perception on the part of some members of ITLOS that there is a difference between provisional measures ordered in the name of the Tribunal proper and measures ordered on behalf of an Annex VII tribunal or some other nominated body. In ARA Libertad, Judges Wolfrum and Cot noted that: Whereas under article 290, paragraph 1, of the Convention, the Tribunal is called upon to decide prima facie on its own jurisdiction, under article 290, paragraph 5 of the Convention it must decide on the prima facie jurisdiction of some other court or tribunal. Out of respect for the other court or tribunal, the Tribunal has to exercise some restraint in questioning prima facie the jurisdiction of such other court or tribunal [ . . . ] It is equally unsatisfactory if the arbitral tribunal under Annex VII denies 110 111

112

Klein, Dispute Settlement in UNCLOS, 62–9. Southern Bluefin Tuna (1999) 117 ILR 148, 160; MOX Plant (Ireland v UK), Provisional Measures (2001) 126 ILR 257, 271; Land Reclamation by Singapore in and around the Straits of Johor (Singapore v Malaysia), Provisional Measures (2003) 126 ILR 487, 497; Arctic Sunrise (Netherlands v Russia), ITLOS Case No 22 (Provisional Measures, 22 November 2013) §58; Enrica Lexie Incident (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §35. Cf. ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186, 199. MOX Plant (Annex VII) (2003) 126 ILR 310, 317.

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its jurisdiction which the Tribunal has established prima facie as it is for the settlement of the said dispute if the Tribunal denies prima facie jurisdiction in a situation where the arbitral tribunal would have voted otherwise.113

This passage would tend to highlight, if not a reduced threshold of prima facie jurisdiction, then at least the notion of giving the benefit of a further doubt to the applicant in UNCLOS Article 290(5) cases.114 But at the same time, the Judges noted, greater jurisdictional rigour was generally required of dispute settlement bodies convened under UNCLOS as, unlike the ICJ, these operate under a narrow grant of competence ratione materiae covering only those disputes concerning the interpretation and application of UNCLOS. Thus: Any attempt to broaden the jurisdictional power of the Tribunal and that of arbitral tribunals under Annex VII going beyond what is prescribed in [A]rticle 288 of the Convention is not in keeping with the basic philosophy governing the dispute settlement system of the Convention [and undermines] the understanding reached at [UNCLOS III].115

It would appear in ARA Libertad that ITLOS was minded to adopt a very liberal interpretation of prima facie jurisdiction. In that case, the reasoning of the Tribunal did not consist of addressing the basis of jurisdiction identified by Argentina and any legal complications arising,116 but was tantamount to prying apart the wording of the Convention in search of a mandate. The case concerned the seizure of an Argentine warship in the Ghanaian port of Tema, classified as internal waters for the purposes of UNCLOS. The seizure was in clear violation of the universally recognized immunity of warships under customary international law,117 but UNCLOS only expressly incorporated this immunity with respect to the high 113

114

115 116 117

ARA Libertad (2012) 156 ILR 186, 215 (Judges Wolfrum and Cot). See also Francisco Orrego Vicu˜na, ‘The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems’ (2007) 22 IJMCL 451, 459–61. Cf. Southern Bluefin Tuna (2001) 117 ILR 148, 181–5 (Judge ad hoc Shearer), arguing that the majority’s inquiry into its provisional jurisdiction went far beyond a prima facie inquiry. ARA Libertad (2012) 156 ILR 186, 215–16. Cf. the approach adopted in Arctic Sunrise, ITLOS Case No 22, §§36–45. UN Convention on Jurisdictional Immunities of the State, annexed to GA Res 59/49, 2 December 2004, Art 21(1)(b). Further: Chester Brown and Roger O’Keefe, ‘Article 21’, in R O’Keefe and C Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford: Oxford University Press, 2013) 334, 342.

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seas per Article 95. The Tribunal found, however, that UNCLOS Article 32, providing relevantly that ‘nothing in this Convention affects the immunities and other government ships operating for non-commercial purposes’, could form the basis of prima facie jurisdiction, as it could be interpreted as extending warship immunity under the Convention into internal waters.118 Such a reading is patently absurd, as is made clear by the subsequent analysis of Judges Wolfrum and Cot, which was argued by reference to the case law of the ICJ.119 Firstly, the provision is clearly a savings clause, providing only that the customary immunity is not undermined by the Convention, as opposed to establishing a positive treaty right that could be the subject of jurisdiction. Secondly, had the drafters of the provision intended that it have the effect contended, then a perfectly good model was available in the form of UNCLOS Article 95 concerning high seas immunity. Thirdly, if Article 32 was (as contended) intended to incorporate warship immunity wholesale into the Convention, then Article 95 would be superfluous. It is too early to tell whether ARA Libertad signals the beginning of a move by ITLOS to reduce the threshold of prima facie jurisdiction in UNCLOS Article 290(5) cases. What is clear, however, is that a greater effort on the part of the Tribunal is required to define the jurisdictional requirements in such cases, as well as the differences (if any) with the approach taken under Article 290(1) and by the ICJ.

C Inter-State Arbitration The limited modern examples of ad hoc inter-state arbitration tribunals have not yet been required as yet to rule on a request for provisional measures in a situation in which jurisdiction is contested. As seen in Kishenganga, the question is heavily conditioned on the constitutive instrument and procedural rules of the tribunal, but absent a lex specialis excluding a review of this kind, some jurisdictional threshold must be met. The prima facie test advocated by other international courts and tribunals 118 119

ARA Libertad (2012) 156 ILR 186, 196–200. Ibid, 224–8. The judges still found that prima facie jurisdiction existed, but did so on the basis that Ghana’s acknowledgement of the Libertad’s immunity prior to its visit to Tema estopped it from opposing a judicial procedure intended to resolve the dispute arising from Argentina’s reliance on said acknowledgement: ibid, 231–2. This is similarly specious, as an acceptance of state immunity obviously does not translate ipso facto into an acceptance of the jurisdiction of an international court or tribunal.

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would appear to be a natural candidate in this respect although, as stated, the body in question should not feel constrained to adopt it.

D Investor-State Arbitration Assessment of prima facie jurisdiction under the ICSID Convention is complicated slightly by the express provision for a form of jurisdictional triage prior to the composition of a tribunal. Article 36(3) of the ICSID Convention provides that on receiving a request for arbitration, the Secretary-General of ICSID must register the request ‘unless he finds, on the basis of the information contained in that request, that the dispute is manifestly outside the jurisdiction of the Centre’. This threshold is less that required of a prima facie review, being designed to exclude frivolous actions and to ‘avoid a situation where a tribunal, once established would almost certainly find itself without jurisdiction’.120 An investigation of the drafting history of the provision indicates that the Secretary-General’s screening power was intended to be administrative in character, not to function as an extension of the kompetenz-kompetenz of any tribunal later empanelled.121 As such, although an ICSID tribunal is in no sense bound by the determination of Secretary-General in permitting the listing of a claim, registration is a factor that may be taken into account – though it is not on its own sufficient to establish prima facie jurisdiction.122 As might be expected, the practice of ICSID tribunals has been to import a standard of jurisdictional review very similar to that of the ICJ.123 Early decisions did not set out the threshold in this respect, although it 120 121

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ICSID Commentary, 468. II-2 ICSID History, 722 (Broches), 774 (Ghachem), 775 (Tsai). See also the Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, I ICSID Reports 23, 27. Further: ICSID Commentary, 469–70; S D Sutton, ‘Emilio Augustin Maffezini v Kingdom of Spain and the ICSID Secretary-General’s Screening Power’ (2005) 21 Arb Int’l 113, 121. Cf. Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6 ICSID Rev – FILJ 431, 452–6, arguing that the screening threshold is broadly commensurate to a prima facie review. Victor Pey Casado and President Allende Foundation v Chile, Provisional Measures (2001) 6 ICSID Reports 373, 377; Millicom International Operations BV and Sentel GSM SA v Senegal, ICSID Case No ARB/08/20 (Decision on the Application of Provisional Measures, 9 December 2009) §42; PNG Sustainable Development Program Ltd v Papua New Guinea, ICSID Case No ARB/33/13 (Provisional Measures, 19 January 2015) §119. ICSID Commentary, 771–4; Sam Luttrell, ‘ICSID provisional measures “in the round”’ (2015) 31 Arb Int’l 393, 398–400.

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was recognized in the first ICSID order on provisional measures in 1974, Holiday Inns v Morocco, that any determination on jurisdiction vis-`a-vis interim relief was without prejudice to any later finding on jurisdiction proper, or the merits themselves.124 Over time, however, ICSID tribunals have come to embrace the prima facie standard set by the ICJ, making particular note of the debt owed by Article 47 of the ICSID Convention to Article 41 of the ICJ Statute. In Casado v Chile, for example, the Tribunal relief on the case law of the ICJ in determining that it was under an obligation to determine ‘in cases where jurisdiction is contested, the prima facie existence of jurisdiction, or, to couch this in negative terms, the absence of a clear lack of jurisdiction’.125 A more express formulation of the same may be seen in Occidental v Ecuador, where the Tribunal said: Whilst the Tribunal need not satisfy itself that it has jurisdiction in respect of the merits of the case at issue for purposes of ruling upon the requested provisional measures, it will not order such measures unless there is, prima facie, a basis upon which the Tribunal’s jurisdiction might be established.126

Jurisdiction under the ICSID Convention is established via the ‘double keyhole’ of Article 25 of the Convention and the requirements of the relevant bilateral or multilateral investment treaty.127 The same dual requirement applies in relation to jurisdictional review regarding interim relief.128 Common objections may include that the claimant has not made a qualifying investment within the meaning of either the Convention or the BIT for the purposes of jurisdiction ratione materiae, that it is not a national of a contracting state for the purposes of jurisdiction ratione 124 125 126

Pierre Lalive, ‘The First “World Bank” Arbitration (Holiday Inns v Morocco) – Some Legal Problems’ (1980) 51 BYIL 123, 132–7. Casado v Chile (2001) 6 ICSID Reports 373, 379. Occidental Petroleum Corporation and Occidental Exploration and Production Company v Ecuador, ICSID Case No ARB/06/11 (Provisional Measures, 17 August 2007) §55. See also Churchill Mining PLC v Indonesia, ICSID Case No ARB/12/13 (Procedural Order No 3, 4 March 2013) §36: It is undisputed that the Tribunal has the power to recommend provisional measures prior to ruling on its jurisdiction. However, the Tribunal will not exercise such power unless it has prima facie jurisdiction.

127 128

Ceskoslovenska Obchodni Banka AS v Slovak Republic, ICSID Case No ARB/97/4 (Decision on Jurisdiction, 24 May 1999) §68. Further: ICSID Commentary, 82–3. Tethyan Copper Company Pty Ltd v Pakistan, ICSID Case No ARB/12/1 (Provisional Measures, 13 December 2012) §§123–33.

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personae, or a lack of effective consent to arbitration on the part of the respondent.129 In this, it is sufficient that facts alleged by the applicant establish this jurisdiction, it being presumably unnecessary or impossible to verify them and analyze them in depth at this phase of the proceedings.130 It should be noted, moreover, that where a respondent state requests interim relief, it does not need to demonstrate prima facie jurisdiction, as this would require the respondent to ‘establish the negative against its own interest’.131 A similar predilection has been displayed by investor-state arbitration tribunals operating under the 1976 UNCITRAL Rules and variants thereof. Although Article 26 does not specify that jurisdiction must be assessed prior to the award of provisional measures, the Iran–US Claims Tribunal nonetheless introduced a prima facie standard of review with reference to the jurisprudence of the ICJ,132 and further held that a finding of prima facie jurisdiction was without prejudice to any fuller inquiry as to jurisdiction or the merits.133 The same instinct may be seen in more modern forms of ad hoc investor-state arbitration. In Paushok v Mongolia, the Tribunal established the need for a prima facie review of jurisdiction

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Zachary Douglas, The International Law of Investment Claims (Cambridge: Cambridge University Press, 2009) chs 4, 7, 8; Rudolph Dolzer and Christoph Schreuer, Principles of International Investment Law (Oxford: Oxford University Press 2nd edn, 2012) 245–64. Millicom v Senegal, ICSID Case No ARB/08/20, §43. RSM Production Corporation v St Lucia, ICSID Case No ARB/12/10 (Security for Costs, 13 August 2014) §5 (Arbitrator Griffin). See e.g. Bendone-Derossi International v Iran, Provisional Measures (1984) 6 Iran–US CTR 130, 131; Ford Aerospace and Communications Corp v Iran, Provisional Measures (1984) 6 Iran–US CTR 104, 108; Aeronutronic Overseas Services Inc v Iran, Provisional Measures (1985) 8 Iran–US CTR 75, 77; Component Builders Inc, Wood Components Co and Moshovsky Enterprises Inc v Iran, Provisional Measures (1985) 8 Iran–US CTR 216, 220. Earlier decisions demonstrated a certain coyness as to jurisdiction, simply stating that ‘it would appear’ that the Tribunal had jurisdiction: Rockwell International Systems v Iran, Provisional Measures (1983) 2 Iran–US CTR 369, 370; RCA Global Communications Disc Inc v Iran, Provisional Measures (1983) 4 Iran–US CTR 5, 7. On the practice of the Tribunal, see further David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran–United States Claims Tribunal’ (1986) 46 Za¨oRV 465, 488– 90; Stuart Abercrombie Baker and Mark David Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran–United States Claims Tribunal (Deventer: Kluwer, 1992) 139; Charles N Brower and Jason D Brueschke, The Iran–United States Claims Tribunal (The Hague: Martinus Nijhoff, 1998) 218–21; David D Caron, Lee M Caplan and Matti Pellonp¨aa¨ , The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2006) 535–6. See e.g. Tadjer-Cohen Associates v Iran (1985) 9 Iran–US CTR 302, 304.

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by reference to the ICJ’s pronouncement in Nicaragua.134 Despite the added procedural complexity of Article 26 of the 2010 UNCITRAL Rules, there is no reason to suggest that they would operate any differently as a matter of practice, with the requirement in paragraph 3(b) that the application have a reasonable chance of success on the merits deemed to include a prima facie examination of jurisdiction.135 A common feature of all forms of investment arbitration is the potential for detailed questions of jurisdiction to be placed to one side at the time of objection and heard alongside the merits of the claim on the basis that such questions are closely related to the merits of the dispute they are not yet ripe for decision or a fuller examination of the factual evidence is required.136 Where this occurs in the context of provisional measures, the Tribunal will generally give the applicant the benefit of the doubt and deem the prima facie requirement to be satisfied.137

V Prima Facie Admissibility A Jurisdiction and Admissibility Distinguished Jurisdiction is not the only class of preliminary objection that may condition a state’s consent to international dispute settlement. A separate but related objection pertains to the admissibility of the claim in question. The two concepts are not always easily separated,138 but the essence of the 134

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136 137 138

Paushok v Mongolia, UNCITRAL, §47, citing Nicaragua, ICJ Reports 1984 p 169, 179. Cf. Chevron v Ecuador, PCA Case No 2009–23 (Interim Measures, 9 February 2011) §10, referring only to ‘a sufficient case for the existence of such jurisdiction’. David D Caron and Lee M Caplan, The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2nd edn, 2012) 522–3. Further: Guaracachi America Inc and Rurelec PLC v Bolivia, PCA Case No 2011–17 (Procedural Order No 14, 11 March 2013) §4. ICSID Commentary, 538–40. See e.g. Paushok v Mongolia, UNCITRAL, §§50–53. To the extent that remains debate as to whether admissibility can be said to have an existence separate from jurisdiction, particularly in the investment arbitration context: see e.g. CMS Gas Transmission Company v Argentina, ICSID Case No ARB/01/8 (Decision on Jurisdiction, 18 July 2003) §41; Enron Corporation and Ponderosa Assets LP v Argentina, ICSID Case No ARB/95/3 (Decision on Jurisdiction, 14 January 2004) §33; cf. SGS Soci´et´e G´en´erale de Surveillance SA v Philippines, ICSID Case No ARB/02/6 (Decision on Jurisdiction, 24 January 2004) §169ff. Further: Shabtai Rosenne, ‘International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications’, MPEPIL (2006); Gerold Zeiler, ‘Jurisdiction, Competence and Admissibility of Claims in ICSID Arbitration Proceedings’, in C Binder et al. (eds), International Investment Arbitration for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: Oxford University Press,

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distinction was captured by Fitzmaurice, who stated that jurisdiction ‘is a plea that the tribunal itself is incompetent to give any ruling at all whether as to the merits or as to the admissibility of the claim’, whilst admissibility refers to ‘a plea that the tribunal should rule the claim on some ground other than its ultimate merits’.139 Similarly, Arbitrator Highet’s dissent from the ruling of the NAFTA tribunal in Waste Management v Mexico provided that ‘[j]urisdiction is the power of the tribunal to hear the case; admissibility is whether the case itself is defective – whether it is appropriate for the tribunal to hear it’.140 A more instrumentalist summation is that of Shany, who remarks that rules on admissibility authorize courts ‘to decline to exercise judicial power [and] allow the translation of general judicial policies relating to justice, fairness, legality, legitimacy, and effectiveness to specific cases’.141 Challenges to admissibility cover a wide range of potential objections and may include delay in presenting the claim, failure to exhaust local remedies (where applicable), mootness, or failure to join a necessary third party.142 Moreover, obstacles to admissibility may be removed by events occurring post-seisen.143 A useful example in this respect arose in SGS v Philippines, where the claimant and respondent entered into an

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2009) 76; Cameron A Miles, ‘Corruption, Jurisdiction and Admissibility in International Investment Claims’ (2012) 3 JIDS 329, 333–9; Yuval Shany, ‘Jurisdiction and Admissibility’, in C P R Romano, K J Alter and Y Shany (eds), Oxford Handbook of International Adjudication (Oxford: Oxford University Press, 2014) 781. Fitzmaurice, 2 Law and Procedure, 438–9. Further: Oil Platforms (Iran v US), ICJ Reports 2003 p 161, 177. Waste Management Inc v Mexico, ICSID Case No ARB(AF)/98/2 (Award, 2000) §58 (Arbitrator Highet, diss). Shany, ‘Jurisdiction and Admissibility’, 804. Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 423 (Judge ad hoc Barwick, diss). Further: Brownlie’s Principles, 693, 697–701. In the particular context of investment claims, objections to admissibility may further include the contractual choice of forum, shareholder claims, dispositions related to the legal or beneficial ownership of the investment, and the effect of a denial of benefits clause in the relevant investment agreement: Douglas, Investment Claims, 146–8. Ioan Micula, Viorel Micula, SC European Food SA, SC Starmill SRL and SC Multipack SRL v Romania, ICSID Case No ARB/05/20 (Decision on Jurisdiction and Admissibility, 24 September 2008) §64. Cf. Kilic Insaat Ithalat Ihracat Sanayi ve Ticaret Anonim Sirketi v Turkmenistan, ICSID Case No ARB/10/1 (Award, 2 July 2013) §27 (Arbitrator Park): Procedural flaws that may be cured during the arbitration are often characterized by reference to notions such as ripeness, recevabilit´e or admissibility. Such terms derive not from technical treaty definition, but from usage as convenient labels to describe steps to be taken either before or after constitution of a tribunal, even if they must be met prior to merits being addressed.

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investment contract. The contract contained a dispute resolution clause requiring litigation before the ‘Regional Trial Courts of Makati or Manila’ in the event of a disagreement. When a putative breach of the contract later gave rise to a claim under Article VIII of the Switzerland–Philippines BIT, an ICSID tribunal held that although the clause could not abrogate its jurisdiction, the presence of an exclusive jurisdiction agreement within the contract that formed the basis of the claim posed a legal impediment to the admissibility of the dispute. As such, the Tribunal determined that the claim was premature, and could not proceed until the contractually agreed process (i.e. litigation before the Filipino courts) had taken place, at which time the arbitration could resume.144

B Prima Facie Admissibility and the International Court of Justice As its jurisprudence on admissibility has evolved, ICJ has taken to assessing the prima facie admissibility of a claim when considering a request for provisional measures.145 Early hints of this development came where the Court rejected a request for provisional measures for lack of prima facie admissibility occurred in the attempted revisiting of Nuclear Tests by New Zealand in Examination of the Situation. There, an attempt to secure provisional measures on the basis of the famous paragraph 63 of the ICJ’s 1974 decision146 failed on the basis that the paragraph could only be invoked as a basis for a claim in the presence of atmospheric nuclear testing, whereas France only persisted in conducting underground nuclear testing.147 However, the Court made no reference to admissibility 144 145

146

SGS v Philippines, ICSID Case No ARB/95/3, §§92–4, 154, 170. Thirlway, 1 Law and Procedure, 935–6; 2 Law and Procedure, 1179. For an earlier example, see the Order made by the CACJ in Honduras v El Salvador and Guatemala (1909) 3 AJIL 729, 730, where an objection based on admissibility was dismissed on the basis of the ‘humanitarian and unquestionably utilitarian purpose’ for which the Court’s ability to grant interim relief was included. Further: Chapter 2, §III.B.2(a). Nuclear Tests (New Zealand v France), ICJ Reports 1974 p 457, 477: Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International disputes, which is relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request.

147

Request for the Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case (New

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in rejecting the request, leaving the relevant identification to be made by Vice-President Schwebel.148 At no point was reference made to a prima facie standard of review. An express acknowledgment of the standard came in Cameroon v Nigeria, where Nigeria argued that the presence of duty incumbent on the parties to settle all boundary disputes via an alternative bilateral mechanism rendered Cameroon’s claim prima facie inadmissible and thus frustrated its request for interim relief. Although the Court did not agree with this assessment, it acknowledged the need to address Nigeria’s concerns before deciding whether to grant the measures requested.149 Similar acknowledgments occurred in Armed Activities (DRC v Uganda)150 and Obligation to Prosecute or Extradite.151 Reflecting the incorporation of this new element into the Court’s practice, the ICJ has modified its customary incantation as to the inability of conclusions drawn during the provisional measures phase to prejudice further enquiries as to jurisdiction or the merits to include considerations of admissibility.152 Although the prima facie standard adopted vis-`a-vis admissibility is clearly based on the standard of review developed by the ICJ with respect to jurisdiction, it is difficult for further conclusions to be drawn from the Court’s practice to date. In particular, it is uncertain whether the Court considers prima facie admissibility to be an essential condition for the award of interim relief, and thus whether it is to be considered one

148 149

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Zealand v France), Provisional Measures, ICJ Reports 1995 p 288, 306 (ironically also in §63). Ibid, 309 (Vice-President Schwebel). Cameroon v Nigeria, ICJ Reports 1996 p 13, 21. See further Ibid, 29 (Judge Ranjeva) making reference to ‘a possible additional condition for the indication of provisional measures, that is, the prima facie admissibility of the principal Application’. Further: Jerzy Stucki, ‘Case Analysis: Case Concerning Land and Maritime Boundary (Cameroon v Nigeria): Provisional Measures, Order of 15 March 1996’ (1992) 2 LJIL 341, 346–7. Armed Activities (DRC v Uganda), ICJ Reports 2000 p 111, 126. Cf. ibid, 131 (Judge Oda). Obligation to Prosecute or Extradite, ICJ Reports 2009 p 139, 144. Prima facie admissibility may also have been a subject of consideration in LaGrand, had the extreme urgency of that application not prevented the US from giving complete submissions on the point at the provisional measures phase: ICJ Reports 1999 p 9, 22 (President Schwebel). Admissibility was considered at length when the Court addressed the merits in full: LaGrand, ICJ Reports 2001 p 466, 485–9, 548–57 (Judge Buergenthal, diss). See e.g. Avena, ICJ Reports 2003 p 77, 91; Border Area, ICJ Reports 2011 p 6, 27: Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves; and whereas it leaves unaffected the right of the [parties] to submit arguments in respect of those questions [ . . . ]

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of the minimum features of the power to grant provisional measures in international law. Although the Court stated in Cameroon v Nigeria that it ‘must, before deciding whether to indicate such measures, ensure that the application of which it is seised is admissible prima facie’,153 it has not acknowledged the prima facie admissibility of the application even in the absence of a relevant preliminary objection, a position at odds with its practice on prima facie jurisdiction.154 However, when considering the overall character of objections to admissibility, it may be argued that a review of the concept is not an essential feature of the power to award provisional measures in every case. Unlike jurisdictional hurdles, preconditions to admissibility are not ordinarily built into the framework that contextualizes state consent, i.e. the court or tribunal’s constituent instrument. As such, the court or tribunal has a far greater level of discretion (to be exercised strictly) in defining the scope of admissibility – as Rosenne has put it, the question is not whether the court or tribunal may hear the dispute, but whether it should hear the dispute.155 But that is not to say that a review of admissibility is not necessary where an objection is raised by the respondent; a failure to examine such an objection prior to the granting of interim relief would undoubtedly give rise to serious questions of legitimacy. What is claimed here is only that a court or tribunal need not go out of its way to review admissibility in the absence of a relevant objection.

C Prima Facie Admissibility in Other International Courts and Tribunals 1 Dispute Settlement Under UNCLOS Perhaps because it has been introduced to the jurisprudence of the ICJ relatively recently, other international courts or tribunals have been slow to incorporate considerations of prima facie admissibility into their practice on provisional measures. In the UNCLOS context, this reluctance may follow from problems of terminology. UNCLOS Article 283(1) provides that, in the event of a dispute concerning the interpretation or application of the Convention, the parties must ‘proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means’. 153 154 155

Cameroon v Nigeria, ICJ Reports 1996 p 13, 21. See e.g. Border Area, ICJ Reports 2011 p 6, 18. Rosenne, ‘Jurisdiction and Admissibility’, §2. See also Marion Unglaube and Reinhard Unglaube v Costa Rica, ICSID Case Nos ARB/08/1 and ARB/09/20 (Award, 16 May 2012) §281.

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Non-fulfillment of this requirement has been regularly invoked as a preliminary objection before ITLOS and Annex VII tribunals in relation to jurisdiction, and has been considered as such in the context of interim relief.156 However, the fact that any deficiency in the requirement can be corrected post-seisen indicates that, notwithstanding its presence in UNCLOS, it might better be characterized as going to admissibility. As such, Judge Paik in M/V Louisa considered Spain’s objection under Article 283(1) to be relevant to admissibility, but subsumed this discussion within prima facie jurisdiction, remarking that ‘[a]nother procedural condition that the Tribunal must examine in order to determine its prima facie jurisdiction is whether the Applicant’s claim is admissible’.157 Conversely, Judge Treves considered the requirements of Article 283(1) to be formally separate from the Tribunal’s assessment of prima facie jurisdiction.158 Additional recent decisions may indicate that Judge Treves’ taxonomy is gaining traction within ITLOS. In M/V Louisa, the Tribunal adopted the ICJ’s expanded formula on the lack of prejudice to later inquiries to include ‘questions related to the admissibility of the Application’.159 In each of ARA Libertad, Arctic Sunrise and Enrica Lexie, the Tribunal turned its attention to Article 283(1) only after it had reached the conclusion that it possessed prima facie jurisdiction, impliedly separating the two.160 Interestingly, however, to the extent that questions of admissibility are asked and answered by ITLOS as part of the provisional measures calculus, the Tribunal has not employed a reduced standard of review, but has rather examined the requirements of Article 283(1) in full. It may be argued that this is due to the ability of the Tribunal to establish that Article 283(1) has been met with relative ease,161 permitting a complete examination of the point without risking further damage to rights pendente lite. 156

157 159

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Southern Bluefin Tuna (1999) 117 ILR 148, 162; MOX Plant (2001) 126 ILR 260, 274–5; Land Reclamation (2003) 126 ILR 487, 497–99; M/V Louisa (2010) 148 ILR 459, 469–70; Arctic Sunrise, ITLOS Case No 22, §§73–7. Further: Igor V Karaman, Dispute Resolution in the Law of the Sea (Leiden: Martinus Nijhoff, 2012) 126–30. Annex VII tribunals have characterized UNCLOS Art 283 as a ‘procedural’ objection to jurisdiction: Guyana v Suriname (2007) 139 ILR 566, 683; Mauritius v UK, UNCLOS Annex VII (Award, 18 March 2015) §160. 158 M/V Louisa (2010) 148 ILR 459, 475 (Judge Paik). Ibid, 488–91 (Judge Treves). Ibid, 472. Cf. ARA Libertad (2012) 156 ILR 186, 205; Arctic Sunrise, ITLOS Case 22, §100, where admissibility was again absent – however, both cases considered applications for relief under UNCLOS Art 290(5). ARA Libertad (2012) 156 ILR 186, 201; Arctic Sunrise, ITLOS Case No 22, §§72–7; Enrica Lexie, ITLOS Case No 24, §§55–60. Klein, Dispute Settlement in UNCLOS, 62–4.

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2 Inter-State Arbitration As with considerations of jurisdiction, no ad hoc inter-state arbitration tribunal in the modern era has been faced with an application for provisional measures in circumstances where the respondent has challenged the admissibility of the main claim. Depending on the wording of the tribunal’s power to award interim relief, however, it would not be untoward for such a requirement to be introduced of the tribunal’s own motion. 3 Investor-State Arbitration Despite the fact that the jurisprudence on admissibility is well developed, no ICSID tribunal has as yet considered the concept as forming part of the calculus on provisional measures. To an extent, the problem may simply not yet have arisen, with no tribunal having been called upon to award interim relief in the face of an unresolved objection to admissibility.162 However, to the extent that a tribunal was minded to acknowledge the validity of objections to admissibility as a category independent of jurisdiction, then it would be difficult to conceive of a situation in which such an objection could be ignored in the context of provisional measures, especially given the influence wielded over ICSID jurisprudence by the ICJ. In such a case, the likely outcome would be the adoption of the ICJ’s prima facie admissibility standard. It follows from this that if the ICSID tribunal decides to hear an objection to jurisdiction alongside the merits, the prima facie requirement will be deemed satisfied for the purpose of provisional measures. A different outcome might occur with respect to an investor-state arbitration conducted under the UNCITRAL Rules. As noted by the Tribunal in Chevron v Ecuador, the 1976 UNCITRAL Rules contain no equivalent to Rule 41(5) of the ICSID Rules, which permits the raising of a general objection that a claim is manifestly without legal merit, which covers considerations of admissibility. As such, objections to admissibility – to the extent that they cannot be considered to overlap with objections to jurisdiction – must be seen as relating to the merits.163 As this omission has not been remedied in the 2010 Rules, the same conclusion presumably follows. A similar outcome would likely arise before an ICSID tribunal 162

163

Cf. Abaclat and Ors v Argentina, ICSID Case No ARB/07/5 (Procedural Order No 11, 27 June 2012), where questions of jurisdiction and admissibility had already been determined finally via the Tribunal’s Decision on Jurisdiction and Admissibility of 4 August 2011. Chevron v Ecuador, PCA Case No 2009–23 (Third Interim Award on Jurisdiction and Admissibility, 27 February 2012) §4.91, referring to Arts 15 and 21 of the 1976 Rules.

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that refused to acknowledge admissibility as a separate category of preliminary objection – though these are increasingly rare. Accordingly, insofar as provisional measures are concerned, what might otherwise be considered an objection to admissibility is either subsumed within the Tribunal’s prima facie analysis of its jurisdiction or the merits.164

VI Admissibility of the Application for Provisional Measures Proper A separate but related consideration is the admissibility for the application for interim relief itself. Whilst, provided the court or tribunal has been separately seised with a primary proceeding, its jurisdiction to award interim relief arises more or less automatically as a general principle or inherent power, the same does not automatically follow with respect to admissibility. In most cases, inadmissibility with respect to a provisional measures application will arise due to the failure by the party seeking relief to comply with the court or tribunal’s requirements of form regarding interim relief in its application, e.g. a failure to state the reasons that provisional measures are required, or the consequences if they are not granted per Article 73(2) of the ICJ Statute. But such procedural defects are easily remedied through the amendment of the request for relief and in any event most courts are reluctant to attribute significance to formal matters.165 A more significant basis for inadmissibility in cases of provisional measures arises where another tribunal, separately seized, has the capacity to award interim relief with respect to the primary claim. This occurred in the Certain Documents and Data case between Timor-Leste and Australia. Stated briefly, a dispute arose between the parties concerning hydrocarbon entitlements in the Timor Strait. Timor-Leste then commenced confidential arbitration under the auspices of the PCA pursuant to Article 23(b) and Annex B of the Timor Sea Treaty (TST).166 The parties based their procedure on the PCA Optional Rules, and included a provision based on Article 26 thereof. Shortly after the rules were agreed, Australian intelligence officers raided the office of the Canberra solicitor who was acting for Timor-Leste, and seized certain documents and data relating to the 164

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Paushok v Mongolia, UNCITRAL, §45, referring to prima facie jurisdiction (but not admissibility) and the prima facie establishment of the case as two of the ‘internationally recognized’ prerequisites for the grant of provisional measures. See e.g. Northern Cameroons, ICJ Reports 1963 p 15, 27–8, 42–3 (Judge Wellington Koo), 172–4 (Judge Bustamante, diss). Further: Brownlie’s Principles, 701. Timor Sea Treaty, 20 May 2002, [2003] ATS 13.

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arbitration, including legal advice. Australia, for its part, claimed that the raid was underpinned by national security concerns. Given the risk that the material could be turned over to Australia’s lawyers, the seizure clearly prejudiced Timor-Leste’s ability to successfully prosecute the TST proceedings. Rather than seek provisional measures from the TST tribunal for the return or sequestration of the documents, however, Timor-Leste commenced proceedings under the optional clause jurisdiction of the ICJ, claiming that the raid violated rights connected with state property and legal privilege arising under customary international law and ‘any relevant domestic law’.167 Due to the lack of a formal overlap ratione materiae between the TST and ICJ proceedings, no protest on the basis of lis pedens could be made,168 but Australia raised broader concerns as to the probity of the Court ordering interim relief in the following terms: [E]ven if [the ICJ] prima facie retains concurrent jurisdiction, notwithstanding the agreement of the parties to specific modalities of dispute settlement under the [TST], [ . . . ] jurisdiction should not be exercised at that stage, having regard to the pending proceedings elsewhere. A rigid adherence to the parallelism of jurisdictions will only encourage forum shopping, conflict and fragmentation, unduly favouring successive claimants. [ . . . ] [T]his is just the sort of jurisdictional jockeying which would discredit the international dispute settlement system and which this Court would not want to see other tribunals engage in, or to engage in itself.169

The principle relied on by Australia in this respect was that of comity between international courts and tribunals. Drawn from private international law,170 comity broadly relates to ‘the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its law’.171 As for an international precedent, 167 168

169 170 171

Certain Documents and Data, Timor-Leste: Application, 17 December 2013, §10. And at any rate, no firm doctrine of lis pedens may be said to exist in international law at the present time: Certain German Interests in Polish Upper Silesia (Germany v Poland) (1925) PCIJ Ser A No 6, 18–20, 26–7. Further: Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Cambridge: Cambridge University Press, 2003) 239–45. CR 2014/2, §24 (Crawford). See e.g. Richard Fentiman, International Commercial Litigation (Oxford: Oxford University Press, 2010) 579–86. Morguard v De Savoye [1990] 3 SCR 1077, 1096, citing Hilton v Cuyot, 159 US 113 (1895).

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the Annex VII tribunal in MOX Plant stayed its jurisdiction in favour of the European Court of Justice, firstly out of respect to the Court, but also because ‘a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the Parties’.172 In a similar vein, Australia argued, it would be inappropriate for the ICJ to award interim relief in a matter that was properly within the competence of another, better informed tribunal and with respect to which the ICJ possessed no express power to act on that tribunal’s behalf.173 As such, Timor-Leste’s request for provisional measures was inadmissible and the proceedings should be stayed until such a time as the TST tribunal had concluded its deliberations. The Court did not agree with this submission, but nonetheless acknowledged the validity of the underlying argument, holding that, notwithstanding the operation of the TST tribunal, the Court considered ‘that the dispute [in Certain Documents and Data] is sufficiently distinct from the dispute being adjudicated upon by the Arbitral Tribunal’.174 Exactly what might have been considered insufficiently distinct was not elaborated upon, but the threshold may be thought to fall somewhere between the total subject matter overlap that confronted the Annex VII tribunal in MOX Plant and the situation in Certain Documents and Data, which considered only issues arising from a dispute that was within the competence of another tribunal.

VII Conclusions This chapter has endeavoured to deal with some of the less controversial elements of the uniform approach to provisional measures as between international courts and tribunals. Within the adjudicatory bodies under consideration, there appears to be agreement that an international court or tribunal has the inherent power to award provisional measures, and that this power underpins and may be displaced by an express provision 172

173 174

MOX Plant (Annex VII) (2002) 126 ILR 314, 318–20. Further: Shany, Competing Jurisdictions, 200–6; Caroline Henckels, ‘Overcoming Jurisdictional Isolationism at the WTO– FTA Nexus: A Potential Approach for the WTO’ (2008) 19 EJIL 571; James Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Hague Recueil 9, 221–4. CR 2014/2, §§25–33 (Crawford). Certain Documents and Data, ICJ, Order of 28 January 2014, 2, reaffirmed in the Order of 3 March 2014, §17. For a rejection of the underlying premise of the submission, see ibid, §§6–12 (Judge Canc¸ado Trindade).

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in the relevant body’s constituent instrument (lex specialis). The precise character of the inherent power is less certain: does it arise from the court or tribunal’s need to ensure the effectiveness of its jurisdiction, or does it reflect a general (procedural) principle of international law, within the meaning of Article 38(1)(c) of the ICJ Statute? In the author’s view, the better position is the latter, rooted as it is within the cognizable sources of international law. As a practical matter, however, the question takes on a lesser degree of relevance: the important point is that the power exists and is widely recognized as such. Insofar as more specific aspects of the uniform approach are concerned, despite some initial debate within the ICJ it has now been universally accepted – not only within the Court, but before other international bodies – that an essential prerequisite of interim relief is the establishment of jurisdiction vis-`a-vis the main dispute on a prima facie basis. There is no particular reason, as a matter of logic or principle, why this needs to be precise threshold, but it is adopted nonetheless more or less automatically, the sheer weight of the jurisprudence constante being such that the contemplation of any alternative would require a very good reason indeed (i.e. a lex specialis). For now, however, the need for prima facie jurisdiction is the most uniform element of the uniform approach. International courts and tribunals have been generally less enthusiastic when adopting a newer innovation of the ICJ, being prima facie admissibility. The fact that objections to admissibility do not usually go to the consent-based root of an international court or tribunal’s adjudicative power – along with the fact that most defects of this kind can be cured post-seisen (i.e. after the application for interim relief but before the hearing on the merits) – may play a role in this reluctance. At the same time, however, the problem may be party-led: if, for example, a submission were put to an UNCLOS Part XV body or investor-state arbitration tribunal that an application for interim relief was barred by reason of a lack prima facie admissibility, the body or tribunal in question would need to consider the issue on those terms, and determine whether it was a valid obstruction to provisional measures. A final consideration is the admissibility of the application for interim relief itself. The ICJ in Certain Documents and Data was willing to consider the issue a live one – even if it ultimately decided that it did not apply in the circumstances before it. Given the somewhat unique situation in which the Court found itself in that case, one might wonder whether that was the only opportunity that this particular watchdog had to bark – though

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nothing can be excluded in a world of increasingly fragmented international courts and tribunals. All that can be said is that these episodes demonstrate the ways in which provisional measures might interact with wider questions of international procedure,175 and the need for parties and adjudicators to keep in mind the broader implications of interim relief as a common procedural device. 175

Cf. Chapter 8, §III.

5 Purpose of Provisional Measures

I Introduction Provisional measures, as a general rule, may only be ordered to advance certain defined objectives.1 Two categories of measure exist. The first are provisional measures designed to protect a right subject to litigation. The second are provisional measures designed to prevent the further aggravation of the dispute and damage to the status quo more generally – referred to here as measures for the non-aggravation of the dispute. However, these seemingly simple categories conceal a wealth of corollaries that have invited considerable judicial and academic commentary. This chapter will address these corollaries, and critique the various elaborations that they have prompted in the courts and tribunals under investigation. As with the questions of jurisdiction and admissibility examined in Chapter 4, the ICJ may be said to have led the way in developing these elaborations – though other international bodies have consistently adopted them for their own use. Moreover, that in the wake of the ICJ’s determination as to the binding quality of provisional measures in LaGrand,2 the Court has arguably been seeking to impose further restrictions on the award of interim relief so insulate itself from frivolous or vexatious applications and to enhance the legitimacy of any relief so awarded. Three advances may be identified, namely the (re-)discovery of the so-called ‘plausibility’ and ‘link’ tests and the further requirement that measures for the non-aggravation of the dispute may only be awarded in the presence of measures for the protection of a right or interest.

1 2

At least formally: cf. Chapter 9. LaGrand (Germany v US), ICJ Reports 2001 p 466, 502–3.

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II Measures for the Preservation of Rights Pendente Lite A Different Forms of the Measure The dominant reason for which most provisional measures are awarded is to protect a right pendente lite.3 This much is evident in the wording of Article 41 of the ICJ Statute and its PCIJ predecessor,4 which speak of provisional measures ‘which ought be taken to [p]reserve the respective rights of the parties’.5 Substantially similar wording may be seen to appear in, inter alia, UNCLOS Article 290(1), Article 47 of the ICSID Convention, NAFTA Article 1134 and DR-CAFTA Article 10.20.8. This purpose has been further confirmed judicially. The PCIJ, speaking through the pen of President Huber in the Sino-Belgian Treaty case, noted that ‘the object of interim measures of protection is to preserve the respective rights of the Parties, pending the decision of the Court’.6 A similar approach was taken by the ICJ in the Fisheries Jurisdiction cases, where it was said that ‘the right of the Court to indicate provisional measures [ . . . ] has as its object to preserve the respective rights of the Parties pending the decision 3

4

5

6

See e.g. H W A Thirlway, ‘The Indication of Interim Measures by the International Court of Justice’, in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer, 1994) 1, 7–8; Shigeru Oda, ‘Provisional Measures: The Practice of the International Court of Justice’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 541, 551–2; Hironobu Sakai, ‘New Developments of the Orders on Provisional Measures by the International Court of Justice’ (2009) 52 JYIL 231, 244– 57; Loretta Malintoppi, ‘Provisional Measures in Recent ICSID Proceedings: What Parties Request and What Tribunals Order’, in C Binder et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: Oxford University Press, 2009) 157, 164–72; ICISD Commentary, 778–80; Karin Oellers-Frahm, ‘Article 41’, in ICJ Commentary, 1026, 1035–8; Hugh Thirlway, 1 The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford: Oxford University Press, 2013) 929–46; 2 ibid, 1771–99; Robert Kolb, The International Court of Justice (Oxford: Hart, 2013) 620–1. See also and earlier common Art 4 of the 1914 Bryan Treaties with China, France and Sweden, as well as certain of the procedural regulations adopted by the inter-war Mixed Arbitral Tribunals: Chapter 2, §§III.A.3, III.B. Due to a printer’s error, Art 41 of the PCIJ Statute made reference to measures to ‘reserve’ the rights of the parties. This was corrected by the Washington Committee: Chapter 3, §II.B. Denunciation of the Treaty of November 2nd, 1865, between China and Belgium (Belgium v China) (1927) PCIJ Ser A No 8, 6. Further: Legal Status of the South-Eastern Territory of Greenland (Denmark v Norway) (1932) PCIJ Ser A/B No 48, 284; Polish Agrarian Reform and the German Minority (Germany v Poland) (1933) PCIJ Ser A/B No 58, 177.

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of the Court’,7 a position which has been reaffirmed as recently as Certain Documents and Data.8 Confirmation on this point has also been provided by ITLOS9 and by investor-state10 and inter-state arbitral tribunals.11 It is worth noting that the broad wording of the phrase ‘preservation of rights pendente lite’ actually conceals within it a number of other measures. These do not have a separate life of their own, but may instead be seen as expressions of the wider general purpose. Notwithstanding its pronouncement on the primary purpose of interim relief in the Fisheries Jurisdiction and other cases, the ICJ in Aegean Sea stated that ‘[t]he 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’.12 Such measures of non-anticipation however, are still considered to relate to the preservation of rights, as such anticipation may ‘prejudice the rights claimed [ . . . ] and affect the possibility of their full restoration in the event of judgment in [the applicant’s] favour’.13

B Defining a Right Pendente Lite In all cases considered, a court or tribunal’s jurisdiction to indicate provisional measures is enlivened only in the context of the case before it, and ‘does not comprise a power to protect rights “at large” on the application of a State which considers that its rights are threatened’.14 Consequently, when considering measures for the preservation of rights, the right or 7 8 9

10

11 12 13 14

Fisheries Jurisdiction (UK v Iceland), Interim Protection, ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (FRG v Iceland), Interim Protection, ICJ Reports 1972 p 30, 34. Questions Relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v Australia), ICJ, Order of 3 March 2014, §22. See e.g. Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 163; Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures (2003) 126 ILR 487, 501. See e.g. Plama Consortium Ltd v Bulgaria, ICSID Case No ARB/03/24 (Order, 6 September 2005) §38 Tethyan Copper Company Pty Ltd v Pakistan, ICSID Case ARB/12/1 (Provisional Measures, 13 December 2012) §114. Cf. Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftgaz Company v Mongolia, UNCITRAL (Interim Measures, 2 September 2008) §§37–8 (referring to the preservation of the subject matter of the dispute as required by 1976 UNCITRAL Rules, Art 26(1)). Indus Waters Kishenganga Arbitration (Pakistan v India), Interim Measures (2011) 150 ILR 311, 350–1. Aegean Sea Continental Shelf (Greece v Turkey), Provisional Measures, ICJ Reports 1976 p 3, 15–16. Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1973 p 30, 34. Thirlway, 2 Law and Procedure, 1779–80.

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interest in question is generally defined by the assertions in the applicant’s originating process.15 Thus, in the Fisheries Jurisdiction cases it was said that ‘irreparable prejudice should not be caused to the rights which are the subject of dispute in judicial proceedings’.16 In Bosnian Genocide, it was similarly found that ‘the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent’.17 More expansively, the ICSID tribunal in Plama v Bulgaria remarked that: The rights to be preserved must relate to the requesting party’s ability to have its claims and requests for relief in the arbitration fairly considered and decided by the arbitral tribunal and for any arbitral decision which grants to the Claimant the relief it seeks to be effective and able to be carried out. Thus the rights to be preserved by provisional measures are circumscribed by the requesting party’s claims and requests for relief.18

The existence of such rights, moreover, is conditioned by the court or tribunal’s previous determinations on jurisdiction, or, where jurisdiction has not been finally determined, its findings on prima facie jurisdiction. Thus, in Bosnian Genocide, the ICJ considered a request for provisional measures where the only basis of jurisdiction that survived a prima facie examination was the Genocide Convention. Consequently, the Court was only willing to award relief that protected those rights, whilst dismissing requests pertaining to other interests, e.g. self-defence.19 Where the claimant applies for provisional measures, the rights to be preserved are easily identified from the pleadings. However, provisional measures can be requested by both parties to the dispute. The question therefore arises as to how to identify the rights to be protected where the respondent is applying for interim relief in the absence of a counterclaim that might specify the rights that it seeks to assert.20 This problem confronted the ICJ in the second set of provisional measures proceedings in 15 16 17

18 19 20

Ibid, 1780; Yoshiyuki Lee-Iwamoto, ‘The Repercussions of the LaGrand Judgment: Recent ICJ Jurisprudence on Provisional Measures’ (2012) 55 JYIL 237, 240. Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 16; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1973 p 30, 34. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Provisional Measures, ICJ Reports 1993 p 3, 19. Plama v Bulgaria, ICSID Case No ARB/03/24, §30. Bosnian Genocide, ICJ Reports 1993 p 3, 18–19. Thirlway, 2 Law and Procedure, 1780–2.

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the Pulp Mills case.21 In broad terms, the case concerned the construction and future commissioning of two pulp mills on the Uruguayan side of the River Uruguay, which partially demarcated the border with Argentina. Argentina founded jurisdiction on the 1975 Statute of the River Uruguay, which provided that ‘any dispute concerning the interpretation and application of the [Montevideo] Treaty [concerning the boundary constituted by the River Uruguay] and the [present] Statute which cannot be settled by direct negotiations may be submitted by either party to the International Court of Justice’.22 It further requested an award of provisional measures to protect the rights specified in its application, but this was eventually denied by the Court on the basis that there was no risk of irreparable prejudice.23 Shortly thereafter, Uruguay filed its own request for interim relief to restrain certain Argentine citizens from blocking roads and bridges over the river to protest the construction of the mills. In making this application, Uruguay conceded that these acts fell outside of the Court’s jurisdiction inasmuch as they were not covered by the Statute of the River Uruguay, but further contended that they constituted a fundamental interference with the very rights that it was attempting to defend, i.e. its ability to construct and commission the pulp mills. As such, it was said, ‘[t]he blocking of international roads and bridges [ . . . ] is a matter directly, intimately and indissociably related to the subject matter of the case before the Court’.24 The Court agreed, noting that Article 41 of the Court’s Statute authorizes it ‘to indicate [ . . . ] any provisional measures which ought to be taken to preserve the respective rights of either party’; and [ . . . ] the rights of the respondent are not dependent solely upon the way in which the applicant formulates its application[.]25

The point, the Court continued, was not that Uruguay was able to seek interim protection of any right that could be claimed under international law, but rather that in defending the proceeding it was asserting a right to construct and commission the mills without interference by another state. Put this way, the Court held: [A]ny right Uruguay may have to continue the construction and to begin the commissioning of [the pulp mills] in conformity with the provisions 21 22 23 24

Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, ICJ Reports 2007 p 3. 26 February 1975, 1295 UNTS 340, Art 60. Pulp Mills, Provisional Measures, ICJ Reports 2006 p 113, 131–3. 25 Pulp Mills, ICJ Reports 2007 p 3, 9. Ibid, 10.

measures for the preservation of rights pendente lite 179 of the 1975 Statute, pending a final decision of the Court, effectively constitutes a claimed right in the present case, which may in principle be protected by the indication of provisional measures.26

To elaborate, had the proceedings been instituted by Uruguay asking for a declaration that the construction of the mills conformed to the 1975 Statute, then any attempt to impede that construction by Argentina through the blockading of bridges could validly be the subject of interim relief.27 Accordingly, where provisional measures are requested by the respondent in the absence of a counterclaim, the rights to be protected are a negative image of the claimant’s application, in that the respondent may assert a right to pursue a course of conduct over the objections of the claimant. This may be seen as a reflection (of sorts) of the PCIJ’s dictum in the SS Lotus case,28 where was said that international law does not, absent a prohibitive rule to the contrary, restrain the capacity of states to commit acts that have effects beyond their territorial jurisdiction. This point is of general application with respect to other courts and tribunals, although it has yet to arise in quite so acute a fashion before other institutions. An adjudicative body under UNCLOS Part XV has yet to consider the question and on the rare occasion that a state respondent in an investment arbitration has applied for provisional measures, the basic rights to be defended invariably concern the power of that state to regulate investment activity within its own borders,29 even if the measures requested do not directly seek to protect those rights.30

C Relationship Between Measures Requested and the Merits Proper Simply remarking that provisional measures are intended to preserve rights pendente lite, however, is to oversimplify the matter. Further 26 28 29

30

27 Ibid, 11. Thirlway, 2 Law and Procedure, 1782. SS Lotus (France v Turkey) (1927) PCIJ Ser A No 10, 19. See e.g. the rights listed by the respondent in Churchill Mining PLC v Indonesia, ICSID Case No ARB/12/14 (Provisional Measures, 4 March 2013) §§44–54 (concerning confidentiality of proceedings). See e.g. Amco Asia Corp, Pan American Development Ltd and PT Amco Indonesia v Indonesia, Provisional Measures (1983) 1 ICSID Reports 410, 411 (confidentiality of proceedings); Maritime International Nominees Establishment v Guinea (1988) 4 ICSID Reports 61, 68–9 (exclusivity of proceedings); Emilio Agust´ın Maffezini v Spain, Provisional Measures (2001) 5 ICSID Reports 393, 393 (security for costs); Victor Pey Casado and President Allende Foundation v Chile, Provisional Measures (2001) 6 ICSID Reports 373, 394–7 (security for costs); Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Pakistan, ICSID Case No ARB/03/29 (Decision on Jurisdiction, 14 November 2005) §46 (security for costs).

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enquiries are required with respect to the connection between the measures requested and the final judgment on the merits. Within the jurisprudence, this has generated what might be referred to as the ‘link’ requirement, i.e. that the rights to be protected by the imposition of provisional measures must be linked to those rights that are the subject of the main claim.31 Given the fact-dependent nature of the requirement, it can only be assessed on a case-by-case basis – though some general principles may be ascertained.

1 The International Court of Justice Much of the early jurisprudence surrounding the link requirement emerges, unsurprisingly, from the practice of the PCIJ and ICJ. A relatively straightforward instantiation of the problem arose in Arbitral Award of 31 July 1989, where the subject matter of the claim was the formal validity of an arbitral award determining the rights to certain maritime areas between Guinea-Bissau and Senegal. As part of its request, Guinea-Bissau asked the Court to order provisional measures with respect to activities in the maritime areas themselves. This was rejected on the basis that: [T]he Applicant [ . . . ] asks the Court to pass upon the existence and validity of the award but does not ask the Court to pass upon the respective rights of the parties in the maritime areas in question [ . . . ] [A]ccordingly, the alleged rights sought to be made the subject of provisional measures are not the subject of proceedings before the Court on the merits of the case.32

An earlier example occurred before the PCIJ in the Polish Agrarian Reform case,33 a decision that also highlights the difficulties that may arise in the ascertainment of the precise identity of rights sub judice.34 In that case, the German pleading35 was on its face unclear as to whether Germany 31

32

33 34

Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer, 1983) 89–93; Lee-Iwamoto, ‘Repercussions of LaGrand’, 241–7; Oellers-Frahm, ‘Article 41’, 1044–5; Inna Uchikova, ‘Provisional Measures before the International Court of Justice’ (2013) 12 LPICT 391, 404–7. Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64, 70. Further: South-Eastern Greenland (1932) PCIJ Ser A/B No 48, 284; Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 15; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1972 p 30, 33; Aegean Sea, ICJ Reports 1976 p 3, 11; Cameroon v Nigeria, ICJ Reports 1996 p 13, 22; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, ICJ Reports 2008 p 353, 388–9. See Chapter 2, §IV.C.5. 35 Oellers-Frahm, ‘Article 41’, 1044. (1933) Ser C No 71, 11–14.

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considered the entirety of the Polish agricultural reform legislation to be inconsistent with Articles 8 and 9 of the Minorities Treaty,36 or whether it was only concerned with certain specific instances of discrimination. The PCIJ held that the latter was the correct interpretation of the pleading, and as such, that: [T]he interim measures asked for [concerning all future cases of the application of the law] would result in a general suspension of the agrarian reform in so far as concerns Polish nationals of the German race, and cannot therefore be regarded as solely designed to protect the subject of the dispute and the actual object of the principal claim.37

This reading of the German pleading was questioned by Judge Anzilotti, who preferred to interpret it as seeking a declaratory judgment that the Polish government’s conduct in the application of the agrarian reform law was generally inconsistent with the Minorities Treaty – consequently, the case concerned more than just certain instances of alleged expropriation, but rather ‘the whole body of acts by which the Polish authorities [had] applied the agrarian reform law’. If this was the case, Judge Anzilotti remarked, ‘it is quite comprehensible that [Germany] should have asked [ . . . ] that the application of the agrarian reform to Polish citizens of the German race, in general, should be suspended’.38 However, he continued, Germany bore responsibility for the filing of a document ‘open to different interpretations’ in relation to a matter with respect to which ‘perfect clarity [was] essential’. As such, it was proper that relief be denied, but this did not prevent the filing of a fresh application ‘indicating the subject of the suit with the necessary clearness and precision, and to follow it up by a fresh request for the indication of interim measures appropriate to the rights claimed’.39 It is possible to see the difficulties caused by the German pleadings in the Polish Agrarian Reform case as informing, at least in part, the 1936 amendment of the PCIJ’s rules of procedure.40 There, paragraph 1 was introduced to the overhauled Article 61 (formerly Article 57 of the Court’s 1931 Rules), requiring that any request for provisional measures 36 37 38 40

Minorities Treaty between the Principal Allied and Associated Powers and Poland, 28 June 1919, 25 CTS 413. Polish Agrarian Reform (1933) PCIJ Ser A/B No 58, 178. 39 Ibid, 182 (Judge Anzilotti, diss). Ibid. See Chapter 2, §IV.B.3. Further: Elkind, Functional Approach, 69–77; Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) 66–8. For the Court’s internal discussions on the amendment, see PCIJ Ser D No 2 Add 3.

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‘shall specify the case to which it relates and the interim measures of which the indication is proposed’. This was in turn carried over to the ICJ’s 1946 and 1972 Rules.41 The 1978 Rules, however, dropped this requirement, replacing it instead with the present requirement of Article 73(2) that the request specify only the reasons behind it and the possible consequences if relief were not granted. Oellers-Frahm attributes this shift to ‘the fact that formalistic definitions are not always helpful and that the Court has to assess the indication of provisional measures from the point of view of the substance of the dispute as a whole’.42 Post-LaGrand, however, the link requirement has attained renewed importance in the Court’s jurisprudence, such that the diminution identified by Oellers-Frahm has been partially reversed.43 In Pulp Mills, the Court identified the link test as an independent requirement in the provisional measures calculus, in opposition to the Court’s previous position whereby the relationship between provisional measures and the merits was considered implicitly when assessing irreparable prejudice to rights in issue.44 In the Border Area case, the majority elevated the link between the measures sought and rights pendente lite to a condition precedent for the award of relief.45 The Uruguayan application in Pulp Mills also gave the Court the opportunity to reconsider the contours of the link requirement, characterizing the question as contemplating ‘the link between the alleged rights the protection of which is the subject of the provisional measures being sought, and the subject of the proceedings before the Court on the merits of the case’.46 The Court defined the threshold as one of ‘a sufficient connection with the merits of the case for the purpose of the current proceedings’.47 A fortiori, it seems that the Court does not require precise equivalence between the rights to be protected and the merits of the proceeding,48 but merely that some relationship be observable: 41 43 44

45

46 48

42 Chapter 3, §II.C.1. Oellers-Frahm, ‘Article 41’, 1044–5. Lee-Iwamoto, ‘Repercussions of LaGrand’, 240–1. Ibid, 242. See e.g. Certain Criminal Proceedings in France (Congo v France), Provisional Measures, ICJ Reports 2003 p 102, 108–9; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, ICJ Reports 2009 p 139, 151. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, ICJ Reports 2011 p 6, 18. Further: Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, ICJ Reports 2013 p 354, 360; Certain Documents and Data, ICJ, Order of 3 March 2014, §23. 47 Pulp Mills, ICJ Reports 2007 p 3, 10 (emphasis added). Ibid, 10–11. See e.g. Request for Interpretation of the Judgment of 31 March in the Case concerning Avena and Other Mexican Nationals (Mexico v US) (Mexico v US), Provisional Measures, ICJ Reports 2008 p 311, Georgia v Russia, ICJ Reports 2008 p 353, 388.

measures for the preservation of rights pendente lite 183 Whereas the first provisional measure requested by Costa Rica is aimed at ensuring that Nicaragua will refrain from any activity ‘in the area comprising the entirety of Isla Portillos’; whereas the continuation or resumption of the disputed activities by Nicaragua on Isla Portillos would be likely to affect the rights of sovereignty which might be adjudged on the merits to belong to Costa Rica; whereas, therefore, a link exists between these rights and the provisional measure being sought [.]49

Even this threshold has proved malleable, depending on the measures requested and the wider circumstances of the case. In the consular rights cases of Breard,50 LaGrand and Avena51 the rights subject to litigation arose from the Vienna Convention on Consular Relations (VCCR)52 and the failure of US authorities to inform foreign nationals being prosecuted of serious crimes of their right to consular assistance. The states concerned – Paraguay, Germany and Mexico, respectively – asked that the Court intervene to provisionally halt the execution of their citizens so as to enable full reparation. These rights, however, were reflective of the political subject matter of the dispute; its legal substance was bound up entirely in the interpretation and application of the VCCR, a point made by Judge Oda in repeated declarations.53 The same may be said of the orders made in the Temple (Interpretation) case, in which the Court was requested under Article 60 of its Statute to interpret the geographic scope of an area that it had adjudged in an earlier decision to belong to Cambodia.54 In ordering interim relief, however, the Court controversially overstepped this mark, ordering the imposition of a demilitarized zone that would on any reading of the original judgment impinge on the sovereignty of either Thailand or Cambodia,55 and which would therefore be impossible to determine under the jurisdictional mandate granted to the Court by Article 60.56 From this, one may draw the inference that the possible consequences of a failure to award provisional measures will 49 50 51 52 53 54 55

56

Border Area, ICJ Reports 2011 p 6, 20. Vienna Convention on Consular Relations (Paraguay v US), Provisional Measures, ICJ Reports 1998 p 248. Avena and Other Mexican Nationals (Mexico v US), Provisional Measures, ICJ Reports 2003 p 77. 24 April 1963, 596 UNTS 261. Breard, ICJ Reports 1998 p 248, 261 (Judge Oda); LaGrand, ICJ Reports 1999 p 9, 19 (Judge Oda); Avena, ICJ Reports 2003 p 77, 93 (Judge Oda). Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962 p 6, 37. Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537, 548. See also Avena (Interpretation), ICJ Reports 2008 p 321, 328. Temple (Interpretation), ICJ Reports 2011 p 537, 569 (President Owada, diss), 564 (Judge Al-Khasawneh, diss), 609–10 (Judge Xue, diss), 614 (Judge Donoghue, diss).

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be taken into account by the ICJ in the awarding of interim relief,57 and that the possibility of particularly devastating consequences – particularly those involving risk to human life, health or liberty – will result in the link requirement being stretched to its limits.58 There are, however, counterexamples to this: in Georgia v Russia,59 for example, the Court based its prima facie jurisdiction on the terms of International Convention for the Elimination of All Forms of Racial Discrimination (CERD).60 Georgia’s suit against Russia, however, was bought in the context of a wider conflict in which Russia invaded Georgia alleging persecution of a Russian-speaking minority in the breakaway republics of South Ossetia and Abkhazia. The true gravamen of the Georgian complaint, accordingly, was not racial discrimination, but violations of international humanitarian law more generally – CERD merely provided a basis on which to invigorate the jurisdiction of the ICJ. Consequently, when ordering protection of rights in dispute, the Court required to parties to, inter alia, ‘refrain from any act of racial discrimination against persons, groups of persons, or institutions’, with the implication being (somewhat perversely) that any violation of humanitarian law that was not based on racial discrimination would be permissible under the terms of the order. That being said, the Court also awarded measures for non-aggravation that would presumably capture any wider breaches of the laws of war.61 Furthermore, the link requirement has been reduced to the vanishing point where a party requests a provisional measure designed to ensure compliance with other forms of interim relief already granted, e.g. a measure requiring a party to keep the Court apprised of compliance with its orders.62 Self-evidently, where specific measures have been awarded, further measures to ensure compliance therewith require no further justification. The same may also be said of measures for non-aggravation of the dispute, with respect to which the Court has applied a reduced threshold on the basis that they ‘compliment’ rights that may fall for final determination.63 57 58 59

60 62 63

Rosenne, Provisional Measures, 202–4; Kolb, International Court, 627. See further Rosalyn Higgins, ‘Interim Measures for the Protection of Human Rights’ (1998) 36 Col JTL 91. This point is dealt with extensively in Chapter 8, §II.A. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia), Provisional Measures, ICJ Reports 2008 p 353. Noted: Cindy Galway Buys (2009) 103 AJIL 294. See also Bosnian Genocide, ICJ Reports 1993 p 3, 19. 61 4 March 1969, 660 UNTS 195. Georgia v Russia, ICJ Reports 2008 p 353, 398–9. Border Area/San Juan River, ICJ Reports 2013 p 354, 361. Border Area, ICJ Reports 2011 p 6, 21: ‘whereas the final provisional measure sought by Costa Rica, being very broadly worded, is linked to the rights which form the subject of

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2 Dispute Settlement Under UNCLOS Although the jurisprudence of the ICJ has – particularly in recent years – given additional life and depth to the link requirement, the same level of articulation did not until recently occur with respect to UNCLOS Article 290. That is not to say, however, that such a requirement could not be inferred. Like Article 41 of the ICJ Statute, UNCLOS Article 290 provides that ‘the Tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute’.64 Such considerations of ‘appropriateness’ speak to a need for a link between the rights to be adjudicated on the merits and the measures so requested – it just so happens that this was subsumed within wider considerations as to irreparable prejudice, the stance taken by the ICJ prior to Pulp Mills. Earlier coyness notwithstanding, the Special Chamber of ITLOS convened in Ghana/Cˆote d’Ivoire introduced the link requirement to UNCLOS Article 290(1). The case concerned the delimitation of a maritime boundary between the two states, with Coˆ te d’Ivoire seeking to restrain hydrocarbon extraction overseen by Ghana in the disputed area. In this ˆ d’Ivoire requested, inter alia, that the Chamber restrain connection, Cote all oil extraction and exploitation operations in the disputed area, refrain from granting any new permits pertaining to the same, and to take all steps necessary to prevent information on exploitation activities in the disputed area from being used to the detriment of Coˆ te d’Ivoire.65 In assessing the prerequisites of interim relief, the Chamber simply held that ‘there is a link between the rights Coˆ te d’Ivoire claims and the provisional measures it seeks’,66 citing the ICJ’s 2011 order in Border Area in support.67 On this basis, it may be said that the requirement is on its way to becoming a prerequisite to interim relief under UNCLOS Article 290 – although it should be pointed out that the Tribunal as a whole in Enrica Lexie made no mention of it as a separate requirement.

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the case before the Court on the merits, in so far as it is a measure complimenting more specific measures protecting those same rights’. See e.g. MOX Plant (Ireland v UK), Provisional Measures (2001) 126 ILR 257, 275 (ITLOS); ARA Libertad (Argentina v Ghana), Provisional Measures, (2012) 156 ILR 186, 201. Delimitation of the Maritime Boundary between Ghana and Cˆote d’Ivoire in the Atlantic Ocean (Ghana/Cˆote d’Ivoire), ITLOS Case No 23 (Provisional Measures, 25 April 2015) §25. Ibid, §63. Border Area, ICJ Reports 2011 p 6, 18. The reliance of the Special Chamber on ICJ authority throughout the Order of 25 April 2015 is surprising in light of its past recalcitrance. It is worth noting, however, that President Abraham of the ICJ was appointed judge ad hoc by Coˆ te d’Ivoire, which may have led to a more catholic understanding of interim relief.

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The above discussion notwithstanding, neither ITLOS nor an Annex VII tribunal have seen fit to elaborate on what such a link might entail – though at the present point in time there is no reason to think that it will not proceed along lines identical to the ICJ. In part, this might be thought to reflect the level of restraint demonstrated by parties who apply for provisional measures in ensuring that – in terms of their pleadings at least – their reach does not exceed their grasp. It might also be thought to reflect the relatively narrow class of rights that UNCLOS tribunals are competent to adjudicate upon per UNCLOS Article 288(1), which lends itself to clear identification and the crafting of relief to match,68 notwithstanding the fact that the Article 89(3) of the ITLOS Rules – like Article 73(2) of the ICJ Rules on which it was based – does not require the identification of rights to be protected in a request for interim relief. A final consideration may be the fairly sparse reasoning that characterizes ITLOS provisional measures. Unlike the ICJ, which has evidenced a steady increase in the complexity of its decisions on provisional measures over time, ITLOS has remained more aloof in its reasoning, and if it deems a requested measure to be unrelated to the rights subject to litigation, it is more likely to simply rewrite the request per its power to award relief other than that requested by the parties, as opposed to simply addressing and rejecting each request individually. It should be added that provisional measures for the protection of the marine environment, being the subject of express mention in UNCLOS Article 290, need not fulfill the link requirement – they remain available in all proceedings under Part XV, irrespective of the subject matter of the dispute.

3 Inter-State Arbitration The link test has also been averred to in the context of inter-state arbitration. In Kishenganga, India argued that one of the four international criteria guiding the award of interim measures was that of ‘a link between [the] rights [whose protection is being sought] and the measures requested’.69 The Court of Arbitration to an extent disagreed, citing the lex specialis nature of Paragraph 28 of Annexure G of the Indus Waters Treaty70 as excluding by implication further additional 68

69

See e.g. the Irish pleadings in MOX Plant, where it was contended ‘that its rights under certain provisions of the Convention, in particular articles 123, 192 to 194, 197, 206, 207, 211, 212 and 213 thereof, will be irrevocably violated’: MOX Plant (2001) 126 ILR 257, 275. Also: Land Reclamation (2003) 126 ILR 487, 502. 70 Kishenganga (2011) 150 ILR 310, 335. 19 September 1960, 419 UNTS 215.

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requirements.71 However, the Court considered that one of the purposes for which provisional measures could be awarded under Paragraph 28 of Annexure G, being ‘to safeguard [a party’s] interests under the Treaty with respect to the matter in dispute’ could be usefully informed by the practice of the ICJ concerning the phrase ‘to preserve the respective rights of either party’.72 As such, the Court of Arbitration may have considered the ICJ’s pronouncements on the link test in Pulp Mills and later cases to be relevant to the interpretation of Paragraph 28. However, it did not address the point, possibly due to the fact that an alternative basis for interim action within the provision, ‘to avoid prejudice to the final solution of the dispute’ did not require an express consideration of rights pendente lite, and thus no discussion of linkage.73 Accordingly, India’s submissions that Pakistan’s application for interim relief failed for want of a link between the measures sought and the merits74 went unaddressed. Despite this, however, the Court confusingly saw fit to introduce a form of preliminary merits review into Paragraph 28 of Annexure G, a test that, as will be seen, requires identification and consideration of rights that fall to be considered on the merits.75

4 Investor-State Arbitration A different narrative, however, emerges with respect to investor-state arbitration. Investment arbitration tribunals have become used to rejecting requests for interim relief due to a failure to demonstrate an appropriate link between the measures requested and the rights on the merits, whilst at the same time setting a reasonable threshold for applicants in this respect.76 (a) ICSID Arbitration The ICSID Rules are alone amongst the tribunals surveyed in requiring that the rights in question be specified in the request for provisional measures.77 Consequently, ICSID tribunals have stated that such rights must exist at the time that the request is made, must not be hypothetical and cannot be created in the future.78 Importantly, tribunals have considered that rights accruing to investors under 71 73 76

77 78

72 Kishenganga (2011) 150 ILR 310, 350. Ibid, 352–3. 74 75 Ibid, 353. Ibid, 342. Ibid, 351. ICSID Commentary, 779; Malintoppi, ‘Provisional Measures in Recent ICSID Proceedings’, 164–72; Caline Mouawad and Elizabeth Silbert, ‘A Guide to Interim Measures in InvestorState Arbitration’ (2013) 29 Arb Int’l 381, 393–7. ICSID Rules, Rule 39(1). An equivalent provision does not appear in the ICSID (AF) Rules or in either the 1976 or 2010 iterations of the UNCITRAL Rules. Maffezini v Spain (2001) 5 ICSID Reports 393, 394.

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domestic contracts are enforceable where the contracts in question are directly actionable.79 Article 47 of the ICSID Convention seems to confine relief to rights subject to litigation, i.e. those that are included in the investor’s prayer for relief or the directly corresponding sphere of state activity.80 This reading of the provision is reflected in the early ICSID jurisprudence. In Amco v Indonesia, the Tribunal was confronted with a request by the respondent to enjoin the claimant from violating the confidentiality of the arbitral proceedings through a series of newspaper articles. The request was rejected for two reasons: in the first place, the articles in question could not have harmed Indonesia’s interests; and in the second, the confidentiality of the proceedings was not a right which fell to be determined on the merits. The Tribunal noted: [C]laimants rightly point out that Rule 39(1), implementing the very general provision of Article 47 of the Convention, requires a party which solicits a provisional measure to specify the rights that such measure would be purported to preserve. Obviously, the rights to which this provision is relating are the rights in dispute, and no such right could be threatened by the publication of articles like those which are produced [ . . . ] It might possibly be that a large press campaign could have [a negative effect on Indonesia]. However, even so, it would not be an influence on rights in dispute.81

Over time, however, ICSID tribunals have moved away from this strict standard. The Tribunal in Plama v Bulgaria rejected the Amco v Indonesia 79

80

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See e.g. Tanzania Electric Supply Company Limited v Independent Power Tanzania Ltd, Provisional Measures (1999) 8 ICSID Reports 239, 242; City Oriente Ltd v Ecuador and Empesa Estatal Petr´oleos Del Ecuador (PetroEcuador), ICSID Case No ARB/06/21 (Decision on Revocation of Provisional Measures, 13 May 2008) §57; Perenco Ecuador Ltd v Ecuador and Empresa Estatal Petr´oleos del Ecuador (PetroEcuador), ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009) §62; Burlington Resources Inc and Ors v Ecuador and Empresa Estatal Petr´oleos del Ecuador (PetroEcuador), ICSID Case No ARB/08/5 (Procedural Order No 1, 29 June 2009) §71; Tethyan Copper v Pakistan, ICSID Case No ARB/12/1, §§134–7. There is no reason to think that a different result would follow with respect to contractual rights if the rights to be determined on the merits derived from an investment treaty. See Churchill Mining v Indonesia, ICSID Case No ARB/12/14, §44, 50, holding that the respondent’s general rights to (a) host foreign investments, (b) regulate and promote investment in its natural resources, (c) enforce regulations on investment in its natural resources, (d) be free from reputational attacks, and (e) attain justice based on factual truth could not be considered subject to litigation. The Tribunal reached a similar conclusion regarding the respondent’s second requested order, namely that the claimant’s personnel be prevented from lobbying Indonesian officials so as to achieve a settlement: ibid, §§51–4. Amco v Indonesia (1983) 1 ICSID Reports 410, 411.

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standard as overly narrow, requiring instead that the rights to be protected merely ‘relate’ to those to be determined on the merits.82 This is now the status quo, with the tribunals apparently aware that they have developed a variant of the link test that is at least partially distinct from ICJ practice.83 The result has been the extension of Article 47 to protect procedural rights relating to the integrity of the arbitral process.84 These may be said to include, inter alia, measures for the preservation of evidence,85 for protecting the exclusivity86 and confidentiality of proceedings,87 and for the 82 83

84 85

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Plama v Bulgaria, ICSID Case No ARB/03/24, §40. See e.g. Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kapl´un v Bolivia, ICSID Case No ARB/06/2 (Provisional Measures, 26 February 2010) §§78, 116–24, where the strict linkage requirement promoted by the ICJ in Certain Criminal Proceedings was considered and rejected in favour of the more relaxed standard enunciated in Plama v Bulgaria. See also Lao Holdings NV v Lao People’s Democratic Republic, ICSID Case No ARB(AF)/12/16 (Ruling on Motion to Amend the Provisional Measures Order, 30 May 2014) §11. Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 1, 31 March 2006) §71. See e.g. AGIP SpA v People’s Republic of the Congo, Provisional Measures (1977) 1 ICSID Reports 309, 310–11; Vacuum Salt Products Limited v Ghana, Provisional Measures (1993) 4 ICSID Reports 323, 327–8; Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16 (Award, 28 September 2007) §37; Biwater Gauff v Tanzania, ICSID Case No ARB/05/22, §86; Railway Development Corporation v Guatemala, ICSID Case No ARB/07/23 (Provisional Measures, 15 October 2008) §§27–31. Further: ICSID Commentary, 780–2; Mouawad and Silbert, ‘Guide to Interim Measures’, 413–14. See e.g. Vacuum Salt v Ghana (1993) 4 ICSID Reports 323, 328; SGS Soci´et´e G´en´erale de Surveillance SA v Pakistan, Procedural Order No 2 (2002) 8 ICSID Reports 388, 392–6; Ceskoslovenska Obchodni Banka AS v Slovak Republic, ICSID Case No ARB/97/4 (Decision on Jurisdiction, 24 May 1999) §9; Tanzania Electric v IPTL (1999) 8 ICSID Reports 339, 342; Plama v Bulgaria, ICSID Case No ARB/03/24, §50; Tokios Tokel´es v Ukraine, ICSID Case No ARB/02/18 (Procedural Order No 1, 1 July 2003) §7; Millicom International Operations BV and Sentel GSM SA v Senegal, ICSID Case No ARB/08/20 (Decision on the Application of Provisional Measures, 9 December 2009) §45(d). In the context of ICSID, the right arises under Article 26 of the ICSID Convention, but surely exists more generally in international law where the existence of parallel proceedings and the possibility of a contradictory award would prejudice the effective resolution of the dispute: Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6 ICSID Rev – FILJ 431; ICSID Commentary, 784–93; Mouawad and Silbert, ‘Guide to Interim Measures’, 402–13. See e.g. Biwater Gauff v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 3, 29 September 2006) §§135–42. See also Metalclad Corporation v United Mexican States, ICSID Case No ARB(AF)/97/1 (Order, 27 October 1997) §9; Loewen Group Inc v Raymond L Loewen v United States, ICSID Case No ARB(AF)/98/3 (Jurisdiction, 5 January 2001) §26. It is worth noting that confidentiality will not generally be considered a right related to a right pendente lite (per Amco v Indonesia and Churchill Mining v Indonesia), but where a breach of confidentiality is sufficiently severe it may be elevated to that level through its ability to affect those rights substantially and directly, e.g. by damaging an

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provision of a financial guarantee or bond,88 none of which will ordinarily appear in or thrown into relief by the claimant’s originating process. Furthermore, they do not appear to have been considered expressly by the drafters of the ICSID Convention in relation to provisional measures, leading to concerns of legitimacy.89 But that is not to say that procedural rights cannot be protected through provisional measures: the problem is not one of the scope of Article 47 and Rule 39(1), respectively, but of the identification of the rights to be protected. The preferable approach is that utilized by the tribunal in RDC v Guatemala, which characterized a request for the preservation of evidence as either designed to preserve the substantive rights of the parties or to ensure that its jurisdiction was fully effective, a classification reflected in DR-CAFTA Article 10.20.8.90 Put another way, arbitral proceedings are commenced in order to uphold substantive rights, and anything that prejudices such proceedings (e.g. the destruction of evidence) will necessarily cause prejudice to the rights on which they are premised. In this sense, the protection of procedural rights is a necessary corollary of the need to protect the actual rights pendente lite, which is the approach taken by the ICJ on those rare occasions where it is petitioned for measures of protection relating to the protection of evidence.91 The PCIJ exhibited a similar practice with respect to measures to protect the exclusivity of proceedings. In Electricity Company, the Court ordered Bulgaria to ensure that, pending the proceedings before the Court, no further steps were taken in a local collection action against the eponymous company, considering that measures were warranted so

88

89

90 91

investor’s share price. In Biwater Gauff v Tanzania (Procedural Order No 3) this risk was held to warrant measures for non-aggravation: ICSID Case No ARB/05/22, §141. Also: World Duty Free v Kenya, ICSID Case No ARB/00/7 (Award, 4 October 2006) §16. Further: ICSID Commentary, 795–6; Mouawad and Silbert, ‘Guide to Interim Measures’, 401–2. See e.g. Maffizini v Spain (1999) 5 ICSID Reports 393, 394–5; Casado v Chile (2001) 6 ICSID Reports 373, 394–7; Bayindir v Pakistan, ICSID Case No ARB/03/29, §46. Further: ICSID Commentary, 782–4; Mouawad and Silbert, ‘Guide to Interim Measures’, 414–16. ICSID Commentary, 779. See further: Quiborax v Bolivia, ICSID Case No ARB/06/2, §§139–48. Also: AGIP v Congo (1977) 1 ICSID Reports 309, 310–11; Biwater Gauff v Tanzania, ICSID Case No ARB/05/22, §§84–98. RDC v Guatemala, ICSID Case No ARB/07/23, §§27–31. A similar connection was drawn by the Tribunal in Perenco v Ecuador, ICSID Case No ARB/08/6, §43. See e.g. Frontier Dispute (Burkina Faso/Mali), Provisional Measures, ICJ Reports 1986 p 3, 9; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Provisional Measures, ICJ Reports 1996 p 13, 23. Further: Thirlway, ‘Provisional Measures by the ICJ’, 16.

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as to ‘prevent [ . . . ] the performance of acts likely to prejudice [ . . . ] the respective rights which may result from the impending judgment’.92 (b) UNCITRAL Arbitration Tribunals operating under the UNCITRAL Rules (or variants thereof) have displayed propensities similar to those of ICSID tribunals. The Iran–US Claims Tribunal in particular recognized the need for a connection between the measures proposed and the subject matter of the litigation and was particularly willing to take action in order to protect the exclusivity of proceedings.93 As stated by the Iran–US Claims Tribunal in E-Systems v Iran: The Tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal’s jurisdiction and authority are made fully effective. Not only should it be said that the award to be rendered in this case by the Tribunal [ . . . ] will prevail over any decisions inconsistent with it rendered by Iranian or United States courts, but, in order to ensure the full effectiveness of the Tribunal’s decisions, the Government of Iran should request that actions in the Iranian Court be stayed until such proceedings in this Tribunal have been completed.94

However, the Iran–US Claims Tribunal retained an awareness of the need to protect only the subject matter of the proceedings before it. In RCA Globcom v Iran, the claimant based its claim on a contract for services with the Iranian Army Joint Staff, and further asserted that the contract was subsequently cancelled due to force majeure. The claimant had, however, taken out an insurance policy on the contract with a third party insurer. Following the contract’s putative cancellation, the insurer had pursued the claimant in the Iranian courts for premiums post-dating the frustrating event, and secured judgment in its favour. The Tribunal refused to award provisional measures for the vacation of the judgment on the basis that ‘the proceedings before the domestic court concern a dispute arising 92

93

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Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79, 199. See also the measures requested by Germany in Administration of the Prince von Pless (Germany v Poland) (1933) PCIJ Ser A/B No 54. David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran–United States Claims Tribunal’ (1986) 46 Za¨oRV 465, 485–8; David D Caron, Lee M Caplan and Matti Pellonp¨aa¨ , The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2006) 534–5. E-Systems Inc v Iran (1983) 2 Iran–US CTR 51, 57. Further: Stewart Abercrombie Baker and Mark David Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran–US Claims Tribunal (Deventer: Kluwer, 1992) 135–8.

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out of a separate contract’ (i.e. the insurance policy), and ‘[t]he alleged interrelationship between the two cases is not quite clear’.95 There is, however, a further elaboration in the case of UNCITRAL tribunals. Article 26(1) of the 1976 UNCITRAL Rules only requires a connection between interim relief and the subject matter of the dispute, as opposed to rights subject to litigation.96 This results in a discretion wider than that afforded to the other tribunals considered.97 As such, when establishing the parameters of interim relief, UNCITRAL tribunals have shown a propensity to phrase the link in terms of a general situation, as opposed to specific rights. In Paushok v Mongolia, for example, the Tribunal recited the various provisions of the relevant BIT on which the claimant relied, but characterized the situation more generally as relating to ‘the validity under the [BIT] of the Windfall Profit Tax and of the levying of a fee for the import of foreign workers imposed by the Respondent’.98 A similar picture emerges with respect to two of its decisions on interim measures given in Chevron v Ecuador. There, the situation involved Ecuador’s repeated failure to stay proceedings before its domestic courts (the Lago Agrio judgment) and later, to prevent the enforcement of a final judgment arising out of those proceedings. In its Order of 28 January 2011, the Tribunal noted that the proceedings were such as to potentially ‘render these arbitration proceedings inefficacious [ . . . ] thereby thwarting the Claimant’s claims against the Respondent’, indicating that its concern was to prevent damage the claimant’s ability to protect its interests via arbitration.99 Similar concerns may have been at play in its Fourth Interim Award, wherein the Tribunal referred to the possibility that the Lago Agrio judgment would ‘imperil to a very significant extent the overall fairness and the efficacy of these arbitral proceedings’.100 Ultimately, however, the Tribunal’s refusal to detach questions of linkage from that of irreparable prejudice may indicate that they saw the two as inextricable, a position redolent of earlier ICJ practice.

95

96 97 99

100

RCA Globcom Communications and Ors v Iran (1983) 4 Iran–US CTR 9, 12; United Technologies International Inc v Iran (1986) 13 Iran–US CTR 254, 258–9; cf. Tadjer-Cohen Associates Incorporated v Iran (1985) 9 Iran–US CTR 302, 304–5. Clyde Croft, Christopher Kee and Jeffrey Waincymer, A Guide to the UNCITRAL Arbitration Rules (Cambridge: Cambridge University Press, 2013) 288–92. 98 Paushok v Mongolia, UNCITRAL, §36. Ibid, §37. Chevron Corporation and Texaco Petroleum Company v Ecuador, PCA Case No 2009–23 (First Order on Interim Measures, 28 January 2011), reproduced in Chevron v Ecuador, PCA Case No 2009–23 (First Interim Award, 25 January 2012) 7. Chevron v Ecuador, PCA Case No 2009–23 (Fourth Interim Award, 7 February 2013) §85.

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Significantly, Article 26(2) of the 2010 UNCITRAL Rules removes completely any requirement for linkage, at least on the face of the provision. This, together with the work of the UNCITRAL Working Group on security for costs, has caused some scholars to argue that the link test cannot be reintroduced to the provision via implication.101 However, given that ICSID tribunals have managed to maintain the viability of security for costs whilst still upholding some form of link requirement, it cannot be said that such a precondition remains out of the question, especially given its omnipresence before other international bodies.

D Plausibility of the Rights Claimed and the Prospect of Success on the Merits Connected to the question of the relationship between the rights subject to litigation and the merits is the question of the existence of the rights themselves and the additional question of the claimant’s likely success on the merits. Within domestic legal systems, it is not uncommon for interim relief to depend on the applicant’s capacity to demonstrate at least some possibility of victory if the matter proceeds to final judgment.102 The precise degree of success required may vary. In England, the position is that the claimant must show that there is a serious question to be tried,103 in that the claimant must show that there is a real (as opposed to a fanciful) prospect of success on the merits.104 In civilian jurisdictions, such as Germany105 or Spain,106 a more stringent standard of the fumi boni juris (literally: smoke of a good fire) may be applied so as to require a reasonable probability of success on the merits. In the United States, the bar is set higher still, with the applicant required to prove that success on the merits is likely.107 101 102 103 104

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Croft et al., Guide to the UNCITRAL Rules, 269. Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992) 234 Hague Recuiel 9, 24–9. American Cynamid Co v Ethicon Ltd [1975] AC 396, 407 (Lord Diplock). In this, the threshold is just above that at which the respondent would be successful in a strikeout application: Pippa Rogerson, Collier’s Conflict of Laws (Cambridge: Cambridge University Press, 4th edn, 2013) 55–6. ZPO §§935, 940. Further: Collins, ‘Provisional and Protective Measures’, 27. Ley de Enjuiciamiento Civil 2000, Art 728. Further: Carlos Esplugues-Mota, ‘Provisional Measures in Spanish Civil Procedure’, in R St¨urner and M Kawano (eds), Comparative Studies on Enforcement and Provisional Measures (T¨ubingen: Mohr Siebeck, 2011) 206, 211. Mazurek v Armstrong, 520 US 968, 972 (1997); Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418, 428 (2006); Munaf v Geren, 553 US 674, 690 (2008).

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Within the international space, a preliminary consideration of the merits is problematic, due primarily to the consensual character of jurisdiction. In cases where the jurisdiction of an international court or tribunal is contested, the adjudicator must tread carefully so as to avoid giving the impression that it is pronouncing on the merits without first establishing its competence to do so – such speculation, Rosenne notes, ‘is hardly compatible with the international judicial function’.108 On the other hand, as Collins points out, if no regard whatsoever is paid to the merits, this may act as an incentive for parties to bring frivolous or vexatious claims in the hope of securing interim relief.109 Furthermore, per Oellers-Frahm, in the event that success on the merits is totally improbable, then it follows a fortiori that provisional measures cannot be deemed necessary for the protection of rights pendente lite.110 It might further be added that, to the extent that a preliminary assessment of the merits may be criticized, those criticisms do not differ markedly in substance from those leveled at the test of prima facie jurisdiction when it was first introduced by the Court – criticisms that were notably absent by the time that prima facie admissibility was formally incorporated into the Court’s calculus.111 As such, the clientele of international courts and tribunals appears to have accepted the notion that the integrity of the provisional measures process – especially in light of the common consensus that such measures are binding – requires some examination of matters that are yet to be determined finally, including the merits. Accordingly, it is clear that some species of review is required – the question is one of threshold. Two broad standards have emerged as between international courts and tribunals. The first is broadly similar to standards seen in municipal law and elsewhere in the international system (e.g. with respect to preliminary assessment of jurisdiction): an assessment of the applicant’s chances of success on the merits. The second is a lesser threshold that seeks only to establish the ‘plausible’ existence of the rights with respect to which interim protection is claimed.112

1 The International Court of Justice (a) Merits Review in the Separate and Dissenting Opinions of the ICJ: 1951–2006 Open ventilation of this issue before the ICJ has occurred 108 109 110 112

Rosenne, Provisional Measures, 72. See also the correspondence of President Adachi in South-Eastern Greenland (1932) PCIJ Ser C No 69, 16, 32, 48. Collins, ‘Provisional and Protective Measures’, 225. 111 Oellers-Frahm, ‘Article 41’, 1042. See Chapter 4, §§IV.A, V.B. See e.g. Lee-Iwamoto, ‘Repercussions of LaGrand’, 247–51.

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only relatively recently within the Court’s practice. In Great Belt, Denmark argued that in order for provisional measures to be granted, a reasonable prospect of success on the merits had to be demonstrated. It further asserted: ‘not even a prima facie case exists in favour of the Finnish contention’.113 Although the Court did not take a clear position on the issue (instead holding that the Finnish application failed for lack of urgency114 ) Judge Shahabuddeen considered the point at length, eventually holding that: [J]urisdiction over the merits is merely one element which the applicant must establish in order to succeed in the substantive case which it has brought – a truth undiminished, in my view, by the importance of that element or by the fact that it may be argued as a preliminary issue. If the claimant cannot make out a prima facie case of substantive jurisdiction, this circumstance shows it has no possibility of succeeding. It is easy to appreciate that proof of the definitive existence of the right claimed cannot be part of the ‘circumstances’ within the meaning of Article 41 of the Statute, but is rather a matter for the merits. It is less easy to accept that this applies to the establishment of a possibility of the existence of the right.115

Further express consideration of the issue by way of separate opinion occurred in the Pulp Mills. Although the majority again failed to comment expressly on the point, Judges Bennouna and Abraham considered the issue at length. Judge Bennouna argued that the majority ought to have examined at least the existence of the rights sub judice whilst at the same time taking all necessary precautions to ensure that it could not be accused of having prejudged the merits of the case. He acknowledged, however, that ‘it would not have been appropriate to settle the issue, even prima facie if doubt subsisted as a result of the possible complexity, ambiguity or silence of the texts concerned [ . . . ] making it impossible to decide at this stage between the Parties’ differing interpretations’.116 A more expansive discussion was entered into by Judge Abraham, who argued that following the determination in LaGrand that provisional measures ordered by the ICJ were binding, the Court was obliged to enhance the legitimacy of such interventions: [The Court] cannot order a State to conduct itself in a certain way simply because another State claims that such conduct is necessary to preserve its own rights, unless the Court has carried out some minimum review to 113 114 116

Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1991 p 12, 17. 115 Ibid, 18. Ibid, 31 (Judge Shahabuddeen). Pulp Mills, ICJ Reports 2006 p 113, 144–5 (Judge Bennouna).

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purpose of provisional measures determine whether the rights thus claimed actually exist and whether they are in danger of being violated – and irreparably so – in the absence of the provisional measures the Court has been asked to prescribe: thus, unless the Court has given some thought to the merits of the case.117

Judge Abraham then went on to note that in undertaking such a limited examination of the merits, ‘the Court does not overstep the boundaries of its mission as a jurisdiction appealed to for final relief [but] on the contrary, it is sensibly fulfilling that mission’. In such a light, the necessity of merits review ‘is inescapable, mandated as it were by logic’. The judge stopped short, however, of requiring an ‘exacting’ evaluation of the claimant’s prospect of success on the merits. Rather, he said, It might be enough to ascertain that the claimed right is not patently non-existent and that, according to the information available to the Court at the particular stage in the proceedings, the possibility of the other party’s conduct infringing that right is not manifestly to be ruled out. The requirement of fumus boni juris then gives way to that of fumus non mali juris. But, in all honesty, these are subtleties and there exists a great range of intermediate degrees, each capable of expression in somewhat vague terms: the requesting party should establish the possible existence of the right claimed, or the apparent existence of such right, etc.118

It should be noted that although these separate opinions appear relatively late in the Court’s jurisprudence, threads of the debate can be seen in earlier commentary. With respect to the PCIJ, Dumbauld argued that ‘a prima facie showing of probable right and probable injury’ was a prerequisite of interim relief,119 with Mani making a similar identification with respect to the practice of the ICJ in the 1970s.120 In Anglo-Iranian Oil, the Court itself gave the somewhat Delphic statement that ‘the Court must be concerned to preserve by such measures the rights which may be subsequently adjudged by the Court to belong either to the Applicant or to the Respondent’.121 Similarly, in the Nuclear Tests cases, Judges Forster, Petr´en and Ignacio-Pinto expressed serious doubts as to the legal foundations of Australia and New Zealand’s claims against France when 117 119 120 121

118 Ibid, 140 (Judge Abraham). Ibid, 140–1 (Judge Abraham). Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) 160–1. V S Mani, ‘On Interim Measures of Protection: ICJ Practice’ (1973) 13 Indian JIL 262, 265. Anglo-Iranian Oil, ICJ Reports 1951 p 89, 93. This precise form of words has now reappeared in the context of the plausibility test: see e.g. Temple (Interpretation), ICJ Reports 2011 p 537, 545.

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dissenting from the majority decision to award provisional measures.122 Accordingly, whilst the recent focus of the ICJ on the elaboration of this requirement might appear sudden, the threads of the debate are clearly visible within the Court’s earlier practice, contrary to the assertions of Judge Koroma in Border Area that the criterion ‘seemed to appear out of nowhere’.123 (b) Further Development and Scope: 2009 Onwards Judge Abraham’s powerful distillation of the issues in Pulp Mills appears to have influenced the Court as a whole. In Obligation to Prosecute or Extradite, the Court provided, pursuant to Article 41, that ‘the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible’.124 This formula – along with the rider that the Court is not called upon to determine during the provisional measures phase whether such rights exist – has been adopted in subsequent cases, including Border Area,125 Temple (Interpretation)126 and Certain Documents and Data.127 This recent string of decisions has enabled the Court to delineate the boundaries of the test. In the first place, it is important to be clear that the Court is not advocating a review of the applicant’s prospects of success on the merits in the mode of municipal standards such as the serious question to be tried or the fumi boni juris.128 The Court is only purporting to assess whether the applicant possesses the rights in question – it pointedly does not assess whether, on the facts as they stand, those rights have been breached by the respondent, much less whether that breach is excusable. While some commentators have advocated a higher standard of review,129 122

123 124 125 126 127 128

129

Nuclear Tests (Australia v France), ICJ Reports 1973 p 99, 114 (Judge Forster, diss), 126 (Judge Petr´en, diss), 131 (Judge Ignacio-Pinto, diss); Nuclear Tests (New Zealand v France), ICJ Reports 1973 p 135, 148 (Judge Forster, diss), 161–2 (Judge Petr´en, diss), 163–4 (Judge Ignacio-Pinto, diss). Border Area, ICJ Reports 2011 p 6, 30 (Judge Koroma). Obligation to Prosecute or Extradite, ICJ Reports 2009 p 139, 151 (emphasis added). Border Area, ICJ Reports 2011 p 6, 19. Temple (Interpretation), ICJ Reports 2011 p 537, 546. Certain Documents and Data, ICJ, Order of 3 March 2014, §26. See e.g. Georgia v Russia, ICJ Reports 2008 p 353, 395–6. Cf. Sakai, ‘New Developments’, 263 (fn 112), arguing that ‘the Court seems to adopt [the fumi boni juris] as a requirement for indicating provisional measures’. This reading appears to be the result of a misinterpretation of the Court’s words in Obligation to Prosecute or Extradite. See e.g. Sztucki, Interim Measures, 123–4; J G Merrills, ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’ (1995) 44 ICLQ 90, 114–15; ‘Oellers-Frahm, ‘Article 41’, 1042–4.

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the requirement of plausibility alone has become part of the settled practice of the Court and would appear to strike a satisfactory balance between screening cases that are manifestly hopeless whilst at the same time giving appropriate weight to the consensual character of international jurisdiction. Whilst it might be argued that in refusing to pronounce on the merits in a provisional sense, the Court deprives the parties of a ‘sneak peek’ at the merits that might otherwise encourage settlement,130 it is to be remembered that the primary purpose of interim relief is not the facilitation of negotiations but the preservation of rights pendente lite. This objective is better served if provisional measures are backed by an institutional legitimacy achieved through awareness of the Court’s jurisdictional boundaries. Two criticisms have arisen with respect to the test as stated. The first is that the plausibility criterion is not sufficiently separate from the link test to be considered independent.131 Although the two requirements are closely aligned (in the sense that rights asserted must be both plausibly held and sufficiently linked to the measures requested) the Court has begun to structure its judgments such as to indicate a formal separation. In the Temple (Interpretation) case, for example, the Court framed the two tests in the following terms: Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties pending the decision of the Court; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong to either party; whereas the Court may exercise this power only if it is satisfied that the rights asserted by a party are at least plausible [ . . . ] Whereas, moreover, a link must be established between the alleged rights and the provisional measures sought to protect them.132

A second, more substantial criticism of the link test is that of ambiguity, with Judge Koroma in Border Area noting that depending on the definition that one attributed to the term ‘plausible’, it could be held to bear 130 131 132

Collins, ‘Provisional and Protective Measures’, 27. See e.g. Daniel M¨uller and Affef Ben Mansour, ‘Procedural Developments at the International Court of Justice’ (2009) 8 LPICT 459, 499–500. Temple (Interpretation), ICJ Reports 2011 p 537, 545. Application of the tests to the facts before the Court then took place under separate subheadings: ibid, 545, 547; Border Area, ICJ Reports 2011 p 6, 18–21. Cf. Obligation to Prosecute or Extradite, ICJ Reports 2009 p 139, 151–2; Certain Documents and Data, ICJ, Order of 3 March 2014, §§22–30.

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the same meaning as ‘specious’ or ‘persuasive but deceptive’.133 Such an observation appears mildly fatuous – the criterion self-evidently attempts to add materially to the existing prerequisites for the award of provisional measures. But this does not detract from Judge Koroma’s wider point that the threshold of plausibility is not immediately apparent in the test as formulated. Nor is it clear whether the standard applies to legal rights or facts or both.134 Insofar as the latter point is concerned, it is suggested that some form of factual and legal analysis is required if the test is to be effective. The Court must assess whether (a) the right asserted could possibly exist in the abstract; and (b) whether the party asserting that right could plausibly hold it in the particular circumstances of the case. Thus, in Border Area, the Court determined (a) that the contested territory, the Isla Portillos, could plausibly be the subject of sovereign title; and (b) that Costa Rica could plausibly hold such a claim – though the Court rightly noted that it was not required to assess the plausibility of Nicaragua’s alternative title.135 The Court also did not purport to determine whether Nicaragua had violated Costa Rica’s title and did not pronounce on the presence (vel non) of any justification or excuse for such a violation. But this still leaves the precise threshold of plausibility undefined.136 Oellers-Frahm has commented that to a German lawyer the term is redolent of the concept of Schl¨ussigkeit, meaning that the claim is ‘plausible’ if supposing that the facts alleged by the applicant are true then the claim will succeed.137 However, such a position if true would conflate the plausibility threshold with the kind of involved view of the merits that might infringe on the jurisdictional limits that the Court has set for itself and convert the proceedings into a summary trial on the merits. The preferable position appears to be that of Judge Greenwood, who stated that in order to satisfy the criterion, the applicant must demonstrate ‘something more than assertion but less than proof; in other words [ . . . ] that there is at least a reasonable possibility that the right which it claims exists as a matter of law and will be judged to apply to that party’s case’.138 Further clarity has been provided by the Court’s recent decision in Certain Documents and Data, which constitutes the first detailed application of the test in the face of considered opposition by a respondent. There, 133 134 136 137 138

The judge went on to remark that the French ‘plausibilit´e’ bore a more uniformly positive meaning: Border Area, ICJ Reports 2011 p 6, 31–2 (Judge Koroma). 135 Ibid, 32 (Judge Koroma). Ibid, 19. But cf. the discussion on Kishenganga and inter-state arbitration: below §II.D.4. Oellers-Frahm, ‘Article 41’, 1043–4. Border Area, ICJ Reports 2011 p 6, 47 (Judge Greenwood).

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Timor-Leste sought to rely on a somewhat ambiguous set of rights arising from Australia’s seizure of the relevant documents from Timor-Leste’s solicitor in Canberra. In particular, it identified as worthy of protection ‘the ownership and property rights which it holds over the seized material, entailing the rights to inviolability and immunity of this property [ . . . ] to which it is entitled as a sovereign State, and its rights to confidentiality of communications with its legal advisors’. Timor-Leste further sought to argue that legal professional privilege could be considered a general principle of law within the meaning of Article 38(1)(c) of the ICJ Statute.139 Australia, for its part, sought to challenge the plausibility of these rights on both legal and factual grounds. In the first place, it was argued, it could not be established that the documents that were removed from the solicitor’s office belonged to Timor-Leste. In the second, there did not exist under international law a general principle of immunity or inviolability of state papers and property and, even if there was, that principle could not be considered absolute.140 This created a quandary for the Court. On the one hand, the Timorese application was clearly novel, and to reject it without first subjecting it to searching analysis would be premature. The case against rejection, however, was weakened by the dearth of support for the argument in Timor-Leste’s pleadings. The Court’s solution was to root the Timorese submissions in a recognized principle of international law that was sufficiently plausible. It began its analysis by identifying the factual context in which the dispute arose (i.e. the PCA proceeding then on foot between the parties under the TST141 ) and the extent to which the documents allegedly taken related to that arbitration. It then sought to link the rights claimed by Timor-Leste – which were asserted with almost nothing in the way of supporting authority142 – with an existing and recognized basis in international law, namely that of sovereign equality, holding that it was arguable that this principle extended to equality of arbitral process and a right of states to expect that other nations would not interfere in the preparations for and conduct of such proceedings.143 This, the Court said, ensured that at least some of the rights for which Timor-Leste 139 140 142

143

Certain Documents and Data, ICJ, Order of 3 March 2014, §24. 141 Ibid, §25. 20 May 2002, 2258 UNTS 3. Certain Documents and Data, Timor-Leste: Application of 17 December 2013, §10. See also Certain Documents and Data, Australia: Written Observations of 13 January 2014, §75(d), noting that the rights that Timor-Leste sought to protect had either not been identified in the Timorese application or were ‘at best speculative’. Certain Documents and Data, ICJ, Order of 3 March 2014, §27.

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sought protection – ‘namely the right to conduct arbitration proceedings and negotiations without interference [ . . . ] including the right of confidentiality and of non-interference in its communications with legal advisors’ – were plausible.144 The Court’s approach in Certain Documents and Data raises a question as to what would have occurred had a recognized international norm such as sovereign equality not been available. In such a case, it is submitted, the Court should still have found the test satisfied. Although novel, the Timorese assertions were not totally fanciful, relying in part on widely recognized principles of municipal law that could conceivably constitute a general principle of law within the meaning of Article 38(1)(c) of the ICJ Statute. In such a case, where a more searching investigation is required to determine the plausibility of an applicant’s claims, the applicant should axiomatically receive the benefit of the doubt in the same way that investor-state arbitration tribunals presently treat similar claims as to prima facie jurisdiction.145 However, this is dependent on the applicant to a certain extent helping itself – as pointed out by Judge Anzilotti in the Polish Agrarian Reform case, it is not the Court’s job to correct manifestly deficient pleadings.146

2 Dispute Settlement Under UNCLOS On this basis, an articulated criterion of plausibility has now emerged as a separate precondition for interim relief under Article 41 of the ICJ Statute. The position under UNCLOS Article 290 was, for a time, less clear. Unlike the ICJ, it seemed unlikely that any dispute settlement body convened under UNCLOS Part XV will be required to consider whether a right exists in a legal sense (as in Certain Documents and Data), as UNCLOS Article 288 expressly limits the jurisdiction of such bodies to disputes concerning the interpretation or application of the Convention. Accordingly, if the body in question determines that it possesses jurisdiction, it follows that the right or rights claimed by the applicant are located within UNCLOS, the legal existence of which is self-evident.147 As such, if UNCLOS were minded to adopt a plausibility criterion along the lines suggested by the ICJ, the only relevant concern would be whether the applicant holds the relevant rights as a question of fact, e.g. by being the registered flag 144 146 147

145 Ibid, §28. See Chapter 4, §IV.C. Polish Agrarian Reform (1933) PCIJ Ser A/B No 58, 182 (Judge Anzilotti, diss). Though an exception may conceivably arise if a claimant contends for a highly unlikely interpretation of an existing provision of UNCLOS.

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state of a vessel subject to allegedly improper seizure under UNCLOS, as was asserted in M/V Saiga (No 2), M/V Louisa, ARA Libertad and Arctic Sunrise. This notwithstanding, ITLOS clearly considered the plausible existence of rights claimed to be relevant to the grant of provisional measures since at least 2010. In M/V Louisa, it noted that it did not need to ‘establish definitively the existence of rights claimed’;148 with the insertion of the adjective ‘definitively’ perhaps implying that some form of review was nonetheless required. Similar language was also used in ARA Libertad149 and Arctic Sunrise.150 As with the link requirement, the Special Chamber in Ghana/Cˆote d’Ivoire finally introduced the plausibility requirement expressly into the jurisprudence surrounding UNCLOS Article 290(1), citing the ICJ’s 2013 order in Border Area151 and holding in terms that ‘before prescribing provisional measures, the Special Chamber need not therefore concern itself with the competing claims of the Parties [ . . . ], ˆ d’Ivoire claims on it need only satisfy itself that the right which Cote the merits and seeks to protect are at least plausible’.152 This position was then adopted – with reference to Ghana/Cˆote d’Ivoire – by the Tribunal as a whole in Enrica Lexie.153 On this basis, it may be said that the requirement is now a prerequisite to interim relief under UNCLOS Article 290. A further consideration for ITLOS is the question of institutional legitimacy that arises from its regular use of UNCLOS Article 290(5) to award provisional measures prior to the composition of an Annex VII arbitral tribunal. As discussed earlier in relation to questions of prima facie jurisdiction,154 the act of awarding interim relief on behalf of another international tribunal may require that the claimant be given an additional benefit of the doubt when addressing issues that may later determine 148 150 152 153

154

149 M/V Louisa (2010) 148 ILR 459, 471. ARA Libertad (2012) 156 ILR 186, 199. 151 Arctic Sunrise, ITLOS Case No 22, §68. Border Area, ICJ Reports 2013 p 354, 360. Ghana/Cˆote d’Ivoire, ITLOS Case No 23, §§57–8. Enrica Lexie (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §§83–4. In that case, however, the Tribunal applied the plausibility test not only the rights asserted by Italy as the applicant for provisional measures, but to the rights asserted by India as respondent: ibid, §85. As pointed out by the dissenting Judge Heidar, this is strictly speaking incorrect, with the purpose of the test being as a prerequisite for the award of interim relief to the applicant. To apply it to the rights asserted by the respondent is accordingly nonsensical. Indeed, in Enrica Lexie, India made no submissions as to whether its asserted rights could be considered plausible: ibid, §§17–20 (Judge Heidar, diss). See Chapter 4, §III.B.2.

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the claim – or at the least urge an additional measure of caution on the part of the Tribunal. As with the link test, provisional measures for the protection of the marine environment are also exempt from the plausibility requirement. The test assesses the existence of rights which are contested on the merits. As the right to seek provisional measures arises not from the merits themselves, but from an express grant of power under the terms of UNCLOS Article 290, the particular hoop need not be jumped through by the applicant. In such situations, the true test is whether the serious environmental harm hypothesized will actually come about – a question that arises in relation to the requirements of irreparable harm and urgency.

3 Inter-State Arbitration Those isolated instances of ad hoc inter-state arbitration appear minded to adopt a form of merits review wholesale irrespective of whether a lex specialis governs the award of interim relief. In Kishenganga, the Court of Arbitration held that it was not required to import the linkage test into its calculations due to the lex specialis of Paragraph 28 of Annexure G of the Indus Waters Treaty.155 This notwithstanding, the Court still held as follows: Yet as broad as the scope of Paragraph 28 may be, the Court nonetheless recognizes that interim measures under the treaty remain an extraordinary recourse. Consistent with the general practice of international and national courts and tribunals, the Court must be satisfied that, without prejudice to its decision on the merits, the claims set forth by the Party seeking interim measures appear to be at least ‘plausible’. Regardless of the conditions under which it is authorized under its rules to indicate interim relief, such relief cannot be said to be ‘necessary’ under any of those conditions if it is apparent to that court at an early stage that it is unlikely to have jurisdiction or that the applicant has failed to present a plausible case on the merits.156

The Court then went on to apply this test to Pakistan, eventually pronouncing itself satisfied that Pakistan had ‘presented a plausible, provisionally tenable argument under the Treaty in support of its case’ and further remarked that it could not ‘exclude the possibility that India’s planned installations, or elements of those installations, on the Kishenganga/Neelum would not be in conformity with the [Indus River] Treaty’.157 155 157

156 See above §II.C.4. Kishenganga (2011) 150 ILR 311, 351–2. Ibid, 353. Further: Yoshifumi Tanaka, ‘Note on the Interim Measures in the Indus Waters Kishenganga Arbitration’ (2012) 11 LPICT 555, 571–5.

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This passage suffers from certain difficulties similar. In an explanatory footnote,158 the Court linked the word ‘plausible’ to ‘terminology used by the ICJ’ and cited the term as used in Temple (Interpretation). It then proceeded to note that ‘some jurisdictions would require the demonstration of more than a plausible case, such as a prima facie determination that the case is meritorious’ and cited Article 17A(1)(b) of the 2006 UNCITRAL Model Law.159 Given that the passage from Temple (Interpretation) that the Court cited refers to the plausibility test as developed by the ICJ,160 we must assume that the Court in Kishenganga was referring to plausibility as a threshold of preliminary merits review, and not proposing the adoption of the ICJ’s plausibility test wholesale. Moreover, based on its reference to the 2006 UNCITRAL Model Law, the Court perceived plausibility as entailing a threshold somewhere below that of the prima facie case.161 A further difficulty arises from the Court’s reliance on ‘the general practice of international and national courts and tribunals’ in introducing the ‘plausible case’ test. Whilst many national courts require some form of merits review prior to the granting of interim relief, the previous discussion demonstrates that the international scene is very different, with courts and tribunals for the most part adopting some variation of the ICJ’s plausibility test.162 The inference to be drawn is that Kishenganga is an attempt by the Court of Arbitration to advance the law on provisional measures beyond the benchmark set by the ICJ in Obligation to Prosecute or Extradite and other cases in a manner redolent of Judge Lauterpacht’s formulation of the test of prima facie jurisdiction in Interhandel.163 158 159 160 161

162

163

Kishenganga (2011) 150 ILR 311, 351. From which 2010 UNCITRAL Art 26(3)(b) is drawn. Temple (Interpretation), ICJ Reports 2011 p 537, 545. Given that the Kishenganga Court of Arbitration included two then-judges of the ICJ (Vice-President Tomka and Judge Simma) and was chaired by its former president (Judge Schwebel), this demarcation may prove significant for the ICJ’s own practice. But cf. the practice of the European Court of Justice, which requires the applicant to state ‘the pleas of fact and law establishing a prima facie case for the interim measure applied for’, which has been interpreted as requiring the applicant to prove the fumi boni juris of its case: Rules of Procedure of the Court of Justice [2012] OJ L 265, Art 160(3); Cases 43/59, 44/59 and 48/59, Lachm¨uller v Commission [1960] ECR 489, 492; Case 3/75R, Johnson and Firth Brown v Commission [1975] ECR 1, 6. Further: Francis G Jacobs, ‘Provisional Measures in the Law and Practice of the Court of Justice of the European Communities’, in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer-Verlag, 1994) 37, 48–50. Interhandel (Switzerland v US), Provisional Measures, ICJ Reports 1957 p 105, 118 (Judge Lauterpacht) (positing the test by reference to the standard ‘uniformly adopted in international arbitral and judicial practice’ without reference to such practice).

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4 Investor-State Arbitration The state of play with respect to investor-state arbitration is also confusing, but for a different reason, namely that whilst the various ICSID and ad hoc tribunals seem to agree that some form of merits review is required prior to the award of interim relief, they cannot always agree on the precise formulation of the test. Two schools of thought have emerged. The first requires an inquiry into the existence of the rights with respect to which protection is claimed. In Maffezini v Spain, the Tribunal determined that the words ‘provisional measures for the preservation of [a party’s] rights’ as they appeared in Rule 39(1) of the ICSID Rules required that ‘such rights must exist at the time of the request, must not be hypothetical, nor [be] ones to be created in the future’.164 This would appear to require an ICSID tribunal to finally determine the existence of the rights with respect to which protection is claimed at the provisional measures stage. These remarks were criticized by the Tribunal in Casado v Chile, which pronounced them to be ‘susceptible to misunderstanding’ and unable to be upheld generally as they could require a tribunal to prejudge the substance of a case at a point at which it was ill-equipped to do so.165 Further currency was given to the views of the latter tribunal by their adoption in Occidental v Ecuador. There, the claimant argued that it was entitled to specific performance of an oil field concession agreement, and sought provisional measures to this effect. The respondent, citing Maffezini v Spain, asserted that under the applicable law of the arbitration, the claimant was at best entitled to damages and that provisional measures consequently could not be awarded on the basis that the claimed rights were non-existent.166 The Tribunal disagreed, observing that ‘although a right may not yet have been recognized by the Tribunal, such a right may nonetheless deserving of [interim] protection’.167 It was further noted that if the respondent’s position was correct, a tribunal could never order provisional measures to protect rights the existence and violation of which was the precise subject matter of the arbitration.168 Rather, relying on Casado v Chile, it held that: 164 165 166

167

Maffezini v Spain (2001) 5 ICSID Reports 393, 394. Cf. Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/5 (Provisional Measures, 6 April 2007) §§37–46. Casado v Chile (2001) 6 ICSID Reports 373, 387. Occidental Petroleum Corporation and Occidental Exploration and Production Company v Ecuador, ICSID Case No ARB/06/11 (Provisional Measures, 17 August 2007) §§42–3. 168 Ibid, §63. Ibid.

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purpose of provisional measures The right to be preserved only has to be asserted as a theoretically existing right, as opposed to proven to exist in fact. The Tribunal, at the provisional measures stage, will only deal with the nature of the right claimed, not with its existence or the merits of the allegations of its violation.169

Elaborating on this, the Tribunal spoke of a need for a legally protected right or interest (as opposed to a ‘mere interest’) to ‘potentially form part of the Claimant’s individual rights and obligations’, indicating that not only the right must exist in law, it must be held in fact by the party that requests protection.170 A similar position was taken by the ICSID tribunal in Tethyan Copper v Pakistan, which required only that the applicant establish ‘a prima facie case that it owns a legally protected interest’.171 These passages highlight two points. In the first place, rights do not have to be definitively proved to exist in order to be protected – a mere ‘theoretical’ possibility of existence is sufficient.172 In the second, the tribunals in question did not call for a review of the claimant’s prospects of success on the merits. This position aligns with the plausibility test developed by the ICJ, though no express parallel has been drawn. The other school of thought which has developed in some investor-state cases is that the applicant for interim relief must establish a prima facie case on the merits if provisional measures are to be granted, a position which has been advocated by Oellers-Frahm and others with respect to the ICJ. Questions may be asked, however, as to whether such a test was intended by the tribunals in question. In Paushok v Mongolia, the Tribunal held as follows: At [the provisional measures] stage, the Tribunal need not go beyond whether a reasonable case has been made which, if the alleged facts were proven might possibly lead the Tribunal to the conclusion that an award could be made in favor of the Claimants. Essentially, the Tribunal needs to decide only that the claims made are not, on their face, frivolous or obviously outside the competence of the Tribunal. To do otherwise would require the Tribunal to proceed to a determination of the facts and, in practice, to a hearing on the merits of the case, a lengthy and complicated process which would defeat the very purpose of interim measures.173 169 171 172 173

170 Ibid, §64. Ibid, §§65–6. Tethyan Copper v Pakistan, ICSID Case ARB/12/1, §117. Also: Burlington v Ecuador, ICSID Case No ARB/08/5, §53. Although cf. Quiborax v Bolivia, ICSID Case No ARB/06/2, §113ff, which speaks of the mere ‘existence’ of rights without reference to any threshold of review. Paushok v Mongolia, UNCITRAL, §55.

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There are good reasons to doubt the accuracy of this passage, which cites as authority the ICJ’s Order in Bosnian Genocide and the decision of the ICSID tribunal in Casado v Chile, neither of which advocates a review of the applicant’s prospects on the merits.174 As such, it is possible that the position set out in Paushok v Mongolia is based on a misreading of earlier case law – similar in certain respects to the decision of the Court of Arbitration in Kishenganga. This is by no means limited to the tribunals themselves, with some scholars engaging in a similar misreading, or mistakenly conflating the quasi-plausibility test set out in the line of cases following Casado v Chile with a full prima facie review on the merits.175 A further reference to the standard of the prima facie case was made (without reference to any supporting authority) by the tribunal in PNGSDP v PNG, with the test there held to comprise ‘a consideration of the prima facie strength of the parties’ respective claims, counterclaims and defences’. At the same time, however, the Tribunal said that ‘[the] analysis should not pre-judge the merits of the case’ and that the test would ‘ordinarily lead to a rejection [ . . . ] only in rare circumstances, where the requesting party has failed to advance any credible basis for its claims’.176 The Tribunal thus stipulated a relatively low threshold of review at this stage of the proceedings, such that an applicant would only seek to surmount it if its underlying claim was completely incredible. In this light, the position with respect to most ICSID and ad hoc investor-state arbitrations is that something akin to the plausibility test serves as a precondition to interim relief. The position may, however, change in the future, with Article 26(3)(b) of the 2010 UNCITRAL Rules requiring that the party seeking interim relief satisfy a tribunal that there is ‘a reasonable possibility that the requesting party will succeed on the merits of the claim’.177 However, given that Article 26 of the 1976 174

175 176 177

Ibid, §55 (fn 8). No form of merits review at the provisional measures phase appears in the jurisprudence of the Iran–US Claims Tribunal: Caron, ‘Interim Measures of Protection’, 490–1; Brower and Brueschke, Iran–United States Claims Tribunal, 218–29; Baker and Davis, UNCITRAL Arbitration Rules in Practice, 139–41. Cf. Chevron v Ecuador, PCA Case No 2009–23 (Interim Measures, 9 February 2011) §D, making no mention of any prima facie standard beyond that attaching to jurisdiction. See e.g. Mouawat and Silbert, ‘Guide to Interim Measures’, 399–400. PNG Sustainable Development Program Ltd v Papua New Guinea, ICSID Case No ARB/33/13 (Provisional Measures, 21 January 2015) §120. This requirement does not apply where the orders sought relate to the simple preservation of evidence: 2010 UNCITRAL Art 26(4). Further: David D Caron and Lee Caplan, The

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UNCITRAL Rules does not contain this requirement and these Rules remain the predominant set of procedural rules in ad hoc investor-state arbitration, it is unlikely that any such shift will happen in the immediate future.

III Measures for the Non-Aggravation of the Dispute A Protection of the Objective Interest In the context of the protection of rights pendente lite, provisional measures appear as a subjectively oriented tool of the parties, with international courts and tribunals playing a purely reflexive role in assessing and responding to specific applications. But courts and tribunals ought also to consider the wider objective interest of the effective functioning of the international judicial system. For this reason, international adjudicative bodies are capable of protecting the administration of justice through the granting of provisional measures proprio motu.178 These often take the form of measures expressed in terms of avoiding the aggravation or extension of a dispute179 – referred to here as measures for the non-aggravation of the dispute. An allied concern in this respect is the court or tribunal’s interest in protecting the integrity of its proceedings, a point made by the ICSID tribunal in Biwater Gauff v Tanzania as follows: It is now settled in both treaty and international commercial arbitration that an arbitral tribunal is entitled to direct the parties not to take any step that might (1) harm or prejudice the integrity of the proceedings, or (2) aggravate or exacerbate the dispute. Both may be seen as a particular type of provisional measure [ . . . ] or simply as a facet of the tribunal’s overall procedural powers and its responsibility for its own process.180

Measures for non-aggravation first appeared in the Convention for the Establishment of a Central American Court of Justice,181 Article XVIII of which provided that ‘the court may at the solicitation of one of the parties,

178 179

180 181

UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2nd edn, 2013) 523; Croft et al., UNCITRAL Arbitration Rules, 287. Kolb, International Court, 616. Further: Pulp Mills, ICJ Reports 2007 p 3, 23 (Judge Buergenthal). Thirlway, ‘Provisional Measures by the ICJ’, 12–16; Brown, Common Law, 122; OellersFrahm, ‘Article 41’, 1035–6; Paolo Palchetti, ‘The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute’ (2008) 21 LJIL 623. Biwater Gauff v Tanzania, ICSID Case No ARB/05/22, §135. 20 December 1907, 206 CTS 78. Further: Chapter II, §III.A.2.

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fix the situation in which the contending parties must remain [ . . . ] to the end that the difficulty shall not be aggravated’. Notwithstanding the requirement on the face of the provision that it could only be exercised by way of application, the Court in Honduras v El Salvador and Guatemala quickly awarded measures sua sponte so as to cool a situation of armed conflict between the parties.182 As argued in Chapter 2, the practice of the CACJ is sufficient to establish a separate historical starting point for measures for non-aggravation when compared to measures for the protection of rights pendente lite.183 These strands were then merged by the PCIJ through Article 41 of its Statute. The Court first indicated measures for non-escalation in Electricity Company in terms that raised more questions than answers, relying as it did on: [The] principle universally accepted by international tribunals [ . . . ] to the effect that the parties to a case must abstain from any measures capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate and extend the dispute.184

This statement is significant for two reasons. In the first place, it asserts that parties to international litigation are under general obligation to avoid taking any action that may escalate a dispute. In the second, it contains no clear indication of why the Court saw fit to award a measure of this kind,185 and no further indication of whether it conceived itself as possessing a power to award interim relief separate from that required to protect rights pendente lite.

B The International Court of Justice 1 A Separate Power? The cue given by the PCIJ in Electricity Company was taken up by its successor, with the ICJ in Anglo-Iranian Oil ordering, inter alia, that the parties ‘should each ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court’.186 182 183 184 185 186

Editorial Comment, ‘The First Case before the Central American Court of Justice’ (1908) 2 AJIL 835, 838. Which may be said to have emerged out of the practice of the inter-war MATs and earlier municipal precedents: Chapter 2, §III.B. Electricity Company (1939) PCIJ Ser A/B No 79, 199. Also: LaGrand, ICJ Reports 2001 p 466, 503. Cf. Sztucki, Interim Measures, 76–8. Anglo-Iranian Oil, ICJ Reports 1951 p 89, 93.

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Similarly worded injunctions followed in cases such as Fisheries Jurisdiction,187 Nuclear Tests,188 and Tehran Hostages.189 Despite its regular invocation, however, the Court refrained from stating whether it considered these measures to derive from a source of power independent of those designed to protect rights subject to litigation,190 though in Passage over Indian Territory, it rejected a Portuguese request to uphold the right on the basis that a request had not been made through Article 41, effectively confining the general principle of Electricity Company within that aspect of the Court’s procedure.191 However, in Burkina Faso/Mali, a Chamber of the Court gave its opinion on the subject, noting that: [I]ndependently of the requests submitted by the Parties for the indication of provisional measures, the Court or, accordingly, the chamber possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require.192

This statement was later reiterated by the Court proper in Cameroon v Nigeria,193 and further repeated in Armed Activities (DRC v Uganda)194 and Certain Criminal Proceedings,195 notwithstanding the strident views of some commentators and individual judges that no such independent 187 188 189 190 191 192

193

194 195

Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 17; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1972 p 30, 35. Nuclear Tests (Australia v France), ICJ Reports 1973 p 99, 106; Nuclear Tests (New Zealand v France), ICJ Reports p 134, 142. Tehran Hostages, ICJ Reports 1979 p 7, 21. Thirlway, ‘Provisional Measures by the ICJ’, 14–15. Right of Passage over Indian Territory (Portugal v India), Preliminary Objections, ICJ Reports 1957 p 125, 152. Burkina Faso/Mali, ICJ Reports 1986 p 3, 9. The question was earlier raised, but not answered, in Aegean Sea, ICJ Reports 1976 p 3, 12. In the Lockerbie case, a number of the dissenting judges argued in favour of proprio motu measures for non-escalation: Questions of the Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v US), Provisional Measures, ICJ Reports 1992 p 114, 140 (Judge Shahabuddeen), 142 (Judge Bedjaoi, diss), 194–5 (Judge Ajibola, diss), 215–16 (Judge ad hoc El-Kosheri, diss). Cameroon v Nigeria, ICJ Reports 1996 p 13, 22–3. Further: Jerzy Sztucki, ‘Case Analysis: Case concerning Land and Maritime Boundary (Cameroon v Nigeria): Provisional Measures, Order of 15 March 1996’ (1996) 10 LJIL 341, 350–2. Armed Activities in the Territory of the Congo (DRC v Uganda), Provisional Measures, ICJ Reports 2000 p 111, 128. Certain Criminal Proceedings in France (France v Congo), Provisional Measures, ICJ Reports 2003 p 102, 111.

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power could exist within the strict wording of Article 41.196 Even then, the Chamber’s statement in Burkina Faso/Mali contains a certain ambiguity on its face, as one cannot be sure whether the power to which the Chamber refers is the Court’s general capacity to award measures different to those requested by the parties,197 or the specific power to award measures for non-aggravation198 – though the latter appears to be the more likely.199 The ICJ, however, retreated from this position in the Pulp Mills case, declaring that the ‘power of the Court to indicate provisional measures can be exercised only if there is an urgent necessity to prevent irreparable harm to such rights, before the Court has given its final decision’.200 This decision to limit thus the applicability of Article 41 drew a lengthy response from Judge Buergenthal, who argued not only that the Court possessed two distinct powers under Article 41, but that in deliberately subsuming one of these within the other it had ‘missed an opportunity [ . . . ] to fully address the legal implications of extrajudicial coercive measures’.201 Judge Buergenthal further pointed out that Article 41 did not represent the outer limit of the Court’s powers vis-`a-vis provisional measures, but was rather an expression of the ‘requisite powers vested in courts generally [ . . . ] to ensure that the orderly adjudication of cases pending before it is not aggravated or undermined by extrajudicial coercive measures resorted to by one party’.202 In this connection, Judge Buergenthal noted: 196

See e.g. Thirlway, 1 Law and Practice, 946–53. Further: Aegean Sea, ICJ Reports 1976 p 3, 16 (President Jim´enez de Ar´echaga): The Court’s specific power under Article 41 of the Statute is directed to the preservation of rights sub-judice and does not consist in a police power over the maintenance of international peace nor in a general competence to make recommendations relating to the peaceful settlement of disputes.

197 198 199

Further: ICJ Rules, Art 75(1). Palchetti, ‘Provisional Measures to Prevent Aggravation’, 625–6. See e.g. Lockerbie, ICJ Reports 1992 p 144, 158 (Judge Bedjaoui): This is a case-law which, instead of focusing on a review of each prerequisite to the indication of provisional measures, gives pride of place to a comprehensive analysis of the ‘circumstances’ of the case, it being decided, on that basis, to indicate those measures in the general terms of an exhortation to all the parties not to aggravate or extend the dispute. The provisional measure thus taken, in the form of an exhortation, does not in any way depend upon the indication of other, more specific provisional measures.

200

201

Pulp Mills, ICJ Reports 2007 p 3, 13, 16. Further: Palchetti, ‘Provisional Measures to Prevent Aggravation’, 634–7; Bernhard Kempen and Zan He, ‘The Practice of the International Court of Justice on Provisional Measures: The Recent Development’ (2009) 69 Za¨oRV 919, 923–5. 202 Pulp Mills, ICJ Reports 2007 p 3, 21. Ibid, 23.

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purpose of provisional measures The fact that the Court [ . . . ] has in all these prior cases also indicated the first type of provisional measures, does not detract from the wording of Article 41 of the Statute, which makes the decision whether or not to indicate provisional measures dependent on the ‘circumstances’ that may require it. These circumstances may involve an imminent threat of irreparable prejudice to the rights in dispute. But, independently thereof, no compelling reason has been advanced by the Court why they may not also apply to situations in which one party to the case resorts to extrajudicial coercive measures, unrelated to a subject matter in dispute, that aggravate a dispute simply by seeking to undermine or interfere with the rights of the other party in defending its case before the Court. In such situations, the test would not be whether there is an imminent threat of irreparable harm to the subject matter of the dispute, but whether the challenged actions are having a serious adverse effect on the ability of the party seeking the provisional measures to fully protect its rights in the judicial proceedings.203

Given the wider history of provisional measures, Judge Buergenthal has the better side of the argument. Measures for the protection of rights pendente lite and measures for non-aggravation arise from two different traditions of interim relief, a fact implicitly recognized by the PCIJ in Electricity Company in identifying a general rule of non-aggravation in international disputes.204 For the Court now to claim – Burkina Faso/Mali and its successor cases notwithstanding – that measures for non-aggravation are merely ancillary to measures for the protection of rights is to diminish its ability to ensure the integrity of proceedings on an interlocutory basis. Nonetheless, in light of the Court’s dictum in Pulp Mills, this is (for now) the status quo.205 What then is the animus behind this apparent reversal? Palchetti identifies two reasons, both connected to the Court’s conclusion as to the binding character of provisional measures in LaGrand.206 Firstly, and as seen in the ICJ’s increased emphasis on the plausibility test,207 the Court has taken as a general rule a more stringent approach to the awarding of provisional measures so as to increase the legitimacy of any orders so given. Secondly, the contextualization of provisional measures 203 205

206 207

204 Ibid, 24–5. Cf. Kolb, International Court, 616. Palchetti, ‘Provisional Measures to Prevent Aggravation’, 636; Kempen and He, ‘Recent Development’, 924–5; Thirlway, 2 Law and Practice, 1799–1802; Uchikova, ‘Provisional Measures before the ICJ’, 427. Palchetti, ‘Provisional Measures to Prevent Aggravation’, 640–1. Above §II.D.1(b).

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post-LaGrand has led the Court to reemphasize that the primary purpose of interim relief is the protection of rights pendente lite, with measures for non-aggravation assuming a correspondingly diminished role.

2 Preconditions for the Award of Measures for Non-Aggravation Following the 2007 Order of the ICJ in Pulp Mills, the preconditions for an award of measures for non-aggravation are that a case for interim relief to protect rights pendente lite must first be made out in its entirety, i.e. the applicant must establish prima facie jurisdiction, identify a plausible right sufficiently linked to the merits, and prove urgency and irreparable harm with respect to that right. However, the award of measures for nonaggravation does not follow from this a fortiori, and the Court has held in cases such as Certain Criminal Proceedings that such are not appropriate, appearing to utilize criteria independent of those for the protection of rights.208 The ICJ has not enunciated a definitive test for the award of measures for non-aggravation, though it is tolerably clear that much turns on the particular circumstances of the case.209 Such measures are particularly apt in cases involving the use of force, with the Chamber in Burkina Faso/Mali noting that in such situations ‘there can be no doubt of the Chamber’s power and duty to indicate, if need be, such provisional measures as may conduce to the due administration of justice’.210 Similar concerns may have driven the Court’s express reliance on its ‘independent’ power to grant such measures in Cameroon v Nigeria and Armed Activities (DRC v Uganda), as well as its decision not to in the rather different case of Certain Criminal Proceedings. At the same time, however, there is no reason to think that measures for non-aggravation are confined to cases with a potential or realized risk of armed conflict, as the award of such measures in the Nuclear Tests cases demonstrates. Certainly, this would accord with the position taken in Electricity Company, where the PCIJ referred to the need for parties avoid taking ‘any steps’ that might aggravate or extend a dispute – a general formula that on its face extends beyond questions of use of force. 208 209 210

Certain Criminal Proceedings, ICJ Reports 2003 p 102, 111. Palchetti, ‘Provisional Measures to Prevent Aggravation’, 628. Burkina Faso/Mali, ICJ Reports 1986 p 3, 9.

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3 Scope and Effect of Measures for Non-Aggravation: The Border Area Case Following on from the decision in Pulp Mills, it has become clear that the ICJ now considers measures for non-aggravation to be supplementary to measures for the protection of rights pendente lite. However, this position is not necessarily out of step with the Court’s previous practice, where, despite the assertions of independent power in Burkina Faso/Mali and its fellows, measures for non-aggravation were never awarded absent measures for the protection of rights. In terms of their overall effect, such measures have historically performed a ‘catch-all’ function, serving as an injunction to the parties to avoid making an already sub-optimal situation worse.211 This may include not only steps that may aggravate or extend the dispute, but also steps that may generally cause prejudice to the rights of the parties.212 Further specific direction may also be given under the rubric of non-aggravation.213 As such, the inclusion of measures for non-aggravation reflects the realization by the Court that factual matrix before them is fluid, and that the inclusion of very specific provisional measures for the protection of rights may not adequately restrain a party from causing damage not captured by the wording of those measures. A key example of this arose in the Border Area dispute between Costa Rica and Nicaragua, in which the utility of measures for non-aggravation was demonstrated over the course of several Orders. By way of background, the Border Area case was first filed by Costa Rica in 2010, and concerned the alleged ‘incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica’.214 Costa Rica asserted that in two separate incidents, Nicaraguan troops had occupied Costa Rica’s territory in connection with the construction of a canal (or 211

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Sztucki, Interim Measures, 77, observing that the function of these general clauses appears to be the reinforcement of whatever other measures the Court has decided to indicate. Further: Palchetti, ‘Provisional Measures to Prevent the Aggravation of a Dispute’, 637–41. See e.g. Georgia v Russia, ICJ Reports 2008 p 353, 399: Each Party shall refrain from any action which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

213

214

See e.g. Cameroon v Nigeria, ICJ Reports 1996 p 3, 24; Armed Activities (DRC v Uganda), ICJ Reports 2000 p 111, 129, where the Court’s concerns regarding use of force were recorded in the operative part of the orders given. Border Area, Costa Rica: Application, 18 November 2010, §1.

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ca˜no) through said territory and that the canal, if completed, would cause significant environmental damage through diversion of the watercourse and deforestation of the occupied area. Nicaragua, for its part, asserted that the territory in question was actually Nicaraguan, and its actions were appropriate with its sovereign right to do with its territory as it saw fit. Nicaragua further contested Costa Rica’s description of its activities as the cutting of a canal, but submitted that it was merely dredging a preexisting natural watercourse so as to return it to its prior state. In its Order of 8 March 2011, the Court awarded provisional measures requiring that, inter alia, each party ‘refrain from sending to, or maintaining in the disputed territory, including the ca˜no, any personnel, whether civilian, police or security’ and further that the parties ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve’.215 On 23 May 2013, Costa Rica filed a motion with the Court requesting modification of the Order under Article 76 of the ICJ Rules. Costa Rica asserted that whilst Nicaraguan military personnel may have withdrawn from the contested area, Nicaragua continued to maintain an educational programme whereby young Nicaraguan nationals were sent into the zone. Nicaragua, in response, asserted that these nationals were private persons belonging to the Guardabarranco Environmental Movement, undertaking ‘environmental sustainability’ activities within the contested area, and hence outside of its control. The Court, in its Order of 16 July 2013, considered that the presence of such a private – or at the very least ‘non-military’ – movement was not contemplated when it made its earlier order for the protection of rights, and thus there was no risk of breach of those measures. However, it did not wish to indicate a total lack of concern with what was taking place within the area, noting that: [T]he presence of organized groups of Nicaraguan nationals in the disputed area carries the risk of incidents which might aggravate the present dispute. That situation is exacerbated by the limited size of the area and the numbers of Nicaraguan nationals who are regularly present there. The Court wishes to express its concerns in this regard.216

In this passage, the Court clearly implied that it considered Nicaragua to be in breach of the non-aggravation measures contained in the earlier 215 216

Border Area, ICJ Reports 2011 p 6, 27. Border Area/San Juan River, ICJ Reports 2013 p 230, 240.

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Order. On this basis, the Court reaffirmed the measures indicated in that Order, reminded the parties that such measures were binding and that a breach of the Order could be effected by either an act or an omission, e.g. by permitting the continued presence of private persons in the disputed area.217 Finally, the Court noted that its findings were ‘without prejudice as to any finding on the merits concerning the Parties’ compliance’ with its Order of 8 March 2011, an indication that it was willing to take any breach of provisional measures into account at a later date and a warning to Nicaragua as to the potential consequences of further omissions.218 The Court’s use of measures of non-aggravation in this manner shows the potential for such relief to restrain parties that may attempt to circumvent the plain wording of provisional measures. As it happens, Nicaragua’s response was to continue to breach these measures, prompting the Costa Rica to apply to the Court for an entirely new set of measures for the protection of rights pendente lite, with the Court eventually exercising its power to award measures well in excess of what Costa Rica actually requested, whilst at the same time reaffirming its earlier orders, including measures for non-aggravation.219

C Dispute Settlement Under UNCLOS Like the ICJ, dispute settlement bodies under UNCLOS have endorsed the power to award measures for non-aggravation despite the fact that such a capacity does not appear expressly in the wording of UNCLOS Article 290. This tendency appeared early on in the jurisprudence of ITLOS, with the Tribunal recommending proprio motu in M/V Saiga (No 2) that the parties ‘should ensure that no action is taken by their respective authorities or by vessels flying their flag which might aggravate or extend the dispute submitted to the Tribunal’.220 In his declaration, Judge Vukas reflected on the specific need for such measures and protested the lack of binding wording in the majority’s formulation thereof: [T]aking into account the nature of the case, the restraint of the parties in respect of actions which might aggravate or extend the dispute is of utmost importance. The tragic events which occurred on 28 October 1997 and afterwards resulted in human suffering and material damage. Therefore, the Tribunal should have used the most effective measures in 217 219 220

218 Ibid. Ibid. See also Border Area/San Juan River, ICJ Reports 2013 p 354, 368–9. Ibid, 369–70. M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea), Provisional Measures (1999) 117 ILR 111, 124.

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order to convince the parties to abstain from any similar or other action which might aggravate or extend the dispute pending the final decision of the Tribunal. Under the applicable rules, such means are ‘prescribed provisional measures’.

Judge Vukas’ sentiments were adopted in the Southern Bluefin Tuna case, where both Australia and New Zealand requested ‘the parties ensure that no action of any kind [be] taken which might aggravate, extend or render more difficult of solution the dispute submitted’.221 No comment on this application was made by the majority beyond simply making a binding order to this effect,222 though Judge Eiriksson expressed reservations on the basis that whilst the general proposition that parties should avoid further aggravating a dispute was sound, the measure as drafted was ‘of so general a nature that a party cannot be clear when contemplating any given action whether or not it falls within its scope’.223 Such reasoning is, with respect, specious – if the general proposition per Electricity Company that parties should avoid escalating disputes is valid, then an order converting this principle into an obligation binding on the parties is equally unobjectionable. Measures for the non-aggravation of the dispute were also considered and awarded in Ghana/Cˆote d’Ivoire as a codicil to extensive measures for the protection of rights pendente lite. As with the rest of the award, the Special Chamber was relatively matter of fact about the measures in question, simply stating that measures of non-aggravation ‘should not in any way be construed as a waiver of [ . . . ] or an admission of the claims of the other party to the dispute’224 before requiring the parties to ‘refrain from any unilateral action that might lead to aggravating the dispute’.225 These cases represent the only occasions in which ITLOS – or any other UNCLOS dispute settlement body – has ordered measures for nonaggravation. Some further commentary on the power to order such measures emerges, however, in the extracurial writings of Judge Laing, who links ITLOS practice on measures for non-aggravation to the preexisting ICJ jurisprudence on the subject.226 If this is the case, then it may be that 221 222 224 226

Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 158. 223 Ibid, 165. Ibid, 194 (Judge Eiriksson, diss). 225 Ghana/Cˆote d’Ivoire, ITLOS Case No 23, §103. Ibid, §108(1)(e). Edward A Laing, ‘A Perspective on Provisional Measures under UNCLOS’ (1998) 29 NYIL 45, 66–7. Also: R¨udiger Wolfrum, ‘Provisional Measures of the International Tribunal for the Law of the Sea’, in P Chandrasekhara Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 173, 177.

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the decision of the Court in Pulp Mills has resulted in a similar subordination of measures for non-escalation to measures for the protection of rights pendente lite for the purposes of UNCLOS Article 290, though neither ITLOS nor any Annex VII tribunal has taken the opportunity to comment on the subject.

D Inter-State Arbitration The availability of measures of non-aggravation in wider inter-state arbitration is presently unexplored, but given the identification of the concept as a general principle of law in Electricity Company, it is likely that the capacity to award such measures – whether at the instigation of the parties or proprio motu – forms part of the broad suite of powers available to international tribunals. In Kishenganga, however, an inquiry of this kind was unnecessary, owing to the presence of an express power to order such measures in Paragraph 28 of Annexure G.227 However, the Court of Arbitration did not consider this power in detail, instead electing to fix its award in its power to avoid prejudice to the final award,228 notwithstanding Pakistan’s extensive submissions on the point.229

E Investor-State Arbitration 1 ICSID Arbitration Unlike the drafters of Article 41 of the ICJ Statute and UNCLOS Article 290, the framers of Article 47 of the ICSID Convention and the corresponding ICSID Rules appear to have expressly considered nonaggravation in preparing the provision, with Note A to Rule 39 of the 1968 iteration of the ICSID rules stating that Article 47 ‘is based on the principle that once a dispute is submitted to arbitration the parties should not take steps that might aggravate or extend their dispute or prejudice execution of the award’.230 Other investor-state arbitration tribunals have modified this formula slightly on the basis of the travaux pr´eparatoires to the ICSID Convention, referring instead to measures intended ‘to preserve the status quo as between the parties pending a final award by the Tribunal’.231 227 228 231

Kishenganga (2011) 150 ILR 311, 343. 229 230 Ibid, 352–3. Ibid, 344–5. (1968) 1 ICSID Reports 63, 99. See e.g. Burlington v Ecuador, ICSID Case No ARB/08/5, §§59–62; City Oriente v Ecuador, ICSID Case No ARB/06/21 (Provisional Measures, 19 November 2007) §55.

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The scope of this power was elaborated in the early case law.232 In Amco v Indonesia, the Tribunal rejected the respondent’s request for provisional measures preventing the claimant from speaking publicly about the proceedings on foot. In so doing, the Tribunal stated: All these remarks do by no means weaken the good and fair practical rule, according to which both parties to a legal dispute should refrain, in their own interest, to do any thing that could aggravate or extend the same, thus rendering the situation possibly more difficult. However, in the circumstances of the case, the Tribunal does not find any symptom of an intention of the one or the other party to take steps that could have such consequences; accordingly, the Tribunal does not deem it appropriate to issue a recommendation to the parties – which, moreover, is not requested by Claimants – such recommendation not seeming to be presently needed.233

Two points regarding the Tribunal’s attitude to measures for nonaggravation arise from this passage. In the first place, the Tribunal did not conceive of such measures as being dependent on first awarding measures for the protection of rights pendente lite. In the second, as in the case of the ICJ in Certain Criminal Proceedings, the Tribunal hinted that there were some additional factors that were to be taken into account in determining whether measures for non-aggravation were appropriate, though these were not the subject of expansion.234 Both points have been elaborated elsewhere. With respect to the first, a key difference in some ICSID practice is for tribunals to fix on nonaggravation as a general principle of international law as opposed to merely a purpose for which provisional measures may be awarded. Consequently, ICSID tribunals have awarded provisional measures for the protection of a right pendente lite where the right in question is the parties’ right to conduct proceedings without aggravation or escalation of the underlying situation, injecting a measure of subjectivity into what the ICJ and ITLOS would likely consider to be a purely objective interest. This much was clearly enunciated in Plama v Bulgaria alongside the 232 233

234

ICSID Commentary, 793–5. Amco v Indonesia (1983) 1 ICSID Reports 410, 412. The Tribunal in Holiday Inns v Morocco was asked to consider measures for non-escalation by the claimant in that case, though it did not address the problem directly: Pierre Lalive, ‘The First ‘World Bank’ Arbitration (Holiday Inns v Morocco) – Some Legal Problems’ (1981) 51 BYIL 124, 134. ˇ Further: Ceskoslovenska Obchodn´ı Banka AS v Slovak Republic, ICSID Case No ARB/97/4 (Procedural Order No 3, 5 November 1998) 3.

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aforementioned relaxation of the link test.235 Although this view may not sit happily alongside modern understandings of that test,236 if is presumed correct, it would be impossible for an ICSID tribunal to reach a conclusion similar to that reached by the Court in Pulp Mills.237 Plama v Bulgaria also sought to give substance to this species of measure, holding that the obligation of non-aggravation refers to actions that would affect resolution of the dispute. As such, non-aggravation may be seen as a right for the preservation of the status quo, with measures to be awarded ‘when a change in circumstances threatens the ability of the Arbitral Tribunal to grant the relief which a party seeks and the capability of giving effect to the relief’.238 This position is not, however, unchallenged, and some arbitrators have seen fit to follow the ICJ in redefining the relationship between the two species of interim relief. This is precisely what occurred in CEMEX v Venezuela, where a tribunal chaired by a former president of the ICJ, Gilbert Guillaume, having rejected the claimant’s request for provisional measures for the protection of rights sub judice, relied on Pulp Mills in further denying measures for non-aggravation, noting: Article 47 of the ICSID Convention does give ICSID Arbitral Tribunals power to recommend measures directed at the preservation of the rights of the parties. In exercising this power, ICSID Tribunals may recommend measures in order to avoid the aggravation or extension of the dispute. But those ‘non-aggravation’ measures are ancillary measures which cannot be recommended in the absence of measures of a purely protective or preservative kind.239 235

236 237 238 239

Plama v Bulgaria, ICSID Case No ARB/03/24, §40. Also: Tokios Tokel´es v Ukraine, ICSID Case No ARB/02/18 (Procedural Order No 3, 20 December 2002) §7; Biwater Gauff v Tanzania, Procedural Order No 1, ICSID Case No ARB/05/22, §71; Occidental v Ecuador, ICSID Case No ARB/06/11, §97; Burlington v Ecuador, ICSID Case No ARB/08/5, §60; Caratube International Oil Company LLP v Kazakhstan, ICSID Case No ARB/08/12 (Provisional Measures, 31 July 2009) §§120, 127; Millicom v Senegal, ICSID Case No ARB/08/20, §45; Churchill Mining v Indonesia, ICSID Case No ARB/12/14, §57. Further: Malintoppi, ‘Recent ICSID Proceedings’, 168; Mouawad and Silbert, ‘Guide to Interim Measures’, 394. Above §II.C.3. Federico Campolieti, ‘The Rule of Non-Aggravation of the Dispute in ICSID Practice’ (2015) 30 ICSID Rev – FILJ 217, 218. Plama v Bulgaria, ICSID Case No ARB/03/24, §45. CEMEX Caracas Investments BV and CEMEX Caracas II Investments BV v Venezuela, ICSID Case No ARB/05/15 (Provisional Measures, 3 March 2010) §§63–6. But cf. Quiborax v Bolivia, ICSID Case No ARB/06/2, §§86, 117, where the Pulp Mills objection was raised expressly by the respondent. The Tribunal did not address the point directly, but did expressly confirm the contradictory view in Plama v Bulgaria.

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This view is not a popular one, but has been adopted by other ICSID tribunals.240 Although perhaps preferable to the status quo in the sense that it upholds the conventional understanding of the link test, it is deficient in the same manner as Pulp Mills in that it is insensitive to the unique historical basis of measures for non-aggravation that permits them to be awarded independently of other forms of interim relief. Later cases have also elaborated on the preconditions for such measures. Ultimately, if the view in Plama v Bulgaria is held to be correct, and non-aggravation takes the form of another right to be protected pendente lite, then the appropriate preconditions are those of urgency and irreparable or significant harm.241 A significant case in this respect was Casado v Chile, where, in response to a request by the claimant, the Tribunal grounded its capacity to award such matters in the case law of the PCIJ and ICJ, making express reference to Electricity Company, Anglo-Iranian Oil and Armed Activities, as well as to Amco v Indonesia.242 Elaborating further, the Tribunal stated that such measures were appropriate where ‘a state of tension’ was in evidence as between the parties, and accordingly requested that both parties ‘strictly comply with the general principle of law [ . . . ] that no action of any kind is [to be] taken which might aggravate or extend the dispute’.243 A further indication of when such measures might be inappropriate was given in SGS v Pakistan, where the claimant’s application for such measures was rejected on the basis that both parties were cooperating, and neither of them had displayed a propensity to aggravate the dispute.244 Conversely, the initiation of bankruptcy proceedings against the claimant in Azurix v Argentina was sufficient to justify the grant of the measure,245 and in Perenco v Ecuador, the seizure of the claimant’s assets prompted intervention on this basis.246 In Biwater Gauff v Tanzania, emphasis was placed on the fact that the aggravation in question did not need to be concrete, and that assessing the required risk ‘necessarily involves probabilities, not certainties’.247

240 241 242 244 245 246 247

PNGSDP v PNG, ICSID Case No ARB/33/13, §153. City Oriente v Ecuador, Provisional Measures, ICSID Case No ARB/06/21, §§54–5. Further: Campolieti, ‘Non-Aggravation of the Dispute’, 220–3. 243 Casado v Chile (2001) 6 ICSID Reports 373, 392. Ibid, 393, 397. SGS Soci´et´e G´en´erale de Surveillance SA v Pakistan, Procedural Order No 2 (2002) 8 ICSID Reports 388, 397. Azurix Corp v Argentina, ICSID Case No ARB/01/12 (Provisional Measures, 6 August 2003) §§16–20, 21, 22, 36–47. Perenco v Ecuador, ICSID Case No ARB/08/6, §46. Biwater Gauff v Tanzania, Procedural Order No 3, ICSID Case No ARB/05/22, §145.

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2 UNCITRAL Arbitration The availability of measures for non-aggravation under the UNCITRAL Rules is somewhat more uncertain, perhaps due to a dearth of practice. It is interesting to note that no firm tradition of such measures appears to have arisen before the Iran–US Claims Tribunal, perhaps owing to the fact that disputes before that body ordinarily entailed no immediate risk of aggravation – the parties were usually at arm’s length and the claimants’ preferred remedy was usually monetary compensation. Where some immediate form of contact did persist, it was ordinarily in the form of detained goods and other assets, in which case the preferred form interim relief was an order for the preservation of those goods pursuant to the bare wording of Article 26(1) of the 1976 UNCITRAL Rules. Targeted measures for the restraint of parallel proceedings were also of greater utility than measures of non-aggravation.248 Recent practice under the 1976 UNCITRAL Rules has proved more fruitful, particularly with respect to the various investor-state arbitrations taking place under the auspices of the PCA or on an ad hoc basis. As with some ICSID tribunals, such bodies sometimes eschew terminology such as ‘aggravate or extend the dispute’ and prefer to speak in terms of measures designed to maintain the status quo. In either case, the status of the measure as a general prophylactic is the same. Thus, in Chevron v Ecuador, the parties were ordered to ‘maintain, as far as possible the status quo and not to exacerbate the procedural and substantive disputes before the Tribunal’.249 Conversely, in Paushok v Mongolia, the Tribunal ordered that the parties refrain ‘from any actions which would lead to further injury and aggravation of the dispute between the parties’.250 No indication is given in these decisions as to whether these tribunals purport to follow the line of authority emanating from the ICJ, or the approach adopted in Plama v Bulgaria and by other ICSID tribunals, although the failure by the tribunal in Paushok v Mongolia to identify non-aggravation as a particular right that could be subject to protection, 248

249

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Caron, ‘Interim Measures of Protection’, 499–500; Jacomijn J van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran–US Claims Tribunal (Deventer: Kluwer, 1991) 178–9; Baker and Davis, UNCITRAL Arbitration Rules in Practice, 133–8; Caron et al., UNCITRAL Commentary, 539–40. Chevron v Ecuador, PCA Case No 2009–23 (First Order on Interim Measures, 14 May 2010) §1. Also: Chevron v Ecuador, PCA Case No 2009–23 (Second Order on Interim Measures, 6 December 2010) §1(i); Chevron v Ecuador, PCA Case No 2009–23 (Third Order on Interim Measures, 28 January 2011) §1(i). Paushok v Mongolia, UNCITRAL, §11 (operative).

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as well as its reliance on ICJ jurisprudence, may indicate a tendency towards the former. Such conclusions are, however, strictly speculative, and it should be noted that under the more relaxed variant of the link test incorporated into Article 26(1),251 either approach could be adopted without doctrinal difficulties. Measures for non-aggravation are undoubtedly available under Article 26(2)(a) of the 2010 UNCITRAL Rules, which permits relief generally to ‘maintain or restore the status quo pending resolution of the dispute’.

IV Conclusions It is by now clear that the LaGrand judgment prompted in various international courts and tribunals a desire to increase the complexity of their procedure regarding provisional measures. This has resulted in at least two significant elaborations with respect to measures for the preservation of rights pendente lite. With respect to the first, all of the courts and tribunals examined by this study now place additional emphasis (to the extent it did not exist already) on the need for a link between the measures requested and the rights subject to litigation. Depending on the body in question, the concept of a right subject to litigation and the strength of the link so required may vary – but the general principal remains the same. The second elaboration is more novel and – at least from the point of view of certain ICJ cases – mildly heretical. It is now expected that the provisional measures calculus will include an assessment of the strength of the applicant’s case on the merits. Again, this may vary from tribunal to tribunal – and it appears to be the permanent courts and tribunals (i.e. the ICJ and ITLOS) that are more reluctant to apply a high level of scrutiny at this stage, at least when compared to more ad hoc inter-state and investor-state bodies that require that the applicant prove its case to a prima facie standard. In this sense, it bears acknowledging that no one approach is correct, and that the development of these requirements presumably mirrors the institutional needs of each court or tribunal. A third significant elaboration has concerned measures for the nonaggravation of a dispute, and the insistence of the ICJ in Pulp Mills – contrary to its earlier decisions in Burkina Faso/Mali and Cameroon v Nigeria – that such measures may only be ordered following the award of interim relief for the preservation of rights pendente lite. Such an approach, it is suggested, is ahistorical, and fails to reflect that the two 251

Above §II.C.3(b).

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forms of measure descend from different traditions of interim relief. What is more, it may be seen to – as Judge Burgenthal hinted in Pulp Mills – reduce measures for non-aggravation to a mere extrusion of (or afterthought to) measures for the protection of rights. Nonetheless, the procedure of international courts and tribunals is theirs to do with as they wish – and if the subordination of measures for non-aggravation is seen to be necessary to increase the legitimacy of binding interim relief, then so be it. But it should not be seen to affect the inherent power of other courts and tribunal to award measures for non-aggravation independently of other measures for interim relief.

6 Prejudice and Urgency

I Introduction As an exceptional form of relief, provisional measures should only be ordered when rendered really necessary by the circumstances of a case. In light of this, the uniform law of provisional measures has developed two elements on which the success of an application for interim relief will frequently hinge: prejudice to the rights under litigation, and urgency.1 Although these elements are formally separate in the provisional measures calculus, the latter is so dependent on the former that they are almost always addressed together or, in some accounts, conflated to form a unified requirement of ‘necessity’.2 Put simply, in order to be successful, applicants for provisional measures must prove: (1) that on the basis of the facts as they presently exist, there is a risk that the rights to be protected will without further intervention be substantially harmed; and (2) that this harm will occur prior to the matter being finally determined.3 Although these requirements appear simple, there is considerable nuance in the jurisprudence of the international courts and tribunals considered in this study. Much of the present uncertainty arises from the case law of the PCIJ and ICJ with respect to the need for ‘irreparable’ prejudice, which has been adopted widely by other international courts and tribunals. The perceived severity of this standard has created a backlash of 1 2

3

Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2004) 139–45. See e.g. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, ICJ Reports 2011 p 6, 47 (Judge Greenwood). Further: Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) ch 5. This conflation is particularly notable in the jurisprudence of the Iran– US Claims Tribunal: see below §IV.B.2. Necessity may also be used to refer to the criterion of prejudice alone. Although, as will be seen, UNCLOS Art 290(5) permits the adoption of a different temporal standard: see below §III.B.1(b).

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sorts within ICSID arbitration in particular, such that a break in jurisprudence is now clearly observable. At the same time, however, one may question whether this break is really so severe. Indeed, it is argued here that the current state of play with provisional measures in investment arbitration on this point concerns terminological issues only. In contrast, the international understanding of ‘urgency’ is tolerably uniform – although it can of course be displaced in circumstances of lex specialis.

II The International Court of Justice A The Standard of ‘Irreparable’ Prejudice In many of its decisions on provisional measures, the ICJ has required the applicant to prove that the rights it seeks to have protected will be subject to prejudice if the Court fails to intervene, and it is now obvious that prejudice is an essential precondition of interim relief.4 As Thirlway points out, the terminology is to an extent inapposite, as rights may be seen as abstract legal concepts that cannot be diminished: they continue unaffected as jurisprudential facts no matter how many times they are infringed.5 Consequently, when we speak of prejudice to legal rights, we speak of the physical reality that underpins those rights, e.g. the inviolability of diplomatic persons may be prejudiced through the detention of an ambassador or other consular personnel.6 The requirement of prejudice to rights pendente lite does not appear in Article 41 of the ICJ Statute, but is entirely judge-made, having grown from its power to grant provisional measures ‘if the circumstances so require’. The need for such a limit is self-evident: given the relatively intrusive remedy that provisional measures represent with respect to the exercise of state sovereignty, it is preferable that they not be granted unless truly necessary.7 As discussed in Chapter 2, this requirement is 4

5

6 7

This requirement is confined to measures for the protection of rights only, and has not been extended by the ICJ to measures for non-aggravation. However, given that the latter measure is now dependent on the grant of the former, it is clear that some form of prejudice is required for the award of any interim relief: see Chapter 5, §III.B.1. Hugh Thirlway, 1 The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford: Oxford University Press, 2013) 940. An exception may be held to exist where the claim in question was for the recovery of unique and specific property, wherein the destruction of the property would ipso facto extinguish the right: ibid, 940–1. US Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, ICJ Reports 1979 p 7, 19–20. Jerome B Elkind, Interim Protection: A Functional Approach (The Hague: Martinus Nijhoff, 1981) 209.

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also known in both the common and civil law conceptions of interim relief.8 The PCIJ was key in establishing the threshold of prejudice at which provisional measures would be granted. The first mention of the standard came in the Sino-Belgian Treaty case, with President Huber granting Belgium interim relief on the basis that ‘in the event of an infraction [of the Treaty of 2 November 1865], such infraction could not be made good simply by the payment of an indemnity or by compensation or restitution in some other material form’.9 The natural reverse of this statement was that if an infraction could be made good through some form of restitution, be it monetary or otherwise, provisional measures were not appropriate. This reading of the order was confirmed by the Court as a whole in South-Eastern Greenland, a case concerning contested sovereignty. There, Norway asked for provisional measures requiring that the Danish government abstain from taking coercive action against Norwegian citizens in Greenland. The PCIJ rejected this request, noting that it was only willing to award relief to the extent that ‘damage threatening [rights sub judice] would be irreparable in fact or in law’ and further providing that: [T]he incidents which the Norwegian government aims at preventing cannot in any event, or to any degree, affect the existence or value of the sovereign rights claimed by Norway over the territory in question, were these rights to be duly recognized by the Court in its future judgment on the merits of the dispute.10

The high standard of prejudice established by the PCIJ was adopted by its successor. Although mention of the standard was made obliquely at best in the early cases of Anglo-Iranian Oil11 and Interhandel,12 it was forcefully restated in the Fisheries cases as follows: [T]he right of the Court to indicate provisional measures as provided for in Article 41 of the Statute has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be causes to rights which are the subject of dispute in judicial proceedings and that the Court’s judgment should not 8 9 10

11 12

See Chapter 2, §II.B. Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v China) (1927) PCIJ Ser A No 8, 7. Legal Status of South-Eastern Greenland (Norway v Denmark) (1932) PCIJ Ser A/B No 48, 284. See also Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79, 199. Anglo-Iranian Oil (UK v Iran), Interim Measures, ICJ Reports 1951 p 89, 93. Interhandel (Switzerland v US), Interim Measures, ICJ Reports 1957 p 105, 112.

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prejudice and urgency be anticipated by reason of any initiative regarding the measures which are in use. [ . . . ] The immediate implementation by Iceland of its Regulations would, by anticipating the Court’s judgment, prejudice the rights claimed by the United Kingdom and affect the possibility of their full restoration in the event of a judgment in its favour [ . . . ]13

The Court went into further detail about precisely what kind of prejudice might be considered irreparable in the Nuclear Tests cases. In those proceedings, Australia and New Zealand analogized their claims to that of trespass and made extensive submissions as to the consequences of fallout from atomic testing. The Court acknowledged these when considering the grant of interim relief, noting that: Australia also alleges that the atmospheric nuclear explosions carried out by France in the Pacific have caused wide-spread radio-active fall-out on Australian territory and elsewhere in the southern hemisphere, have given rise to measurable concentrations of radio-nuclides in foodstuffs and in man, and have resulted in additional radiation doses to persons living in that hemisphere and in Australia in particular; that any radio-active material deposited on Australian territory will be potentially dangerous to Australia and its people and any injury caused thereby would be irreparable; that the conduct of French nuclear tests in the atmosphere creates anxiety and concern among the Australian people; 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; and any infringement by France of the rights of Australia and her people to freedom of movement over the high seas and superjacent airspace cannot be undone.14

The rubric of ‘irreparable’ prejudice has since become a staple of the Court,15 and has been repeated without qualification most recently in 13 14 15

Fisheries Jurisdiction (UK v Iceland), Interim Measures, ICJ Reports 1972 p 12, 16. Also: Fisheries Jurisdiction (Germany v Iceland), Interim Measures, ICJ Reports 1972 p 30, 34. Nuclear Tests (Australia v France), Interim Protection, ICJ Reports 1973 p 99, 105. Also: Nuclear Tests (New Zealand v France), Interim Protection, ICJ Reports 1973 p 135, 140–1. Either expressly or through reference to the passages from the Fisheries cases quoted above: see e.g. Trials of Pakistani Prisoners of War, Interim Protection, ICJ Reports 1973 p 328, 330; Tehran Hostages, ICJ Reports 1979 p 7, 19–20; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Provisional Measures, ICJ Reports 1984 p 169, 186; Frontier Dispute (Burkina Faso/Mali), Provisional Measures, ICJ Reports p 3, 10; Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1991 p 12, 16; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK), Provisional Measures, ICJ Reports 1992 p 3, 14–15; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK), Provisional Measures, ICJ

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Certain Documents and Data.16 In terms of more specific examples, the Court appears to readily accept some situations as giving rise to the necessary degree of prejudice more or less automatically. For example, it is clear from the Court’s discussions in cases such as Tehran Hostages, Armed Activities,17 LaGrand, Georgia v Russia, Avena (Interpretation)18 and Temple (Interpretation)19 that it considers risks to human life or health to be ipso facto irreparable, particularly in cases of armed conflict and even where the proceeding in question, strictly speaking, concerns rights legally unconnected to that conflict.20 This may be taken to reflect that Court’s recognition, inter alia, of the human reality behind many inter-state disputes.21 Another category of prejudice that the ICJ has readily recognized is environmental damage, which most recently formed the basis of extensive provisional measures orders in the joined Border Area/San Juan River cases.22 The Court has also demonstrated a willingness to protect the administration of justice in international

16 17 18

19

20

21 22

Reports 1992 p 99, 125–6; Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Provisional Measures, ICJ Reports 1993 p 3, 19; Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, ICJ Reports 1996 p 13, 21–3; LaGrand (Germany v US), Provisional Measures, ICJ Reports 1999 p 9, 15; Pulp Mills (Argentina v Uruguay), Provisional Measures, ICJ Reports 2006 p 113, 122; Pulp Mills (Argentina v Uruguay), Provisional Measures, ICJ Reports 2007 p 3, 11; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, ICJ Reports 2008 p 353, 388; Border Area, ICJ Reports 2011 p 6, 21–2. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), Provisional Measures, ICJ Reports 2014 p 147, 154. Armed Activities in the Territory of the Congo (DRC v Uganda), Provisional Measures, ICJ Reports 2000 p 111, 127–8. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v US) (Mexico v US), Provisional Measures, ICJ Reports 2008 p 311, 328–31. Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), ICJ Reports 2011 p 537, 148–51. Oellers-Frahm, ‘Article 41’, 1046. Also: Bernhard Kempen and Zan He, ‘The Practice of the International Court of Justice on Provisional Measures: The Recent Development’ (2009) 69 Za¨oRV 919, 926–7; Gentian Zyberi, ‘Provisional Measures of the International Court of Justice in Armed Conflict Situations’ (2010) 23 LJIL 571, 574–5. Rosalyn Higgins, ‘Interim Measures for the Protection of Human Rights’ (1997) 36 Col JTL 91, 108. Border Area, ICJ Reports 2011 p 6, 21–6; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), ICJ Reports 2013 p 354, 361–7. Cf. Pulp Mills, ICJ Reports 2006 p 113, 132.

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litigation more generally, intervening on this basis in Certain Documents and Data.23 But these specific examples notwithstanding, the ICJ has proved reluctant to define exactly what ‘irreparable’ means.24 Clearly it cannot mean wholly incapable of reparation by monetary means, as President Huber suggested in the Sino-Belgian Treaty case: it is a trite rule of economics that the value of anything, including a human life, can be quantified,25 and such calculations are made on a daily basis in municipal law where claims of personal injury or wrongful death are concerned.26 As early as 1958, Lauterpacht asserted that the Court had ‘clearly rejected’ the proposition that interim relief would only be available when damages were sufficient.27 The ICJ has since linked irreparability to the impossibility of monetary compensation in only a single case. In Aegean Sea, Greece requested provisional measures to prevent a Turkish vessel (and its large naval escort) from undertaking seismic surveys of the disputed continental shelf, arguing that the possession of such surveys by others without its consent would adversely affect its ability to formulate a national energy policy.28 The Court rejected this request on the basis that ‘the alleged breach by Turkey of the exclusivity of the right claimed by Greece to acquire information concerning the natural resources of the continental shelf [ . . . ] is one that might be capable of reparation by appropriate means’.29 Since that time, the ICJ when discussing the threshold of irreparability 23 24

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26 27 28 29

Certain Documents and Data, ICJ Reports 2014 p 147, 157–8. See e.g. Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer, 1983) 106; H W A Thirlway, ‘The Indication of Provisional Measures by the International Court of Justice’, in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer-Verlag, 1994) 1, 8; Robert Kolb, The International Court of Justice (Oxford: Hart, 2013) 629. Sztucki, Interim Measures, 109; Mehmet S Gemelmaz, Provisional Measures of Protection in International Law: 1907–2010 (Istanbul: Legal Kitapevi, 2011) 227; Kolb, International Court, 629. Indeed, the damage to Belgian commercial interests that formed part of the matrix of the Sino-Belgian Treaty case was capable of compensation – less so the possible death, imprisonment or injury of Belgian merchants. See e.g. John O Ward and Robert J Thornton (eds), Personal Injury and Wrongful Death Damages Calculations: Transatlantic Dialogue (Bingley: Emerald Press, 2009). Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens and Sons, 1958) 252. Aegean Sea Continental Shelf (Greece v Turkey), ICJ Pleadings, 108 (O’Connell). Aegean Sea, Provisional Measures, ICJ Reports 1976 p 3, 11. For criticism, see Leo Gross, ‘The Dispute between Greece and Turkey concerning the Continental Shelf in the Aegean’ (1977) 71 AJIL 31, 39–48; Elkind, Interim Protection, 209–19; Gemalmaz, Provisional Measures, 231–7.

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has eschewed references to compensation and focused instead on the extent to which the prejudice alleged would impede the provision of full restitution were final judgment be given in the applicant’s favour.30 If the prejudice in question would render restitution substantially more difficult, then the Court will intervene irrespective of the capacity for subsequent remediation or compensation.31 This requirement follows from the incidental and functional character of provisional measures, and also provides a valuable equalizing effect, as it could be argued that permitting parties to buy their way out of provisional measures pendente lite would be to privilege states that could afford to pay substantial compensation.32 A related consideration of the Court appears to be the overall behaviour of the respondent. As Oellers-Frahm has noted ‘[t]he Court’s case law does not show detailed or consistent examination of the question of irreparability, but rather reveals that provisional measures are granted when an obvious and flagrant violation of the rights claimed on the merits cannot be tolerated until the delivery of final judgment’.33 Put another way, as Elkind does, the question is not whether the prejudice is ‘irreparable’, but whether it is ‘unendurable’.34 The resulting standard provides some satisfaction in its flexibility, though it does run the risk of reducing the criterion of prejudice to the maxim of ‘I know it when I see it’.35

30

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32 33 34 35

See e.g. Certain Documents and Data, ICJ Reports 2014 p 147, 157–8: ‘Any breach of confidentiality may not be capable of remedy or reparation as it might not be possible to revert to the status quo ante following disclosure of the confidential information’. The inconsistency of this approach with the Court’s position in Aegean Sea is obvious. Further: Sztucki, Interim Measures, 107, 110–12; Brown, Common Law, 139; Kempen and He, ‘Recent Development’, 921–2. Kolb, International Court, 629. Further: Peter Goldsworthy, ‘Interim Protection in the International Court of Justice’ (1974) 68 AJIL 258, 269 (‘the test is not whether adequate compensation can ultimately be provided but whether “irreparable prejudice” would be occasioned to the rights of the applicant if interim protection is refused’). Aegean Sea, ICJ Reports 1976 p 3, 30 (Judge Elias). Karin Oellers-Frahm, ‘Article 41’, in ICJ Commentary 1026, 1047. Elkind, Interim Protection, 230. Jacobellis v Ohio, 378 US 184, 197 (1964) (Stewart J): I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

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B Questions of Urgency 1 Risk of Materialization Prior to the Date of Judgment Like irreparable prejudice, urgency appears nowhere in Article 41 of the ICJ Statute, but has been developed proprio motu by the Court.36 The need for urgency as a further limitation on the grant of provisional measures is clear: given that the Court is acting so as to impede the free exercise of sovereignty by one or both of the parties, such an intervention can only be justified if the prejudice that it seeks to prevent is not only ‘irreparable’ but imminent.37 Consequently, the requirement of urgency is such as to restrict the speculative application of Article 41.38 A clear illustration of what the Court means when it talks about urgency is provided by the Great Belt case, in which Finland challenged Denmark’s construction of a bridge across a strait on the basis that it would restrict the passage of Finnish mobile offshore drilling units. Finland’s request for provisional measures was opposed by Denmark on the basis that construction of the bridge would only be completed – and the strait accordingly closed – well after the anticipated date of final judgment.39 The Court took Denmark at its word (which was in any event unchallenged by Finland) and rejected the request, noting: Whereas however the Court, placing on record the assurances given by Denmark that no physical obstruction of the East Channel will occur before the end of 1994, and considering that the proceedings on the merits in the present case would, in the normal course, be completed before that time, finds that it has not been shown that the right claimed will be infringed by construction work during the pendency of the proceedings.40

Urgency as a precondition for interim relief therefore requires that the prejudice complained of be shown to materialize prior to the date of final judgment – or alternatively the date of a decision to decline jurisdiction or to otherwise remove the case from the Court’s General List.41 In cases 36

37 39 40

41

A distinction may be drawn here with ‘procedural’ aspects of urgency relating to the speed with which the Court must consider a provisional measures application under Art 74 of the ICJ Rules: see further Chapter 3, §II.C; Sztucki, Interim Measures, 119–22; Rosenne, Provisional Measures, 135ff. 38 Kolb, International Court, 630. Sztucki, Interim Measures, 115. Great Belt, ICJ Reports 1991 p 12, 17. Ibid, 18. See also Pulp Mills, ICJ Reports 2006 p 113, 135: ‘[I]n any event, the threat of any pollution is not imminent as the mills are not expected to be operational before August 2007 (Orion) and June 2008 (CMB)’. Rosenne, Provisional Measures, 135–6.

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of an alleged continuing breach (as distinct from an instantaneous or ‘once-and-for-all’ breach), it may be shown that the prejudice has already arisen and continues to perpetuate itself whilst the respondent remains in violation.42 For example, in the Tehran Hostages case, the US diplomatic and consular personnel were seized prior to the commencement of proceedings before the ICJ, but their continued detention continuously renewed Iran’s initial violation of the diplomatic law.43 In contrast, had Iran not taken the US personnel hostage but instead simply executed them, the breach would have taken place and concluded in the same moment, preventing any possibility of ongoing prejudice and precluding the award of provisional measures due to lack of urgency. Moreover, in cases of continuing breach, the fact that the applicant was cognizant of the breach for an extended period of time but failed to initiate proceedings or take other action does not deprive the situation of urgency. In LaGrand, for example the German government was allegedly aware of the US violation of VCCR Article 36(1)(b) since 1992, some seven years before its application for interim relief was filed. Despite this, the Court not only accepted the request, but also due to the extreme urgency of the case (with the execution of Walter LaGrand scheduled to occur the following day, and with his brother Karl already put to death) agreed to issue provisional measures without oral hearings and within 24 hours of the filing of the application.44 A further question to be considered here is the likelihood that the contemplated prejudice will actually materialize. The ICJ does not require that this be proved with absolute certainty,45 though at the same time it is not sufficient for the applicant to assert that prejudice is hypothetically possible and that relief should be granted accordingly. Rather, the Court’s recent jurisprudence requires that there be demonstrated a ‘real and imminent risk’ of irreparable prejudice,46 the precise threshold of which is to be assessed on a case-by-case basis by reference to the ongoing factual matrix. As such, what appears urgent when an application for relief is lodged may not be so by the time the Court considers the request. In Arrest Warrant, the Democratic Republic of the Congo asked for the 42 43 45 46

On the distinction, see ARSIWA Art 14. Further: James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) 253–64. 44 Tehran Hostages, ICJ Reports 1979 p 7, 17–20. LaGrand, ICJ Reports 1999 p 9, 14. Border Area, ICJ Reports 2011 p 6, 48 (Judge Greenwood). See e.g. Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, ICJ Reports 2009 p 139, 152–3; Border Area, ICJ Reports 2011 p 6, 21; Certain Documents and Data, ICJ Reports 2014 p 147, 154.

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suspension of a warrant issued by the Belgian government for the arrest of its Minister for Foreign Affairs, Yerodia Ndombasi. The Court declined to offer such relief on the basis that following the filing of the Congolese application but before the Court’s decision on provisional measures, a Cabinet reshuffle had removed Mr Yerodia from the Foreign Ministry and installed him as Minister for Education. As a consequence, the Court held, Mr Yerodia was unlikely to be undertaking the kind of foreign travel that would place him in danger of arrest and that ‘it has accordingly not been established that irreparable prejudice might be caused in the immediate future to the Congo’s rights nor that the degree of urgency is such that those rights need to be protected by the indication of provisional measures’.47 Similarly, ongoing negotiations between the parties, whether on a bilateral basis or in the framework of the United Nations, may affect the perception of urgency.48 In Pakistani POWs, the Court, following the receipt of Pakistan’s application for interim relief, was presented with additional Pakistani correspondence asking the Court to delay consideration of the application in order to facilitate further negotiations between the parties. The Court, rather than suspend its procedure, simply held that the request indicated that the matter was no longer to be considered urgent.49 It should be added that even if a request for provisional measures is rejected for lack of urgency, a change in circumstances might introduce the necessary element of imminent harm. Consequently, disappointed parties are not precluded from bringing an additional application before the Court in light of subsequent developments per Article 75(3) of the ICJ Rules.50

2 Representations by the Respondent: The Effect of Certain Documents and Data A further element in the determination of urgency is the role of the respondent, who is not a purely responsive element in the assessment of urgency but may take active steps to prevent the grant of provisional measures, usually by giving an undertaking or representation to the Court that it will not take certain actions or otherwise prejudice the status quo. 47 48 50

Arrest Warrant of 11 April 2000 (DRC v Belgium), Provisional Measures, ICJ Reports 2000 p 182, 201. 49 Oellers-Frahm, ‘Article 41’, 1049. Pakistani POWs, ICJ Reports 1973 p 328, 330. See e.g. Pulp Mills, ICJ Reports 2006 p 113, 134.

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In such cases, the Court may take the respondent at its word and declare on that basis that the hypothesized prejudice is unlikely to arise and the situation has been accordingly robbed of urgency. In terms of their legal effect, such statements are considered to be unilateral declarations that are binding under international law.51 The practice of the PCIJ and ICJ contains a number of such instances. In South-Eastern Greenland, a key element of the Court’s decision to deny interim relief was that high-ranking Norwegian and Danish officials had declared their intention to avoid acts prejudicial towards the other’s nationals within the disputed territory. Although neither statement appeared in the form of formal submissions to the PCIJ, the Court held that it ‘must not and cannot presume that the two Governments concerned might act otherwise than in conformity with the intentions thus expressed’.52 Before the ICJ, the Interhandel case provided the first example a representation made directly to the Court in the context of provisional measures when the US indicated that it had not set a timetable for the sale of the shares that formed the subject of the claim and that the setting of such a timetable would depend on the resolution of slowmoving proceedings before the US courts. Accordingly, the Court held that the circumstances were such as to not require the issue of provisional measures.53 Since that time, undertakings or less formal submissions by the respondent have been held to deprive a situation of urgency in Great Belt, where Denmark gave assurances as to the construction deadline of the bridge,54 and Obligation to Prosecute or Extradite, where Senegal gave assurances that it would not permit the accused international criminal Hiss`ene Habr´e to leave its territory.55 51

Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 267; Certain Documents and Data, ICJ Reports 2014 p 147, 158, 164–5 (Judge Keith, diss), 203 (Judge Greenwood, diss). Generally: Christian Eckart, Promises of States under International Law (Oxford: Hart, 2012) 75–8. Further: Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, ILC Ybk 2006/II(2), 161, Principle 1: Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the considerations for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected.

52 53 55

South-Eastern Greenland (1932) PCIJ Ser A/B No 48, 287. 54 Interhandel, ICJ Reports 1957 p 105, 112. Great Belt, ICJ Reports 1991 p 12, 18–19. Obligation to Prosecute or Extradite, ICJ Reports 2009 p 139, 155. Further: Eckart, Promises of States, 172–3.

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More recently, however, the ICJ has taken steps to further develop and refine its jurisprudence on the effect of such undertakings in the context of interim relief. In Certain Documents and Data,56 the Court considered a detailed undertaking of 21 January 2014 given by the Australian AttorneyGeneral in a bid to defuse the prejudice to Timor-Leste that would arise from Australia’s seizure of confidential documents related to the arbitral proceedings arising under the TST. In this, the Attorney-General undertook that until final judgment in the proceeding, or a further or earlier order of the Court: 1. I will not make myself aware or otherwise seek to inform myself on the content of the [seized] Material or any information derived from the Material; and 2. Should I become aware of any circumstance which would make it necessary for me to inform myself of the Material, I will first bring that fact to the attention of the Court, at which time further undertakings will be offered; 3. The Material will not be used by any part of the Australian Government for any purpose other than national security purposes (which include potential law enforcement referrals and prosecutions); and 4. Without limiting the above, the Material, or any information derived from the Material, will not be made available to any part of the Australian Government for any purpose relating to the exploitation of resources in the Timor Sea or related negotiations, or relating to the conduct of: a. these proceedings; and b. the proceedings in the Arbitral Tribunal [constituted under the 2002 Timor Sea Treaty].57

These undertakings were reaffirmed in oral submissions, with counsel for Australia further assuring the Court that Australian intelligence agencies had not had the opportunity to inspect the seized material and that, for all intents and purposes, the information contained therein remained confidential.58 For the Court, however, this undertaking was insufficient – notwithstanding that it had no reason to believe that it would not be 56 57 58

For the facts of the case, see Chapter 4, §V.D. Noted: Massimo F Lando (2014) 3 CJICL 616; Ronald J Bettauer (2014) 108 AJIL 763. Certain Documents and Data, ICJ Reports 2014 p 147, 156–7. CR 2014/2, 21 January 2014, 18–19 (Gleeson); CR 2014/4, 22 January 2014, 8–10 (Gleeson).

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implemented according to its terms59 – as it did not serve to eliminate completely the hypothesized prejudice. Taking note of the reservations made in paragraphs 2 and 3 of the undertaking of 21 January 2014 with respect to use of the seized materials for national security purposes, the Court held: Given that, in certain circumstances involving national security, the Government of Australia envisages the possibility of making use of the seized material, the Court finds that there remains a risk of disclosure of this potentially highly prejudicial information. The Court notes that the Attorney-General of Australia has given an undertaking that any access to the material, for considerations of national security, would be highly restricted and that the contents of the material would not be divulged to any persons involved in the conduct of the Timor Sea Treaty Arbitration, in the conduct of any future bilateral negotiations on maritime delimitation, or in the conduct of the proceedings before this Court. However, once disclosed to any designated officials in the circumstances provided for in the written undertaking dated 21 January 2014, the information contained in the seized material could reach third parties, and the confidentiality of the materials could be breached [ . . . ] In light of the above, the Court considers that the written undertaking dated 21 January 2014 makes a significant contribution towards mitigating the imminent risk of irreparable prejudice created by the seizure of the above-mentioned material to Timor-Leste’s rights, particularly its right to the confidentiality of that material being duly safeguarded, but does not remove this risk entirely.60

Three permanent members of the Court from common law jurisdictions (as well as Judge ad hoc Callinan) disagreed with this finding, holding that the undertaking given precisely covered the prejudice that had been identified by Timor-Leste, viz. the risk that access to the seized material would be given to Australia’s legal team in the TST proceedings.61 As such, the minority found that paragraph 4 of the undertaking of 21 January 2014 was sufficient to remove the risk of irreparable prejudice. There are three substantial defects within the majority’s opinion. The first concerns an irreconcilable tension within its reasoning. On the one 59 60 61

Certain Documents and Data, ICJ Reports 2014 p 147, 158. Ibid, 158–9. Ibid, 164–6 (Judge Keith, diss), 200–6 (Judge Greenwood, diss), 211–13 (Judge Donoghue).

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hand, it is said that if the information is disclosed for national security purposes, it could find its way to third parties (presumably Australia’s legal team). On the other, the Court pronounced itself satisfied that Australia would uphold the undertaking to the letter, which would presumably prevent any such occurrence. This is a patent contradiction for which no explanation is given. The second defect concerns allocation of the burden of proof. As made clear in Aegean Sea, the burden of proving irreparable prejudice and urgency falls on the applicant, a position that, given the exceptional nature of provisional measures as a remedy, should not be altered by the respondent’s decision to proffer an undertaking. By examining in minute detail the content of the Australian undertaking, however, it could be argued that the Court shifted the burden of proof to the respondent, requiring it to disprove the existence or urgency of the prejudice previously established through the provision of an effective undertaking. The third defect is related to the second. The majority in Certain Documents and Data seems to have forgotten that the standard of proof in such cases is that of a ‘real and imminent risk’. Consequently, one might think (as did the minority) that if Australia were to give an undertaking that, in the words of the Court, ‘makes a significant contribution towards mitigating the imminent risk of irreparable prejudice [ . . . ] but does not remove this risk entirely’, it would still be more than sufficient to remove the perception of a real and imminent risk of prejudice. Rather, the Court seems to be saying that in order to render provisional measures unnecessary, an undertaking must go further than merely reducing the risk of irreparable prejudice beneath the threshold ordinary required for the award of interim relief – it must remove it entirely. Put another way, the respondent in disproving prejudice through an undertaking is held to a higher standard than that levied on the applicant with respect to proving urgency in the first place. In this respect, one may contrast the undertaking offered in Certain Documents and Data with that offered by Senegal in Obligation to Prosecute or Extradite, which was framed in absolute terms and, if adhered to, would have completely eliminated the prejudice considered. Put simply, if a respondent is minded to give an undertaking to the Court so as to challenge an application for interim relief, then per Certain Documents and Data, it should be framed in unqualified terms. This result can only be explained if one takes into account some kind of moral opprobrium on the part of the majority at the initial seizure – an approach which, whilst it may have done justice in the

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case at bar, did little for the coherence of the wider law of provisional measures.

III Dispute Settlement Under UNCLOS A Prejudice Under UNCLOS Article 290 1 The Emergence of ‘Irreparable’ Prejudice Like Article 41 of the ICJ Statute, UNCLOS Article 290 makes no mention of a need to demonstrate irreparable prejudice prior to the grant of interim relief. In the early years of the provision’s operation, this silence was seized upon by some as permitting provisional measures under Article 290 to depart from the seemingly inflexible standard developed by the ICJ. Writing extracurially, Judge Laing argued that the ‘grave standard’ of irreparability as developed by the PCIJ and ICJ was ‘inapt for universal use, at least in many of the situations under UNCLOS’,62 reprising these views in his separate opinion in Southern Bluefin Tuna.63 This position, however, is somewhat nonsensical given the plenary jurisdiction of the PCIJ and ICJ, which together have cheerfully applied the standard to a wide array of situations since 1927. This notwithstanding, the early provisional measures jurisprudence of ITLOS is marked by a distinct lack of willingness to adopt ‘irreparability’ as a criterion for interim relief, or indeed to specify any distinct threshold of prejudice whatsoever,64 as can be seen from the Tribunal’s first order of provisional measures in M/V Saiga (No 2). To the extent that such 62 63

64

Edward A Laing, ‘A Perspective on Provisional Measures under UNCLOS’ (1998) 29 NYIL 45, 64–5. Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 170 (Judge Laing). See also M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea) (1998) 117 ILR 111, 143 (Judge Laing). Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005) 70–8. For this reason, academic commentary on the early practice of ITLOS under UNCLOS Art 290 can be seen to focus heavily on urgency alone: see e.g. R¨udiger Wolfrum, ‘Provisional Measures of the International Tribunal for the Law of the Sea’, in P Chandrasekhara Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 173, 181–2; Thomas A Mensah, ‘Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS)’ (2002) 63 Za¨oRV 43, 47–8; Igor V Karaman, Dispute Resolution in the Law of the Sea (Leiden: Martinus Nijhoff, 2012) 132–4; Peter Tomka and Gleider I Hern´andez, ‘Provisional Measures in the ITLOS’, in H P Hestermeyer et al., 2 Coexistence, Cooperation and Solidarity: Liber Amicorum R¨udiger Wolfrum (The Hague: Martinus Nijhoff, 2013) 1763, 1780–3.

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particularity did appear, it was usually in the form of dissenting or separate opinions referring back to the jurisprudence of the PCIJ and ICJ through express citation or identical terminology.65 This initial reluctance, however, was not shared by the Annex VII tribunal in MOX Plant, which in considering elements of the Irish application for interim relief in that case held that ‘[i]nternational judicial practice confirms that a general requirement for the prescription of provisional measures to protect the rights of the Parties is that there needs to be a showing both of urgency and of irreparable harm to the claimed rights’,66 citing the decision of the ICJ in Certain Criminal Proceedings.67 The result was a difficult situation in which ITLOS seemed to be attempting to develop a distinct jurisprudence on interim relief whilst an Annex VII tribunal was introducing the prerequisites that had been adopted elsewhere, despite both bodies purporting to give authentic interpretations of UNCLOS Article 290. Whatever its initial intentions, ITLOS has demonstrated in more recent decisions a willingness to canvass considerations of prejudice similar to those developed by the ICJ. In Land Reclamation, the Tribunal rejected part of Malaysia’s application to suspend Singapore’s activities in the Johor Strait on the basis that ‘the evidence presented by Malaysia does not show [ . . . ] that there is a risk that the rights it claims with respect to an area of territorial sea would suffer irreversible damage’.68 A further instance occurred in M/V Louisa, in which ITLOS considered an application for interim relief by Saint Vincent and the Grenadines on the basis of a seizure of a Vincentian-flagged vessel by Spain in the exercise of its criminal jurisdiction. The application for release as an interim measure was rejected by ITLOS on the basis that there was no ‘real and imminent risk that irreparable prejudice may be caused to the rights of the parties in

65

66 67 68

See e.g. M/V Saiga (No 2) (1998) 117 ILR 111, 143 (Judge Laing); Southern Bluefin Tuna (1999) 117 ILR 148, 170–1 (Judge Laing), 178 (Judge Treves); MOX Plant (Ireland v UK), Provisional Measures (2001) 126 ILR 257, 282 (Judge Mensah); Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures (2003) 126 ILR 487, 520 (Judge Chandrasekhara Rao), 529–30 (Judge Cot); ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186, 206 (Judge Paik). MOX Plant (Ireland v UK), Provisional Measures (2003) 126 ILR 310, 328. Certain Criminal Proceedings, ICJ Reports 2003 p 102, 110. Land Reclamation (2003) 126 ILR 487, 501. However, the Tribunal later awarded some interim relief for further cooperation on the basis that ‘it cannot be excluded that, in the particular circumstances of the case, the land reclamation works may have adverse effects on the marine environment’: ibid, 504.

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dispute’.69 Relief was awarded along similar lines in Ghana/Cˆote d’Ivoire, with the Special Chamber there holding with respect to an application to forestall Ghanaian-authorized drilling in a disputed maritime space that the activities ‘as planned by Ghana, may cause irreparable prejuˆ d’Ivoire in the dice to the sovereign and exclusive rights invoked by Cote continental shelf and superjacent waters of the disputed area’.70 However, the criterion is conspicuous by its absence from the orders made by ITLOS under UNCLOS Article 290(5) in ARA Libertad save through the Tribunal’s rehearsals of the parties’ submissions.71 Such recitals were even more sparse in Arctic Sunrise, with the sole reference to prejudice in the majority’s opinion coming though an en bloc quotation of the Dutch submissions that addressed several additional considerations.72 The criterion reappeared, however, in Enrica Lexie, with the Tribunal there making reference to ‘irreparable prejudice [ . . . ] to the rights of the parties’.73 In light of this, it would appear that, despite its coyness, ITLOS considers irreparable prejudice to be a prerequisite to the award of provisional measures – though its inconsistency in acknowledging this fact is problematic. Certainly, parties approach the Tribunal approach with some prejudice to rights in mind, invariably framing their pleadings in such terms.74 At the present time, the most thoughtful consideration of the issue in the context of ITLOS arose in the dissenting opinion of Judge Kulyk in Arctic Sunrise, who referred to the decision of the

69 70

71 72 73 74

M/V Louisa (St Vincent and the Grenadines v Spain), Provisional Measures (2010) 148 ILR 459, 471. Delimitation of the Maritime Boundary between Ghana and Cˆote d’Ivoire in the Atlantic Ocean (Ghana/Cˆote d’Ivoire), ITLOS Case No 23 (Provisional Measures, 25 April 2015) §§86–96. ARA Libertad (2012) 156 ILR 186, 202–3. Arctic Sunrise (Netherlands v Russian Federation), ITLOS Case No 22 (Provisional Measures, 22 November 2013) §87. Enrica Lexie (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §87. See e.g. Land Reclamation, Malaysia: Request for Provisional Measures, §15 (‘[t]o the extent that [Singapore’s land reclamation projects] impair Malaysia’s rights [ . . . ] the harm caused could not be other than irreversible or irreparable’); ARA Libertad, Argentina: Request for Provisional Measures, §29 (‘[Ghana’s actions are] producing an irreparable damage to the Argentine rights in question, namely the immunity that the Frigate ARA Libertad enjoys, the exercise of its right to leave the territorial waters of Ghana, and its freedom of navigation more generally’). But cf. Southern Bluefin Tuna, Verbatim Record, ITLOS/PV.99/21/Rev.2 (18 August 1999) 26, 30 (Burmester), arguing that due to the broad jurisdictional remit of ITLOS and the lack of ‘life or death’ situations therein, a standard of irreparable prejudice was not appropriate under UNCLOS Art 290.

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Annex VII tribunal in MOX Plant, as well as the remarks of ITLOS in Land Reclamation and M/V Louisa, before arguing that: The above jurisprudence in practice means that for the provisional measures, which are essentially exceptional or discretionary in nature, to be granted, it is not sufficient for the party merely to claim that it is suffering injury to its rights due to the continued wrongfulness of the actions of the other party. The burden upon the party is to prove to the Tribunal that there exists irreparable prejudice or irreversible damage to its rights or at least that those rights are under a real, if not imminent, risk of suffering prejudice or damage. The prejudice or damage to the rights have to be irreparable as this notion is understood in international adjudication, meaning in practical terms that the rights of the injured party cannot be restored by the ‘payment of money or by compensation or restitution in some other material form’.75

This statement is broadly correct, but errs in referring to the outmoded position taken by President Huber in the Sino-Belgian Treaty case.76 As discussed earlier, although the ICJ has never formally overruled this position, it has clearly adopted a somewhat more forgiving definition of irreparability by reference to the need for complete execution of a final judgment. Based on its jurisprudence, ITLOS has clearly developed a similar standpoint with respect to UNCLOS Article 290. As demonstrated by cases such as M/V Saiga (No 2), M/V Louisa, ARA Libertad and Arctic Sunrise, a significant proportion of cases that have been brought under Article 290 to date have concerned the detention of vessels – so much so that in Arctic Sunrise, Judge Jesus accused the majority of having used provisional measures to create a ‘back-door prompt release procedure’ so as to render UNCLOS Article 292 superfluous.77 Clearly, the detention of a vessel is capable of compensation through damages, having taken into account the value of the vessel’s time, depreciation in the vessel’s value (or that of its cargo) as a result of its detention and any consequential commercial loss.78 Consequently, ITLOS (and by extension, any Annex VII tribunal) is clearly willing to accept a lesser standard of prejudice as grounding interim relief in a manner similar to the ICJ. 75 76 77 78

Arctic Sunrise, ITLOS Case No 22, §3–5 (Judge Kulyk, diss). Also: MOX Plant (2001) 126 ILR 257, 282 (Judge Mensah). Sino-Belgian Treaty (1927) PCIJ Ser A No 8, 7. Arctic Sunrise, ITLOS Case No 22, §7(b). Cf. Douglas Guilfoyle and Cameron A Miles, ‘Provisional Measures and the MV Arctic Sunrise’ (2014) 108 AJIL 271, 281–2. Indeed, the entire concept of damages for detention in maritime law could be said to be built around similar principles, provided that a demurrage rate is not provided in the charterparty: Robert Gay, ‘Damages in addition to demurrage’ [2004] 1 LMCLQ 72.

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Judge Kulyk’s error was reinforced in the decision of the Special Chamber in Ghana/Cˆote d’Ivoire. The facts of that case bore a resemblance to those of Aegean Sea: a disputed maritime boundary combined with hydrocarbon exploration and exploitation in the contested area. Unlike Aegean Sea, however, the harm complained of exceeded mere seismic surveying – Coˆ te d’Ivoire was concerned with Ghanaian-supervised drilling following which the subsoil could not be returned to its original state.79 Ghana contested this, arguing that the only loss that would be suffered by Cˆote d’Ivoire was that of lost oil revenue.80 The Special Chamber considered that while the oil revenues could be the subject of future fiscal compensation, the same could not be said of ‘significant and permanent modification of the physical character’ of the disputed area ‘where such modification cannot be fully compensated by financial reparations’,81 and awarded interim relief accordingly. There was, it is submitted, no need for the Chamber to take a step so retrograde as the implied resurrection of the Aegean Sea standard of strict irreparability: it would have been enough to declare that lost oil revenue was an insufficiently substantial reason to justify interim relief (as it clearly was) whilst holding the reverse with respect to subsoil damage caused by drilling activities. It remains to be seen whether the outmoded notion that irreparability in the context of interim relief refers solely to financial irreparability will gain traction within the jurisprudence surrounding UNCLOS Article 290, though if it does the circumstances in which ITLOS and Annex VII tribunals will award interim relief will be reduced. It should be noted that when considering the powers available under UNCLOS Article 290, ITLOS does not appear to have indicated any difference in the threshold of prejudice required when addressing provisional measures orders directly under Article 290(1), and orders made on behalf of an Annex VII tribunal pursuant to Article 290(5). As will be seen, any difference between the two on this score emerges with consideration of urgency.

2 Serious Harm to the Marine Environment The standard of irreparable prejudice that has emerged in recent jurisprudence regarding the preservation of rights sub judice does not apply to measures for the prevention of harm to the marine environment, as provided for by UNCLOS Article 290(1). Given that the text of the provision expressly requires that the harm be ‘serious’ in character, it would be 79

Ghana/Cˆote d’Ivoire, ITLOS Case No 23, §78.

80

Ibid, §87.

81

Ibid, §88.

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inappropriate to deny provisional measures on the basis that the harm so predicted is ‘serious but not irreparable’.82 What, then, is considered to be ‘serious’ harm to the marine environment? Like prejudice, it is submitted that this is very much a question of degree and circumstance, but may reflect a multitude of considerations including biodiversity, sustainability and marine pollution. Its scope may be seen as linked to the contents of UNCLOS Part XII on the protection and preservation of the marine environment,83 which addresses such concerns as maritime pollution,84 the transfer of hazardous materials,85 the use of technology and the introduction of invasive species.86 Also of relevance are those provisions of UNCLOS concerning conservation of the living resources of the exclusive economic zone and the high seas.87 The foremost example of hypothesized ‘serious harm’ occurred in Southern Bluefin Tuna, a case concerning the sustainability of tuna stocks in the Pacific Ocean and Japan’s decision to unilaterally exceed the catch quota allocated to it under the Convention for the Conservation of Southern Bluefin Tuna.88 The Tribunal in that case had no hesitation in holding that ‘conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’, and further that ‘the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna’.89 Similarly, in Land Reclamation, the Tribunal was willing to consider that the side effects of the Singaporean works, being damage to the marine and coastal environment through infilling, could also be capable of constituting ‘serious harm’.90 Finally, in several of the ship release cases, ITLOS considered that the consequences of detaining a ship without proper maintenance, particularly 82 83 84

85 87

88 90

M/V Saiga (No 2) (1998) 117 ILR 111, 143 (Judge Laing). Further: Karaman, Dispute Resolution, 138–40. M/V Louisa (2010) 148 ILR 459, 476 (Judge Paik). UNCLOS Arts 194, 207–12. See also the International Convention for the Prevention of Pollution from Ships as Modified by the Protocol of 1978 Relating Thereto, 11 February 1973 and 17 February 1978, 1340 UNTS 62. Further: Donald R Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010) ch 15; Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University Press, 2012) ch 8. 86 UNCLOS Art 195. UNCLOS Art 196. UNCLOS Arts 61–8 (EEZ), 116–20 (high seas). See also the Straddling Stocks Agreement, 4 December 1995, 2167 UNTS 88. Further: Rothwell and Stephens, International Law of the Sea, ch 13; Tanaka, International Law of the Sea, ch 7. 89 10 May 1993, 1819 UNTS 360. Southern Bluefin Tuna (1999) 117 ILR 148, 163. Land Reclamation (2003) 126 ILR 487, 505.

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insofar as that detention resulted in marine pollution through the release of fuel oil, could also constitute serious harm.91

B Urgency Under UNCLOS Article 290 1 General Considerations of Urgency (a) Urgency Under UNCLOS Article 290(1) In contrast to its underdeveloped jurisprudence on prejudice to rights pendente lite, ITLOS has developed a robust case law on questions of urgency. Urgency in its substantive sense is mentioned expressly in Article 290, but only in paragraph 5 concerning the power of ITLOS to award provisional measures on behalf of an Annex VII or VIII tribunal. Paragraph 1 of the provision, concerning the general power of Part XV courts and tribunals to award interim relief, includes no such requirement. Nonetheless, ITLOS and Annex VII tribunals have drawn no distinction between the two paragraphs, and have demonstrated a preoccupation with questions of urgency no matter how the question of interim relief is approached. As with irreparable prejudice, the Annex VII tribunal in MOX Plant linked this consideration to the ICJ and the practice of international courts and tribunals, holding urgency to be ‘a general requirement for the prescription of provisional measures’.92 Although provisional measures under UNCLOS Article 290(1) have been considered in relatively few cases (e.g. M/V Saiga (No 2), MOX Plant, M/V Louisa, Ghana/Cˆote d’Ivoire), both ITLOS and Annex VII tribunals have adopted a model of urgency similar to that developed by the ICJ, i.e. the hypothesized prejudice to rights sub judice must be in danger of materializing prior to the date of final disposition. Like irreparable prejudice, the concept was not mentioned by ITLOS in its order in M/V Saiga (No 2), despite the applicant pleading its case by reference to Great Belt.93 Following the declaration by the Annex VII Tribunal in MOX Plant as to the applicability of the concept, however, ITLOS seems to have reassessed its practice, rejecting an application for interim relief in the context of Article 290(1) in M/V Louisa on the basis that it was satisfied hypothesized serious harm to the marine environment was unlikely to 91 92 93

M/V Louisa (2010) 148 ILR 459, 471–2; Arctic Sunrise, ITLOS Case No 22, §87 (reciting the Dutch submissions). MOX Plant (Annex VII) (2003) 126 ILR 310, 328. M/V Saiga (No 2) (1999) 117 ILR 111, 140–1 (Judge Laing).

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arise on the basis of a Spanish undertaking.94 Such a conclusion can only be explained if the Tribunal was considering a variant of urgency similar in character to that advanced by the ICJ, a point confirmed in the declaration of Judge Paik, who held that ‘[w]hile the requirement of urgency is not explicitly set out in article 290, paragraph 1, there is no doubt that the very nature of provisional measures as an exceptional form of relief presupposes an element of urgency’.95 This was further the subject of an express holding by the Special Chamber in Ghana/Cˆote d’Ivoire, which held not only that urgency was a prerequisite to interim relief, but that said urgency was reflected in ‘the need to avert a real and imminent risk that irreparable prejudice may be caused to rights at issue before the final decision is delivered’.96 (b) Urgency Under UNCLOS Article 290(5) The express reference to urgency in Article 290(5), together with the greater number of cases in which the provision has been invoked (e.g. Southern Bluefin Tuna, MOX Plant, Land Reclamation, ARA Libertad, Arctic Sunrise, Enrica Lexie), has led to a more developed jurisprudence with respect to the referred power to award interim relief. Notable in this respect is the requirement in Article 290(5) that urgency be required by ‘the situation’. As has been discussed, this provision allows ITLOS to award interim relief on behalf of an Annex VII or VIII tribunal, ‘[p]ending the constitution of an arbitral tribunal to which a dispute is being submitted’. Consequently, urgency in the context of Article 290(5) must be only manifest to the point at which the relevant tribunal is able to take carriage of the dispute and issue interim relief of its own,97 a period of time which in the ordinary course of events may be far shorter than the time until the giving of final judgment. This question was first addressed at length by ITLOS in Southern Bluefin Tuna. In that case, Australia and New Zealand applied for provisional measures limiting the potential Japanese tuna catch. The Tribunal, applying Article 290(5), held that the situation as described by the applicants was 94 95

96 97

M/V Louisa (2010) 148 ILR 459, 471–2. See e.g. ibid, 477 (Judge Paik). Also: Southern Bluefin Tuna (1999) 117 ILR 148, 178 (Judge Treves). On urgency as a prerequisite for provisional measures under UNCLOS Art 290(1), see further Rosenne, Provisional Measures, 146–8; Karaman, Dispute Resolution, 141–3; Tomka and Hern´andez, ‘Provisional Measures in the ITLOS’, 1780. Ghana/Cˆote d’Ivoire, ITLOS Case No 23, §42. Ibid, 1781–2; Mensah, ‘Provisional Measures in the ITLOS’, 47–53; Rosenne, Provisional Measures, 141–5.

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indeed urgent,98 and that it was willing to order interim relief ‘pending a decision of the [Annex VII] arbitral tribunal’.99 As it happens, the relevant decision of the Annex VII tribunal was that it lacked jurisdiction in the matter, and that the provisional measures ordered by ITLOS were accordingly ‘revoked from the day of the signature of [the] Award’.100 This position was the subject of further consideration in MOX Plant, where Ireland asked the Tribunal to order measures preventing the commissioning of nuclear fuel plant prior to the constitution of Annex VII tribunal. The UK, however, argued that such measures were unnecessary, as it hoped to reach an agreement with Ireland on the constitution of the Annex VII tribunal within a short space of time. It also made further public statements declaring that the commissioning of the plant would not result in the transport of additional nuclear material to and from the site of the plant, and that in any event the plant would not be capable of producing fuel for a further 11 months. On this basis, the Tribunal held that ‘in the circumstances of this case, the Tribunal does not find that the urgency of the situation requires the prescription of the provisional measures requested by Ireland, in the short period before the constitution of the Annex VII arbitral tribunal’.101 Finally, in Land Reclamation, ITLOS gave further consideration to the question of urgency at Article 290(5), and added an additional elaboration.102 In that case, Singapore in challenging Malaysia’s request for provisional measures took a similar position to that of the UK in MOX Plant, arguing that the latest date that the Annex VII tribunal could be composed was 9 October 2003, literally the day after ITLOS was due to issue its ruling on the provisional measures application. This notwithstanding, the Tribunal issued a form of interim relief, noting that the question to be asked was not when the Annex VII would be constituted, but rather when it would be in a position – having met, heard the arguments of the parties and allowed due time for deliberation – to ‘modify, revoke or affirm those provisional measures’.103 Depending on the complexity of the matter (and indeed, Land Reclamation required the taking of expert evidence to determine the extent of possible harm to the 98 100 101 102

103

99 Southern Bluefin Tuna (1999) 117 ILR 148, 162–3. Ibid, 165. Southern Bluefin Tuna, Jurisdiction and Admissibility (2000) 119 ILR 508, 556. MOX Plant (2001) 126 ILR 257, 277. Notwithstanding the fact that both ARA Libertad and Arctic Sunrise consider UNCLOS Art 290(5), in those cases the breach in question (the seizure of a vessel) had already taken place and was ongoing, rendering urgency self-evident. Land Reclamation (2003) 126 ILR 487, 501.

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marine environment), a tribunal might not be in a position to make such decisions until well after it has been constituted.

2 Risk of Materialization and the Effect of Undertakings As with Article 41 of the ICJ Statute, urgency in the context of UNCLOS Article 290 requires consideration of the likelihood that the hypothesized prejudice will materialize prior to the relevant point in time, be it the date of judgment or the date at which an Annex VII or VIII tribunal can effectively consider the question of interim relief. To date, ITLOS and the Annex VII tribunals have utilized a standard similar to that of the ICJ, although a wide variety of alternative standards have been expressed in separate opinions. In MOX Plant, the Annex VII tribunal spoke of a need for ‘serious risk of irreparable harm’ in the context of Article 290(1).104 Earlier, when considering the related application for relief under Article 290(5), ITLOS stated that urgency requires ‘that action prejudicial to the rights of either party [ . . . ] is likely to be taken before the constitution of the Annex VII tribunal’,105 whilst Judge Mensah spoke of ‘a credible possibility that [ . . . ] prejudice of rights might occur’.106 In Land Reclamation, ITLOS simply contented itself with referring to a ‘risk’ of irreversible damage,107 with Judge Chandrasekhara Rao (with whom Judge Anderson agreed108 ) phrasing the question in terms of ‘a reasonable possibility’ of irreparable prejudice to rights pendente lite,109 and Judge Cot discussing the ‘possibility or likelihood’ of such damage occurring.110 In contrast, Judge Lucky adopted a higher standard than his brethren, holding that ‘the possibility or probability of harm cannot be based on speculation or projections’ and that ‘the Applicant must show a very strong probability on the facts that serious harm will accrue’.111 Later, when considering the Article 290(1) application in M/V Louisa, ITLOS made reference to the ICJ standard of ‘a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute’,112 which was in turn reaffirmed by Judge Paik in his declaration.113 In Arctic Sunrise, Judge Kulyk in dissent set the standard at the level of a ‘real, if not imminent, risk’ of 104 105 106 107 109 112

MOX Plant (Annex VII) (2003) 126 ILR 310, 329. MOX Plant (2001) 126 ILR 257, 275. This position must now be modified in light of the elaborations made in Land Reclamation (above n 103). MOX Plant (2001) 126 ILR 257, 282. 108 Land Reclamation (2003) 126 ILR 487, 501. Ibid, 509. 110 111 Ibid, 520. Ibid, 529. Ibid, 534. 113 M/V Louisa (2010) 148 ILR 459, 471. Ibid, 476.

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prejudice.114 In Enrica Lexie, the Tribunal as a whole set the standard in similar terms, referring to ‘a real and imminent risk’ of prejudice.115 The result in the balance would appear to be the adoption of the ICJ’s standard of urgency with respect to prejudice to rights, as demonstrated in the various majority opinions of ITLOS – particularly those that have been handed down most recently. That being said, the separate opinions would appear to push that standard towards a need for probability of prejudice, as opposed to mere possibility. Appropriately, ITLOS and the Annex VII tribunals clearly require the applicant to prove prejudice to the required standard. Like the ICJ, ITLOS and the Annex VII tribunals have permitted undertakings or representations made by the respondent to affect the perception of urgency with respect to both measures to protect rights pendente lite and for the prevention of serious harm to the marine environment. The behaviour of the respondent in this respect has altered the perception of urgency in several cases so as to either remove the need for interim relief entirely, or modify the kind of relief that is appropriate in the circumstances. Furthermore, ITLOS and the Annex VII tribunals have demonstrated a willingness to take pronouncements made by the parties elsewhere and place them on the record when considering whether a situation is urgent. In MOX Plant, the UK asserted before ITLOS that it was close to agreeing with Ireland on the composition of the Annex VII tribunal, and further made public pronouncements that: (a) there would be no further transportation of nuclear material to or from the plant as a result of its commissioning; (b) that there would be no transportation from nuclear fuel from the plant for at least 11 months; and (c) there would be no transportation of spent fuel rods to the plant for conversion into fuel during the same period. Placing these assurances on the record, ITLOS held that it was not appropriate to order that the commission of the plant be suspended, but that some provision for cooperation between the parties so as to prevent environmental damage was required.116 A similar situation occurred in Land Reclamation, with Singapore undertaking, inter alia, to: (a) give Malaysia the opportunity to comment on the reclamation works; (b) notify and consult with Malaysia before building certain transport links if those links would interfere with Malaysia’s rights of passage in the Johor Strait; (c) not accelerate reclamation works in the Pulau Tekong area; and (d) enter into further 114 115

Arctic Sunrise, ITLOS Case No 22, §5 (Judge Kulyk, diss). 116 Enrica Lexie, ITLOS Case No 24, §87. MOX Plant (2001) 126 ILR 257, 277–8.

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negotiations at any time. On this basis, ITLOS held that provisional measures suspending the reclamation works were unnecessary, but placed the assurances on the record and gave orders for cooperation between the parties similar to those issued in MOX Plant, as well as orders for the collection of further information regarding the environmental impact of the works.117 In M/V Louisa, the St Vincent and the Grenadines requested the release of the detained vessel on the basis that the Spanish port of Santa Maria was ill-equipped to handle the environmental risk posed by the ship. In response, Spain assured ITLOS that the port authority was monitoring the vessel constantly for fuel leakage and that the wider authorities in the Bay of Cadiz had been issued with an updated protocol to deal with any environmental threat. On this basis, the Tribunal held that the situation was not such as to require the issue of provisional measures, and dismissed the Vincentian application in its entirety.118 That being said, in Arctic Sunrise a Russian report allocating responsibility for the security and maintenance of the detained vessel was not placed on the record and given due regard.119 In that case, however, Russia was a non-appearing party, and the Tribunal’s hesitancy to take the report at face value may have been due to the fact that Russia was not present to confirm the content of the report and further indicate its intention to ensure that the condition of the vessel did not degrade. ITLOS has demonstrated on other occasions that it is willing to assess the scope of an undertaking. In Southern Bluefin Tuna, Japan undertook on 20 August 1999 to ensure that its experimental fishing programme would end by 31 August 1999, such that provisional measures ordering the programme’s suspension were unnecessary. The Tribunal noted, however, that Japan had not made any representations about the introduction of new fishing programmes after that time, and so imposed an upper limit on the parties’ annual tuna catch under Article 290(5).120 That being said, however, the Tribunal’s criticism of Japan’s representation did not approach the level of scrutiny displayed by the ICJ in Certain Documents and Data: the Tribunal simply pointed out that the temporal limitations of Japan’s undertaking left a substantial gap during which overfishing could occur. This approach, on balance, is to be preferred, preserving as it does provisional measures as an exceptional relief whilst at the same 117 118 119 120

Land Reclamation (2003) 126 ILR 487, 501–6. M/V Louisa (2010) 148 ILR 459, 471–3. Arctic Sunrise, ITLOS Case No 22, §42 (Judge Golitsyn, diss). Southern Bluefin Tuna (1999) 117 ILR 148, 164–5.

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time ensuring that rights sub judice and the marine environment receive an appropriate level of protection. This balanced approach, however, was not replicated when the Tribunal was confronted with an Indian undertaking regarding Italy’s requested provisional measures in Enrica Lexie. The matter concerned an incident that occurred on 15 February 2015 in the Indian EEZ between an Italian-flagged freighter, the Enrica Lexie, and an Indian fishing vessel, the St Antony. The precise sequence of events was disputed between the parties,121 but what was agreed was that two Italian marines posted on board the Enrica Lexie in case of pirate attacks, Sergeant Massimilano Latorre and Sergeant Salvatore Girone, shot and killed two Indian fishermen on board the St Antony. Following this, the Enrica Lexie was forced to dock at the port of Kerala and the Indian authorities detained Sergeants Latorre and Girone pending a criminal investigation. Sergeant Latorre subsequently suffered a stroke whilst in custody and was permitted to return to Italy while the investigation continued; Sergeant Girone remained. Italy asserted that this arrest was in violation of several provisions of UNCLOS concerning, inter alia, flag state jurisdiction and freedom of navigation, and requested Annex VII arbitration. It further filed a request with ITLOS for provisional measures under UNCLOS Article 290(5), requesting that: (a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimilano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and (b) India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII tribunal.122

In opposing the request, India asserted that there was no prospect of criminal proceedings against the marines as the investigation had been embargoed by the Supreme Court of India following an Italian application. There was accordingly no possibility that the marines would be prosecuted prior to the Annex VII tribunal being in a position to rule on 121 122

The different versions are helpfully set out, along with a chronology of events, in the dissenting opinion of Judge Lucky: Enrica Lexie, ITLOS Case No 24, §§3–28. Ibid, §108.

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the subject123 – a position similar to that taken by the US in Interhandel and which would, by the same logic, remove any risk of prejudice to Italy. However, although it was willing to place this undertaking on the record, the Tribunal nonetheless directed that India (and for that matter, Italy) suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute or otherwise prejudice a final decision of the Annex VII tribunal.124 Unlike the extensive discussion by the ICJ in Certain Documents and Data, ITLOS gave no explanation as to why, despite placing the Indian assurance on the record, it considered that undertaking insufficient to dispel the risk of irreparable prejudice – a point that was rightfully the subject of criticism by Judge Kateka.125

3 Measures for the Protection of the Marine Environment and the Precautionary Principle When considering measures for the prevention of serious harm to the marine environment, ITLOS has indicated that it is willing to accept a lesser degree of proof when assessing the risk that harm will occur. This is clear from the award of provisional measures in Southern Bluefin Tuna, which remains one of the most important judicial decisions in international environmental law. There, the Tribunal said: Considering there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and that there is no agreement among the parties as to whether the conservation measures taken so far have led to an improvement in stock of southern bluefin tuna; Considering that, although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock [ . . . ]126

Although the Tribunal did not say so expressly, the above is arguably an application of the precautionary principle,127 as reflected in Principle 15 of 123 125 126 127

124 Ibid, §102. Ibid, §130–1. Ibid, §5–6 (Judge Kateka). Cf. ibid, §4 (Judge Paik). Southern Bluefin Tuna (1999) 117 ILR 148, 163–4. Simon Marr, ‘The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources’ (2000) 11 EJIL 815; Jacqueline Peel, ‘Precaution: A Matter of Principle, Approach or Process?’ (2004) 5 MJIL 483; Julio Barboza, ‘Provisional Measures, or the Dangers of Being Too Exceptional’, in T M Ndiaye and R Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A Mensah (Leiden: Martinus Nijhoff, 2007) 143; Jonathan B Weiner,

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the Rio Declaration on Environment: ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.128 Put another way, the Tribunal was unwilling to withhold interim relief in the context of environmental damage due to a lack of scientific evidence capable of proving the precise likelihood of such damage. More developed arguments along these lines can be found in various separate opinions, with Judge Laing declaring it ‘evident that the Tribunal has adopted the precautionary approach for the purposes of provisional measures in such a case as the present’,129 Judge Treves reaching the same conclusion and expressing his regret that the Tribunal had not stated its intentions more expressly,130 and Judge ad hoc Shearer holding that ‘the measures ordered by the Tribunal are rightly based upon considerations deriving from the precautionary approach’.131 Furthermore, the principle was one of the legal bases on which the Australian case was argued.132 The reluctance of the Tribunal to declare its application openly could arguably derive from the fact that the status of the precautionary principle was (and is) heavily contested as a matter of customary international law,133 and also that, in the context of Southern Bluefin Tuna, the Tribunal’s focus on scientific uncertainty when determining urgency could alternatively be explained by the precautionary approach towards high seas fisheries

128

129 132 133

‘Precaution’, in D Bodansky, J Brunn´ee and E Hey (eds), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) 598; Patricia Birnie, Alan E Boyle and Catherine Redgwell, International Law and the Environment (Oxford: Oxford University Press, 3rd edn, 2009) 152–64; Tim Stephens, International Courts and Environmental Protection (Cambridge: Cambridge University Press, 2009) 225–7, 232–6; Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge: Cambridge University Press, 4th edn, 2012) 217–28; Karaman, Dispute Resolution, 149–55; Antoˆ nio Augusto Canc¸ado Trindade, ‘Principle 15: Precaution’, in J Vi˜nuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford: Oxford University Press, 2015) 403. 14 June 1992, 31 ILM 974. See also the relevant jurisprudence of the WTO Dispute Settlement Body, which has developed its understanding of the principle through the interpretation of the Agreement on the Application of Sanitary and Phytosanitary Measures, 14 April 1994, 1867 UNTS 493: Stephens, International Courts, 331–8. 130 131 Southern Bluefin Tuna (1999) 117 ILR 148, 176. Ibid, 179. Ibid, 187. Southern Bluefin Tuna, Australia: Application for Provisional Measures, §1; Southern Bluefin Tuna, New Zealand: Application for Provisional Measures, §1. Birnie et al., International Law and the Environment, 159–64. See also Yoshifumi Tanaka, ‘Reflections on Time Elements in the International Law of the Environment’ (2014) 74 Za¨oRV 139, 166–7.

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required by the law of the sea generally,134 or indeed the inherently precautionary character of provisional measures themselves.135 Significantly, however – and as noted by Judge ad hoc Shearer – it is clear that the Tribunal was willing to structure its reasoning around precautionary concerns, giving the principle value as an argumentative approach, even if not expressly treating it as a rule of international law.136 Hints of a precautionary approach towards the marine environment are also seen in MOX Plant. In the Article 290(5) proceedings, Ireland argued that the precautionary principle ‘place[d] the burden on the United Kingdom to demonstrate that no harm would arise from the discharges and other consequences of the operation of the MOX plant, should it proceed, and that this principle might usefully inform the assessment by the Tribunal of the urgency of the [situation]’.137 In response, the UK adduced evidence ‘establish[ing] that the risk of pollution, if any, from the operation of the MOX plant would be infinitesimally small’.138 This satisfied the Tribunal, which confined the measures awarded to requiring further cooperation between the parties. Similar evidentiary concerns prevented the award of measures for the protection of the marine environment in Ghana/Cˆote d’Ivoire.139 Notwithstanding the divergent outcomes in Southern Bluefin Tuna and MOX Plant, the reasoning of ITLOS evinces a consistent approach.140 In the latter case, the UK provided evidence, accepted by the Tribunal, that the commissioning of the MOX plant would not result in environmental damage prior to the constitution of an Annex VII tribunal. On the presumption that the Tribunal, consistent with the Irish submissions, considered the precautionary principle to be relevant to the allocation of the evidentiary burden, it was deemed thereby to be satisfied. In the former, the Tribunal was confronted with evidence from both the applicants and the respondent that left it unable conclusively to decide whether the contemplated risk was present at an interim stage in the proceedings. As such, and despite the applicants bearing the burden of proof, the Tribunal erred on the side of caution, and set a catch quota binding on all of the parties. 134 135 136 137 139 140

Francisco Orrego Vicu˜na, The Changing International Law of High Seas Fisheries (Cambridge: Cambridge University Press, 1999) 156–64. Southern Bluefin Tuna (1999) 117 ILR 148, 180 (Judge Treves). Peel, ‘Precaution’, 494; Stephens, International Courts, 225. 138 MOX Plant (2001) 126 ILR 257, 276. Ibid. Ghana/Cˆote d’Ivoire, ITLOS Case No 23, §67. Cf. Stephens, International Courts, 235–6; Karaman, Dispute Resolution, 154–5.

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Whether or not these cases are an endorsement of the precautionary principle (as opposed to merely using precaution to provide argumentative structure),141 the broad approach taken by ITLOS was correct, given its mandate to grant interim protection vis-`a-vis the marine environment free of considerations that may apply to the preservation of rights pendente lite.142 Such an approach, moreover, is mindful of the overall sensitivity of the marine ecosystem, and reflects the fact that when ordering interim relief of this type, a court or tribunal applying UNCLOS Article 290 is protecting a collective interest wider than that immediately subject to litigation. In this, it is notable that in all three cases to date in which ITLOS has considered serious harm to the marine environment within a wider geographical area143 – Southern Bluefin Tuna, MOX Plant and Land Reclamation – the Tribunal has ordered the parties to cooperate with a view to minimizing the risk of environmental damage, even if more specific measures were not awarded.144

IV Inter-State Arbitration The decision of the Court of Arbitration in Kishenganga provides a contrast to the cases examined earlier, expressly denying as it does the applicability of the concepts of prejudice and urgency as developed by the ICJ.145 The failure of the Court to consider these prerequisites was not, however, a refusal to acknowledge them as – all other things being equal – generally 141

142 143

144

145

It is, on balance, not an endorsement, as evidenced by the 2011 finding of the ITLOS Sea Bed Disputes Chamber that the principle as set out in the Rio Declaration was by default non-binding (though it was also said that the Declaration ‘initiated a trend towards making the approach part of customary international law’): Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (2011) 150 ILR 244, 279–81. E.g. the need to demonstrate a link between the measures requested and the rights subject to litigation: see Chapter 5, §II.C. As opposed to the ship release cases of M/V Louisa, ARA Libertad and Arctic Sunrise, where the vessel that was the source of the alleged risk was held within the internal waters of one of the parties, and the danger to the wider marine environment contained accordingly. Robin Churchill, ‘Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the Law of the Sea During its First Decade’, in D Freestone, R Barnes and D M Ong (eds), The Law of the Sea: Progress and Prospects (Oxford: Oxford University Press, 2006) 388, 409–13. Indus Waters Kishenganga (Pakistan/India) (2011) 150 ILR 311, 350. Further: Yoshifumi Tanaka, ‘Note on the Interim Measures in the Indus Waters Kishenganga Arbitration’ (2012) 11 LPICT 555, 565–71.

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applicable, but rather a reflection of the lex specialis qualities of Paragraph 28 of Annexure G of the Indus Waters Treaty.146 The Court stated: [A]n interpretation of the term ‘necessary’ in Paragraph 28 that engrafts the requirements of ‘urgency’ and ‘irreparable injury’, as those concepts have been developed by the International Court of Justice in its case-law on provisional measures, is not required. One evidence reason not to import the ICJ’s provisional measures requirements is, of course, the difference in the respective wording of Article 41 of the ICJ Statute and Paragraph 28 of Annexure G. Paragraph 28 sets out three distinct, specific grounds on the basis of which the meaning of ‘necessity’ can be ascertained. It thus functions as a kind of lex specialis prescribed by the framers of that provision that makes unnecessary the imposition of further requirements.147

The Court then continued to examine the three grounds within Paragraph 28 on which interim relief could be validly awarded, noting that the framers of the Treaty had through their drafting indicated that only one of those criteria needed to be met to justify provisional measures, concluding that in the circumstances provisional measures were required to avoid prejudice to the final solution of the dispute.148 The conclusion of the Court in Kishenganga does not affect the argument that considerations of prejudice and urgency are ordinarily vital to the award of provisional measures in international law. This follows from: (a) the fact that provisional measures are an exceptional restraint on sovereign or party autonomy, and (b) provisional measures are incidental to the main subject of claim and should not be awarded unless that subject is under material threat. Consequently, when dealing with a court or tribunal whose power to order interim relief is either not expressed in its constituent instrument or procedural rules, or alternatively not described to the same level of detail as Paragraph 28 of Annexure G of the Indus Waters Treaty, prejudice and urgency should be assumed to be generally applicable. Even then, it may be argued, the Court of Arbitration in Kishenganga did not entirely ignore urgency and prejudice as factors crafting an award of interim relief – it merely considered that such factors were not on their own dispositive.149 The Court made express note of the fact that India’s activities to prepare for the construction of the Kishenganga Hydroelectric Project were ‘imminent’ and that accordingly: 146

147 149

See ibid, 566–8 arguing that urgency and prejudice are so essential to the raison d’ˆetre of provisional measures that they cannot be totally ignored, even in the absence of an express reference in the relevant provision. 148 Kishenganga (2011) 150 ILR 311, 350. Ibid, 352–3. Tanaka, ‘Note on the Interim Measures’, 570–1.

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[While the present proceedings are underway, works on the dam are likely to advance to a point where the possible restoration of the flow of the Kishenganga/Neelum to its natural channel will be rendered significantly more difficult and costly to the potential prejudice of any prescriptions that may be made by the Court in its Award.150

Reading between the lines, this paragraph seems to suggest that the Court was well aware of the situation, and resolved to take action accordingly. Consequently, whilst the Court did not feel bound under the terms of Paragraph 28 of Annexure G to utilize urgency and prejudice as prerequisites for the grant of provisional measures, it still saw such considerations as compelling intervention on an interim basis.

V Investor-State Arbitration A Prejudice Before Investor-State Arbitration Tribunals 1 ICSID Arbitration At one point in its history, it seemed that ICSID Article 47 would make express mention of a requirement of irreparable prejudice and urgency: a proposal to this effect was put forward during the negotiating of the ICSID Convention.151 Although this notion was eventually defeated, and Article 47 assumed the skeletal form of Article 41 of the ICJ Statute, it has nonetheless become clear through the ICSID jurisprudence that provisional measures will be awarded only where a substantial threat to rights pendente lite can be established152 (referred to occasionally as the requirement of ‘necessity’153 ). Considerations of harm – but not of irreparability – are visible in some of the early ICSID provisional measures decisions. In Amco v Indonesia, the 150 152

153

151 Kishenganga (2011) 150 ILR 311, 357. II-1 ICSID History 815. ICSID Commentary, 775–6; Loretta Malintoppi, ‘Provisional Measures in Recent ICSID Proceedings: What Parties Request and What Tribunals Order’, in C Binder et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Cambridge: Cambridge University Press, 2009) 157, 161–4; Gabrielle Kaufmann-Kohler and Aur´elia Antonietti, ‘Interim Relief in International Investment Agreements’, in K Yannica-Small (ed), Arbitration under International Investment Agreements: An Analysis of the Key Procedural, Jurisdictional and Substantive Issues (Oxford: Oxford University Press, 2010) 507, 540–1. Also: Biwater Gauff v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 1, 31 March 2006) §61. See e.g. Churchill Mining PLC v Indonesia, ICSID Case No ARB/12/14 (Procedural Order No 3, 4 March 2013) §42: ‘the requirement of necessity [ . . . ] implies the existence of a risk of irreparable or substantial harm’.

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respondent’s request for interim relief to forestall a press campaign relating to the arbitration by the claimant was phrased in terms of ‘irreparable harm to the economy of Indonesia’. Before going on to formulate a strict variant of the linkage test,154 the Tribunal found that the press campaign in question could not cause harm to the respondent.155 However, this decision aside, the early ICSID tribunals did not comment at great length about prejudice to rights and irreparability, being more concerned with promoting a unitary model of provisional measures that seemed to blend elements of measures for the protection of rights with measures for non-aggravation of the dispute.156 As the protection of rights pendente lite assumed importance in ICSID jurisprudence, tribunals began to develop a more advanced understanding of prejudice, turning unsurprisingly to the case law of the ICJ. In Occidental v Ecuador,157 the Tribunal invoked considerations of irreparability by reference to President Jim´enez de Ar´echaga’s separate opinion in Aegean Sea,158 with the same quote (a curious choice) reproduced in, inter alia, Phoenix Action v Czech Republic.159 In Plama v Bulgaria, the Tribunal found that ‘provisional measures must be urgent and necessary to preserve the status quo or avoid the occurrence of irreparable harm or damage’,160 before going on to note that irreparability was to be measured by reference to the possibility of monetary compensation,161 adopting the same standard by implication. 154 155

156

157 158 159 160 161

See Chapter 5, §II.C.3(a). Amco Asia Corporation v Indonesia, Provisional Measures (1983) 1 ICSID Reports 410, 411. Further: Paul Friedland, ‘Provisional Measures and ICSID Arbitration’ (1986) 2 Arb Int’l 335, 337. See e.g. the decision in Holiday Inns v Morocco, as described in Pierre Lalive, ‘The First “World Bank” Arbitration (Holiday Inns v Morocco) – Some Legal Problems’ (1980) 51 BYIL 123, 134: ‘parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general not allow any step of any kind to be taken which might aggravate or extend the dispute’. Occidental Petroleum Corporation v Ecuador, ICSID Case No ARB/06/11 (Provisional Measures, 17 August 2007) §59, 87–9. Aegean Sea, ICJ Reports 1976 p 3, 15: ‘whether the acts complained of are capable of causing or of threatening irreparable prejudice to the rights invoked’. Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/5 (Provisional Measures, 6 April 2007) §33. Plama Consortium Limited v Bulgaria, ICSID Case No ARB/03/24 (Order, 6 September 2005) §38 Ibid, §46. See also Metalclad Corporation v United Mexican States, ICSID Case No ARB(AF)/97/1 (Order for Non-Disclosure, 27 October 1997) §8; Helnan International Hotels v Egypt, ICSID Case No ARB/05/19 (Provisional Measures, 17 May 2006) §34; Tethyan Copper Company Pty Limited v Pakistan, ICSID Case No ARB/12/1 (Provisional Measures, 13 December 2012) §146. Other tribunals have simply referred to ‘irreparable’

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A further variation on this theme is contained in the 2006 UNCITRAL Model Law,162 Article 17A(1)(a) of which provides that provisional measures may be awarded where ‘[h]arm not adequately reparable by an award of damages is likely to result, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted’. Notwithstanding the fact that the Model Law is used almost exclusively in the context of international commercial arbitration,163 Article 17A(1)(a) was referred to with approval in both Quiborax v Bolivia164 and Burlington Resources v Ecuador,165 and was linked to the notion that ‘irreparable harm is harm that cannot be repaired by an award of damages’. This, however, is a misreading of Article 17A(1)(a), with the preparatory materials for that provision indicating that the wording chosen ‘addressed the concerns that irreparable harm might present too high a threshold and would more clearly establish the discretion of the arbitral tribunal in deciding upon the issuance of an interim measure’.166 The clear implication is that some lesser form of prejudice is sufficient to ground interim relief. For such a rigourous standard of irreparability to be adopted in the context of ICSID arbitration generates immediate problems, given that the overwhelming majority of claimants do not request restitution as a primary remedy but only compensation.167 If this is the case then it would be difficult to claim interim protection for rights arising from the subject matter of the claim (as opposed to procedural rights such as exclusivity of proceedings under Article 26 of the ICSID Convention) as any further breach of those rights would ipso facto sound in damages

162 163 164 165 166 167

prejudice without any further qualifier: Railroad Development Corporation v Guatemala, ICSID Case No ARB/07/23 (Provisional Measures, 15 October 2008) §34; Churchill Mining v Indonesia, ICSID Case No ARB/12/14, §42. UNCITRAL Model Law on International Commercial Arbitration (1985, amended 2006), www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07–86998 Ebook.pdf. Nigel Blackaby and Constantine Partasides, Redfern and Hunter on International Commercial Arbitration (Oxford: Oxford University Press, 5th edn, 2009) 68–81. Burlington Resources Inc and Ors v Ecuador and Empresa Estatal Petr´oleos del Ecuador, ICSID Case No ARB/08/5 (Procedural Order No 1, 29 June 2009) §79–82. Quiborax SA, Non-Metallic Minerals SA and Allan Fosk Kapl´un v Bolivia, ICSID Case No ARB/06/02 (Provisional Measures, 26 February 2010) §113. UNCITRAL, Report of the Working Group on Arbitration on the Work of its Fortieth Session, UN Doc A/CN.9/547 (23–27 February 2004) §§87–9. Indeed, some influential commentators argue that the only possible remedy under the ICSID Convention is compensation: Zachary Douglas, The International Law of Investment Claims (Cambridge: Cambridge University Press, 2009) 99–101; cf. Christoph Schreuer, ‘Non-Pecuniary Remedies in ICSID Arbitration’ (2004) 20 Arb Int’l 325.

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and thus not be ‘irreparable’.168 Considerations such as these may have motivated some recent tribunals to step away from the narrow standard of irreparability endorsed by the above tribunals and indeed to distance themselves from irreparability altogether, preferring instead a standard of ‘significant’ harm.169 This distancing is, in large part, premised on the fact that Article 47 of the ICSID Convention makes no mention of prejudice to rights as an essential prerequisite of interim relief. In City Oriente v Ecuador, the Tribunal considered earlier authorities and concluded that: The Tribunal has verified that neither Article 47 of the Convention nor Rule 39 of the Arbitration Rules require that provisional measures be ordered only as a means to prevent irreparable harm [ . . . ] Rule 39 refers only to ‘circumstances that require such measures’. It is the opinion of the Tribunal that this wording requires only that provisional measures must not be ordered lightly, but only as a last resort, after careful consideration of the interests at stake, weighing the harm spared the petitioner and the damage inflicted on the other party. It is not so essential that provisional measures be necessary to prevent irreparable harm, but that the harm spared the petitioner by such measures must be significant and that it exceed greatly the damage caused to the party affected thereby.170

A similar position has been adopted by the Tribunal in Perenco v Ecuador171 and defended by Sarooshi.172 Doctrinally speaking, opposition to the adherence to ICJ authority by ICSID tribunals is driven by the argument that there is no such thing as an ‘international jurisprudence’ of provisional measures173 and that the specialist remit of investment tribunals is sufficient justification for 168 169

170 171 172 173

Cf. Burlington Resources v Ecuador, ICSID Case No ARB/08/5, 75–85. Some commentators take the view that whether or not ‘irreparability’ is used as the touchstone of prejudice depends on whether the arbitrator is from a civil or common law background, with the latter more likely to have been ‘contaminated’ by the strict view of irreparability set down in American Cyanamid Co v Ethicon Ltd [1975] AC 396: Jeffrey Waincymer, Procedure and Evidence in International Arbitration (The Hague: Kluwer, 2012) 696; Luttrell, ‘In the round’, 405. That being said, some of the most trenchant critics of irreparability are common lawyers: see generally Dan Sarooshi, ‘Provisional Measures and Investment Treaty Arbitration’ (2013) 29 Arb Int’l 361. City Oriente v Ecuador and Empresa Estatal Petr´oleos del Ecuador, ICSID Case No ARB/06/21 (Revocation of Provisional Measures, 13 May 2008) §§70–2. Perenco Ecuador Ltd v Ecuador and and Empresa Estatal Petr´oleos del Ecuador, ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009) §43. Sarooshi, ‘Provisional Measures’. Cf. Brown, Common Law, ch 4; Cameron A Miles, ‘The Influence of the International Court of Justice on the Law of Provisional Measures’, in M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence of International Law (Cambridge: Cambridge University Press, 2015) 218.

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departure from the more utilitarian test of the ICJ.174 But whilst it is true that a number of alternative standards exist,175 it also remains true that, as the Tribunal in Casado v Chile pointed out, that Article 47 of the ICSID Convention ‘is directly inspired by Article 41 of the [ICJ Statute]’ and that for the purposes of interim relief in the ICSID System, ‘particular importance [ . . . ] can be accorded to the judgments given in the part by [the ICJ] and its predecessor’.176 Furthermore, it should be noted,177 a ready analogy to investor-state arbitration claims in the context of ICJ provisional measures can be found in diplomatic protection cases such as Anglo-Iranian Oil and Interhandel, to which the ICJ conception of interim relief was perfectly well-suited. That being said, the better argument is that the desire of some tribunals to develop a separate standard of prejudice distinct from that of the ICJ is based on a misreading of the Court’s case law. Whilst Aegean Sea and a narrow concept of irreparability may have proved a credible standard of prejudice in 1976, the more recent jurisprudence of the ICJ (as stated) focuses instead on questions related to the execution of the final judgment and the conduct of the respondent.178 This steadily widening margin of appreciation gives greater flexibility to the Court and is commensurate with the standard of ‘significant’ harm described in City Oriente v Ecuador and other cases. This much was made clear by the lengthy and persuasive analysis on this point by the Tribunal in CEMEX v Venezuela, which held that the two thresholds of harm – together with that provided by Article 17A(1)(a) of the 2006 UNCITRAL Model Law – prescribe the same functional standard.179 Consequently, in the final balance the dispute amounts to little more than a quarrel over labelling. This appears to have been realized more recently by the tribunal in PNGSDP v PNG, which said: [T]he term ‘irreparable’ harm is properly understood as requiring a showing of a material risk of serious or grave damage to the requesting party, and not harm that is literally ‘irreparable’ in what is sometimes regarded as the narrow common law sense of the term. The degree of ‘gravity’ or 174 175 176

177 179

As Sarooshi indeed does: ‘Provisional Measures’, 370–6. One identified by Sarooshi (ibid, 370) is that of the 2012 ICC Rules, Art 28(1) of which permits a tribunal to ‘order any interim or conservatory measure it deems appropriate’. Casado and President Allende Foundation v Chile, Provisional Measures (2001) 6 ICSID Reports 375, 377. See also CEMEX Caracas Investments BV and CEMEX Caracas II Investments BV v Venezuela, ICSID Case No ARB/08/15 (Provisional Measures, 3 March 2010) §39. Further: ICSID Commentary, 759; Chapter 3, §IV.B.1. 178 Sarooshi, ‘Provisional Measures’, 374–6. See above §II.A. CEMEX v Venezuela, ICSID Case No ARB/08/15, §§37–56.

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prejudice and urgency ‘seriousness’ of harm that is necessary for an order of provisional relief cannot be specified with precision, and depends in part on the circumstances of the case, the nature of the relief requested and the relative harm to be suffered by each party; suffice it to say that substantial, serious harm, even if not irreparable, is generally sufficient to satisfy this element of the standard for granting provisional measures.180

This observation notwithstanding, however, it would appear that even with a realistic appreciation of the threshold of prejudice required, ICSID (and, indeed other investor-state arbitral tribunals) tribunals are far more willing to deny interim relief on the basis that monetary damages will adequately compensate the applicant in the event that the matter is decided finally in their favour. This, however, is not due to any variation in standards between investor-state arbitration on the one hand and the rest of public international law on the other, but rather derives naturally from the fact that commercial damage can often by its very character be obviated through pecuniary means.181 This principle may nonetheless be abandoned in extreme cases, namely where (a) the investment in question remains a going concern despite the allegedly delinquent intervention of the state, and (b) on the basis of that continued intervention, there is a substantial risk that the investment will be destroyed or dissipated in its entirety.182 In Micula v Romania, for example, the Tribunal rejected a formalistic approach to the question of prejudice and compensation when considering whether measures should be awarded where Romania issued seizure orders against the claimants’ assets, which were to be auctioned to satisfy various tax debts and penalties. In response to the Romanian argument that any damage could be made good in the final award, the Tribunal held that ‘the protection of a business as a going concern justifies the recommendation of provisional measures, regardless of whether the destruction of such a business could formally be compensated by an award of damages’.183 Similarly, in Perenco v Ecuador, the Tribunal held that ‘[i]f Perenco’s business in Ecuador was effectively brought to an end [by seizure of assets], such injury could not, 180

181 182 183

PNG Sustainable Development Program Ltd v Papua New Guinea, ICSID Case No ARB/33/13 (Provisional Measures, 21 January 2015) §109. See also Hydro Srl and Ors v Albania, ICSID Case No ARB/15/28 (Provisional Measures, 3 March 2016) §3.13. Federico Campolieti, ‘The Rule of Non-Aggravation of the Dispute in ICSID Arbitration Practice’ (2015) 30 ICSID Rev – FILJ 217, 220–3. Sam Luttrell, ‘ICSID provisional measures in the round’ (2015) 31 Arb Int’l 393, 404. Ioan Micula, Viorel Micula, SC European Food SA, SC Starmill SRL and SC Multipack SRL v Romania, ICSID Case No ARB/05/20 (Provisional Measures, 2 March 2011) §68.

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in the Tribunal’s judgment, be adequately compensated by an award of damages should its claim ultimately be upheld’.184 Destruction of a going concern can therefore provide a claimant with a method to satisfy the criterion of prejudice even where damages alone are claimed as a final remedy. That being said, even with a relaxed appreciation of these issues, the applicable law of the arbitration may nonetheless compel a restrictive conclusion. In Bear Creek Mining v Peru, Article 841 of the Canada–Peru FTA provided that a respondent state could always choose to pay monetary damages in lieu of restitution by way of final remedy, a factor that the Tribunal took into account in determining that no threat of irreparable or substantial harm existed.185

2 UNCITRAL Arbitration The UNCITRAL practice on the question of irreparable prejudice begins with the practice of the Iran–US Claims Tribunal.186 Like the other courts and tribunals surveyed, Article 26 of the 1976 UNCITRAL Rules includes no express criterion of prejudice as a precondition for interim relief.187 This silence may account for some of the Tribunal’s earlier awards, in which requests for relief were rejected summarily without anything in the way of detailed reasoning.188 As the Tribunal’s jurisprudence grew in complexity, however, the standard of irreparable prejudice began to 184 185

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Perenco v Ecuador, ICSID Case No ARB/08/6, §46. See also CEMEX v Venezuela, ICSID Case No ARB/08/15, §5. Bear Creek Mining Corporation v Peru, ICSID Case No ARB/14/21 (Procedural Order No 2, 19 April 2015) §72. It should be added, however, that in that case the investment was not a going concern – had it been, the result might have been different. See David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran–United States Claims Tribunal’ (1986) 46 Za¨oRV 465, 491–7; Jacomijn J van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran–US Claims Tribunal (Deventer: Kluwer, 1991) 189–90; Stewart A Baker and Mark D Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran–United States Claims Tribunal (Deventer: Kluwer, 1992) 139–40; Charles N Brower and Jason D Brueschke, The Iran–United States Claims Tribunal (The Hague: Martinus Nijhoff, 1998) 226–9; David D Caron, Lee M Caplan and Matti Pellonp¨aa¨ , The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2006) 536–7; Kaufmann-Kohler and Antonietti, ‘Interim Relief’, 541–4. That said, 1976 UNCITRAL Art 26 would, by its terms, appear to permit interim relief even where prejudice can be the subject of monetary compensation though allowing the sale of perishable goods. As Caron points out, the loss of goods, the sale price of which may be readily ascertained, ipso facto cannot be considered irreparable: Caron, ‘Interim Measures’, 493. See e.g. Fluor Corporation v Iran and National Iranian Oil Co (1982) 1 Iran–US CTR 121, 121.

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find its way into its case law on provisional measures. The standard so adopted in Cases A-4 & A-15 was the restrictive understanding of irreparability found in Aegean Sea, whereby ‘no exercise of [the] power [to award provisional measures] is required if the alleged breach by of the parties of the rights claimed by the other party is one that is capable of reparation by appropriate means’.189 Consequently, in that case, Iran submitted a request to asking that the US be enjoined from auctioning off moveable properties of the Iranian Embassy and Consulates in the US. As the properties in question were not unique or otherwise irreplaceable, the Tribunal held that damages could serve as adequate compensation, and refused to grant relief.190 This position was confirmed in the context of a dispute between a private investor and the state in Boeing Company v Iran, in which the Tribunal refused to order that the claimant refrain from enforcing a domestic judgment in its favour against the Iranian Air Force on the basis that the monetary damages that would be received as a result of that enforcement could themselves be reversed through monetary damages.191 That being said, however, the Aegean Sea concept of irreparability was applied inconsistently by the Iran–US Claims Tribunal, most likely because – as ICSID tribunals were later to discover – the standard took on obdurate qualities in a commercial context.192 An attempt to soften the standard was made by the Tribunal in Behring International v Iranian Air Force, a case concerning, inter alia, the detention of the respondent’s goods by the claimant and allegations of spoliation and/or deterioration thereof. Notwithstanding the fact that the goods could be the subject of monetary compensation if lost, the Tribunal nonetheless 189

190 191

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Iran v US (A-4 and A-15) (1984) 5 Iran–US CTR 112, 113, citing Aegean Sea, ICJ Reports 1976 p 3, 15 (President Jim´enez de Ar´echaga). The curious choice to cite President Jimenez de Ar´echaga’s Separate Opinion as opposed to that of the majority in Aegean Sea may have influenced the later adoption of the same quote by various ICSID tribunals: above §IV.A.1. Ibid, 114. Boeing Company v Iran (1984) 5 Iran–US CTR 152, 154. Also: Paul Donin de Rosiere and Panacaviar SA v Iran and Sherkat Sahami Shilat Iran (1986) 13 Iran–US CTR 193, 198; Iran v US (B1) (1989) 22 Iran–US CTR 105, 109; Iran v US (A-15(IV) and A24) (1993) 29 Iran–US CTR 214, 218. Caron, ‘Interim Measures’, 492. Under this approach, an exception was made with respect to measures to suspend parallel proceedings. As such proceedings directly contravened the Tribunal’s exclusivity of jurisdiction, as guaranteed by Art VII(2) of the Algiers Declaration, it was held that ‘questions of whether [ . . . ] an award of damages [in the parallel proceedings] would constitute grave or irreparable harm, become irrelevant’: Aeronutronic Overseas Services Inc v Iran (1985) 8 Iran–US CTR 75, 77–8.

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held that ‘[t]he conditions under which the goods are presently stored are inadequate to conserve and protect them and irreparable prejudice to Respondent’s asserted rights may result if they are transferred to a more appropriate facility’.193 Furthermore, in a lengthy footnote, the Tribunal discussed the concept of irreparable prejudice, and distinguished it from the Anglo-American concept of irreparable injury, noting that while ‘the latter formulation requires a showing that the injury complained of is not remediable by an award of damages [ . . . ] the former does not necessarily so require’, drawing attention to the ICJ’s discussion of prejudice in Anglo-Iranian Oil, Nuclear Tests and Fisheries Jurisdiction.194 Of the cases discussed above, the approach taken in Behring International v Iranian Air Force has been the most enduring195 – at least within those ad hoc investor-state arbitrations that have also applied Article 26 of the 1976 UNCITRAL Rules. In Paushok v Mongolia, the claimant sought provisional measures to suspend application of various items of Mongolian tax legislation. The respondent, referring to various ICSID decisions on the question of irreparable prejudice, including Occidental Petroleum v Ecuador and Plama v Bulgaria, argued that the possibility of monetary compensation precluded irreparable prejudice and consequently the award of interim relief. The Tribunal, however, disagreed, citing the decision of the Iran–US Claims Tribunal in Behring International v Iranian Air Force and Article 17A of the 2006 UNCITRAL Model Law, and further stating that it shared the view ‘that [ . . . ] “irreparable harm” in international law has a flexible meaning’196 before going on to award provisional measures. 193 194

Behring International Inc v Iranian Air Force (1985–I) 8 Iran–US CTR 237, 276. Ibid, 276 (fn. 50). A similar reconciliation of commercial reality and ICJ jurisprudence occurred in the ICSID context in CEMEX v Venezuela. See further Klaus Peter Berger, International Economic Arbitration (The Hague: Kluwer, 1993) 336, commenting with respect to the 1976 UNCITRAL Rules: To preserve the legitimate rights of the requesting party, the measures must be ‘necessary’. This requirement is satisfied if the delay in the adjudication of the main claim caused by the arbitral proceedings would lead to a ‘substantial’ (but not necessarily ‘irreparable’ as known in the common law doctrine) prejudice for the requesting party.

195 196

Luttrell, ‘In the round’, 404. Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia, UNCITRAL (Interim Measures, 2 September 2008) §§63–9. The tribunal in EnCana v Ecuador held that proof of irreparable prejudice was an essential prerequisite for the award of provisional measures, but did not elaborate further on the standard: EnCana Corporation v Ecuador, LCIA Case No UN3481 (Interim Award, 31 January 2004) §13.

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Within the context of the 2010 UNCITRAL Rules, a lesser standard reaffirmed Behring International v Iranian Air Force and Paushok v Mongolia appears to have prevailed.197 Article 26(2)(b)(i) expressly provides that provisional measures may be awarded so as to prevent ‘current or imminent harm’, with the absence of the qualifying adjective ‘irreparable’ clearly implying that interim relief and monetary compensation for prejudice suffered are not mutually exclusive. This is reaffirmed in Article 26(3)(a) which refers to ‘[h]arm not adequately reparable by an award of damages’. This phrasing was, in turn, drawn from Article 17A(1)(a) of the 2006 UNCITRAL Model Law, which as mentioned contemplates a standard of prejudice beneath that of strict irreparability.

B Urgency Before Investor-State Arbitration Tribunals 1 ICSID Arbitration (a) General Considerations of Urgency As with irreparable harm, urgency is mentioned nowhere in the text of Article 47 of the ICSID Convention, but has nonetheless developed over time to become a vital prerequisite of interim relief in the investor-state context: as Schreuer et al. have noted, ‘it is clear that provisional measures will only be appropriate where a question cannot await the outcome of an award on the merits’.198 That being said, some tribunals have not addressed urgency expressly, instead referring only to a burden on the applicant to demonstrate why its application should be granted.199 Recent practice, however, has been for tribunals to refer to urgency as a distinct concept. In Saipem v Bangladesh, the Tribunal noted that ‘Article 47 [ . . . ] requires that the requested measure be both necessary and urgent’.200 In Phoenix Action v Czech Republic, it was said that ‘[i]t is common understanding that provisional measures should only be granted in situations of absolute necessity 197

198 199 200

David D Caron and Lee M Caplan, The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2nd edn, 2012) 521–2; Kaufmann-Kohler and Antonietti, ‘Interim Relief’, 543–4. ICSID Commentary, 775, approved in Biwater Gauff v Tanzania, Procedural Order No 1, ICSID Case No ARB/05/22, §68. See e.g. Emilio Agust´ın Maffezini v Spain, Procedural Order No 2 (1999) 5 ICSID Reports 393, 394. Saipem SpA v Bangladesh, ICSID Case No ARB/05/7 (Decision on Jurisdiction and Provisional Measures, 21 March 2007) §174.

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and urgency, in order to protect rights that could, absent those measures, be definitively lost’.201 In Plama v Bulgaria, it was declared that ‘[t]he need for provisional measures must be urgent and necessary to protect the status quo or avoid the occurrence of irreparable harm or damage’.202 It is, moreover, tolerably clear that urgency in the ICSID context has developed along similar lines to those set out by the ICJ in Great Belt,203 with the Court’s discussion in that decision referred to in cases such as Occidental v Ecuador204 and Millicom v Senegal.205 Further elaboration was provided by the Tribunal in Biwater Gauff v Tanzania, which said: In the Arbitral Tribunal’s view, the degree of ‘urgency’ which is required depends on the circumstances, including the requested provisional measures, and may be satisfied where a party can prove that there is a need to obtain the requested measures at a certain point in the procedure before the issuance of an award. In most situations, this will equate to ‘urgency’ in the traditional sense (i.e. a need for a measures in a short space of time). In some cases, however, the only time constraint is that the measure be granted before an award – even if the grant is to be some time hence. The Arbitral Tribunal also considers that the level of urgency required depends on the type of provisional measure that is requested.206

(b) Risk of Materialization and Axiomatic Urgency When assessing the likelihood that prejudice will arise prior to the likely date of disposal, ICSID tribunals have clearly indicated that the possibility of materialization must be more than fanciful. In a comparatively early decision, the tribunal in Azurix v Argentina held that urgency as a prerequisite is ‘related to the imminent possibility that the rights of a party be prejudiced before the tribunal has rendered its award’.207 Adopting a more rigourous standard, the tribunal in Occidental v Ecuador noted that the mere possibility of future harm was not sufficient to justify relief: 201

202 203 204 205 206 207

Phoenix Action v Czech Republic, ICSID Case No ARB/06/6 (Provisional Measures, 6 April 2007) §32. In identical terms, see Occidental v Ecuador, ICSID Case No ARB/06/11, §43. Plama v Bulgaria, ICSID Case No ARB/03/24, §38. ICSID Commentary, 777; Kaufmann-Kohler and Antonietti, ‘Interim Measures’, 535. Occidental v Ecuador, ICSID Case No ARB/06/11, §59. Millicom International Operations BV and Sentel GSM SA v Senegal, ICSID Case No ARB/08/20 (Provisional Measures, 9 December 2009) §48. Biwater Gauff v Tanzania, ICSID Case No ARB/05/22, Procedural Order No 1, §76. Azurix Corporation v Argentine Republic, ICSID Case No ARB/01/12 (Provisional Measures, 6 August 2003) §33.

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prejudice and urgency Provisional measures are not meant to protect against any potential or hypothetical harm susceptible to result from uncertain actions. Rather, they are meant to protect the requesting party from imminent harm.208

More recently, the tribunal in PNGSDP v PNG held that a party seeking provisional measures needed to demonstrate a ‘material risk’ that the contemplated harm would materialize, and furthermore, that this did not ‘imply a showing of any particular percentage of likelihood, or probability, that the risk will materialize’. Rather, what was required was simply ‘the existence of a sufficient risk or threat that grave or serious harm will occur if provisional measures are not granted’.209 A further elaboration on this was made by the Tribunal in Hydro v Albania when considering whether to order that the respondent suspend extradition proceedings against certain of the claimants in England. The respondent noted – perhaps by reference to Interhandel – that the extradition proceedings were in no danger of concluding in the near future, and that any risk to the claimants’ was therefore not imminent. The Tribunal, mindful of the institutional constraints under which it operated, rightfully disagreed: The Tribunal accepts that the extradition proceedings may take some time, perhaps weeks or even months. However, if the British authorities decide to extradite, it would take some time for the Claimants to seek further orders from this Tribunal and extradition may be an accomplished fact by the time an order is made. The Tribunal therefore considers that there is an imminent risk to the Claimants’ ability to effectively participate in this arbitration.210

An interesting elaboration in the jurisprudence of ICSID tribunals with respect to urgency is the concept of ‘axiomatic’ urgency,211 the parameters of which may be seen in City Oriente v Ecuador. There, the Tribunal said in relation to an application to suspend parallel proceedings: In the Tribunal’s opinion, the passing of the provisional measures is indeed urgent, precisely to keep the enforced collection or termination proceedings from being started, as this operates as a pressuring mechanism, aggravates and extends the dispute and, by itself, impairs the rights which Claimant seeks to protect in this arbitration. Furthermore, where, as is the case there, the issue is to protect the jurisdictional powers of the Tribunal 208 209 210 211

Occidental v Ecuador, ICSID Case No ARB/06/11, §89. PNGSDP v PNG, ICSID Case No ARB/33/13, §111. Hydro v Albania, ICSID Case No ARB/15/28, §3.29. Luttrell, ‘In the Round’, 402.

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and the integrity of the arbitration and the final award, then the urgency requirement is met by the very nature of the issue.212

Put another way, when the rights that the applicant seeks to have protected are procedural in nature, such that they may only exist for the duration of the arbitral proceedings, then the requirement of urgency may be deemed to be automatically satisfied. City Oriente v Ecuador is one example of this, dealing as it did with the right to jurisdictional exclusivity under Article 26 of the ICSID Convention. In Abaclat v Argentina, the respondent filed a request for provisional measures requesting, inter alia, an urgent hearing for the questioning of certain witnesses and an injunction to prevent the applicant from destroying certain documents. The Tribunal held that the first request failed for lack of urgency,213 but went on to hold that the requirement was made out with respect to the second. However, it declared in relation to the latter that ‘even if urgency were not at stake, the Tribunal finds that it can recommend provisional measures for the preservation of the Respondent’s rights of defence’.214 A slightly different emphasis was placed on the same principle by the tribunal in Quiborax v Bolivia, which recognized a general right to the procedural integrity of the arbitral tribunal as inhering in the parties. Measures designed for the protection of this right were considered to be urgent ipso facto, as any prejudice to them necessarily could only occur prior to the issuing of the final award – consequently, urgency did not need to be proved independently. The Tribunal said: The Tribunal agrees with Claimants that if measures are intended to protect the procedural integrity of the arbitration, in particular with respect to access to or integrity of the evidence, they are urgent by definition. Indeed the question of whether a Party has the opportunity to present its case or rely on the integrity of specific evidence is essential to (and therefore cannot await) the rendering of an award on the merits.215

2 UNCITRAL Arbitration Article 26 of the 1976 UNCITRAL Rules makes no mention of urgency as a separate prerequisite of the award of interim relief, and indeed was often treated within the jurisprudence of the Iran–US Claims Tribunal as 212 213 214

City Oriente v Ecuador, ICSID Case No ARB/06/21, §69 (emphasis added). Abaclat and Ors v Argentine Republic, ICSID Case No ARB/07/5 (Procedural Order No 11, 27 June 2012) §14. 215 Ibid, §20. Quiborax v Bolivia, ICSID Case No ARB/06/02, §153.

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being a facet of the requirement of prejudice,216 i.e. in that prejudice must be imminent in order to be considered sufficiently significant to justify provisional measures. In Atlantic Richfield v Iran, for example, the respondent requested interim relief with respect to certain attachment orders obtained against the assets of the Lavan Petroleum Company (LAPCO) in relation to US proceedings commenced prior to the signing of the Claims Settlement Declaration. Following the signature of the Declaration, all Iranian assets were to be transferred to the US Federal Reserve for subsequent return to Iran. The claimant refused to release the assets on the basis that the oil company in question was not an Iranian entity within the meaning of the relevant legislation. The Tribunal refused to grant interim relief as there did not appear to be any threat of grave or irreparable damage to Iran or LAPCO, but that, on the contrary ‘the preservation of the status quo seems assured by the continued blocking of the LAPCO account and the suspension of the New York Court Proceedings pending the Tribunal’s determination of the present case’.217 Put another way, as LAPCO’s US assets were frozen and could not be accessed until the Tribunal’s award (if any) was satisfied, then the contemplated harm could not possibly be realized prior to the date of judgment and the situation was, accordingly, not urgent. The result was not dissimilar to that contemplated by the ICJ in Interhandel,218 in which the assets that were the subject of the claim could also not be diminished prior to final judgment such that relief was not required. In this connection, the Iran–US Claims Tribunal was also willing to consider undertakings by the parties as obviating the need for provisional measures. In Fluor Corporation v Iran, the claimant instituted parallel arbitration proceedings before an ICC tribunal in alleged violation of Article VII(2) of the Claims Settlement Declaration. However, it indicated before the Tribunal that these proceedings were only launched to protect itself against a time bar in the event that the Tribunal determined that it did not have jurisdiction, and that it had no intention of proceeding before the ICC until such a determination had been made. Consequently, the Tribunal decided that it would be inappropriate to grant provisional measures staying the ICC proceedings.219 Similarly, in Panacaviar v Iran, the Tribunal considered interim relief in the context of parallel 216 217 218

Caron, ‘Interim Measures’, 497; Kaufmann-Kohler and Antonietti, ‘Interim Relief’, 535. Atlantic Richfield Company v Iran, the National Iranian Oil Company and Lavan Petroleum Company (1985) 8 Iran–US CTR 179, 182. 219 Above §II.B.2. Fluor Corporation v Iran (1986) 11 Iran–US CTR 296, 298.

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proceedings launched by the claimant in the Civil Court of Basel. The claimant, however, assured the Tribunal that it did not intend ‘to obtain judgment from another court on the merits of the issues before this Tribunal’ and, in the absence of a contrary characterization of the Basel proceedings from the respondent, took the claimant at its word and denied interim relief.220 Although some commentators have argued that the existence of the Tribunal’s Security Account – a fund held on trust for the payment of awards to which access might be barred for poor behaviour – provided a powerful guarantee of compliance with such undertaking and that, absent such incentive, reliance on a ‘mere assertion’ may be inappropriate,221 such reservations seem to undervalue the binding character of a party’s representations. A failure to adhere to such a representation without good reason should certainly have dire consequences along similar lines to the domestic concept of civil contempt of court. Considerations of urgency have been the subject of more express discussion in more recent UNCITRAL cases. In Paushok v Mongolia, urgency was listed as the third of the five ‘internationally recognized [ . . . ] standards’ to be met prior to the award of provisional measures.222 Urgency was further identified with respect to the relevant Mongolian tax legislation, which if not immediately suspended by way of interim relief would generate a ‘real likelihood’ of bankruptcy on the part of the claimant.223 The Tribunal in EnCana v Ecuador took a similar view on the need for urgency224 in the context of Ecuadorian proceedings against a subsidiary of the claimant for the recovery of incorrectly refunded tax. After receiving assurances from the respondent that such proceedings were perfectly normal and that the affected entities would be given every opportunity to appeal within the Ecuadorian courts, the Tribunal decided that provisional measures were not required.225 There is no reason to think that urgency will be any less important under Article 26 of the 2010 UNCITRAL Rules, with paragraph 2(b)(i) of that provision authorizing a tribunal to take action in the presence of ‘current or imminent harm’, and paragraph 3(a) describing such harm as being ‘likely to result’ if action is not taken. Such language is redolent of the international standard of urgency that has been consistently employed by 220 221 223

Paul Donin de Rosiere and Panacaviar SA v Iran and Sherkat Sahami Shilat Iran (1986) 13 Iran–US CTR 193, 197–8. 222 Van Hof, UNCITRAL Commentary, 191. Paushok v Mongolia, UNCITRAL, §45. 224 225 Ibid, §61. EnCana v Ecuador, LCIA Case No UN3481, §13. Ibid, §§17–19.

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other courts and tribunals, and its use in the context of Article 26 should be taken as an invitation to later adjudicative bodies to adhere to the jurisprudence constante.

VI Conclusions Questions of urgency and prejudice constitute a (if not the) core consideration of any application for provisional measures, and are treated by international courts and tribunals with sensitivity as a consequence. Though their application is fact-dependent, tropes and patterns emerge. In the first place – certain atavistic decisions notwithstanding – courts and tribunals appear to be moving steadily away from the notion, expressed by President Huber in the Sino-Belgian Treaty case, that harm must be irreparable by way of restitution, compensation or other means before provisional measures may be granted. Rather, ‘irreparable’ prejudice (so-called) is effectively coterminous with the concept of ‘significant’ harm that has been deployed by certain ICSID tribunals affecting rebellion against the jurisprudence of the ICJ. In certain contexts, irreparability may also be affected by the measure of contempt that the act in question shows for the counterparty in the relevant litigation or arbitration – or the system of international adjudication as a whole. However, the field remains in a state of mild confusion due to the insistence of certain courts and tribunals on using the word ‘irreparable’ to describe the harm required when in reality meaning something less rigourous. Urgency, on the other hand, enjoys comparative consistency of meaning between the different courts and tribunals. The harm contemplated must occur (or rather, possess a significant risk of occurring) prior to a contemplated point – usually the determination of proceedings, but occasionally earlier, as in the case of ITLOS awarding provisional measures on behalf of an Annex VII tribunal under UNCLOS Article 290(5). There is also the case of axiomatic urgency when considering the protection of purely procedural rights, which does not so much alter the content of the requirement but find it to be automatically satisfied. But even this area retains its uncertainties, in particular the effect of representations or undertakings by a respondent as a means of dispelling a sense of urgency and thus preventing the award of provisional measures. Previously the subject of some certainty, the decision of the ICJ in Certain Documents and Data indicates that a respondent may not be safe in proposing such an undertaking unless it completely eliminates the contemplated harm.

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Whilst this position was criticized by a not-insubstantial minority of the ICJ, until it receives further clarity, a respondent would be well advised in erring on the side of caution when drafting an undertaking, and avoid limiting the effect of that representation by reference to the precise prejudice contemplated.

7 Content and Enforcement

Throughout, the whole question [of the binding character of provisional measures] was bathed in a mysterious and disquieting half-light, provoking such a strange sense of nervous expectation that the only true comparison is with feelings aroused by certain artistic movements by, for example, the opening bars of Beethoven’s Ninth Symphony.1

I Introduction For nearly eight decades, the most significant2 controversy concerning provisional measures was the question of their binding effect. However, whilst most of the major treatises on the subject addressed this topic at length,3 the ICJ persistently refused to rule on the issue, despite continued breaches of orders made under Article 41 of its Statute. With the expansion of the system of international adjudicatory bodies from the 1970s onwards, other international courts and tribunals took a position, invariably determining that provisional measures ordered within their particular remits were considered binding. Finally, in 2001, in the landmark case of LaGrand,4 the ICJ pronounced definitively that 1 2

3

4

Robert Kolb, The International Court of Justice (Oxford: Hart, 2013) 638. The only contender in this respect is the comparatively short-lived debate concerning jurisdiction to award interim relief, which emerged in 1951 in Anglo-Iranian Oil and was effectively resolved by the Fisheries Jurisdiction cases in 1972: see further Chapter 4, §IV. See e.g. Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) 168ff; Jerome Elkind, Interim Protection: A Functional Approach (The Hague: Kluwer, 1981); ch 6; Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer, 1983) 260ff. LaGrand (Germany v US), ICJ Reports 2001 p 466. Noted: Xiaodong Yang (2001) 60 CLJ 441; William J Aceves (2002) 96 AJIL 210; Martin Mennecke and Christian J Tams (2002) 51 ICLQ 449; Tim Stephens (2002) 3 MJIL 143. Also: Robert Jennings, ‘The LaGrand Case’ (2002) 1 LPICT 13; Jochen A Frowein, ‘Provisional Measures by the International Court of Justice – The LaGrand Case’ (2002) 62 Za¨oRV 55; Cameron A Miles, ‘LaGrand (Germany v United States of America)’, in E Bjorge and C A Miles (eds), Landmark Cases in Public International Law (Oxford: Hart, 2017) ch 23.

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parties appearing before it were required by international law to comply with its ‘indications’ on interim relief, in the process fundamentally changing the law of provisional measures. This chapter deals with the ICJ’s decision in LaGrand (as well as with similar decisions before other international courts and tribunals) and the wider consequences for provisional measures. Firstly, it will set out the debate on interim relief as it occurred prior to LaGrand, assess the ICJ’s reasoning in that case, and discuss its implications for international courts and tribunals more generally. Secondly, it will discuss issues pertaining to the content of provisional measures in light of their binding character, particularly the question of interim judgments and the requirement of proportionality in the award of interim relief. Finally, it will examine the logical end point of binding provisional measures: their enforcement. Although the provisional measures of the ICJ have been breached frequently and sometimes flagrantly, the Court has yet to develop a convincing and effective response, prompting a turn to the practice of other bodies to identify solutions.

II The Binding Character of Provisional Measures A Early Debates Concerning the Permanent Court of International Justice and Beyond Following LaGrand, the question of whether provisional measures awarded under Article 41 of the ICJ Statute were binding became otiose. That being said, the Court’s reasoning in that case was firmly grounded in the preexisting debate, a subject worthy of brief reprise.5 This preexisting material falls into three categories: (1) arguments concerning the interpretation of Article 41 of the PCIJ and ICJ Statute; (2) arguments concerning the binding character of provisional measures as a general principle of international law; and (3) judicial pronouncements on the subject, both before the ICJ and other international courts and tribunals. 5

Summarized more fully by Peter A Bernhardt, ‘The Provisional Measures Procedure of the International Court of Justice through US Staff in Tehran: Fiat Iusticia, Pereat Curia?’ (1980–1981) 20 Va JIL 556, 604–9; Elkind, Interim Protection, 153–63; Sztucki, Interim Measures, 280–7; J¨org Kammerhofer, ‘The Binding Nature of Provisional Measures of the International Court of Justice: The “Settlement” of the Issue in the LaGrand Case’ (2003) 16 LJIL 67, 68–72; Antonios Tzanakopoulos, ‘Provisional Measures Indicated by International Courts and Tribunals: Emergence of a General Principle of International Law’ (2004) 57 RHDI 53, 56–69. For a useful bibliography, see Kolb, International Court, 644–5.

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1 Arguments Concerning Article 41 of the PCIJ and ICJ Statute The ambiguous wording of Article 41 of the PCIJ and ICJ Statute, combined with the persistent refusal of the Court to indicate whether it considered orders given under that provision to possess binding effect, gave rise to many problems regarding its interpretation. Prior to LaGrand, the debate over Article 41 hinged on textual and historical questions, with the clear preponderance of views being that interim relief ordered by the Court was not mandatory.6 As described in Chapter 2,7 the PCIJ’s experience with Article 41 of its Statute was uneven; it dealt with applications for provisional measures on six occasions, and awarded interim relief in only two of these. On both those occasions – the Sino-Belgian Treaty case8 and Electricity Company9 – the effectiveness of interim relief was and is difficult to assess, due to the rapid withdrawal of the case in the former situation, and the onset of World War II in the latter. The PCIJ was never required to determine whether either of these orders was mandatory. But the question of whether Article 41 was capable of producing a binding form of interim relief was debated on occasion during both the drafting of the PCIJ Statute and the various amendments to its procedural rules.10 The impression that one gets from the early deliberations of the PCIJ (and especially from those concerning the amendment of the Court’s Rules in 193111 ) is that provisional measures as ordered under Article 41 of the PCIJ Statute were not considered to be binding. This impression was doubtlessly reinforced by the language of Article 41 itself, which read as follows: The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either party. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties as the Council. 6 8 9 10

11

7 Tzanakopoulos, ‘General Principle’, 56. Chapter 2, §IV. Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v China) (1927) PCIJ Ser A No 8. Further: Chapter 2, §IV.C.1. Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79. Further: Chapter 2, §IV.C.6. Dumbauld, Interim Measures, 144–68; Elkind, Interim Protection, chs 3 and 4; Sztucki, Interim Measures, 263–70; Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2004) 22–6, 62–8. Further: Chapter 2, §IV.A–B. Generally: Modification of the Rules (1931) PCIJ Ser D No 2, Add 2.

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The use of less than mandatory language in Article 41 (e.g. ‘indicate’ and ‘suggest’) – which remained largely unchanged on its incorporation into the ICJ Statute12 – prompted a number of commentators (includ˚ Hammarskj¨old13 ) to coning the Court’s long-serving Registrar, Ake clude that orders made under the provision were at best hortatory.14 Another, contextual, factor informed this conclusion:15 Article 41 was placed in Chapter III of the PCIJ Statute, which dealt with procedural rather than substantive matters.16 Seen in such a light, provisional measures carried only a moral obligation of compliance. As Dumbauld put it: [T]he Court’s decision is really a special form of advisory opinion [ . . . ] strictly confined to declaring what action is required by international law to safeguard the legal rights of the parties. Though not formally binding, such a decision is of great weight, as being the solemn pronouncement of a learned and august tribunal acting in the course of its official duty.17

Notably, Dumbauld did not exclude the possibility that provisional measures could be made binding through specific wording to this effect,18 12 13

14

15 16

17

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Chapter 3, §II.B. ˚ Hammarskj¨old, ‘Quelques aspects de la question des mesures conservatoires en droit Ake international positif’ (1935) 15 Za¨oRV 5, 20. Hammarskj¨old served as Registrar from 1922–1936, at which time he was elected a judge of the Court. See e.g. Peter Goldsworthy, ‘Interim Measures of Protection in the International Court of Justice’ (1974) 68 AJIL 258, 273–4; Leo Gross, ‘Some Observations on Provisional Measures’, in Y Dinstein (ed), International Law in a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1989) 307, 307; Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992) 234 Hague Recueil 19, 216–20; H W A Thirlway, ‘Indication of Provisional Measures by the International Court of Justice’, in R Bernhardt, Interim Measures Indicated by International Courts (Berlin: ´ ‘Provisional Measures in the World Court: Springer-Verlag, 1994) 1, 28–9; Eelco Szabo, Binding or Bound to be Ineffective?’ (1998) 10 LJIL 475, 477–8. John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford: Oxford University Press, 1999) 174–5. Kammerhofer, ‘Binding Nature’, 70–1. Hammarskj¨old, ‘Quelques aspects’, 25–7. See further the PCIJ’s pronouncement (in a less contested context) in Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser A No 22, 13 that its orders have no final force or binding effect ‘in deciding the dispute brought [ . . . ] before the Court’. This statement, however, applies only to the Court, and has no wider bearing on whether orders may be binding on the parties pendente lite. ´ ‘Binding or Bound to be Ineffective’, Dumbauld, Interim Protection, 169. Also: Szabo, 488–9. Within the PCIJ itself, see (1931) PCIJ Ser D No 2, Add 2, 183–4 (Fromageot, Hurst and Rolin-Jaequemyns). Dumbauld, Interim Protection, 168.

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citing the Locarno Treaties19 and the General Act for the Pacific Settlement of International Disputes.20 But other scholars noted that such analyses of Article 41 generally did not take into account the French text of the provision,21 which read as follows: La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent ˆetre prises a` titre provisoire En attendant l’arrˆet d´efinitive, l’indication de ces mesures est imm´ediatement notifi´ee aux parties et au Conseil.

This rendering of Article 41 differs in several vital respects from the English text: the phrase ‘doivent ˆetre prises’ is not the precise equivalent of the phrase ‘ought to be taken’, with the former being on the whole more ‘normative’ or ‘mandatory’ than the latter.22 Furthermore, the English phrase ‘the measures suggested’ is rendered in French as simply ‘ces mesures’, excluding the vital adjective. The French text, moreover, was the original rendering of Article 41. With respect to the contextual argument raised by Hammarskj¨old, other commentators noted that Chapter III of the PCIJ Statute in fact contained several important provisions with binding effect on proceedings,23 and that furthermore, mandatory domestic analogues to provisional measures were also considered procedural in character.24 As for the argument that a moral obligation of compliance 19

20 21 22

23

24

Being the series of treaties concluded between Germany and several other European states in 1925: see e.g. the Germany–Sweden Agreement, 29 August 1924, 42 LNTS 125, Art 23; the Finland–Germany Agreement, 14 March 1925, 43 LNTS 367, Art 20; the Estonia– Germany Agreement, 10 August 1925, 62 LNTS 124, Art 20. General Act for the Pacific Settlement of International Disputes, 26 September 1928, 93 LNTS 344, Art 33. See e.g. Hans Gerd Niemeyer, Einstweilige Verf¨ugungen des Weltgerichtshof, ihr Wesen und ihre Grenzen (Leipzig: R Noske, 1932) 29–35; Sztucki, Interim Measures, 263–4. Cf. Karin Oellers-Frahm, ‘Article 41’, in ICJ Commentary, 1026, 1063–4, noting that the term ‘indicate/indiquer’ was given greater weight during the drafting process than ‘measures suggested/doivent ˆetre prises’, indicating that the preparatory work for the PCIJ Statute supports the view that provisional measures were not intended to be binding. Edvard Hambro, ‘The Binding Character of Provisional Measures Indicated by the International Court of Justice’, in W Sch¨atzel and H-J Schlochauer (eds), Rechtsfragen der internationalen Organisation. Festschrift f¨ur Hans Wehberg zu seinem 70 Geburtstag (1956) 152, 164; D W Greig, ‘The Balancing of Interests and the Granting of Interim Protection ´ ‘Binding or Bound to be by the International Court’ (1987) 11 AYIL 108, 131; Szabo, Ineffective’, 478. Elkind, Interim Measures, 155–6.

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was sufficient to render Article 41 effective, Hersch Lauterpacht, whilst not committing fully to the alternative view, noted that: It cannot be lightly assumed that the Statute of the Court – a legal instrument – contains provisions relating to any merely moral obligations of States and that the Court weighs minutely the circumstances which permit it to issue what is no more than an appeal to the moral sense of the parties.25

The ambiguity of Article 41 on this point is reflected in the extracurial writings of Manley O Hudson, for many years a judge of the Court and one of its foremost commentators. In his 1934 study of the practice of the PCIJ, Hudson concluded that measures under Article 41 ‘clearly lack[ed] the binding force attributed to a “decision” by Article 59’.26 On updating this text in 1943, however, Hudson reversed his position, noting that the word ‘indicated’ as it appeared in Article 41 possessed a ‘diplomatic flavour’ designed to avoid offence to the ‘susceptibilities of states’, but that the overall effect of the provision could be binding.27 This stance was again revised to a studied agnosticism in 1952, with Hudson remarking simply that ‘[t]he Court’s own jurisprudence can hardly be said to have resolved this point with finality’.28 On replacement of the PCIJ by the ICJ, a further issue arose. Although the PCIJ did not possess a formal relationship with the League of Nations, the ICJ was constituted as the principal judicial organ of the United Nations. Accordingly, under Article 94(1) of the UN Charter, member states were obliged to comply with any ‘decision of the [Court] in any case to which it is a party’, with the obvious question being whether an 25

26 27

28

Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens and Sons, 1958) 254. This appears to be a qualified reversal or development of his earlier views in The Function of Law in the International Community (Oxford: Clarendon Press, 1933) 208 (fn. 1): ‘It will be noted that the Orders of the Court under Article 41 have no binding effect: they merely indicate the provisional measures’. Cf. Collins, ‘Provisional and Protective Measures’, 218. Further: Shigeru Oda, ‘Provisional Measures: The Practice of the International Court of Justice’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 541, 554–6. Manley O Hudson, The Permanent Court of International Justice (New York: Macmillan, 1934) 415. Manley O Hudson, The Permanent Court of International Justice, 1920–1942 (New York: Macmillan, 1943) 425ff. See similarly Taslim O Elias, The International Court of Justice and Some Contemporary Problems: Essays on International Law (The Hague: Martinus Nijhoff, 1983) 78–80. Manley O Hudson, ‘The Thirtieth Year of the World Court’ (1952) 36 AJIL 1, 23.

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order made under Article 41 of the Stature could be considered such a ‘decision’. One view argued that the term ‘decision’ as it appeared in Article 98 was synonymous with the term ‘judgment’, excluding by implication interim relief.29 On another view, however, ‘decision’ as it appeared in Article 94(1) referred to all orders of the Court, with ‘judgments’ only given special treatment insofar as a failure to comply could entail recourse to the Security Council under Article 94(2).30

2 Arguments Concerning the Binding Character of Provisional Measures as a General Principle of Law Running parallel to the textual analysis of Article 41 was a further debate concerning whether the power to order binding interim relief could be considered a general principle of law within the meaning of Article 38(1)(c) of the Statute.31 This debate – though it centred on the PCIJ and ICJ – held wider implications for the settlement of international disputes, being applicable to the practice of international courts and tribunals generally.32 This view was propounded by Niemeyer, who engaged in a comparative analysis of interim relief across a variety of municipal jurisdictions before arriving at the general conclusion that the power to award binding interim relief was a principle of international law.33 He further saw provisional measures as arising from the proposition that parties, once a dispute has been submitted to adjudication, should be expected to refrain from any act or omission which would prejudice the decision of a court or tribunal or prevent its full execution.34 Translating these ideas to the international plane, Niemeyer argued that in creating international institutions such as the PCIJ, states ipso facto granted these bodies the powers necessary to pursue these objectives – an assertion predating the ICJ’s own conclusions on this point in the Certain Expenses advisory opinion.35 Consequently, if a state were to consent to the jurisdiction of an international court or tribunal, it followed a fortiori that 29 30

31 32 33 35

´ ‘Binding or Bound to be Ineffective’, 479–80. Szabo, Mani, ‘Interim Measures’, 367–72; Hermann Mosler, ‘Article 94’, in B Simma et al., The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994) 1003, 1003–4. Kammerhofer, ‘Binding Character’, 72. On provisional measures as a general principle of international law, see Chapter 4, §III.A. Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2004) 146–50. 34 Niemeyer, Einstweilige Verf¨ugungen, 22–4. Ibid, 11–16. Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), ICJ Reports 1962 p 151, 168.

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the state also consented to the possibility that the court or tribunal could take action to permit it to adjudicate effectively over a dispute, i.e. award provisional measures that were binding on the parties.36 Other commentators – most prominently Elkind – adopted similar conclusions,37 though their reasoning on occasion differed.38 The view that measures ordered under Article 41 reflected a general principle of international law had some prominent supporters within the ICJ itself. Writing extracurially, Sir Gerald Fitzmaurice argued that binding force was a logical corollary of provisional measures, ‘for this jurisdiction is based on the absolute necessity, when the circumstances call for it, of being able to preserve, and to avoid prejudice to, the rights of the parties, as determined by the final judgment of the Court’.39 With respect to other courts and tribunals, Fitzmaurice unhesitatingly stated that the capacity of award binding interim relief was a general principle of international law, such that the textual debate surrounding Article 41 – which was to Fitzmaurice the sole source of doubt on the question – assumed an ‘iron[ic] and unsatisfactory character’.40 The alternative view was propounded by more conservative commentators such as Thirlway, who saw the general principle in question as going 36

Niemeyer, Einstweilige Verf¨ugungen, 39. See also the decision of the Romanian–Hungarian MAT in Ungarische Erdgas A-G v Romania (1925) 3 ILR 412, 413: When a State takes part in the constitution of an arbitral tribunal and submits to its jurisdiction it does so by virtue of a State’s sovereignty. This creates not only rights but also duties incidental to the judicial process. It is therefore difficult to see how a measure taken by the Tribunal within the scope of its jurisdiction can be construed as an infringement of the sovereignty of the State. If a final adverse decision is not tantamount to a derogation from the State’s sovereignty, it is difficult to see how an interlocutory measure can have this effect.

37

38 39 40

Hambro, ‘Binding Character’, 166–8; Julius Stone, Legal Controls of International Conflict (London: Stevens and Sons, 1954) 132; V S Mani, ‘Interim Measures of Protection: Article 41 of the ICJ Statute and Article 94 of the UN Charter’ (1970) 10 IJIL 359, 360–7; Elkind, Interim Measures, 162; Bernard H Oxman, ‘Jurisdiction and the Power to Indicate Provisional Measures’, in L F Damrosch, The International Court of Justice at a Crossroads (Dobbs Ferry, NY: Transnational Publishers, 1987) 323, 332. Others agreed that the power to order interim relief was a general principle of international law, but denied that this automatically required such relief to have binding effect: Dumbauld, Interim Measures, 180; Collins, ‘Provisional and Protective Measures’, 214, 216. For a more nuanced view post-LaGrand, see Martins Paparinskis, ‘Inherent Powers of ICSID Tribunals: Broad and Rightly So’, in I Laird and T Weiler (eds), Investment Treaty Arbitration and International Law, Volume 5 (New York: JurisNet, 2012) 11, 25–6. Kammerhofer, ‘Binding Nature’, 72. Gerald Fitzmaurice, 2 The Law and Procedure of the International Court of Justice (Cambridge: Grotius Publications, 1986) 548. Ibid, 549.

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no further than the pronouncement of the PCIJ in Electricity Company that parties should refrain from taking any action that would aggravate or extend a dispute:41 the notion that the Court could give more specific directions to a party to do or refrain from doing a certain action was another thing entirely.42

3 Practice of the International Court of Justice Prior to LaGrand: Anglo-Iranian Oil and Bosnian Genocide Although the ICJ did not rule definitively on the binding character of provisional measures prior to LaGrand, that did not prevent the issue from arising on occasion within its jurisprudence, particularly in light of the continued breach of its orders in, inter alia, Anglo-Iranian Oil,43 the Fisheries Jurisdiction cases,44 Tehran Hostages45 and Bosnian Genocide.46 The first serious discussion concerning the binding nature of provisional measures under Article 41 was not judicial, but institutional. In Anglo-Iranian Oil, the ICJ ordered a detailed list of measures designed to ensure that the Anglo-Iranian Oil Company could operate effectively pending resolution of the dispute.47 These were promptly ignored by the non-appearing Iran, which continued with its nationalization of the Company on the basis that the Court in its view had neither jurisdiction to hear the dispute, nor order provisional measures.48 The measures having 41 42 43 44

45 46

47

48

Electricity Company (1939) PCIJ Ser A/B No 79, 199. Thirlway, ‘Provisional Measures’, 30. Anglo-Iranian Oil (UK v Iran), Provisional Measures, ICJ Reports 1951 p 89. Fisheries Jurisdiction (UK v Iceland), Provisional Measures, ICJ Reports 1972 p 12; Fisheries Jurisdiction (Federal Republic of Germany v Iceland), Provisional Measures, ICJ Reports 1972 p 30. United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, ICJ Reports 1979 p 7. Application for the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Provisional Measures, ICJ Reports 1993 p 3; Application for the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Provisional Measures, ICJ Reports 1993 p 325. Anglo-Iranian Oil, ICJ Reports 1951 p 89, 94. Further: Brendan F Brown, ‘The Juridical Implications of the Anglo-Iranian Oil Company Case’ (1952) 32 Wash ULQ 384, 393–5; Yuen-li Liang, ‘The Question of Domestic Jurisdiction in the Anglo-Iranian Oil Dispute before the Security Council’ (1952) 46 AJIL 272; Alan W Ford, The Anglo-Iranian Oil Dispute of 1951–1952: A Study of the Role of Law in the Relations of States (Berkeley, CA: University of California Press, 1954) Part II, §8; W M Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (New Haven: Yale University Press, 1971) 720–8; Sztucki, Interim Measures, 276–7. Liang, ‘Domestic Jurisdiction’, 273.

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been communicated to the UN Security Council pursuant to Article 41(2) of the Statute,49 the UK representative requested that the Council force Iran to comply with the Court’s order, arguing, inter alia, that provisional measures under Article 41 could be considered a ‘decision’ within the meaning of Article 94(1) of the Charter, and binding on the parties as a result. The official record of the Council’s meeting notes: As to the binding force of the interim measures, the representative of the United Kingdom observed that (1) the whole object of interim measures was to preserve the respective rights of the parties pending the final decision; (2) it was established that the final judgment of the Court was binding on the parties, but there would be no point in making the final decision binding if one of the parties could frustrate that decision in advance by actions which would render the final judgment nugatory; and (3) it was, therefore, a necessary consequence of the force of the final decision that the interim measures intended to preserve its efficacy should equally be binding.50

To this end, the UK called on the Council to adopt a resolution forcing Iran to enact the measures indicated by the Court. The Iranian representative, by contrast, took the view that provisional measures could not be the subject of Security Council jurisdiction under Article 94, and that furthermore, provisional measures could only be binding if states ‘were bound by an arbitration treaty expressly obligating them to respect such measures’.51 Beyond this, however, the Council’s discussions moved away from interim relief to the question of whether the situation was within the domestic jurisdiction of Iran, and it was not required to revisit the issue of interim relief. In a way this was unfortunate, with commentators assuming that this failed attempt to enforce an order for provisional measures was in some way a comment on whether it was legally binding – a separate and antecedent question.52 Beyond occasionally making mention of the fact that its provisional measures had been breached,53 no item of the Court’s practice caused 49 51 52

53

50 UN Doc S/2239 (11 July 1951). UN Doc S/P.V.559 (1 October 1951) 79–81. UN Doc S/P.V.560 (15 October 1951) 34–6. See also the concurring remarks of the representative of Ecuador: UN Doc S/P.V. 562 (16 October 1951) 13–14. Cf. C H Crockett, ‘The Effects of Interim Measures of Protection in the International Court of Justice’ (1977) 7 Ca West JIL 348, 376–7. See further Anglo-Iranian Oil, ICJ Reports 1951 p 89, 91, noting that provisional measures ‘retain their own authority’ independent of enforcement. See e.g. Fisheries Jurisdiction (UK v Iceland), Provisional Measures, ICJ Reports 1973 p 302, 305 (Judge Ignacio-Pinto); Fisheries Jurisdiction (Federal Republic of Germany v Iceland), Provisional Measures, ICJ Reports 1973 p 313, 316 (Judge Ignacio-Pinto),

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any of its judges to consider whether parties were obliged to follow its indications on interim relief, and no party ventured to ask the court to so rule.54 In the Bosnian Genocide case, however, the Court ordered provisional measures to prevent the possible genocide of Bosnia’s Muslim population by Serbian paramilitaries allegedly under the control of the government of Yugoslavia (later Serbia and Montenegro). When the killings continued unabated, the Court revisited and reaffirmed its earlier decision on interim relief.55 Whilst the majority made no comment on the binding character of its earlier order – beyond calling for its immediate implementation – Vice-President Weeramantry attached a lengthy separate opinion setting out at length the arguments in favour of such a reading of Article 41.56 He began by setting out the distinction between the binding character of an order for interim relief on the one hand, and its enforcement on the other, noting that the mere fact that an order could not be enforced directly by the Court did not ipso facto deprive it of mandatory effect.57 He argued (like Fitzmaurice) that it followed from the binding character of the Court’s final judgment that interim measures designed to preserve that judgment were also binding – the principle of ‘institutional effectiveness’.58 He addressed the text of Article 41 of the Statute and Article 98 of the Charter, concluding that despite the ambiguity of each, it was possible to infer an obligation of compliance with respect to provisional measures.59 Finally, he examined the scraps of information available on the question from the Court’s earlier jurisprudence, and the extracurial writings of its judges (notably Hudson, Lauterpacht and Fitzmaurice).60 He concluded: The words under examination [i.e. Article 41] [ . . . ] are thus, in accordance with the accepted rules of legal construction, clearly capable of bearing the meaning that they impose a legal obligation. That is an interpretation supported also by sound legal principle and by the universal

54

55 58 59

Fisheries Jurisdiction (Federal Republic of Germany v Iceland), ICJ Reports 1974 p 175, 226 (Judge de Castro); Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 451 (Judge ad hoc Barwick, diss). Further: Sztucki, Interim Measures, 274–5. Cf. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US), ICJ Reports 1986 p 14, 144: ‘When the Court finds that the situation requires [provisional measures], it is incumbent on each party to take the Court’s indications seriously into account, and not to direct its conduct solely by reference to what it believes to be its rights’. Judge Shahabuddeen in Bosnian Genocide opined that this statement ‘could bear the interpretation that the measures themselves are not binding, a party merely having a duty to take account of the Court’s indication of them’: ICJ Reports 1993 p 325, 365. 56 57 Bosnian Genocide, ICJ Reports 1993 p 325, 349–50. Ibid, 370ff. Ibid, 374. Ibid, 376–9, citing Mani, ‘Interim Measures of Protection’, 362. 60 Ibid, 379–84. Ibid, 384–6.

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acceptance of nations. It is a principle which the Court, at this stage of its jurisprudence, can confidently assert. [ . . . ] To view the Order made by the Court as anything less than binding so long as it stands would weaken the regime of international law in the very circumstances in which its restraining influence is most needed.61

Judge Ajibola issued a similar separate opinion, arguing exclusively from the position of institutional effectiveness.62

4 The Practice of Other Courts and Tribunals With the ICJ mired in a textual and institutional debate that seemed to prevent it from pronouncing on this controversy, it was left to other courts and tribunals to reach their own conclusions. (a) Dispute Settlement Under UNCLOS In the context of UNCLOS Article 290, the question was dealt with at the drafting stage. Eager to avoid the debate surrounding Article 41 entirely, UNCLOS III inserted paragraph (6) into the provision, providing that ‘[t]he parties to the dispute shall comply promptly with any provisional measures prescribed under this article’, thereby putting the matter beyond doubt.63 For the same reason, UNCLOS Article 290 uses the word ‘prescribe’ in preference to ‘indicate’ throughout.64 This much was reiterated in the first award of provisional measures by ITLOS in M/V Saiga (No 2)65 and has been restated in various forms on several occasions since.66 (b) Investor-State Arbitration (i) ICSID Arbitration The matter was not as easily resolved in the investor-state context. Article 47 of the ICSID Convention was substantially copied from Article 41 of the ICJ Statute, and carried with it 61 63 64

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66

62 Ibid, 389. Ibid, 397–401. Igor V Karaman, Dispute Resolution in the Law of the Sea (Leiden: Martinus Nijhoff, 2012) 155–160. A O Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (Dordrecht: Martinus Nijhoff, 1987) 64–5; 5 Virginia Commentary, 53–4. M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea), Provisional Measures (1999) 117 ILR 111, 126: ‘Considering the binding force of the measures prescribed and the requirement under Article 290, paragraph 6, of the Convention that compliance with such measures be prompt [ . . . ]’. See e.g. Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 164; ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186, 204–5; Arctic Sunrise (Netherlands v Russian Federation), ITLOS Case No 22 (Provisional Measures, 22 November 2013) §101.

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the same uncertainties – prompting the drafters of NAFTA Article 1134 to take steps similar to those of UNCLOS III to remove doubt as to the binding character of orders made under that provision.67 The travaux pr´eparatoires of Article 47 seemed to point clearly away from the conclusion that provisional measures within the ICSID system were binding: the first draft of the provision, which permitted a tribunal to ‘prescribe’ provisional measures68 was replaced following opposition from the Taiwanese delegate69 with the weaker ‘recommend’.70 A further plan to permit the tribunal to issue provisional measures by way of ‘interim award’ also failed, as did an attempt to include a second paragraph that would permit the tribunal to fix a penalty in the event of a failure to comply.71 This, in sum, prompted Caron to remark that: [I]t is quite clear from the drafting history of the [ICSID Convention] that the interim measures ‘recommended’ [ . . . ] are only morally binding. Although this may reduce the effectiveness of ICSID, it is not argued to have negated the jurisdictional nature of ICSID.72

Other commentators took a different view of the Convention’s preparatory work, with Brower and Goodman suggesting that the drafting history of Article 47 demonstrated only ‘an interest in providing that the wide scope of provisional measures that could be implemented by an ICSID tribunal be leavened with a degree of caution in the application of such measures vis-`a-vis sovereign states’, leaving open the possibility of binding effect.73 Certainly, this possibility was not sufficient to sway the drafters of NAFTA Article 1134, who included in that provision the words ‘an order includes a recommendation’ so as to ensure the binding effect of measures so ordered.74 The early ICSID practice on the question was not determinative, though some tribunals did show an awareness of the controversy by rendering their interim relief binding by other means, e.g. by recording the measures 67 68

69 72 73

See Chapter 3, §IV.B. I ICSID History, 209. Further: Arshad Masood, ‘Provisional Measures of Protection in Arbitration under the World Bank Convention’ (1972) 1 Delhi LR 138; Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6 ICSID Rev – FILJ 431, 440–3; ICSID Commentary, 764–5. 70 71 II-1 ICSID History, 515, 518, 655, 813 (Tsai). Ibid, 814ff. Ibid, 516, 523. David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran–United States Claims Tribunal’ (1986) 46 Za¨oRV 466, 478 (fn. 36). 74 Brower and Goodman, ‘Jurisdictional Exclusivity’, 440. See Chapter 3, §IV.B.2.

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in the form of an agreement between the parties.75 It was further possible for tribunals to take into account a party’s poor compliance in the final award, the effect of which was unquestionably binding.76 In 1999, however, the Tribunal in Maffezini v Spain determined that provisional measures ordered in the ICSID context could be binding, by reference to Article 39(1) of the ICSID Rules: While there is a semantic difference between the word ‘recommend’ as used in Rule 39 and the word ‘order’ as used elsewhere in the Rules to describe the Tribunal’s ability to require a party to take a certain action, the difference is more apparent than real. It should be noted that the Spanish text of that Rule uses also the ‘dictaci´on’. The Tribunal does not believe that the parties to the Convention meant to create a substantial difference in the effect of these two words. The Tribunal’s authority to rule on provisional measures is no less binding than that of a final award. Accordingly, for the purposes of this Order, the Tribunal deems the word ‘recommend’ to be of equivalent value as the word ‘order’.77

Although the above is prima facie a textual analysis of Rule 39(1) (and by extension, Article 47), the express linking of the effect of provisional measures to the binding character of the final award appears to be an acknowledgment of the argument of institutional effectiveness that had been raised in the debate surrounding the ICJ and Article 41. (ii) UNCITRAL Arbitration The UNCITRAL practice was less hesitant. Article 26 of the 1976 UNCITRAL Rules contains several textual indications that interim measures made under that provision are binding: paragraph (1) permits the ‘ordering’ of provisional measures with respect to sequestration or sale of contested goods;78 paragraph (2) allows interim 75 76

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78

See e.g. Vacuum Salt Products Ltd v Ghana (1993) 4 ICSID Reports 323, 323–4 (extracting the Tribunal’s Decision No 1 of 3 December 1992). See e.g. Holiday Inns v Morocco, ICSID Case No ARB/72/1 (Provisional Measures, 2 July 1972), which Lalive interpreted as ‘a discreet warning [ . . . ] to the parties that the Tribunal could and would take notice of any disregard of its recommendations’: Pierre Lalive, ‘The First “World Bank” Arbitration (Holiday Inns v Morocco) – Some Legal Problems’ (1981) 52 BYIL 123, 137; AGIP Spa v People’s Republic of the Congo (1979) 1 ICSID Reports 306, 317; Maritime International Nominees Establishment v Guinea (1988) 4 ICSID Reports 3, 69, 77. Emilio Agustin Maffezini v Spain, Procedural Order No 2 (1999) 5 ICSID Reports 393, 394. The word ‘dictaci´on’ does not appear in the Spanish translation of Art 47 of the ICSID Convention, which instead uses ‘recomendar’, being the direct equivalent of ‘recommend’. See further the commentary to the provision by Sanders, noting that the capacity to ‘order’ measures was not confined to the measures expressly mentioned: Pieter Sanders, ‘Commentary on UNCITRAL Arbitration Rules’ (1977) 2 Ybk Comm Arb 161, 196.

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measures to be issued in the form of interim awards which are automatically binding on the parties under Article 32(2); and paragraph (2) further allows the ordering of security for costs of undertaking such measures.79 This notwithstanding, the Iran–US Claims Tribunal still insisted on occasionally (and confusingly) couching its orders in non-mandatory language – perhaps to avoid offending the sensibilities of the Iranian state.80 In E-Systems v Iran, one such diffident order was accompanied by a useful concurring opinion by Judges Holtzmann and Mosk, establishing binding interim relief as an inherent power of the Tribunal and further noting that given the sovereign sensitivities in play ‘[w]e join with those who consider that the term “requests” is adequate in this context [ . . . ] we consider that a “request” is tantamount to and has the same effect as an order’.81 This concurrence was later adopted in a clarifying statement issued by the Tribunal in Behring International Inc v Iranian Air Force.82

B LaGrand and Its Discontents 1 Background LaGrand concerned Karl and Walter LaGrand, two German nationals raised predominantly in the US. In 1982, the LaGrand brothers were arrested on charges of murder, attempted murder, attempted armed robbery and kidnapping arising out of a failed bank robbery in Marana, Arizona.83 At that time, the Arizona authorities failed to inform the LaGrand brothers of their right to consular assistance ‘without delay’ – a breach of VCCR Article 36. In 1984, the brothers were tried, convicted and sentenced to death in the Arizona courts, prompting a series of appeals to the US federal courts. In the course of this process, the brothers discovered the procedural defect and asserted that the original verdict should be vacated. This argument was struck down by the US District Court for Arizona on the basis of the rule of procedural default, i.e. that an argument that was not raised before the Arizona courts could not be raised 79 80

81 82 83

Caron, ‘Interim Measures’, 508. Ibid, 509. See e.g. E-Systems Inc v Iran (1983) 2 Iran-US CTR 51, 57: ‘[The Tribunal] requests the Government of Iran to move for a stay of proceedings before the Public Court of Tehran’. Ibid, 64. Behring International Inc v Iranian Air Force (1983) 3 Iran-US CTR 173,175. For an extensive rendition of the facts and surrounding circumstances of LaGrand, see Sean D Murphy, United States Practice in International Law, Volume 1: 1999–2001 (Cambridge: Cambridge University Press, 2002) 32–40.

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on appeal before a federal court. This decision was, in turn, affirmed by the Court of Appeals for the Ninth Circuit.84 Following the apparent exhaustion of all avenues of appeal, the Supreme Court of Arizona set execution dates in early 1999. At this point, the German authorities – which had been aware of the situation since 1992 – formally intervened with both the US and Arizona governments to request clemency for the brothers. Despite this, Karl LaGrand was executed by Arizona on 16 February 1999, with his brother scheduled to die on 4 March. On 2 March, the German government filed an application against the US under the VCCR Optional Protocol Concerning the Compulsory Settlement of Disputes85 with the ICJ, and further requested the grant of provisional measures staying the execution of Walter LaGrand. On 3 March, the Court awarded the following measures proprio motu under Article 75(1) of its Rules, without the benefit of submissions from the US: (a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; (b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona.86

The Court included in its order – though not in the dispositif – the statement that ‘the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States’.87 President Schwebel, the US judge, appended a separate opinion questioning the Court’s reliance on Article 75(1).88 With the order handed down, the US government duly transmitted it to Governor Jane Dee Hull of Arizona, who had earlier made clear her intention to go ahead with the execution of Walter LaGrand unless a stay was granted by the Supreme Court of the United States. Germany simultaneously lodged an application in the Court’s original jurisdiction against both the US and Arizona. This was rejected perfunctorily on the basis that the US had not waived its sovereign immunity before its own courts and that the VCCR did not permit a foreign government to assert a claim against a state of the Union. With the execution scheduled 84 85 86

LaGrand v Lewis, 883 F.Supp 451 (D Ariz, 1995); LaGrand v Lewis, 883 F.Supp 469 (D Ariz, 1995); LaGrand v Stewart, 133 F.3d 1253 (9th Cir, 1998). 24 April 1963, 596 UNTS 487. 87 88 LaGrand, Provisional Measures, ICJ Reports 1999 p 9, 16. Ibid. Ibid, 21.

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to take place the following day, the tardiness of the German claim was also mentioned.89 Furthermore, as revealed by the dissenting opinion of Justice Breyer, the US Solicitor General filed a letter with the Court stating, ‘an order of the International Court of Justice is not binding and does not furnish a basis for judicial relief’.90 This conclusion was at odds with that taken by the Restatement Third, which reserved its position on the issue.91 Walter LaGrand was executed, as scheduled and in defiance of the ICJ’s provisional measures, on 4 March 1999. This was not the first time this had happened. Substantially the same sequence of events had occurred in Breard, a case concerning Angel Francisco Breard, a Paraguayan national who had been tried and convicted of murder and attempted rape in Virginia in 1992 without the benefit of consular assistance.92 Attempts to raise VCCR Article 36 as a ground of appeal before the US District Court failed due to the rule of procedural default.93 As in LaGrand, Paraguay applied to the ICJ in the days before his scheduled execution and was granted interim relief,94 which was duly communicated to Virginia’s governor, James S Gilmore III.95 A subsequent application to the Supreme Court to stay the execution based on the ICJ’s order failed.96 The Court there had the benefit of an amicus curiae brief from the US Department of State, which acknowledged the equivocation of the Restatement Third, but nonetheless proclaimed that ‘[t]he better reasoned position is that such an order is not binding’, based on the precatory language of Article 41.97 Breard was duly executed on 14 April 1998. 89 90 91

92 93 94

95

96

Germany v United States, 526 US 111, 112 (1999). See also Stewart v LaGrand, 526 US 115 (1999). Germany v United States, 526 US 111, 113 (1999) (Justice Breyer, diss). American Law Institute, 2 Restatement (Third) of the Foreign Relations Law of the United States (St Paul, MN: American Law Institute, 1987) §903(e): ‘The Court has not ruled on whether an order “indicating” provisional measures is mandatory on the parties. It is not clear what effect the failure of a state to comply with provisional measures has on the decision in the principal case.’ Further: ibid, Reporter’s Note 6. Further: Murphy, US Practice 1, 27–31. Breard v Netherland, 949 F.Supp 1255 (ED Va, 1996); Breard v Pruett, 134 F.3d 615 (1998). Vienna Convention on Consular Relations (Paraguay v US), Provisional Measures, ICJ Reports 1998 p 248, 258. Noted: William J Aceves (1998) 92 AJIL 517. See also ‘Agora: Breard’ (1998) 92 AJIL 666. Albeit whilst claiming that the ICJ’s Order was expressed in ‘non-binding language’: Letter from Madeline K Albright, US Secretary of State to James S Gilmore III, Governor of Virginia, 13 April 1998, partially extracted in (1998) 92 AJIL 666, 671–2. 97 Breard v Green, 523 US 317 (1998). Extracted in Murphy, US Practice 1, 30.

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2 The Proceedings in LaGrand (a) The Pleadings Following Breard’s execution, Paraguay discontinued its proceedings before the ICJ.98 Germany, however, pressed on with its case against the US under the VCCR following the execution of Walter LaGrand. It further requested that the Court adjudge and declare that: [T]he United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international legal obligation to comply with the Order on provisional measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending.99

The written proceedings before the Court ably rehearsed the scholarly and judicial debate set out earlier in this chapter, with oral submissions largely a reprise.100 The German memorial, in the relevant part, argued that institutional effectiveness, ‘deduced from a general principle of law’,101 required that provisional measures be binding on the parties. A related point was the general rule of judicial symmetry between the final judgment and interim relief: since withdrawal of consent to adjudicate was not possible once the Court was seized, it followed that a party should not be able to take action pendente lite that would frustrate an opponent’s claim.102 The German memorial also addressed the textual arguments surrounding the Article 41 and the discrepancies surrounding the English and French versions of the same, as well as the other official translations of the provision, concluding that only the English and Russian versions could be interpreted as being ‘open to a “softer” meaning’.103 In reconciling the two texts, the German memorial made reference to Article 33(4) of the Vienna Convention on the Law of Treaties104 (VCLT), which provided that in such cases ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted’.105 Reference was also made to the earlier practice of the Court.106 The US countermemorial began with an opposing textual analysis of Article 41, noting that if the parties to the ICJ Statute had wished to 98 99 100 101 103 105

Breard, Order of 10 November 1998, ICJ Reports 1998 p 426. LaGrand, ICJ Reports 2001 p 466, 473. For a summary of these proceedings, see Kammerhofer, ‘Binding Nature’, 72–5. 102 LaGrand, Germany: Memorial, §4.125. Ibid, §§4.129–4.131. 104 Ibid, §§4.149–4.150. 22 May 1969, 1155 UNTS 331. 106 LaGrand, Germany: Memorial, §4.150. Ibid, §§4.154–4.156.

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use more obviously mandatory language, this would have been simple to achieve.107 The US also considered Article 98(1) of the Statute, arguing for the identification of the word ‘decision’ with ‘judgment’, and excluding by implication orders for interim relief.108 The German assertions regarding institutional effectiveness were also rebuffed, and the Court’s practice trawled for indications that provisional measures were not binding.109 (b) The Judgment In considering the binding character of interim relief ordered under its Statute, the Court began by addressing the wording of Article 41 and noted that the dispute ‘essentially concern[ed] the interpretation’ of the provision, affirming the view of Fitzmaurice and others that the debate insofar as the ICJ was concerned was fundamentally textual.110 In this respect, it expressly noted the importance of VCLT Article 31(1) as a rubric of interpretation, paying particular attention to the need for any interpretation to be conducted ‘in good faith in accordance with the ordinary meaning to be given to [the words of the provision] in their context and in light of the treaty’s object and purpose’. The Court then turned to point out the discrepancy between the French and English texts of Article 41, in particular noting that the phrase ‘doivent ˆetre prises’ bore a mandatory character, in contrast to the English ‘measures suggested’.111 Bearing in mind the equally authoritative character of both texts, the Court then applied VCLT Article 33(4) (reflective of custom), which provided that in cases of continued doubt following the application of VCLT Articles 31 and 32 to the problem, a discrepancy between authoritative translations was to be resolved in favour of the interpretation that best reconciled the alternatives ‘having regard to the object and purpose of the treaty’.112 This, in turn, directed to the Court to the object and purpose of the ICJ Statute, together with the context of Article 41. It found that: The object and function of the Statute is to enable the Court to fulfill the functions provided 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 107 109 111

108 LaGrand, US: Counter-Memorial, §§127–37, 142–8. Ibid, §§154–8. 110 Ibid, §§159–165. LaGrand, ICJ Reports 2001 p 466, 501. 112 Ibid. Ibid.

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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 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 that Article.113

The Court then proceeded to confirm this reading by reference to the preparatory materials of Article 41114 (though it pronounced such an investigation unnecessary in light of its textual analysis) and the wider obligation of non-aggravation of disputes as set out by the PCIJ in Electricity Company.115 It rounded off its analysis by confirming that the Article 94 of the UN Charter did not preclude provisional measures ordered under Article 41 of the Statute from possessing binding effect – although it left open the question of whether under Article 94(2) an order for interim relief could be considered a ‘judgment’ subject to Security Council enforcement.116 The majority opinion in LaGrand was accompanied by a declaration by President Guillaume that did not touch on the issue of whether provisional measures were binding.117 A further separate opinion from VicePresident Shi was also attached that disagreed with the majority’s conclusion that the VCCR could give rise to individual rights in international law, again expressing no disagreement with the proposition that provisional measures were binding.118 Separate opinions by Judges Koroma119 and Parra-Aranguren120 were similarly in line with the majority on this point. (c) Dissenting Opinions Two dissents were appended to the Court’s judgment. The first, by Judge Buergenthal of the United States, held that the entire German application should have been found inadmissible due to the delay in bringing the claim before the Court. As Germany had clearly known of Arizona’s intention to execute Walter LaGrand for at least two years prior to the award of provisional measures in 1999, he said, its insistence on waiting until the day before LaGrand’s execution before urging the Court to order relief proprio motu was abusive,121 and further constituted a litigation strategy that was prejudicial to the US.122 Notably, despite fulfilling the position of a national judge for the purposes 113 117 121

Ibid, 502–3. Ibid, 517. Ibid, 552–5.

114

Ibid, 503–5. Ibid, 518–24. 122 Ibid, 555–7.

118

115 119

Ibid, 503. Ibid, 541–3.

116 120

Ibid, 505–6. Ibid, 544–7.

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of the case,123 he did not adopt in their entirety to US submissions on the question of the binding character of interim relief, and indeed voted in favour of the paragraph of the dispositif in which the Court held that the US had breached the provisional measures previously ordered.124 A more critical dissent was given by Judge Oda, who was the sole member of the Court to vote against its determination as to the mandatory character of provisional measures. He declared the extensive analysis undertaken by the Court to be a ‘vain and unnecessary undertaking’ designed not so much to establish interim relief under Article 41 to be binding, but rather to exclude any alternative view.125 He further went on to say that determination of this general question was ‘an empty, unnecessary exercise’ before going on to note: I wonder what the Court really wants to say in holding than an order indicating provisional measures is binding. Is the Court trying to raise the question of responsibility of the State which allegedly has not complied with the order? The question has not arisen in the past jurisprudence of this Court. It suffices that provisional measures ‘ought to be taken’ or in the French ‘doivent ˆetre prises’ [ . . . ] Whether or not an order indicating provisional measures has been complied with or not is decided by the Court in its judgment on the merits.126

Judge Oda’s criticism amounts to a point on judicial economy – as the Court would determine the dispute between the parties finally during the merits phase, there was no need to decide whether provisional measures had been complied with or, by extension, were binding on the parties. If this reading is correct, then Judge Oda conflated the question of enforcement of provisional measures with the question of their binding effect. Alternately, Judge Oda may simply have been saying that it was better overall if the Court left the question of binding interim relief unanswered – presumably on the basis that to do so would be to invite defiance of the Court in politically charged cases.127 In any case, although he voted against the rest of the Court on this point, he did not take a clear position on whether compliance with provisional measures was mandatory. 123 124

125

ICJ Statute, Art 31. On the appropriate role of a national judge or judge ad hoc, see Bosnian Genocide, ICJ Reports 1993 p 325, 408–9 (Judge ad hoc Lauterpacht). LaGrand, ICJ Reports 2001 p 466, 516. This may be due to the fact that Judge Buergenthal had previously held – as a member of the Tribunal in Maffezini v Spain – that provisional measures ordered under Art 47 of the ICSID Convention were binding, confirming his honest view, by extension, that orders given under Art 41 of the ICJ Statute were similarly mandatory. 126 127 Ibid, 537–9. Ibid, 539. Further: Oda, ‘Provisional Measures’, 554–6.

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C The New Status Quo Having assiduously avoided the question for eight decades, the ICJ in the wake of LaGrand moved rapidly to affirm its decision. Although LaGrand itself was coloured by the need to protect a human life,128 in its subsequent decisions on provisional measures the Court has invariably cited LaGrand as standing for the proposition that interim relief ordered pursuant to Article 41 is binding on the parties to a dispute.129 The Court has also apparently realized that in rendering such orders binding, compliance with such orders may depend in large part on the legitimacy of the Court’s procedure.130 This has led, in turn, to a perceptible tightening of aspects of its jurisprudence,131 including the development of the plausibility and link tests,132 the attachment of measures for the nonaggravation of a dispute to measures for the protection of a right pendente lite,133 and the further elaboration of the legal consequences of noncompliance.134 In scholarly terms, LaGrand provoked an immediate deluge of commentary and, in some cases, trenchant criticism.135 Given the clarity of the Court’s decision, however, most commentators have conceded that the position set out in LaGrand is now the law: ‘[h]owever unsatisfactory the reasoning of the decision may be, it has to be accepted that it is the established law as seen by the Court; and in this domain what counts is how 128 129

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131 132 135

See e.g. William Schabas, ‘The ICJ Ruling Against the United States: Is It Really About the Death Penalty?’ (2002) 28 Yale JIL 445. See e.g. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia), Provisional Measures, ICJ Reports 2008 p 353, 397; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, ICJ Reports 2011 p 6, 26–7; Certain Activities Carried out by Nicaragua in the Border Area/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, ICJ Reports 2013 p 230, 240; Border Area/San Juan River, Provisional Measures, ICJ Reports 2013 p 354, 368; Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), ICJ, Order of 3 March 2014, §53. On the role of process in increasing the legitimacy of norms of international law, see Jutta Brunn´ee and Stephen J Toope, Legitimacy and Legality in International Law: An Interactional Account (Cambridge: Cambridge University Press, 2010) 94–7; Christopher A Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ (2014) 34 OJLS 729, 749–51. Generally: Yoshiyuki Lee-Iwamoto, ‘The Repercussions of the LaGrand Judgment: Recent ICJ Jurisprudence on Provisional Measures’ (2012) 55 JYIL 237. 133 134 See Chapter 5, §§II.C.1, II.D.1. See Chapter 5, §III.B. See below §IV.B. See most notably Hugh Thirlway, 1 The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford: Oxford University Press, 2013) 956–68.

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the Court, rather than the generality of States, sees the matter’.136 Some complaints, however, remain, with scholars such as Oellers-Frahm arguing that under the terms of the Statute, the Court may only order binding interim relief where it has already established its jurisdiction definitively, i.e. on more than a prima facie basis.137 By its own admission, however, such a view relies on a differentiated understanding of the Court’s capacity to regulate its own proceedings via its incidental jurisdiction.138 Moreover, given the immense length of time that some required by the Court to confirm or deny jurisdiction in some cases,139 one might think that to expressly admit that compliance with provisional measures ordered prior to that decision was optional might result in considerable damage to rights sub judice. For the core objective of provisional measures to be upheld in a practical sense, they must be binding in their entirety or not at all. Beyond this, the authority of the ICJ has led to the decision in LaGrand exercising a palpable influence on other adjudicative bodies. The most immediate response has been in the context of ICSID, despite the fact that the decision in Maffezini v Spain arguably anticipated LaGrand. In Casado v Chile, the Tribunal justified its conclusion that provisional measures were binding by reference to both these decisions, with the Court’s reasoning in LaGrand seeming ‘manifestly to apply by analogy to Article 47 of the ICSID Convention’.140 Maffezini v Spain, by contrast, was included almost as an afterthought.141 Since that time, LaGrand has regularly been cited as reflecting a general rule as to the binding character 136

137

138 139

140 141

Thirlway, 2 Law and Procedure, 1807. Further: Rosenne, Provisional Measures, 34–40; Mehmet Semih Gemelmaz, Provisional Measures of Protection in International Law: 1907– 2010 (Istanbul: Legal Kitapevi, 2011) ch 4; Oellers-Frahm, ‘Article 41’, 1062–9; Kolb, International Court, 638–50. Karin Oellers-Frahm, ‘Expanding the Competence to Issue Provisional Measures – Strengthening the International Judicial Function’, in A von Bogdandy and I Venzke (eds), International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance (Heidelberg: Springer, 2012) 389, 404–7. Cf. Rosenne, Provisional Measures, 9. See e.g. Territorial and Maritime Dispute (Nicaragua v Colombia), Preliminary Objections, ICJ Reports 2007 p 832, in which more than seven years elapsed between Nicaragua’s initial application and the Court’s determination that it possessed jurisdiction. For a comprehensive breakdown of the length of proceedings in ICJ cases over the past 10 years, see Alina Miron, ‘Working Methods of the Court’ (2016) 7 JIDS 371, 377–80. Casado and President Allende Foundation v Chile, Provisional Measures (2001) 6 ICSID Reports 387, 394. Ibid.

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of provisional measures in ICSID cases,142 such that it is now ‘fully integrated into ICSID positive law’.143 As a consequence, there is no longer any serious doubt that provisional measures ordered in the ICSID context are binding – though some individual arbitrators or tribunals express agnosticism144 or contradiction145 on this point. It has also been held that the provisional ‘holding requests’ (redolent of measures for nonaggravation) frequently issued by tribunals pending determination of an application for interim relief are also binding.146 Another court – albeit not one considered extensively by the present study – to respond positively to LaGrand was the European Court of Human Rights. In Mamatkulov and Abdurasulovic v Turkey, a Chamber of the Court overturned previous jurisprudence147 on whether its provisional measures were binding, referring in part to LaGrand.148 The Chamber reached this conclusion by various means, but LaGrand was held to be relevant inasmuch as its reasoning ‘stressed the importance and purpose of interim measures and pointed out that compliance with 142

143 144 145

146

147 148

See e.g. City Oriente Ltd v Ecuador and Empresa Estatal Pretr´oleos del Ecuador, ICSID Case No ARB/06/21 (Provisional Measures, 19 November 2007) §92; Perenco Ecuador Ltd v Ecuador, ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009) §§75–6; Tethyan Copper Company Pty Ltd v Pakistan, ICSID Case No ARB/12/1 (Provisional Measures, 13 December 2012) §120; Quiborax SA, Non-Metallic Minerals SA and Allan Fosk Kapl´un v Bolivia, ICSID Case No ARB/06/2 (Award, 15 September 2015) §579. Alain Pellet, ‘The Case Law of the ICJ in Investment Arbitration’ (2013) 28 ICSID Rev – FILJ 223, 239. Millicom International Operations BV and Sentel GSM SA v Senegal, ICSID Case No ARB/08/20 (Provisional Measures, 9 December 2009) §49. Caratube International Oil Company LLP v Kazakhstan, ICSID Case No ARB/08/12 (Provisional Measures, 31 July 2009) §67 (‘it should be noted that, according to Rule 39, the Tribunal cannot order, but can only recommend provisional measures in ICSID proceedings’); RSM Production Corporation v St Lucia, ICSID Case No ARB/12/10 (Security for Costs, 13 August 2013) §16 (Arbitrator Nottingham, diss): (‘No matter how many times it is repeated, an order is not a recommendation. Only in the jurisprudence of an imaginary Wonderland would this make sense.’) Perenco v Ecuador, ICSID Case No ARB/06/21, §76 (‘The Tribunal cannot accept that a request, formally expressed, may properly be regarded as of less binding force than a recommendation’). Whether this forms the basis of a new jurisprudence constante remains to be seen: Sam Luttrell, ‘ICSID provisional measures in the round’ (2015) 31 Arb Int’l 393, 396. ˇ See Cruz Varas v Sweden, ECtHR App 15576/89 (Judgment, 20 March 1991) §98; Conka v Belgium, ECtHR App 51564/99 (Decision, 13 March 2001) §11. Mamatkulov and Abdurasulovic v Turkey, ECtHR App 46827/99 and 46951/99 (Judgment, 6 February 2003) §103. Further: Christian Tams, ‘Interim Orders by the European Court of Human Rights: Comments on Mamatkulov and Abdurasulovic v Turkey’ (2003) 63 Za¨oRV 681; Chester Brown, ‘Strasbourg Follows Suit on Provisional Measures (2003) 62 CLJ 532.

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such measures was necessary to ensure the effectiveness of decisions on the merits’.149 This, it was said, had a bearing on the interpretation of the European Convention of Human Rights (which lacked a provision analogous to Article 41 of the ICJ Statute) via VCLT Article 31(3)(c), requiring that where possible, treaties ought to be interpreted consistently with other principles of international law.150 Evolutionary interpretation of the Convention was also held to be relevant.151 Put another way, the Chamber perceived LaGrand as standing for the proposition that provisional measures were binding as a general principle of international law. An identical approach was subsequently adopted by the Grand Chamber in Mamatkulov & Askarov v Turkey.152 In light of such decisions (and academic commentary), we may now speak of international courts and tribunals – absent a lex specialis to the contrary – as having an inherent power to order binding interim relief, by way of a general principle of international law. To the extent that LaGrand may be said to have created a new status quo with respect to provisional measures, this is the principal legacy of the decision,153 notwithstanding the fact that in the large part its reasoning concerns textual questions specific to Article 41.

III Content of Provisional Measures A Content of Provisional Measures Generally 1 Measures for the Protection of Substantive or Procedural Rights As to the content of provisional measures, it should be noted that none of the treaties or arbitral rules discussed in this book limit the creativity of a court or tribunal in awarding effective interim relief. Article 41 of the ICJ Statute provides in terms that the Court has the capacity to indicate ‘any provisional measures which ought to be taken’ to preserve the 149 150 151 152

153

Mamatkulov and Abdurasulovic, ECtHR App 46827/99 and 46951/99, §101. Ibid, §99. Further: Campbell McLachlan, ‘The Principle of Systematic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279. Ibid, §§93–105. Further: Eirik Bjorge, The Evolutionary Interpretation of Treaties (Oxford: Oxford University Press, 2014). Mamatkulov and Askarov v Turkey, ECtHR App 46827/99 and 46951/99 (Grand Chamber, 4 February 2005) §117; cf. ibid, §§147–51 (Judges Caflisch, T¨urmen and Kovler, diss). Brown, Common Law, 146–50.

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rights of the parties, providing considerable discretion. The same applies to other instruments, which speak variously of ‘any interim measures [ . . . ] deem[ed] necessary’,154 ‘any provisional measures which should be taken’,155 and the ‘prescri[ption] of any provisional measures which [the tribunal] considers appropriate’.156 Other rules take a slightly different approach, for example by providing a list of possible forms of interim relief whilst at the same time indicating that said list is ‘without limitation’ to the power of the court or tribunal more generally.157 An exception is NAFTA Article 1134, which provides that a tribunal ‘may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 1116 or 1117’.158 Insofar as the content of a general principle of arbitration is concerned, therefore, an international court or tribunal is minimally constrained in deciding what interim relief to award – absent a lex specialis to the contrary. This is, on balance, desirable: given the multitude of substantive or procedural rights that may need to be protected in the course of proceedings, flexibility should be maintained to the greatest possible extent. This is subject to the requirements of the linkage test, which may operate to limit the measures available to those necessary to protect rights pendente lite.159 To this end, international courts and tribunals have developed a wide range of techniques to protect the substantive rights of the parties pending the resolution of a dispute.160 The most common technique is that of a 154 155 157 158

159 160

1976 UNCITRAL Rules, Art 26(1); PCA Optional Rules, Art 26(1). 156 ICSID Convention, Art 47. UNCLOS Art 290(1). 2010 UNCITRAL Rules, Art 26(2); PCA Arbitration Rules, Art 26(2). Further: Meg Kinnear, Andrea Bjorklund and John F G Hannaford, Investment Disputes under NAFTA: An Annotated Guide to Chapter 11 (Alphen aan den Rijn: Kluwer, 2006) 1134–4. This prohibition led to the rejection of applications for interim relief in Pope and Talbot Inc v Canada, Provisional Measures (2000) 122 ILR 301, 301 and Marvin Roy Feldman Karpa v Mexico, ICSID Case No ARB(AF)/99/1 (Procedural Order No 2, 3 May 2000) §5. See Chapter 5, §II.C. Tanaka usefully identifies five broad categories of interim relief: (a) orders requiring a party to cease or refrain from doing a particular thing (negative measures); (b) orders requiring a party to undertake a positive act (positive measures); (c) measures for the non-aggravation of the dispute (non-aggravation measures); (d) measures requiring the parties to submit to the court or tribunal a report or information with regard to the implementation of provisional measures (compliance measures); and (e) measures requiring the parties to secure evidence relevant to the dispute (evidentiary measures): Yoshifumi Tanaka, ‘A New Phase of the Temple of Preah Vihear Dispute before the International

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directive that compels a party to do or not do a particular thing connected with the subject matter of a dispute. Examples of this include orders to (inter alia): r implement a detailed management scheme for a company subject to r r r r r r r r

161 162

163 164 165

166 167 168

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nationalization;161 cease nuclear testing;162 respect the sovereignty and domestic jurisdiction of another state;163 act in such a way so as to prevent acts of genocide;164 observe a cease fire or remove armed forces from a given area;165 ensure that the annual catch of southern bluefin tuna does not exceed a certain amount;166 ensure that construction of a dam does not inhibit restoration of the full flow of a watercourse;167 prevent the sale or deterioration of contested goods;168 freeze assets pending final judgment;169

Court of Justice: Reflections on the Indication of Provisional Measures of 18 July 2011’ (2012) 11 Chinese JIL 191, 207–12. Anglo-Iranian Oil, ICJ Reports 1951 p 89, 93–4. Nuclear Tests (Australia v France), Provisional Measures, ICJ Reports 1973 p 99, 106; Nuclear Tests (New Zealand v France), Provisional Measures, ICJ Reports 1973 p 135, 142. Nicaragua, ICJ Reports 1984 p 169, 187. Bosnian Genocide, ICJ Reports 1993 p 3, 24. See e.g. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Provisional Measures, ICJ Reports 1996 p 13, 24; Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537, 555. Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 165. Indus Waters Kishenganga (Pakistan v India), Provisional Measures (2011) 150 ILR 311, 358. United States (Shipside Packing Co) v Iran (Ministry of Roads and Transport) (1983) 3 Iran–US CTR 331, 331; Iran v US (A-4 and A-15) (1984) 5 Iran–US CTR 112, 113; Behring International Inc v Iranian Air Force (1985) 8 Iran–US CTR 238, 275–8. International Quantum Resources Ltd, Frontier SPRL and Compagnie Mini`ere de Sakania SPRL v Democratic Republic of the Congo, ICSID Case No ARB/10/21 (Procedural Order No 1, 1 July 2011) §§30(3)(i)–(ii).

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r establish an escrow account for disputed sums,170 sequester contested

assets171 or require payment of a bond;172 r require that the parties establish an independent group of experts and otherwise exchange information to assess the possibility of environmental damage;173 r require that the parties report on their compliance with any provisional measures ordered;174 or r require that the parties avoid any act that might aggravate or escalate the dispute or render settlement thereof more difficult.175 Other measures may not be expressed in quite such absolute language, e.g. interim relief requiring a party to take all measures that are ‘necessary’ or ‘at its disposal’ to stay an execution.176 Aside from protecting substantive rights, international courts and tribunals are increasingly awarding provisional measures in order to safeguard a party’s procedural rights. This trend has been particularly noticeable in the context of investor-state disputes,177 where the injection of principles from international commercial arbitration and the increased potential for domestic courts to be involved in parallel proceedings has resulted in a jurisprudence designed to safeguard the integrity of proceedings. This encompasses orders requiring the:178 170

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174 176 177 178

Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company, UNCITRAL (Interim Measures, 2 September 2008) §§89–90; Perenco Ecuador Ltd v Ecuador and Empresa Estatal Petr´oleos del Ecuador, ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009) §63; Burlington Resources Inc and Ors v Ecuador and Empresa Estatal Petr´oleos del Ecuador, ICSID Case No ARB/08/5 (Procedural Order No 1, 29 June 2009) §§86–8. Hallyn v Basch (1920) 1 TAM 10; Re Monplanet and Thelier (1920) 1 TAM 12; Re Majo and Brother (1922) 1 TAM 937; Soci´et´e Tissages de Proisy v Farchy (1922) 2 TAM 338; Electricity Company of Sofia and Bulgaria v Municipality of Sofia and Bulgaria (1923) 3 TAM 593. Arctic Sunrise, ITLOS Case No 22, §93. MOX Plant (UK v Ireland), Provisional Measures (2001) 126 ILR 257, 278; Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures (2003) 126 ILR 487, 505–6. 175 ITLOS Rules, Art 95. See Chapter 5, §III. Breard, ICJ Reports 1998 p 248, 258; LaGrand, ICJ Reports 1999 p 9, 16; Avena and Other Mexican Nationals (Mexico v US), Provisional Measures, ICJ Reports 2003 p 77, 91–2. Though isolated examples have occurred before the ICJ: see e.g. Cameroon v Nigeria, ICJ Reports 1996 p 13, 25. Further: Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6

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r suspension or cessation of parallel proceedings before domestic courts

or arbitral tribunals (including criminal proceedings against individuals involved in the dispute);179 r production or preservation of written or oral evidence;180 r provision of security for costs;181 r preservation of procedural confidentiality.182

2 Interim Judgments and Final Resolution of the Dispute Notwithstanding these developments, there remains a significant limit on the capacity of a tribunal to award provisional measures, namely the character of such relief as incidental to the main proceeding. Consequently, provisional measures may not act as a substitute for a final judgment

179

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ICSID Rev – FILJ 431; Jacomijn J van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran–US Claims Tribunal (Deventer: Kluwer, 1991); ICSID Commentary, 780ff; Gabrielle Kaufman-Kohler and Aur´elia Antonietti, ‘Interim Relief in International Investment Agreements’, in K Yannaca-Small (ed.), Arbitration under International Investment Agreements: A Guide to the Key Issues (Oxford: Oxford University Press, 2010) 507; Caline Mouawad and Elizabeth Silbert, ‘A Guide to Interim Measures in Investor-State Arbitration’ (2013) 29 Arb Int’l 381, 400–16. See Chapter 8, §II.C. The case law on this subject is vast: see e.g. E-Systems Inc v Iran (1983) 2 Iran–US CTR 51, 57; Fluor Corporation v Iran (1986) 11 Iran–US CTR 296, 298; Soci´et´e G´en´erale de Surveillance SA v Pakistan, Procedural Order No 2 (2002) 8 ICSID Reports 388, 391–7; Tokios Tokel´es v Ukraine, ICSID Case No ARB/02/18 (Procedural Order No 1, 1 July 2003) §3; Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kapl´un v Bolivia, ICSID Case No ARB/06/2 (Provisional Measures, 26 February 2010) §§116–24; Millicom v Senegal, ICSID Case No ARB/08/20, §45; Chevron Corporation and Texaco Petroleum Company v Ecuador, PCA Case No 2009–23 (First Interim Award on Interim Measures, 25 January 2012) 16. AGIP SpA v Congo (1979) 1 ICSID Reports 306, 317; Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 1, 31 March 2006) §84; Railroad Development Corporation v Guatemala, ICSID Case No ARB/07/23 (Provisional Measures, 15 October 2008) §§35–6; Libananco Holdings Co Ltd v Turkey, ICSID Case NO ARB/06/8 (Preliminary Issues, 23 June 2008) §82; Quiborax v Bolivia (Provisional Measures), ICSID Case No ARB/06/2, §§141–8. See e.g. Maffizini v Spain (1999) 5 ICSID Reports 393, 394–5; Casado v Chile (2001) 6 ICSID Reports 373, 394–7; Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Pakistan, ICSID Case No ARB/03/29 (Jurisdiction, 14 November 2005) §46; RSM v St Lucia, ICSID Case No ARB/12/10, §§51–7. Amco Asia Corporation v Indonesia, Provisional Measures (1983) 1 ICSID Reports 410, 413; Metalclad Corp v Mexico, ICSID Case No ARB(AF)/97/1 (Provisional Measures, 27 October 1997) §9; The Loewen Group Inc and Raymond L Loewen v US, ICSID Case No ARB/(AF)/98/3 (Jurisdiction, 5 January 2001) §26; Biwater Gauff v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 3, 29 September 2006) §136; EDF (Services) Limited v Romania, ICSID Case No ARB/05/13 (Procedural Order No 2, 30 May 2008); Churchill Mining PLC v Indonesia, ICSID Case No ARB/12/14 (Procedural Order No 3, 4 March 2013) §§44–50.

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or award. This observation may be seen in the decision of the PCIJ in Chorz´ow Factory (Indemnities).183 There, the Court was faced with a German application for interim relief in proceedings that followed its earlier judgment in Certain German Interests, where the Court had held that Poland was liable for the expropriation of certain industrial properties ´ 184 In Chorz´ow Factory (Indemnities), it was argued that this at Chorzow. decision had also fixed Polish liability at ‘a certain minimum’, leaving the upper boundary of liability the sole question to be determined. Accordingly, Germany requested provisional measures requiring that the ‘certain minimum’ so fixed (valued at RM30 million) be paid, with the balance (if any) of Polish liability to follow with judgment on the merits. This was rejected in perfunctory fashion by the Court, which noted only that ‘the request of the German government cannot be regarded as relating to the indication of measures of interim protection, but as designed to obtain an interim judgment in favour of a part of the [German] claim’.185 A similar conclusion was reached more recently by the ICSID tribunal in Phoenix Action v Czech Republic. There, the claimant, an Israeli corporation, asked that the accounts of Benet Praha, an affiliated Czech company subject to customs proceedings by Czech authorities, be unfrozen. The Tribunal refused, noting: As Respondent rightly observes, such a request is a claim for final relief. Claimant cannot request as a provisional measure the release of funds it claims to be granted through the Tribunal’s award. [ . . . ] The Tribunal therefore concludes that the requested provisional measure related to the release of frozen funds cannot be granted as it is identical to the final relief sought [ . . . ]186

The principle set down in Chorz`ow Factory (Indemnities) is clear: provisional measures are intended to provide relief pendente lite, and are not a substitute for a final judgment – even if the outcome of the case appears 183 184 185 186

Factory at Chorz´ow (Indemnities) (Germany v Poland) (1927) PCIJ Ser A No 12. Further: Chapter 2, §IV.C.2. Certain German Interests in Polish Upper Silesia (Germany v Poland) (1927) PCIJ Ser A No 7, 81. Factory at Chorz`ow (Indemnities) (Germany v Poland) (1927) PCIJ Ser A No 12, 10. Phoenix Action v Czech Republic, ICSID Case No ARB/06/5 (Provisional Measures, 6 April 2007) §§40–1. See also PNG Sustainable Development Project Ltd v Papua New Guinea, ICSID Case No ARB/33/13 (Provisional Measures, 21 January 2015) §§121, 124, 133, 163. In the context of the Iran–US Claims Tribunal, see Behring International Inc v Iran (1985) 8 Iran–US CTR 44, 46; United Technologies International Inc v Iran (1986) 13 Iran–US CTR 254, 256.

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a foregone conclusion. In such cases, a court or tribunal must tread very carefully to avoid ordering interim relief that might resolve the dispute between the parties or be otherwise irreversible.187

B Proportionality in Provisional Measures In ordering interim relief, an international court or tribunal is impliedly elevating the interests of one party over another. Consequently, relief must be finely balanced to ensure that it does not unduly inconvenience the party that bears the burden of executing any measures so ordered. Put another way, if it has been determined that a right is in need of protection, then provisional measures should fulfill this objective in a manner that does not unnecessarily burden the respondent.188 This general principle is not unique to international law, but is well known (but not identically expressed) in domestic forms of interim relief189 and international commercial arbitration.190 That being said, the question takes on additional relevance in an international setting, where state sovereignty might be restrained. Consequently, in Paushok v Mongolia, the Tribunal declared ‘proportionality to be one of the five ‘internationally recognized’ prerequisites to the award of interim relief,191 stating that ‘the Tribunal is called upon to weigh the balance of inconvenience in the imposition of interim measures upon the parties’.192 Similarly, the tribunal in Saipem v Bangladesh said: [T]he Tribunal considers that under Article 47 of the ICSID Convention a tribunal enjoys broad discretion when ruling on provisional measures, but should not recommend provisional measures lightly and should weigh the parties divergent interests in light of all the circumstances of the case.193 187

188 189

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191 193

R¨udiger Wolfrum, ‘Provisional Measures of the International Tribunal for the Law of the Sea’, in P C Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 173, 184. Luttrell, ‘In the round’, 405. See e.g. the ‘balance of convenience’ to be assessed when determining whether to award an interim injunction in English law: American Cyanamid v Ethicon Ltd [1975] AC 396, 405–10 (Lord Diplock). See e.g. UNCITRAL Model Law 2006, Art 17A(1)(a), which requires the tribunal to be satisfied that ‘[h]arm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted’. In similar terms, see also 2010 UNCITRAL Rules, Art 26(3)(a). 192 Paushok v Mongolia, UNCITRAL, §45. Ibid, §79. Saipem SpA v Bangladesh, ICSID Case No ARB/05/7 (Decision on Jurisdiction and Recommendations on Provisional Measures, 21 March 2007) §175 (emphasis added).

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It is worth pointing out that in international law, considerations of proportionality are different in scope to those in municipal law. In many systems of municipal law, the core question when assessing proportionality is of the balance of convenience – whether it is more onerous for the applicant to suffer damage to a right or for the respondent to undertake the cost of preserving that right until the dispute is resolved. The test is formally the same in international law,194 but given the exceptional character of interim relief on the international plane and the difficulty in obtaining it, in most cases if an interest is identified as requiring protection on a provisional basis (in that the claimant has satisfied the requirements of urgency, prejudice, etc.), it will usually follow that some interim relief will be ordered. The question for a court or tribunal is not whether relief is necessary, but how to balance that relief such that the right is protected with minimal interference to the activities of the respondent. It is too soon to tell whether proportionality is, as contended in Paushok v Mongolia, a prerequisite of interim relief. Given the focus in much of the jurisprudence on only awarding such relief where immediately required, it might be argued that this element is inherent in the very character of provisional measures, even if it is not always clearly expressed. Beyond this, proportionality as set out here is simply common sense, as a balanced order for interim relief that is not unduly burdensome enhances the institutional legitimacy of an international court or tribunal and increases the likelihood of compliance.

1 Proportionality in Investor-State Arbitration Given the influence of international commercial arbitration on its case law, investor-state arbitration has developed an extensive jurisprudence on proportionality. Analyses of this kind are most often conducted when provisional measures are directed towards the enactment of local laws and regulations or the activities of a domestic criminal justice system. In Paushok v Mongolia, for example, the Tribunal was asked for interim relief that would suspend operation of a municipal tax law with respect to the claimant. In undertaking a proportionality analysis, the Tribunal took account of the fact that the claimant – Mongolia’s second-largest gold producer – owed a substantial amount of tax under the relevant legislation that would never be realized if the claimant collapsed under the 194

See e.g. PNGSDP v PNG, ICSID Case No ARB/33/13, §122, referring to the need for a tribunal to consider ‘the respective hardships that either party would be subjected to if the provisional measures are granted’.

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weight of the law’s continued operation. It further noted that in the event that the claimant prevailed, Mongolia would probably face a claim for damages lower than if the claimant’s operations were terminated through enforcement of the law. Accordingly, the Tribunal said, provisional measures suspending operation of the law temporarily (in conjunction with other orders preserving Mongolia’s position) were probably in Mongolia’s best interests no matter the final outcome.195 Investor-state tribunals may also deploy a proportionality analysis when considering procedural rights. In Quiborax v Bolivia, the Tribunal that ordered the suspension of criminal proceedings against individuals connected to the claimants in Bolivia, despite giving ‘serious consideration’ to Bolivia’s right as a sovereign to undertake prosecutions. The Tribunal took particular note of the fact that Bolivian prosecutors were able to ask a competent judge to refrain from prosecution and that Bolivia’s conduct in the case at bar had indicated that it did not consider the individuals in question to be a threat to society. In that light, the Tribunal said, ‘the harm that such a stay would cause to Bolivia is proportionately less than the harm caused to Claimants if the criminal proceedings were to continue their course’.196 Other tribunals prefer to include their discussion of proportionality within consideration of urgency and irreparable harm. In RDC v Guatemala, the Tribunal was required to rule on a request by the claimant for the preservation of certain categories of documents whilst the arbitration was pending. The three categories so identified were extremely broad,197 which formed the basis for an objection by Guatemala. On consideration, the Tribunal held that the application should fail for lack of urgency or prejudice, but further noted that the request would place an unfair burden on the respondent if compliance were required. The Tribunal discussed proportionality in the context of urgency and prejudice as follows: Since no qualifications on the powers of an ICSID tribunal to award provisional measures found their way into the text of the ICSID Convention, the standard to be applied is one of reasonableness, after consideration of all the circumstances of the request and after taking into account the rights to be protected and their susceptibility to irreversible damage should the tribunal fail to issue a recommendation.198 195 196 197

198

Paushok v Mongolia, UNCITRAL, §§81–9. Quiborax v Bolivia, ICSID Case No ARB/06/2, Provisional Measures, §§164–5. As broken down by Guatemala, the requests in their totality encompassed some 60 types of document, in most cases without any time limit specified to narrow down the material to be disclosed: RDC v Guatemala, ICSID Case No ARB/07/23, §33. Ibid, §34.

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2 Proportionality Before Other International Courts or Tribunals The use of proportionality to craft interim relief is less explicit before other international courts and tribunals, but is nonetheless present on close inspection.199 Moreover, in the post-LaGrand age, proportionality is an important element in ensuring that provisional measures that are binding are perceived also to be fair. Before the ICJ and UNCLOS dispute settlement bodies, proportionality is often masked – as in the case of RDC v Guatemala – behind other considerations, most often urgency and prejudice to rights sub judice. As Mendelson notes: Article 41 of the Statute empowers the Court to indicate provisional measures ‘if it considers that the circumstances so require . . . to preserve the respective rights of either party’. This obliges the Court to assess, in each particular case, the likelihood of prejudice to each of the parties from the grant, or refusal of, interim protection. [ . . . ] [But] [t]here are degrees of urgency, of seriousness of anticipated harm, and so on [ . . . ]200

Thus, in Aegean Sea, Greece requested that Turkish seismic exploration of the disputed seabed be ceased in its entirety notwithstanding the fact that this activity posed no risk to the physical integrity of the marine environment. Relief was refused accordingly in preference to the later payment of damages.201 In Great Belt, the fact that the Finnish maritime traffic would be impeded through the construction of a bridge was not sufficient to render provisional measures necessary, as Denmark assured the Court that any harm would occur after the likely date of judgment.202 Such language is very similar to that used by municipal lawyers when discussing questions of the balance of hardship or the balance of convenience.203 The difficulty with such language, however, is that it only permits the giving of a binary answer to a request for interim relief: ‘yes’ or ‘no’. It is of little utility in cases where a court or tribunal determines that relief is 199 200 201 202 203

Collins, ‘Provisional and Protective Measures’, 222–4. Maurice Mendelson, ‘Interim Measures of Protection in Cases of Contested Jurisdiction’ (1972–1973) 46 BYIL 259, 321 (emphasis original). Aegean Sea Continental Shelf (Greece v Turkey), Provisional Measures, ICJ Reports 1976 p 3, 11. Cf. Chapter 6, §II.A. Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1991 p 12, 17–18. Bernard Oxman, ‘Jurisdiction and the Power to Indicate Provisional Measures’, in L F Damrosch (ed), The International Court of Justice at a Crossroads (Dobbs Ferry, NY: Transnational Publishers, 1987) 323, 349; Collins, ‘Provisional and Protective Measures’, 223–4.

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appropriate, but that the particular measures requested by the applicant exceed what is necessary to protect a right pendente lite. In those cases, the usual practice is for the court or tribunal to exercise its power to grant relief different to that requested,204 often without any explanation for the departure. In Certain Documents and Data, Timor-Leste requested a raft of measures in response to Australia’s seizure of documents, including that all materials so seized be sealed and delivered into the custody of the ICJ.205 Australia, in response, gave detailed undertakings regarding the security of the seized material, which the Court found ‘[made] a significant contribution towards mitigating the imminent risk of irreparable prejudice [ . . . ] but [did] not remove this risk entirely’.206 Accordingly, it determined that some form of interim relief was in the circumstances necessary. When it came to consider the specifics of those measures, it noted that ‘the measures to be indicated need not be identical to those requested’,207 referenced the Australian undertaking (particularly its commitment to keep the seized material under seal),208 and held that the documents could remain in Australian custody.209 The implication is that the Court considered the Timorese application as originally formulated to go beyond what was necessary to ensure that Timor-Leste’s rights as litigant were not prejudiced and modified the requested relief so as to achieve proportionality. The same tendency may also be seen before ITLOS, particularly when considering cooperative measures for the protection of the marine environment. In Land Reclamation, ITLOS was faced with a Malaysian request that Singapore halt its land reclamation activities entirely in two areas, Pulau Tekong and Tuas, so as to protect access to the Malaysian coastline and prevent harm to the marine environment.210 Singapore responded with undertakings as to those same works, promising to consult with Malaysia on the project and not to accelerate its activities in Pulau Tekong (whilst maintaining that it had no case to answer with respect to Tuas due to lack of prejudice).211 ITLOS consequently took note of its capacity to award relief different to that requested212 and ordered the parties to engage in a variety of cooperative schemes to ensure that the works did not 204 205 206 210 211

See e.g. ICJ Rules, Art 75(2); ITLOS Rules, Art 89(5). Questions Relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v Australia), ICJ, Order of 3 March 2014, §§5–6. 207 208 209 Ibid, §47. Ibid, §49. Ibid, §§50–1. Ibid, §55. Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures (2003) 126 ILR 487, 496. 212 Ibid, 502–4. Ibid, 505.

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cause harm to the marine environment. It further issued an injunction that Singapore not conduct reclamation in such a way as to cause irreparable prejudice to Malaysia or serious environmental damage – though it generally permitted Singapore to continue its activities.213 Again, it may be inferred that the Tribunal considered Singapore’s undertakings to have rendered any general prohibition of land reclamation in Pulau Tekong to be disproportionate,214 motivating it to craft a set of provisional measures that did no more than was necessary to protect the status quo. Such inference is not necessary when considering the provisional measures decision of the Court of Arbitration in Kishenganga, which addressed Pakistani attempts to halt temporarily the construction of the Kishenganga Hydroelectric Project (KHEP) by India. There, the Court drew attention to the wording of its constituent instrument, with Paragraph 28 of Annexure G of the Indus Waters Treaty215 providing for provisional measures where ‘necessary [ . . . ] to avoid prejudice to the final solution or aggravation or extension of the dispute’. The Court held that this excluded from its calculus questions of urgency and prejudice, with the only test being whether a proposed measure was necessary for the protection of a right pendente lite.216 Put another way, by virtue of a lex specialis proportionality took on unusual importance in determining whether or not provisional measures were to be awarded. Accordingly, the Court examined each of the three measures requested by Pakistan individually, determining that halting construction of many components of the KHEP and ceasing operation of a bypass tunnel was not necessary to avoid prejudice to the final award, but that it was desirable on the whole to enjoin the construction of certain discrete elements of the project (most notably a dam) so as to prevent India from altering the flow of the watercourse and thereby prejudicing the final award.217

3 Proportionality and Custody of Persons or Moveable Property Proportionality takes on a particular relevance in cases where the subject matter of the proceedings is custody over persons or moveable property. In such situations, it is open to a court or tribunal to order the release of persons or the transfer of property as an interim measure. Given that 213 214 215 216

Ibid, 505–6. The Tribunal having agreed with its submissions vis-`a-vis Tuas: ibid, 502. 19 September 1960, 419 UNTS 125. 217 Kishenganga (2011) 150 ILR 311, 352–3. Ibid, 354–7.

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only one party may physically retain custody of an individual or moveable property at any one time, such measures privilege absolutely the interest of one party over the other by reversing the status quo. Accordingly, they tend only to be ordered in times of dire necessity, or where the rights subject to litigation may be seen as indispensable to the effective functioning of the international system, e.g. in cases concerning the putative violation of state or diplomatic immunity. That said, such measures do not contradict the rule in Chorz´ow Factory (Indemnities), as they do not purport to finally determine the dispute in whole or in part. Rather, the court or tribunal retains the option of returning in the final judgment to the situation that existed before the award of interim relief, i.e. by ordering the return of the persons or property in question. This leaves to one side the question of whether a party that has secured the safety of personnel or property through interim relief is likely to reverse that situation if final judgment goes against it. Such an order was first made in the Tehran Hostages case. There, litigation centred on US diplomatic premises in Tehran that had been seized by Iranian ‘students’, and the diplomatic and consular personnel held hostage by the same. The US requested that the premises be returned to American control and the hostages released. Although it did not appear, Iran’s written observations on the Iranian request raised Chorz´ow Factory (Indemnities) and pointed out that granting the measures requested would effectively result in interim judgment.218 The Court nonetheless granted the US request, noting with respect to Chorz´ow Factory (Indemnities) that: [T]he circumstances of that case were entirely different from the present one, and the request there sought to obtain from the Court a final judgment on part of a claim for a sum of money; whereas, moreover, a request for provisional measures must by its very nature relate to the substance of the case since, as Article 41 expressly states, their object is to preserve the respective rights of either party; and whereas in the present case the purpose of the United States’ request appears to be not to obtain a judgment, interim or final, on the merits of its claims, but to preserve the substance of the rights which it claims pendente lite [ . . . ]219

Whilst it was perhaps disingenuous for the Court to claim that the two cases were ‘entirely different’, the final sentence of this paragraph 218 219

United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, ICJ Reports 1979 p 7, 16. Ibid.

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highlights the fine line drawn between Tehran Hostages on the one hand and Chorz´ow Factory (Indemnities) on the other. By drawing attention to the purpose of provisional measures as protecting rights pendente lite, the Court reserved its position as to the possibility of future judicial action calculated to reverse the situation, i.e. an order that the hostages be returned to Iran. A similar inclination has appeared recently in the jurisprudence of ITLOS, which in ARA Libertad220 and Arctic Sunrise221 ordered the release of detained vessels by way of interim relief under UNCLOS Article 290(5). In the former case, the ship in question was an Argentine naval vessel that called at the Ghanaian port of Tema as part of a diplomatic mission. Whilst at port, a Ghanaian court, acting to enforce a foreign judgment pending against the Argentine state by a private party,222 ordered the Libertad seized. Argentina immediately brought proceedings before an Annex VII tribunal, arguing – tendentiously223 – that UNCLOS included within its ambit violations of warship immunity occurring in internal waters. This was quickly followed for an application for provisional measures before ITLOS under UNCLOS Article 290(5) requesting that the Libertad be resupplied and permitted to leave Tema. Ghana, in responding, did not raise the possibility that such relief might constitute an interim judgment, focusing on the application’s failure to satisfy the prerequisites of interim relief.224 In this light, ITLOS ordered release of the vessel,225 taking particular note of the fact that ‘any act which prevents by force a warship from discharging its mission and duties is a source of conflict that may endanger friendly relations among States’.226 It further observed that ‘the urgency of the situation requires the prescription by the Tribunal of provisional measures that will ensure full compliance with the applicable rules of international law, thus preserving the respective rights of the Parties’.227 In this way, the Court indicated that the norm which was in dispute between the parties – the customary immunity of warships – was 220 221

222 223 224 225

ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186. Noted: James Kraska (2013) 107 AJIL 404. Further: Douglas Guilfoyle and Cameron A Miles, ‘Provisional Measures and the MV Arctic Sunrise’ (2014) 108 AJIL 271; Richard Caddell, ‘Platforms, Protestors and Provisional Measures: The Arctic Sunrise Disputes and Environmental Activism at Sea’ (2014) 45 NYIL 359. NML Capital Ltd v Republic of Argentina, 2009 US Dist LEXIS 19046 (SNDY, 3 March 2009); affirmed 699 F.3d 246 (2nd Cir, 2012). See Chapter 4, §IV.B.2. ARA Libertad, Ghana: Written Statement (28 November 2012) §§8–27. 226 227 ARA Libertad (2012) 156 ILR 186, 205. Ibid, 204. Ibid.

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essential to the smooth functioning of the international system, justifying extraordinary relief such as the release of the vessel. A variant of the same occurred in Arctic Sunrise. There, the Russian Federation arrested a Dutch-flagged Greenpeace vessel in the Russian exclusive economic zone following the attempted boarding of a Gazprom oil platform by activists on board. The ship was detained at Murmansk and the passengers and crew (the so-called ‘Arctic 30’) were charged with criminal offences.228 The Netherlands quickly filed proceedings under Annex VII, alleging infringement of the vessel’s freedom of passage pursuant to UNCLOS Articles 58 and 87 and abuse of Russia’s right of visit of a foreign-flagged ship under Article 110. It was further alleged that the detention and prosecution of the Arctic 30 amounted to an abuse of human rights within the meaning of the ICCPR, specifically the rights of liberty and free movement under Articles 9 and 12. These allegations were substantially reproduced in an application for interim relief to ITLOS under UNCLOS Article 290(5),229 in which the Netherlands requested the release of the vessel and crew and the suspension of all judicial and administrative proceedings against the same.230 Russia did not appear before the Tribunal, but in a note verbale prepared by its embassy in Berlin indicated that it did not accept its jurisdiction due to a reservation made under UNCLOS Article 298.231 In its Order of 22 November 2013, ITLOS granted the Dutch request in its entirety and took up a Dutch suggestion that the measures ordered be secured by the payment of a €3.6 million bond.232 No specific objection to the release of the vessel as a provisional measure was raised by any member of the Tribunal – including the dissenting Russian member, Judge Golitsyn.233 In all three of the above mentioned cases, the imposition of interim relief requiring that objects or persons change hands between the parties was ultimately uncontroversial. In Tehran Hostages, Iran ignored 228 229 230 231 232 233

Guilfoyle and Miles, ‘MV Arctic Sunrise’, 271–2. Arctic Sunrise, Netherlands: Application for Interim Relief (21 October 2013) §§19ff. Ibid, §18. Arctic Sunrise, Russian Federation: Note vebale of the Embassy of the Russian Federation in Berlin (22 October 2013). Arctic Sunrise, ITLOS Case No 22, §§93–97, 105. This was rapidly paid: Arctic Sunrise, Netherlands: Report on Compliance with Provisional Measures (2 December 2013). Although Judge Jesus caviled with the requirement of the bond, arguing that it effectively converted Article 290(5) into a de facto prompt release proceeding that displaced UNCLOS Article 292, and preferring as a solution the unconditional release of the vessel and its crew per the Tribunal’s decision in ARA Libertad: ibid, §§7–11 (Judge Jesus). Such concerns are misplaced: Guilfoyle and Miles, ‘MV Arctic Sunrise’, 281–3.

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the Court’s orders and the hostages remained in Iran until the Algiers Accords of 1981. In ARA Libertad, Ghana complied with the provisional measures ordered and the parties amicably terminated the Annex VII proceedings234 following a decision of the Ghanaian Supreme Court that upheld the customary immunity of warships.235 In Arctic Sunrise, Russia initially ignored the Tribunal’s orders before complying with their substance as part of a general amnesty ordered by the Russian Parliament without acknowledging the validity (or even existence) of the Tribunal’s order.236 As mentioned, measures involving the transfer of persons or property are inherently disproportionate. They further run the risk of diminishing the legitimacy of the court or tribunal that chooses to impose them. One can imagine, for example, the uproar that would have resulted had the Court found for Iran in the Tehran Hostages case or – perhaps more predictably – the Annex VII tribunal in ARA Libertad had determined that it lacked jurisdiction. In such cases, the domestic pressure on the claimant not to return to the status quo would have been immense, placing the court or tribunal in a difficult position. This even presumes that such a return would have been possible – were the Arctic 30 to take refuge in any third state, for example, they would have been beyond the reach of any reversionary order, resulting in an interim judgment were it not for the fact of the bond. It is further no defence to say that such orders are only made in cases where the final outcome is clear, preventing any such reversion from occurring – determinations with respect to interim relief are formally without res judicata effect, and any conclusions drawn as to the final result are in any event anathema to their provisional character. Finally, an additional measure of caution is also warranted where a request is made under UNCLOS Article 290(5) – there, ITLOS is acting on behalf of an Annex VII tribunal, and care should be taken to ensure that any measure ordered does not exceed the possibility of reversal by that body. In this light, it is here submitted that orders for the transfer of property or persons should only be ordered in cases where no other plausible 234

235 236

ARA Libertad (Argentina v Ghana), PCA Case No 2013-11 (Annex VII) (Termination Order, 11 November 2013). Further: Agreement between Argentina and Ghana concerning an Arbitration under Annex VII of the UN Convention on the Law of the Sea, 27 September 2013, www.pca-cpa.org/showfile.asp?fil id=2340. Ghana v High Court; ex parte Attorney General (2013) 156 ILR 240. ‘Freed Greenpeace Arctic detainees home from Russia’ (BBC News, 27 December 2013), www.bbc.com/news/uk-25524589; ‘Greenpeace Arctic Sunrise: Russia “frees protest ship”’ (BBC News, 6 June 2014), www.bbc.com/news/world-europe-27736927.

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alternative presents itself. Moreover, given the sheer breadth of an international court or tribunal’s power to craft interim relief, it is difficult to contemplate a situation in which no such alternative would be available. In Tehran Hostages, the Iranian government could have been ordered to secure the hostages and detain them in humane conditions along with embassy property and premises until such time as the dispute was resolved. In ARA Libertad, Ghana could have been ordered to suspend execution of the foreign judgment and to ensure that the vessel was maintained appropriately until judgment was given – or alternatively sequestered in the custody of a third state or an international organization (e.g. the UN). In Arctic Sunrise, the imposition of a bond was a welcome elaboration on prior procedure, but even this interfered impermissibly with Russia’s criminal justice system and its right under international law to prosecute foreign nationals. Rather, it might be suggested that ITLOS should have ordered that: (a) the vessel be maintained; and (b) proceedings against the Arctic 30 be suspended and the protestors released pending resolution of the dispute – they should not, however, have been permitted to leave the jurisdiction without Russian consent. All three of these solutions would have reduced domestic pressure on the claimant in the event that the respondent was ultimately to prevail, as well as avoiding the impression that the court or tribunal was favouring one side over the other. This logic now appears to have been accepted by ITLOS. In Enrica Lexie, the Tribunal was confronted by an Italian request under UNCLOS Article 290(5) for the provisional release of an Italian marine who had been arrested and was being investigated by Indian authorities following an altercation between the Italian-flagged freighter on which the marines were posted and an Indian fishing vessel in the Indian EEZ, as a consequence of which two Indian fishermen were shot and killed. Notwithstanding an Italian undertaking that it would return both the detained marine (and another marine who had been allowed to return to Italy for health reasons) to India in the event that the Annex VII tribunal found against it on the merits,237 the Tribunal refused to order their release, and instead adopted a middle course of ordering suspension of all criminal proceedings pending resolution of the dispute.238 It further noted: 237 238

Enrica Lexie Incident (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §118. Ibid, §131.

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Considering that India further points out that the [Italian submission] corresponds to the request on the merits Italy makes under letter (d) of the relief sought in its Statement of Claim and thus, if granted, would prejudge the merits contrary to the object and purpose of provisional measures [ . . . ] Considering that the Order must protect the rights of both parties and must not prejudice any decision of the arbitral tribunal to be constituted under Annex VII; Considering that the [Italian submission], if accepted, will not equally preserve the respective rights of both Parties until the constitution of the Annex VII arbitral tribunal as required by article 290, paragraphs 1 and 5, of the Convention; Considering that due to the above the Tribunal does not consider the [Italian submission] to be appropriate and that, in accordance with article 89, paragraph 5 of the Rules, the Tribunal may prescribe provisional measures different in whole or in part of those requested[.]239

The same point was made at greater length by Judge Paik, who appended a declaration to the Tribunal’s decision: Exercise of criminal jurisdiction is a duty of the State. It is indispensible to the maintenance of law and order, a fundamental basis of any society, with no State can take lightly if it is not to neglect its duty as a State. In exercising criminal jurisdiction, obtaining the custody of the accused is critical. Criminal proceedings without obtaining and maintaining the custody of the accused would be largely a fiction. Thus the question of the custody of the accused should be approached with the utmost caution. [ . . . ] [Release of the accused] would then deprive India of any possibility, whether actual or legal, to exercise the rights it asserts over the Enrica Lexie incident during the pendency of the arbitral proceedings because the accused would no longer be subject to its jurisdiction. Furthermore, to me, requiring India to virtually ‘hand over’ the accused to Italy goes beyond the function of provisional measures as interim relief and comes close to prejudging the merits of the dispute.240 239 240

Ibid, §§123–7. Ibid, §6 (Judge Paik). See further Lao Holdings NV v Lao People’s Democratic Republic, ICSID Case No ARB(AF)/12/6 (Ruling on Motion to Amend the Provisional Measures Order, 30 May 2014) §37; PNGSDP v PNG, ICSID Case No ARB/33/13, §145. As a side note, it is worth noting that ITLOS did not trouble itself to explain why in Enrica Lexie it departed from the position it took in Arctic Sunrise some 18 months earlier. Judge Paik made some attempt to distinguishing the two cases, noting that the contemplated charge in Enrica Lexie – murder – was of a notably higher gravity than the ‘hooliganism’ charges leveled against the Arctic 30: Arctic Sunrise, ITLOS Case No 22, §7 (Judge Paik). With respect, this makes little sense. A state’s criminal jurisdiction is equally sacrosanct

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It is to be hoped that this is now the default position in international law with respect to provisional measures relating to custody over persons or moveable property.241

C Duration of Provisional Measures A final question concerning the content of provision measures is that of their temporal effect.242 On this point, the jurisprudence between the various international courts and tribunals is uniform. As ancillary proceedings,243 provisional measures cannot exist in the absence of a main claim. Accordingly, once the substantive proceedings on which the provisional measures are engrafted have been terminated, so too are the measures themselves – without the need for any additional order and irrespective of whether the claimant is ultimately successful.

1 The International Court of Justice The rule in question was first stated expressly by the ICJ in Anglo-Iranian Oil in which, having ordered provisional measures, the Court subsequently determined that it lacked jurisdiction and dismissed the matter. The dismissal, however, was accompanied by a recollection of the Court’s earlier statement that provisional measures were indicated ‘pending its final decision in the proceedings’,244 leading to the conclusion that ‘[i]t follows that [the measures cease] to be operative upon the delivery of the Judgment and that the Provisional Measures lapse at the same time’.245 This formula was later repeated in both of the Nuclear Tests cases, which were dismissed by reason of mootness.246

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no matter how the state chooses to exercise it. It is not for an international tribunal to impose its views on what constitutes an offence sufficiently severe to render that jurisdiction immune from an interim remedy on the state. Ultimately, from the state’s point of view, the right to prosecute hooliganism and the right to prosecute murder are the same thing. It might also be added that, if Judge Paik’s view were correct, it would act as an incentive for states to exaggerate criminal charges against individuals in a bid to insulate them from provisional measures. But cf. Enrica Lexie Incident (Italy v India), PCA Case No 2015-28 (Annex VII) (Provisional Measures, 29 April 2016), in which an Annex VII tribunal ordered the release of the detained marine pending the outcome of the arbitration. This decision came too late to be considered here. Generally: Rosenne, Provisional Measures, 154–8. A related concern is the modification or revocation of provisional measures: see further Chapter 8, §III.E. 244 See Chapter 4, §II. Anglo-Iranian Oil, ICJ Reports 1951 p 89, 93. Anglo-Iranian Oil, ICJ Reports 1952 p 93, 114. Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 272; Nuclear Tests (New Zealand v France), ICJ Reports 1974 p 457, 477.

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Provisional measures also lapse with the giving of final judgment, with the obligations incumbent on the parties as a result of the judgment replacing those ordered by a court or tribunal on an interim basis. This was affirmed, inter alia, by the Court when considering preliminary objections in Nicaragua247 and also in Avena.248 A judgment that does not dispose of the proceedings in their entirety may also be seen to replace an order for interim relief: in Tehran Hostages, the ICJ’s decision of 24 May 1980 determined the legal questions in dispute, but contemplated further proceedings with respect to reparation failing agreement of the parties.249 This notwithstanding, the Court’s Order of 15 December 1979 was seen to have been replaced wholesale. The capacity of an international court or tribunal to tailor interim relief to the circumstances at hand means that such a body is also capable of imposing temporal limitations on measures ordered. In the Fisheries Jurisdiction cases, the ICJ ordered several measures in 1972 that were expressed as ‘pending its final decision’. At the same time, however, the Court also provided that unless that judgment was handed down within 12 months of the making of the orders, they would be subject to review by the Court at which point it would be determined which (if any) were to continue in effect, with the implication being that unless renewed the measures would lapse.250 On the expiry of that period, the Court ordered new measures, to remain in place until final judgment.251

2 Dispute Settlement Under UNCLOS Given the similarities between UNCLOS Article 290 and Article 41 of the ICJ Statute, it is not untoward to assume that provisional measures ordered under the former will simply terminate alongside the main proceedings to which they are engrafted – and certainly it has not been assumed in any proceeding before ITLOS or any Annex VII tribunal that interim relief possesses anything in the way of an extended lifespan. In Southern Bluefin Tuna, the Annex VII tribunal in determining that it lacked jurisdiction also held that the provisional measures ordered by ITLOS would ‘cease to have effect as of the date of this award’.252 247 248 250 251 252

Nicaragua, Preliminary Objections, ICJ Reports 1984 p 392, 442. 249 Avena, ICJ Reports 2004 p 12, 70. Tehran Hostages, ICJ Reports 1980 p 3, 45. Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1972 p 12, 18; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1972 p 30, 35–6. Fisheries Jurisdiction (UK v Iceland), Interim Measures, ICJ Reports 1973 p 302, 304; Fisheries Jurisdiction (FRG v Iceland), Interim Measures, ICJ Reports 1973 p 313, 315. Southern Bluefin Tuna (Annex VII) (2000) 119 ILR 508, 554.

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Within the UNCLOS context, however, questions may be raised as to the duration of measures ordered by ITLOS under Article 290(5), and whether the fact that such orders are made on behalf of an Annex VII tribunal may be said to limit their lifespan. This question was addressed at length by the Tribunal in Land Reclamation. There, Singapore argued that Article 290(5) measures could only have effect prior to the constitution of an Annex VII tribunal, and as that tribunal was due to meet shortly after ITLOS considered the Malaysian application for interim relief, there was no point in such orders being made. ITLOS, however, disagreed, noting that although it was authorized to order relief prior to the composition of an Annex VII tribunal ‘there is nothing in article 290 of the Convention to suggest that the measures prescribed by the Tribunal must be confined to that period’, going on to find that ‘provisional measures prescribed by the Tribunal may remain applicable beyond that period’, subject to modification, revocation or affirmation by an Annex VII body.253 This position was affirmed in Arctic Sunrise.254

3 Inter-State Arbitration Unsurprisingly, the rare examples of provisional measures ordered in an inter-state context detached from any more substantial judicial structure have also upheld the temporary character of these orders. In Kishenganga, the Court of Arbitration qualified its award of interim relief by holding that they remained in effect ‘for the duration of these proceedings up to the rendering of the Award’.255 The measures were lifted in the Award, which authorized the continuation of work on the diversion of the river under certain conditions.256 4 Investor-State Arbitration The ancillary character of provisional measures in the investor-state context again leads unavoidably to the conclusion that these orders do not have an existence beyond that of the main proceedings. As noted by Schreuer et al., ‘[a]lthough neither [Article 47] nor Arbitration Rule 39 say so expressly, this is a consequence of their provisional nature’.257 This has been emphasized in recent cases such as PNGSDP v PNG, where the Tribunal noted that the orders granted ‘shall remain in effect unless and 253 254 256 257

Land Reclamation (2003) 126 ILR 487, 501. 255 Arctic Sunrise, ITLOS Case No 22, §§84–5. Kishenganga (2011) 150 ILR 311, 358. Kishenganga, PCA (Award, 20 December 2013) dispositif §C. ICSID Commentary, 774–5.

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until they are revoked by the Tribunal or until the end of this arbitration proceeding’.258

IV Breach and Enforcement of Provisional Measures A Legal Consequences of Non-Compliance and Questions of Applicable Law 1 Application of the Law of State Responsibility to Provisional Measures Having established the binding character of provisional measures, the question of further legal consequences remains. If provisional measures are binding, then it follows a fortiori that each such a measure (unless expressed to be hortatory only) creates an international obligation of compliance incumbent on the party to which it is directed. In keeping with the consent-based character of the jurisdiction of international courts and tribunals, a provisional measure (like a final judgment or award) is only binding on the parties to the litigation to which the measure relates,259 and cannot impose any obligation of compliance on any third party – though it may urge their cooperation.260 The ability of courts and tribunals to award interim relief is a general principle of international law, expressed as an inherent power of the adjudicative body.261 The same may be said of any resulting obligation of compliance incumbent on the parties. To the extent that the constitutive instrument of the body regulates that inherent power by way of lex specialis, it may be said that the law of treaties adds to this obligation. Whatever view one takes of the precise admixture of sources that may make up the obligation within the meaning of Article 38(1) of the ICJ Statute, it is clear that – as found by the Annex VII tribunal in Arctic Sunrise262 – a violation is governed by the customary law of state responsibility, as largely reflected by the ARSIWA released by the International Law Commission in 2001.263 These rules are often described as 258 259 262 263

PNGSDP v PNG, ICSID Case No ARB/33/13, §172. Also: City Oriente v Ecuador, ICSID Case No ARB/06/21, dispositif §2. 260 261 See e.g. ICJ Statute, Article 59. See e.g. above §III.A.1. Chapter 4, §III. Arctic Sunrise (Netherlands v Russian Federation), PCA Case No 2014–02 (Annex VII) (Award, 14 August 2015) §337. It is further possible that an international organization could be party to international litigation and subject to an order for provisional measures, in which case the governing law would be heavily influenced by the ILC’s Draft Articles on the Responsibility of

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‘secondary’ rules of international law, providing as they do a uniform basis for the implementation of substantive ‘primary’ obligations – though the distinction between the two can be technical, and at times artificial and difficult to apply.264 Their application to provisional measures is novel, notwithstanding the fact that their status as the applicable law seems relatively uncontroversial – as will be seen, due to the relatively recent determinations that provisional measures are binding and the somewhat diffident manner in which courts and tribunal have approached questions of their breach, the law of state responsibility with respect to provisional measures has yet to be fully explored in the judicial or arbitral sense. (a) Attribution This is not the forum to discuss precisely how the ARSIWA might apply to a breach of provisional measures, at least in their entirety.265 As far as a state is concerned, the content of an order for provisional measures constitutes an international obligation breach of which is an internationally wrongful act – nothing more, nothing less. But it is worth pointing out those provisions of the ARSIWA that might arise with a measure of frequency. ARSIWA Article 2 provides that an internationally wrongful act occurs where an action or omission is: (a) attributable to the state under international law; and (b) constitutes a breach of an international obligation. Attribution is dealt with in Part One, Chapter II of the ARSIWA, and lists a variety of ways in which the conduct of an actor might be sheeted home to the state as the entity responsible for compliance with provisional measures, all of which may be readily imagined in the context of a breach of interim relief: acts by state organs are automatically attributable to the state,266 but also contemplated are acts performed by entities exercising elements of governmental authority,267 conduct of organs placed at the disposal of one state by another,268 conduct directed or controlled by a state,269 conduct carried out in the absence or in default of official authorities270 and conduct acknowledged or adopted by a state as its own.271

264 265

266 269

International Organizations: see Official Records of the General Assembly, Sixty-sixth Session, Supplement No 10 (A/66/10) §§77ff. Eric David, ‘Primary and Secondary Rules’, in J Crawford et al. (eds), The Law of International Responsibility (Oxford: Oxford University Press, 2010) 27, 27. An encyclopedic recent study is James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013). See also James Crawford et al. (eds), The Law of International Responsibility (Oxford: Oxford University Press, 2010). 267 268 ARSIWA Art 4. ARSIWA Art 5. ARSIWA Art 6. 270 271 ARSIWA Art 8. ARSIWA Art 9. ARSIWA Art 11.

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(b) Breach and Defences Given the multifarious obligations that an order for provisional measures may impose on the parties, a more interesting question is that of breach.272 Part One, Chapter III of the ARSIWA describes a breach of an international obligation as encompassing both material273 and temporal274 elements. With respect to the latter, in order for breach to occur, the state must be bound by the relevant obligation at the time as which the act alleged to constitute breach occurs. In the context of provisional measures, this means that breach cannot occur prior to the court or tribunal ordering interim relief, and equally cannot occur after the measures ordered have been revoked or lapsed naturally due to termination of proceedings. With respect to the former,275 the question depends entirely on the content of the measures so ordered.276 One recognized duality (not reflected in terms by the ARSIWA) is between an obligation of conduct and an obligation of result.277 Obligations of conduct are the more determinative, specifying a particular outcome and setting down the steps to be taken to achieve that outcome. A recent example would be the measures ordered in the Border Area case, in which the Court permitted Costa Rica to enter the disputed area in order to remedy environmental damage inflicted by Nicaragua, but conditioned this right of entry on the intervention being necessary to avoid irreparable prejudice and further requiring that Costa Rica consult with the Secretariat of the Ramsar Convention, give prior notice to Nicaragua and use best endeavours to find common

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It should also be noted that ancillary and secondary modes of responsibility are also applicable, e.g. aid and assistance or direction and control of another state: ARSIWA Part One, Chapter III. Further: Crawford, State Responsibility, ch 12. Also: Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge: Cambridge University Press, 2011); Miles Jackson, Complicity in International Law (Oxford: Oxford University Press, 2015) ch 7. ARSIWA Art 12. 275 ARSIWA Art 13. Generally: Crawford, State Responsibility, ch 7. Ibid, 216–17. Cf. Gabˇc´ıkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997 p 7, 38. Crawford, State Responsibility, 220–6. But cf. ibid, 222–3: The question is usually one of interpretation of the relevant obligation, and the value of the distinction lies in its relevant to the measure of discretion left to the respondent state in carrying out the obligation. The discretion is necessarily constrained by the primary rule, and the crucial issue of appreciation is, to what extent? The distinction may help in some cases in expressing conclusions on the issue; whether it helps in arriving at them is another matter.

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solutions with Nicaragua in this respect.278 Within such an obligation, sub-obligations may be found, e.g. with respect to the requirement that Costa Rica ‘consult’ with the Secretariat. The term is not reflective of automatic obedience, and Costa Rica was not required to follow any advice that the Secretariat may give. At the same time, the Secretariat was not to be seen as merely rubber stamping Costa Rica’s conduct: obligations of consultation have been given normative weight in international disputes, such that efforts at consultation must be ‘meaningful’279 and not ‘mere formalities’.280 Another stipulation – perhaps inherent in every provisional measure – is that of timeliness. Provisional measures are ordered (or should be ordered) in response to an urgent need. As such, compliance must be prompt. This was the subject of investigation by the Annex VII tribunal in Arctic Sunrise, which assessed Russian compliance with the ITLOS order under UNCLOS Article 290(5) that Russia release (a) the 30 activists and crew detained following the arrest of the vessel, and (b) the vessel itself. The Tribunal found that the release of the activists from Russian custody within seven days of provisional measures being awarded was sufficiently timely,281 but the fact that it took a further month to permit them to leave Russia and a further six months to release the Arctic Sunrise itself was in breach of the requirement.282 Obligations of result, by contrast, stipulate only an outcome, and leave it to the state to bring that outcome about. A reversal of this principle might be classed as an obligation of prevention, which sets out affairs that the court or tribunal wishes to avoid. Most provisional measures implicitly fall into this category, by specifying only the state of events that the court or tribunal wishes to persist pendente lite. A straightforward example of this would be provisional measures for the non-aggravation of a dispute, with the court or tribunal in question ordering that it does not wish for relations between the parties to deteriorate further and with any step taken that produces that outcome deemed to be in violation of interim relief. Compliance with such directions is usually clear on the 278 279 280 281 282

Border Area, ICJ Reports 2011 p 6, 27; Border Area/San Juan River, ICJ Reports 2013 p 354, 369–70. Gabˇc´ıkovo-Nagymaros, ICJ Reports 1997 p 7, 78. Lake Lanoux (France v Spain) (1957) 24 ILR 101, 119. Arctic Sunrise, PCA Case No 2014–02, §343. Ibid, §§350, 355. The Tribunal also found that Russia failed to return items that were onboard the vessel when it was arrested, and to file a report notifying the Tribunal of its compliance with provisional measures: ibid, §359.

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facts: either the direction is followed or it is not, and devices seen elsewhere when assessing compliance with international law – such as the margin of appreciation – are generally incompatible with the urgent character of interim relief.283 A sub-species of an obligation of prevention is an obligation of best endeavours or due diligence.284 In such a case, a measure may specify an outcome that the court or tribunal wishes to occur or not occur, but a failure to achieve or prevent that outcome will not automatically result in breach. Rather, the court or tribunal is more interested in whether a state has done its utmost to fulfill its directive. In LaGrand, for example, the US was required by the ICJ to ‘take all measures at its disposal’ to prevent the execution of Walter LaGrand.285 The Court, in assessing what the US was required to do to satisfy this measure, noted that ‘the Order did not require the United States to exercise powers it did not have’, but nonetheless concluded ‘the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court’s Order’.286 The question, from the Court’s perspective, was whether or not there were options available to the US that it had not explored or that it had not deployed with alacrity. With the ARSIWA applying generally to obligations arising out of provisional measures, it follows that the further consequences of state responsibility also accrue. A state that breaches provisional measures is entitled to rely on the range of potential circumstances precluding wrongfulness under Part One, Chapter V of the ARSIWA to justify its behaviour,287 namely the defences of consent,288 self-defence,289 force majeure,290 distress,291 necessity292 and compliance with peremptory norms.293 (c) Invocation of Responsibility A more interesting question arises with respect to the capacity of an injured party to invoke a breach of provisional measures with a view to obtaining certain legal rights and 283 284 285 286 287 289 292

Further: Cameron A Miles, ‘Provisional Measures and the Margin of Appreciation before the International Court of Justice’ (2016) 7 JIDS (advance access). Crawford, State Responsibility, 226–32. LaGrand, ICJ Reports 1999 p 9, 16. Also: Breard, ICJ Reports 1998 p 248, 258; Avena, ICJ Reports 2003 p 77, 91–2. LaGrand, ICJ Reports 2001 p 466, 508. It was also noted that the Court ‘did not create an obligation of result’: ibid, 507. 288 Generally: Crawford, State Responsibility, ch 9. ARSIWA Art 20. 290 291 ARSIWA Art 21. ARSIWA Art 23. ARSIWA Art 24. 293 ARSIWA Art 25. ARSIWA Art 26.

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remedies. Pursuant to ARSIWA Article 42, responsibility may only be invoked by a state where the obligation in question is owed to that state individually, i.e. bilaterally. In a multilateral context, state responsibility may also be invoked where a state is specially affected by a breach or the breach is of such a character as radically to change the position of all the other states to which the obligation is owed with respect to the further performance of that obligation.294 Both of these situations have occurred with respect to provisional measures, although multilateral litigation is something of a rarity in the international sphere.295 The invocation of responsibility with respect to provisional measures raises an antecedent question – to whom are obligations arising from provisional measures owed? Notwithstanding the argument that such obligations might be owed to the court or tribunal that orders them – precluding invocation by another party – parties have routinely been permitted to raise claims arising from the breach of provisional measures,296 leading to the conclusion that these obligations are, depending on their wording, owed to the parties. This is consistent with the character of provisional measures overall – if such measures are designed to protect the rights of parties pendente lite, then a fortioti it is to those parties that obligations arising therefrom are owed. With the entitlement to invoke responsibility comes the capacity to seek cessation of and reparation for the breach.297 The remedies constituting reparation298 may comprise restitution of the status quo,299 compensation for any damage insofar as reparation is materially impossible300 or satisfaction, i.e. provision of an acknowledgement of wrongdoing or an apology.301 In the context of provisional measures, this requires the immediate return to the status quo prescribed by the interim relief, to be supplemented by compensation for damage beyond the reach of restitution or acknowledgement of wrongdoing as required. A further question surrounds the capacity of an injured party to imposed countermeasures against a state violating provisional measures pursuant to Part Three, Chapter II of the ARSIWA.302 Countermeasures comprise the temporary suspension of obligations by an injured party vis-`a-vis the responsible party in response to an internationally wrongful 294 295 296 297 299 301

To the extent that ARSIWA Art 42 makes reference to obligations erga omnes – through the term ‘to the international community as a whole’ – it clearly does not apply. Cf. Southern Bluefin Tuna (1999) 117 ILR 148. See e.g. LaGrand, ICJ Reports 2001 p 466, 498–508. 298 ARSIWA Arts 30, 31. Crawford, State Responsibility, ch 16. 300 ARSIWA Art 35. ARSIWA Art 36. 302 ARSIWA Art 37. Crawford, State Responsibility, 684–703.

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act.303 They must be proportionate to the wrongful act304 and certain obligations cannot be suspended by operation of countermeasures.305 Under ARSIWA Article 52(1), certain procedural steps must ordinarily be taken prior to the imposition of countermeasures; however, these may be dispensed with pursuant to paragraph 2 of the same where ‘urgent’ countermeasures are required to preserve the rights of the injured state. Given that provisional measures are ordered only in situations of urgency to protect a party’s rights (or prevent escalation of a dispute), it follows that in all cases involving breach of provisional measures procedural niceties can be dispensed with. A further limitation on provisional measures is contained in paragraph 3(b), which provides that provisional measures may not be taken where the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. Although provisional measures arise axiomatically in the context of such proceedings, paragraph 4 provides that this does not apply if the responsible state fails to implement the dispute settlement procedures – including compliance with provisional measures – in good faith. Countermeasures are thus available notwithstanding an environment of binding dispute settlement. Furthermore, the ILC’s proviso in ARSIWA Article 50(2)(a) that a state taking countermeasures is not relieved from fulfilling its obligations ‘under any dispute settlement procedures applicable between it and the responsible State’ does not apply in the context of countermeasures responding to a breach of provisional measures, with the commentary to the relevant provision indicating that the ILC intended it to apply to cases involving the invocation of dispute settlement procedures as a whole,306 and not to individual elements that might arise within those procedures. It has been argued by some commentators307 that countermeasures are not available in response to a breach of provisional measures as to seek reprisals in such circumstances would be to contravene the general

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304 ARSIWA Art 49(2). ARSIWA Art 51. E.g. obligations to refrain from the use of threat or force, obligations for the protection of fundamental human rights, obligations of a humanitarian character inhibiting reprisals and other peremptory obligations arising in general international law: ARSIWA Art 50(1). ARSIWA Commentary, Art 50, §§12, 13, citing Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), ICJ Reports 1972 p 46, 53:

Nor in any case could a merely unilateral suspension per se render jurisdictional clauses inoperative, since one of their purposes might be, precisely, to enable the validity of the suspension to be tested. 307

Oellers-Frahm, ‘Article 41’, 1068–9.

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duty on litigants set down in Electricity Company that parties ‘abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not to allow any step [ . . . ] which might aggravate or extend the dispute’.308 This is incorrect. Although the duty identified is certainly extent, it is recognized in the ARSIWA that the imposition of otherwise valid countermeasures is sufficient justification for a wrongful act under international law.309 Accordingly, countermeasures levied in response to a breach of interim relief – although they may not exactly aid in the peaceful resolution of a dispute – remain available to the injured state.

2 Individual and Corporate Liability for Breach of Provisional Measures A far more vexed question arises in the context of investor-state arbitration. In such cases, where provisional measures are levied against a state as respondent, the law of state responsibility will once again govern the question of breach of provisional measures.310 However, investors – be they natural or juridical persons – may also be bound by interim relief. On occasion, this may take the form of a specific measure, such as the non-disclosure order levied in Biwater Gauff v Tanzania,311 but will more often form part of a general exhortation for the non-aggravation of a dispute.312 The fact that binding provisional measures may be levied against an investor raises the question of the applicable law for determining breach of those measures.313 Failing express designation by the parties, tribunals are given considerable latitude to determine applicable law in both ICSID and UNCITRAL arbitrations, and are able to draw on both international law and the law of the host state to achieve this goal.314 Absent exceptional 308 310

311 312 313 314

309 Electricity Company (1939) PCIJ Ser A/B No 79, 199. ARSIWA Art 22. Some commentators have argued for the imposition of a sui generis regime of state responsibility with respect to investor-state arbitration: see e.g. Zachary Douglas, The International Law of Investment Claims (Cambridge: Cambridge University Press, 2009) 94–106; Martins Paparinskis, ‘Investment Treaty Arbitration and the (New) Law of State Responsibility’ (2013) 24 EJIL 617. On the whole, however, tribunals have demonstrated a willingness to apply the ARSIWA without more, especially in relation to attribution: see e.g. EDF v Romania, ICSID Case No ARB/05/13 (Award, 8 October 2009) §§169–213. Biwater Gauff v Tanzania, Procedural Order No 3, ICSID Case No ARB/05/22, §163. See e.g. Casado v Chile (2001) 6 ICSID Reports 387, 397. That same law would have implications for other procedural orders made against investors as a consequence of powers arising under international law, e.g. costs orders. See ICSID Convention, Art 42; 1976 UNCITRAL Art 33; 2010 UNCITRAL Art 35. Further: ICSID Commentary, 545–639; Rudolf Dolzer and Christoph Schreuer, Principles of

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circumstances,315 the applicable law for procedural orders made by an investor-state tribunal is international law. This is consistent with the character of investment tribunals as creatures of international law and of provisional measures as reflecting an inherent power of those tribunals to regulate their proceedings. This remains the case notwithstanding the fact that investor-state arbitrations under the UNCITRAL rules are seated in a domestic jurisdiction and are subject to supervision by the courts of the forum.316 Accordingly, the applicable law when addressing the putative breach of provisional measures by an investor is an articulated set of secondary rules of international law applicable to both natural persons and corporations. Here, we enter something of a terra nullius: no such law has presently been articulated with a view to civil liability,317 though other areas of international law have defined rules of responsibility with respect to criminal liability, particularly in relation to individuals, that have developed through a combination of international agreements318 and the practice of international criminal tribunals.319 It is incumbent

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International Investment Law (Oxford: Oxford University Press, 2nd edn, 2012) 288–93; Hege Elisabeth Kjos, Applicable Law in Investor-State Arbitration: The Interplay Between National and International Law (Oxford: Oxford University Press, 2013). Over time, international law has become the dominant form of applicable law, crowding out application of municipal law: Eric De Brabandere, Investment Treaty Arbitration as Public International Law: Procedural Aspects and Implications (Cambridge: Cambridge University Press, 2014) 122–9. Cf. Tanzania Electric Supply Co Ltd v Independent Power Tanzania Ltd, ICSID Case No ARB/98/8 (Provisional Measures, 20 December 1999), where the arbitration agreement was contained in an investment contract that referred disputes to ICSID arbitration, but specified that ‘the law governing the procedure and administration of the arbitration [ . . . ] shall be the English law [sic]’. In determining the request for provisional measures, the Tribunal made reference to s. 39 of the Arbitration Act 1996 (UK), but did not elaborate on the extent to which it applied to proceedings. Further: Douglas, Investment Claims, 120–5. Put another way, obligations arising in international law must also be determined by further principles of international law: Republic of Ecuador v Occidental Exploration and Production Company [2005] EWHC 774 (Comm), §61; affirmed [2005] EWCA Civ 1116, §19. Further: Kjos, Applicable Law, 224ff. The closest analogy is the US Alien Tort Statute, 28 USC §1350, which in reality takes the substance of a limited range of internationally wrongful acts and converts them into domestic torts: Anja Seibert-Fohr, ‘United States Alien Tort Statute’, MPEPIL (2008). See e.g. the Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, Art 25. This is most obvious in the context of international criminal law, which provides for both customary modes of responsibility (e.g. direct perpetration, co-perpetration, joint criminal enterprise and command responsibility) and circumstances excluding liability

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on tribunals that are confronted with questions of this kind to develop a regime of civil responsibility with respect to individuals and corporations according to the recognized processes for the formation of international law.320 This position does not raise wider considerations of individual or corporate responsibility in international law,321 as being bound in this way may be seen to follow from the investor’s consent to the arbitral bargain and the limited international legal personality granted to it by its participation in the process. In any event, the alternative would be to admit that there is a fundamental asymmetry within investment law and that investors cannot be held to account for bad behaviour – i.e. the breach of an order for provisional measures – in the same way that a state can, a conclusion that strikes one as unsatisfactory and contrary to the rule of law. That being said, this is not the place to define such a law in extenso – it is sufficient to say that if provisional measures are to be binding, there ought to exist a regime for the implementation of legal consequences.322

B Enforcement of Provisional Measures Following LaGrand and the emergence of a general understanding that provisional measures in international law are binding, courts and

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(e.g. duress, necessity, mistake of fact and immunities), though these are to a certain extent linked to the particular substantive crime with which the accused is charged: Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2nd edn, 2009) 187–314. The field is less developed with respect to corporate responsibility, with corporate liability excluded from the ICC Statute and international criminal law more generally: see Andrew Clapham, ‘Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 JICJ 899. That said, in 2014, the Appeals Panel of the Special Tribunal for Lebanon determined that two media companies could be prosecuted for contempt of court: Prosecutor v New TV SAL and Karma Al Khayat, STL-14–05/PT/AP/AR126.1 (Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, 2 October 2014). See ICSID Convention, Art 42(2), providing that ‘[t]he Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity in the law’. Further: ICSID Commentary, 630–1. See e.g. William S Dodge, ‘Corporate Liability under Customary International Law’ (2012) 23 Georgetown JIL 1045; Markos Karavias, Corporate Obligations Under International Law (Oxford: Oxford University Press, 2013). This may not arrive through the agency of investor-state tribunals, however – given that the investor is usually in the position of bringing a claim, and given the possibility that a tribunal will take a failure to comply with interim relief into account on the merits, most investors usually comply with provisional measures without more, depriving tribunals of meaningful opportunities to develop the law.

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tribunals have begun implementing responsibility for the breach of interim relief. That being said, enforcement is not the primary purpose of provisional measures. They are preventative, not punitive, in character: ‘one does not judge the efficacy of a watchdog by the number of people it bites’.323 At the time of writing, such processes have taken place exclusively before the ICJ or in the investor-state system, as the bodies operating under UNCLOS have yet to be confronted with a situation in which provisional measures have been breached – the near-miss of Arctic Sunrise notwithstanding.324 Furthermore, given the requirements for the invocation of responsibility in international law, a court or tribunal is not capable of determining breach of its own initiative, as to do so would violate the rule of non ultra petita325 – unless the court or tribunal awarded such measures proprio motu.326 In the ordinary course of events, however, for the consequences of a breach of provisional measures to be realized fully, an injured party must request that the court or tribunal adjudicate over the question of breach and award a recognized remedy.

1 The International Court of Justice The ICJ has an uneven record when it comes to the enforcement of provisional measures.327 The usual remedy ordered will be that of a declaration of breach.328 In part, this has resulted from a failure by the parties to ask for anything more than a declaration of the fact of breach. In LaGrand, the 323

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Maurice Mendelson, ‘State Responsibility for Breach of Interim Protection Orders of the International Court of Justice’, in M Fitzmaurice and D Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (Oxford: Hart, 2004) 35, 40. That being said, given the overall structure of UNCLOS dispute settlement and the contours of Art 290, it is difficult to see how enforcement practice in the case of ITLOS or Annex VII provisional measures would differ from that of the ICJ. That is, absent a rule to the contrary, a court or tribunal cannot pronounce on an issue that has not been put before it by the parties: Corfu Channel (UK v Albania), Compensation, ICJ Reports 1949 p 244, 249; Request for Interpretation of the Judgment of November 20th, 1950, in Asylum (Colombia/Peru) (Colombia/Peru), ICJ Reports 1950 p 359, 402. Kolb, International Court, 919–26. Lee-Iwamoto ‘Repercussions of LaGrand’ 251–60. For a comprehensive but pessimistic view as to the prospects for enforcement (though without the benefit of the ICJ’s most recent practice), see Mendelson, ‘Responsibility for Breach of Interim Protection’. Lee-Iwamoto analogizes this with the remedy of satisfaction within the meaning of ARSIWA Art 37: ibid, 256–9. On declaratory judgments as a form of satisfaction more generally, see Juliette McIntyre, ‘Declaratory Judgments of the International Court of Justice’ (2012) 25 Hague YIL 107; Juliette McIntyre, ‘The Declaratory Judgment in Recent Jurisprudence of the ICJ: Conflicting Approaches to State Responsibility?’ (2016) 29 LJIL 177.

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Court took note of the fact that Germany had only asked it to find that the US had violated the obligation set down by the Court in its 1999 order: ‘it contains no other request regarding that violation’.329 Accordingly, whilst it determined that a breach of provisional measures had occurred, it made no comment as to further ramifications. The Court next considered the question of consequences for a breach of interim relief in Armed Activities (DRC v Uganda). In its order on provisional measures, the Court required both the Democratic Republic of the Congo (DRC) and Uganda to refrain from armed conflict, implement their responsibilities under the UN Charter and Security Council Resolution 1304 (2000) and take all measures necessary to preserve human rights and applicable norms of humanitarian law within the relevant conflict zone.330 In the merits phase, the DRC asked the Court to determine that a breach of those measures had taken place. The Court did so, noting that acts in breach of the measures set down in its order had been committed by Ugandan forces up until their withdrawal from the area in 2003.331 Once again, however, the failure of the DRC to request a remedy on this basis prevented further consideration by the Court. On other occasions, parties have requested a remedy for a violation of provisional measures, but have been unable to muster the evidence necessary to establish the occurrence of breach. In Cameroon v Nigeria, for example, Cameroon argued that actions by Nigerian forces on the disputed Bakassi Peninsula placed Nigeria in breach of the Court’s 1996 order, which imposed measures for non-aggravation of the dispute with particular reference to ‘action by [the parties] armed forces’.332 More particularly, it asked that the Court adjudge and declare: That in failing to comply with the Order for the indication of provisional measures rendered by the Court on 15 March 1996 the Federal Republic of Nigeria has been in breach of its international obligations. [ . . . ] That, consequently, on account of the material and moral injury suffered by the Republic of Cameroon reparation in a form to be determined by the Court is due from the Federal Republic of Nigeria to the Republic of Cameroon.333 329 330 331 332 333

LaGrand, ICJ Reports 2001 p 466, 508. Armed Activities in the Territory of the Congo (DRC v Uganda), Provisional Measures, ICJ Reports 2000 p 111, 129. Armed Activities (DRC v Uganda), ICJ Reports 2005 p 168, 258–9. Cameroon v Nigeria, ICJ Reports 1996 p 13, 24. Land and Maritime Boundary (Cameroon v Nigeria; Equatorial Guinea intervening), ICJ Reports 2002 p 303, 327.

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In assessing this claim, however, the Court held that ‘it is for Cameroon to show that Nigeria acted in violation of the provisional measures’, before going on to note that the evidence presented by Cameroon generally was unable to form a ‘clear and precise picture’ of the events taking place on the Bakassi Peninsula. Consequently, the Court held that ‘Cameroon has not established the facts which it bears the burden of proving, and its submissions on this point must accordingly be rejected’.334 In other cases, the Court has determined that a breach has occurred in circumstances where a party has requested a remedy, but has elected to merge that remedy with the main claim. In Bosnian Genocide, the Court issued two orders in 1993 requiring that the Federal Republic of Yugoslavia (Serbia and Montenegro) do its utmost to prevent the occurrence of genocide and to ensure that military, paramilitary or irregular armed units that it directed and supported did not engage in such activities.335 Following the atrocities at Srebrenica in 1995, Bosnia and Herzegovina requested that the Court find that: [I]n failing to comply with the Orders for the indication of provisional measures rendered by the Court on 8 April 1993 and 13 September 1993, Serbia and Montenegro has been in breach of its international obligations and is under an obligation to Bosnia and Herzegovina to provide for the latter violation symbolic compensation, the amount of which is to be determined by the Court.336

The Court addressed this submission in length. In the first place, it affirmed that provisional measures ordered under Article 41 of its Statute were binding and recalled the substance of the relevant measures. It then recalled its findings of fact with respect to Srebrenica, set out earlier in the judgment, and held that the failure of Serbia and Montenegro to prevent the massacre placed it in breach of the 1993 orders.337 In addressing the request for ‘symbolic compensation’, however, the Court declared that: [T]he question of compensation for the injury caused to the Applicant by the Respondent’s breach of aspects of the Orders indicating provisional measures merges with the question of compensation for the injury suffered from the violation of the corresponding obligations under the Genocide Convention. It will therefore be dealt with below, in connection with 334 335 336

Ibid, 453. Bosnian Genocide, ICJ Reports 1993 p 3, 24; Bosnian Genocide, ICJ Reports 1993 p 325, 349–50. 337 Bosnian Genocide, ICJ Reports 2007 p 43, 72. Ibid, 230–1.

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In addressing the question of compensation grosso modo, however, the Court determined that payment thereof was dependent on ‘a sufficiently direct and certain causal nexus between the wrongful act [ . . . ] and the injury suffered by the Applicant’. It went on to find that no such nexus could be made out on the evidence before it, i.e. that it could not be established that the massacre at Srebrenica would not have occurred but for the Serbian failure to act.339 This, in turn, impacted on the Court’s consideration of compensation for the breach of provisional measures: ‘for the purpose of reparation, the Respondent’s non-compliance with the provisional measures is an aspect of, or merges with, its breaches of the substantive obligations of prevention and punishment laid upon it by the [Genocide] Convention’.340 Put another way, exclusion of compensation as a remedy with respect to the main claim flowed through to compensation for the breach of provisional measures. The position taken by the Court in Bosnian Genocide means that although compensation for a breach of provisional measures is theoretically possible, it will be virtually impossible for the Court to uphold an independent claim for indemnification, as any such claim will be merged with the final judgment.341 But scenarios may be imagined in which compensation could be awarded autonomously. For example, if the claimant were to ask for compensation with respect to the breach of provisional measures, but not with respect to the main claim, the Court would be prevented by the non ultra petita principle from merging the two. Another such scenario would arise if the respondent to the main action successfully obtained provisional measures that were then breached by the claimant,342 or indeed where the claimant breached provisional measures that it had of its own motion obtained or which were ordered by the Court sua sponte. The respondent in its final pleading could then ask that the court adjudge and declare that the measures have been breached and claim compensation as a remedy. If the respondent were successful in defeating the main action, its sole positive claim vis-`a-vis the claimant would be for breach of provisional measures – put another way, there would be no other final 338 340 341

339 Ibid, 231. Ibid, 234. Ibid, 236. See also Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64, 70. 342 Lee-Iwamoto, ‘Repercussions of LaGrand’, 256. See Chapter 5, §II.B.

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remedy into which compensation for non-compliance with interim relief could be merged. But such scenarios, it must be said, are unlikely to arise. Notwithstanding these cases, which would tend to indicate that the ICJ will not ordinarily award anything beyond a declaration of breach, the Court has more recent cases has hinted that there are further tools at its disposal for dealing with particularly recalcitrant parties. In Border Area, the Court in 2011 issued provisional measures requiring that the parties, pending resolution of the dispute, ‘refrain from sending to, or maintaining in the disputed territory [ . . . ] any personnel, whether civilian, police or security’.343 Costa Rica soon returned to the Court, alleging that Nicaragua was sending members of the Sandinista Youth into the disputed area and requesting modification of the Court’s 2011 order accordingly.344 The Court held that the circumstances were not such as to justify the modification of provisional measures; however, it did place its ‘concerns’ as to the potential for unauthorized persons in the area to exacerbate the dispute on the record.345 Soon after, Costa Rica returned to the Court with further evidence of Nicaraguan activity in the disputed area. The Court was not amused with what it saw as persistent violation of its orders by Nicaragua, and awarded new provisional measures, whilst further noting that ‘the question of compliance with provisional measures indicated in a case may be considered by the Court in the principal proceedings’.346 Precisely what this meant was not explained – it could be that the Court was simply indicating that it could issue a declaration of breach as part of its final award. Alternatively, it could have been implying that it was willing to draw adverse inferences from Nicaragua’s recidivism and allow these to shape its final decision – though not, presumably, in a determinative fashion. The ICJ’s response to breach of provisional measures ordered under Article 41 of its Statute has been shaped by its limited capacity to enforce those measures within the confines of its own procedure. Whilst under Article 94(1) of the UN Charter, a party has an obligation to implement an interim relief as ordered by the Court, it strains the language of paragraph 2 of the same (in particular, the word ‘judgment’) to consider that such orders can be the subject of enforcement by the Security Council.347 343 344 346 347

Border Area, ICJ Reports 2011 p 6, 27. 345 Border Area, Provisional Measures, ICJ Reports 2013 p 230, 236. Ibid, 240. Border Area, Provisional Measures, ICJ Reports 2013 p 354, 368–9. Oellers-Frahm, ‘Article 41’, 1069; Karin Oellers-Frahm, ‘Article 94’, in B Simma et al. (eds), 2 The Charter of the United Nations: A Commentary (Oxford: 3rd edn, 2012) 1957, 1967. But cf. Kolb, International Court, 655–6, arguing that Art 94(2) be reinterpreted

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Furthermore, unlike a domestic court, the ICJ does not have a procedure such as contempt of court to enable it to ensure compliance with its orders independently of the final judgment, a point that some scholars have seized on to argue that the conception of provisional measures as binding is pointless.348 But this is an overstatement. In the first place, the Court may still elect to take breaches into account in the final balance. In the second, as discussed above, a party that is injured as a result of a breach of interim relief retains a self-help remedy of sorts in the form of countermeasures under the ordinary rules of state responsibility. In the third, formal invocation of responsibility by a party is not the only method for enforcing compliance with provisional measures. Under its Statute and Rules349 the Court has the power to require one party to pay another’s legal costs. As will be seen in relation to investor-state arbitration, this is arguably the most effective means that an international court or tribunal has at its disposal to ensure compliance with provisional measures. The Court is not unfamiliar with such orders, and parties have applied for costs orders before both the PCIJ350 and ICJ.351 The Court has not, however, seen fit to depart from the general rule in inter-state matters that each party should bear its own costs.352 According to Kolb, this is because a procedural abuse of sufficient gravity – such as manifestly dilatory tactics or dishonesty in the presentation of evidence – has yet to be raised before the Court.353 It is here submitted that particularly flagrant breaches of provisional measures should be candidates for adverse costs awards, not least because a failure to comply with such orders in the post-LaGrand era is a direct challenge to the legitimacy of the Court as an adjudicatory body. Moreover, as the Court has the ability to make a costs order at any point in the proceedings, it may require a recalcitrant party to pay even where it awards interim relief and then determines that

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in light of LaGrand such that all binding decisions of the Court (including provisional measures) be capable of Security Council enforcement. 349 Thirlway, 1 Law and Procedure, 963–4. ICJ Statute, Art 64; ICJ Rules, Art 97. See e.g. Legal Status of Eastern Greenland (Norway v Denmark) (1933) PCIJ Ser A/B No 53, 74; Pajzs, Cz´aky, Esterh´azy (Hungary v Yugoslavia) (1936) PCIJ Ser A/B No 68, 65. See e.g. Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo), Compensation, ICJ Reports 2012 p 324, 344. Application for Review of Judgment No 158 of the United Nations Administrative Tribunal, ICJ Reports 1973 p 166, 212. ITLOS has been given similar powers: UNCLOS, Annex VI, Art 34. Further: Brown, Common Law, 194–5. Kolb, International Court, 1003. Cf. W Michael Reisman, Fraudulent Evidence before Public International Tribunals: The Dirty Stories of International Law (Cambridge: Cambridge University Press, 2014).

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it lacks jurisdiction, which would otherwise prevent it from awarding a remedy for breach of provisional measures merged with (or alongside) the merits.354 It would appear that parties before the ICJ are becoming increasingly aware of the potential of costs orders to provide at least partial compensation for a breach of provisional measures. In Border Area/San Juan River, Nicaragua effectively admitted that it had breached the Court’s 2011 order for interim relief on multiple occasions, prompting Costa Rica to return to the Court in 2013 to seek (and receive) enhanced provisional measures. As part of its prayer for final relief in the proceedings, Costa Rica requested that Nicaragua be ordered to ‘pay all of the costs and expenses incurred by Costa Rica in requesting and obtaining the Order on Provisional Measures of 22 November 2013, including, but not limited to, the fees and expenses of Costa Rica’s counsel and experts, with interest, on a full indemnity basis’.355 The Court did not oblige, instead holding that ‘taking into account the overall circumstances of the case, an award of costs to Costa Rica [ . . . ] would not be appropriate’.356 No further reasoning was provided – and the observer is left to wonder exactly how contumelious a party must be before the Court will act to protect the integrity of its proceedings. That being said, a substantial minority of the Court – comprising Judges Tomka, Greenwood, Sebutinde and Judge ad hoc Dugard – did find that a costs order against Nicaragua was appropriate in the circumstances, the first occasion on which members of the Court reached such a conclusion. The finding reached reflects the correct understanding of how provisional measures operate within the ICJ’s wider proceedings, and is a model for the Court moving forward: We consider that these are exceptional circumstances which warrant an exercise by the Court of the power given to it by Article 64 of the Statute. It is true that the Court has never previously exercised that power but it has seldom been asked to do so and none of the cases in which costs have been requested by a party has been remotely comparable to the present one. The power to indicate provisional measures is of the utmost importance for the maintenance of the integrity of proceedings before the Court. The measures thus indicated are legally binding and their breach is an autonomous violation of legal obligations, entirely distinct from the merits of the case. The Court, and those States appearing before it, are 354 355 356

Mendelson, ‘Responsibility for Breach of Interim Protection’, 52. Border Area/San Juan River, ICJ, Judgment of 16 December 2015, §143. Ibid, §144.

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content and enforcement entitled to assume that a State litigating in good faith will be scrupulous in complying with those measures. If its failure to do so necessitates a further hearing, it is only right that that State should bear the costs incurred.357

It is to be noted that the Joint Declaration limits the amount recoverable for the breach of provisional measures to the costs associated with any additional hearing occasioned by the breach – though this was perhaps due to the scope of the Costa Rican request. There is no reason in principle, however, why costs should be so limited – and it remains open to the Court to award a much greater amount on account of a breach of interim relief, up to and including the costs of the proceeding as a whole.

2 Dispute Settlement Under UNCLOS An UNCLOS Part XV body has been required to take enforcement action in response to a breach of provisional measures on only one occasion. In responding to the lack of timeliness in the Russian response to the ITLOS provisional measures in Arctic Sunrise, the Annex VII tribunal made an affirmative finding of breach after expressly applying the ARSIWA to determine the fact thereof.358 The Tribunal, however, did not expressly state whether that breach would result in any additional penalty to Russia beyond the compensation already required for the detention of the vessel and those aboard – though it is notable that it required Russia to pay the costs incurred by the Netherlands in complying with its own element of the ITLOS provisional measures, namely the charges incurred in the issuance of a large bank guarantee to secure the release of those detained.359 3 Investor-State Arbitration (a) ICSID Arbitration The options for enforcement of provisional measures ordered by ICSID tribunals are more robust, notwithstanding the fact that interim relief is not subject to the system of enforcement set out in Chapter IV, Section 6 of the ICSID Convention.360 The 357 358 360

Ibid, §8 (Judges Tomka, Greenwood and Sebutinde and Judge ad hoc Dugard). 359 Arctic Sunrise, PCA Case No 2014–2 (Annex VII), §§334–62. Ibid, §§388–9. By the terms of Art 53(1) of the ICSID Convention only the award is binding on the parties. Under Art 48 only the final decision of a tribunal is to be considered an ‘award’, extended by Art 53(2) to include any decision interpreting, revising or annulling such award. Furthermore, unlike other systems of arbitration, an ICSID tribunal is not empowered to issue an enforceable ‘interim award’. Further: ICSID Commentary, 811–13. A suggestion that the first draft of the provision that would become Art 47 include the ability for the Tribunal to ‘fix a penalty for failure to comply’ with provisional measures was comprehensively dismissed in the drafting stage: II-1 ICSID History 851.

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central reason for this is that an ICSID tribunal has the advantage of a wider range of ‘informal’ (i.e. procedural) tools to ensure compliance, i.e. mechanisms that do not involve the formal invocation of state (or investor) responsibility, though these consequences are also entailed in a breach of interim relief. These exist in addition to the remedies characteristically provided by the ICJ for a breach of provisional measures, i.e. declaratory relief.361 Moreover, as parties before investor-state arbitration tribunals are, in general, more willing to apply for protection with respect to procedural rights, the opportunity to deploy such mechanisms arises with greater frequency. A good example of this is an order for the production or preservation of evidence. In AGIP v Congo, the respondent persistently failed to comply with provisional measures for the production of certain documents. This breach led the Tribunal in that case to conclude that the claimant’s case had suffered as a consequence of the respondent’s intransigence, permitting the drawing of adverse inferences as to the contents of the documents.362 Similarly, in MINE v Guinea, the Tribunal issued provisional measures requiring the claimant to abandon parallel proceedings in Belgium and Switzerland that contradicted the jurisdictional exclusivity of the Tribunal. Tardiness in complying with this directive resulted in the respondent counterclaiming for costs and legal fees, and being awarded a portion thereof to the tune of US$210,000.363 Significantly, both of these decisions were handed down prior to the determination in Maffezini v Spain that provisional measures were binding, indicating that a tribunal is able to take action to address poor behaviour even in the absence of a power to award mandatory interim relief. Like the ICJ, ICSID tribunals retain the capacity to impose the costs of an arbitration in whole or in part on a particular party under Article 61(2) of the ICSID Convention,364 and on the whole have proved far more 361 362

363 364

Quiborax v Bolivia (Award), ICSID Case No ARB/06/2, §§576–83. AGIP SpA v People’s Republic of the Congo (1979) 1 ICSID Reports 306, 317. See also Yaung Chi Oo Trading Pte Ltd v Myanmar, Procedural Order No 2 (2002) 8 ICSID Reports 456, 461 in which the Tribunal rejected a request for interim relief pertaining to the production of documents, but stated ‘in any event, the Tribunal could draw inferences from the non-production of evidence’. Maritime International Nominees Establishment v Guinea (1988) 4 ICSID Reports 3, 69, 77. This includes expenses incurred by the parties in connection with the proceedings, fees and expenses of members of the Tribunal (ICSID Convention, Art 60) and charges for the use of the ICSID facilities (ICSID Convention, Art 59). See also ICSID Rules, Rule 28(1). Further: ICSID Commentary, 1227–35; Dolzer and Schreuer, International Investment

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willing than the ICJ to punish disobedience in this way. MINE v Guinea is a limited example of this, though it concerned only costs incurred outside of the arbitration itself. But ICSID tribunals have proven more willing to impose far more severe cost consequences in certain cases. In LETCO v Liberia, the respondent failed to appear before the Tribunal, made no effort to make its views on the case known by way of correspondence, and commenced proceedings designed to circumvent the arbitration in its domestic courts. In the final award, the Tribunal ordered that the respondent pay the full costs of the arbitration, noting: This decision is based largely on Liberia’s procedural bad faith. Not only did Liberia fail to take part in the arbitration proceedings, contrary to its contractual agreement, but it has also undertaken judicial proceedings in Liberia in order to nullify this arbitration. The foregoing decision of the Tribunal is made pursuant to Article 61(2) of the ICSID Convention and based on the criteria described in the preceding paragraphs [ . . . ]365

Since this decision, ICSID tribunals have consistently demonstrated their willingness to regulate compliance with procedural orders and other standards through the imposition of costs366 – even in an era where tribunals are increasingly adopting a ‘loser pays’ approach to the question overall.367 It is perhaps for this reason that compliance with ICSID provisional measures is on the whole quite high when compared with the ICJ – along with the fact that as costs orders form part of the final award and are therefore subject to the highly effective enforcement regime of the ICSID Convention.

365 366

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Law, 289–300. This is not an insignificant threat: due to the evolution of litigation strategy in investor-state arbitrations, the total costs of such proceedings may run into the tens of millions of US$, the majority of which are incurred in legal representation. In ¨ PSEG Global Inc, The North American Coal Corporation and Konya Ingin Electrik Uretim ve Ticaret Limited Sirketi v Turkey, ICSID Case No ARB/02/5 (Award, 19 January 2007) §352 the total cost of proceedings was US$20,851,636.62. The current record-holder (to the author’s knowledge) is Libananco Holdings Co Ltd v Turkey, ICSID Case No ARB/06/8 (Award, 2 September 2011) §§558–9, in which costs were in the area of US$60 million. Liberian Eastern Timber Corporation v Liberia (1986) 2 ICSID Reports 370, 378. See e.g. Generation Ukraine Inc v Ukraine, ICSID Case No ARB/00/9 (Award, 16 September 2003) §24.2; Azurix Corp v Argentine Republic, ICSID Case No ARB/01/12 (Award, 14 July 2006) §441; Plama Consortium Ltd v Bulgaria, ICSID Case No ARB/03/24 (Award, 27 August 2007) §§321–2; Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/2 (Award, 15 April 2009) §§151–2; Europe Cement Investment and Trade SA v Turkey, ICSID Case No ARB(AF)/07/2 (Award, 13 August 2009) §§185–6; Saba Fakes v Turkey, ICSID Case No ARB/07/20 (Award, 14 July 2010) §§153–4. See Dolzer and Schreuer, International Investment Law, 299–30.

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(b) UNCITRAL Arbitration The system for the enforcement of provisional measures ordered by an investor-state tribunal under the UNCITRAL Rules is similar to that available to an ICSID tribunal.368 Like an ICSID tribunal, an UNCITRAL tribunal has a wide array of procedural mechanisms for ensuring compliance with provisional measures, such as the ability to make costs orders against recalcitrant parties and capacity to draw adverse inferences on the facts from a failure to comply.369 These were used extensively by the Iran–US Claims Tribunal, which further retained the power to declare that decisions of the US and Iranian courts that violated its jurisdictional exclusivity were devoid of legal effect. The Tribunal was also not above modifying its procedural calendar so as to minimize damage caused as a result of a breach of interim relief.370 Under Article 26(2) of the 1976 UNCITRAL Rules, however, the Tribunal also has the capacity – removed in the 2010 UNCITRAL Rules371 – to issue provisional measures in the form of an interim award, which may be directly enforceable before municipal courts.372 However, in such cases the question of enforceability is very much one of circumstance and degree. The most powerful tool generally available for the enforcement of arbitral awards under the UNCITRAL Rules, the New York Convention,373 does not provide any substantial definition of an ‘award’, throwing doubt on whether an interim award is enforceable under its terms. The better view (confirmed by the UNCITRAL Secretariat374 ) is that it is not, though 368

369 370

371

372 373 374

Further: Mouawad and Silbert, ‘Guide to Interim Measures’, 416–33; Kaufmann-Kohler and Antonietti, ‘Interim Measures’, 547–8. This same regime also applies to awards made under the ICSID Additional Facility. 1976 UNCITRAL Arts 40(1), (2); 2010 UNCITRAL Art 42. See e.g. E-Systems v Iran (1983) 2 Iran-US CTR 51, 57; Watkins-Johnson Company v Iran (1983) 2 Iran-US CTR 362, 363; Touche Ross and Company v Iran (1985) 9 Iran-US CTR 287, 293–4. Further: Charles N Brower and Jason D Brueschke, The Iran–United States Claims Tribunal (The Hague: Martinus Nijhoff, 1998) 238–41. But cf. UNCITRAL Model Law 2006, Art 17H, which provides for the direct enforcement of provisional measures before municipal courts, subject to the bases for refusing recognition or enforcement in Art 17I. David D Caron, Lee M Caplan and Matti Pellonp¨aa¨ , The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2006) 541–3. New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 UNTS 38. Possible Future Work in the Area of International Commercial Arbitration, UNCITRAL, 32nd session, UN Doc A/CN.9/460 (6 April 1999) §121; Christoph Leibscher, ‘Article V(1)(e)’, in R Wolff (ed), The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Commentary (Munich/Oxford: Hart/Beck, 2012) 356, 365–6. For criticism of this approach in the context of the Australian case of Resort Condominiums International Inc v Ray Bolwell and Resort Condominiums Australia Inc (1993) 118 ALR

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the matter has not been settled.375 Consequently, the question depends on whether enforcement of an interim award is possible according to the municipal law of the state in which enforcement is sought.376 For example, under the US Federal Arbitration Act,377 an interim award may be treated as final, and therefore enforceable, where it finally resolves a matter at issue in the arbitration. This can be considered an extremely broad category and may include provisional measures, with courts providing: That the arbitrators labeled their decision an ‘interim’ award cannot overcome the fact that if an arbitral award of equitable relief based upon a finding of irreparable harm is to have any meaning at all, the parties must be capable of enforcing or vacating it at the time it is made. Such an award is not ‘interim’ in the sense of being an ‘intermediate’ step toward a further end. Rather, it is an end in itself, for its very purpose is to clarify the parties’ rights in the ‘interim’ period pending a final decision on the merits. The only meaningful point at which such an award may be enforced is when it is made, rather than after the arbitrators have completely concluded consideration of all the parties’ claims.378

The most prominent use of interim awards as a vehicle for provisional measures to date occurred in Chevron v Ecuador. In that case, the claimants sought interim relief with respect to civil proceedings (the Lago Agrio proceedings) taking place in the courts of the respondent that were designed to impede the capacity of the claimant to effectively press its claims before the Tribunal. The Tribunal protected its jurisdiction by issuing five provisional measures orders, each of which required Ecuador to suspend the Lago Agrio proceedings.379 Not only did the respondent fail to comply with

375 376

377 378

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655, see Michael Pryles, ‘Interlocutory Orders and Convention Awards: the Case of Resort Condominiums v Bolwell’ (1994) 10 Arb Int’l 385. See e.g. Gary B Born, 2 International Commercial Arbitration (Alphen aan den Rijn: Kluwer, 2nd edn, 2014) 2512–16. Bernd Ehle, ‘Article I’, in R Wolff (ed), New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Commentary (Munich/Oxford: Hart/Beck, 2012) 26, 47–8. For a discussion of several key jurisdictions, see Born, 2 International Commercial Arbitration, 2516–19; Mouawad and Silbert, ‘Guide to Interim Measures’, 242–30. 9 USC §16(1). See e.g. Southern Seas Nav Ltd v Petroleos Mexicanos of Mexico City, 606 F.Supp 692, 694 (SDNY, 1985); See also: Metallgesellschaft AG v M/V Capitan Constante, 790 F.2d 280, 282–3 (2nd Cir, 1986); Publicis Communications v True North Communications Inc, 206 F.3d 725, 727–9 (7th Cir, 2000); Banco de Seguros del Estado v Mutual Marine Offices Inc, F.Supp 2d 362, 367 (SDNY, 2002); affirmed 344 F.3d 255 (2nd Cir, 2003). Further: Born, 2 International Commercial Arbitration, 2513–14. Recounted in Chevron Corporation and Texaco Petroleum Company v Ecuador, PCA Case 2009–23 (Fourth Interim Award on Interim Measures, 7 February 2013) §§35–76. Also: Mouawad and Silbert, ‘Guide to Interim Measures’, 391–2.

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these orders, it also permitted the Lago Agrio trial court to render judgment and then allowed that judgment to be upheld on appeal. On 25 January 2012, the Tribunal converted its orders on interim relief into an interim award within the meaning of Articles 26 and 32 of the 1976 UNCITRAL Rules,380 and directed the respondent to take all measures at its disposal to prevent the enforcement of the Lago Agrio judgment in foreign courts. A second interim award on interim relief followed on 16 February 2012 which reaffirmed the previous provisional measures, ordered the respondents to prevent the taking of further procedural steps within its courts (viz. issuing a certificate of enforceability) and required the claimants to deposit US$50 million with the Permanent Court of Arbitration to secure their contingent responsibility in the event that the provisional measures were ultimately found to be unnecessary.381 These measures notwithstanding, enforcement proceedings with respect to the Lago Agrio judgment continued in the municipal courts of Canada, Argentina and Brazil. This prompted the Tribunal to issue a further interim award on provisional measures, finding that Ecuador had breached the first and second interim awards, and requiring it to show cause as to why it should not compensate the claimants for harm (which could potentially have amounted to several billion US$) caused as a result of the enforcement of the Lago Agrio judgment.382 Although never spelled out directly in the Tribunal’s reasoning, the benefit of the conversion would be that the interim award would possess arguably greater weight (as a directly enforceable instrument) if raised before a municipal court by the claimants in the course of challenging enforcement proceedings. At the time of writing, a final award has yet to be delivered, but depending on the success of the Lago Agrio claimants in enforcing the judgment, the consequences could be considerable.

V Conclusions The ICJ’s decision in LaGrand has – directly and indirectly – led to a greater fluorescence in the international jurisprudence relating to provisional measures than any decision since that of President Huber in the 380 381 382

Chevron v Ecuador, PCA Case No 2009–23 (First Interim Award on Interim Measures, 25 January 2012). Chevron v Ecuador, PCA Case No 2009–23 (Second Interim Award on Interim Measures, 16 February 2012). Chevron v Ecuador, PCA Case 2009–23 (Fourth Interim Award on Interim Measures, 7 February 2013) §81.

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Sino-Belgian Treaty case. This evolution is profound and ongoing. In the first place, the binding character of interim relief may now be considered a characteristic of provisional measures as a general principle of law, and (unless displaced by a lex specialis) very much the default approach. In the second, international courts and tribunals are now forced to reckon with the consequences of that decision in articulating a response to breaches of provisional measures. This encompasses not only the application of the law of state responsibility to a breach of provisional measures, but also the development of precise consequences for breach. At the present point in time the ICJ, having set the standard in LaGrand, has now taken a step back in following the core premise of that decision to a logical and comprehensive conclusion. It may be that it is for other courts and tribunals to develop and deploy a suite of responses. At the same time, the identification of provisional as binding has had a further effect in highlighting the general inappropriateness of interim relief that causes property to change hands in circumstances where the focus of proceedings is custody over movable property or persons. Such measures are inherently more unlikely to be disobeyed, and may be seen as a comment by the court or tribunal on the merits of the dispute. If they are reversed in the course of the final judgment, any reversionary order is also more likely to be disobeyed. Although comparatively rare until the 2010s, two decisions by ITLOS – ARA Libertad and Arctic Sunrise – caused in some quarters the apprehension that provisional measures could become a common tool for the de facto resolution of proceedings, a function completely anathema to their fundamental nature. Thankfully, the Tribunal in Enrica Lexie stepped back from the mark set by earlier decisions. It is to be hoped that the position taken in that case now constitutes the new status quo.383 383

But cf. above n 241.

PAR T III Specific Aspects of Provisional Measures

8 Questions of Substance and Procedure

I Introduction Part II of this book set out the general parameters of the common approach to provisional measures that has emerged from international judicial and arbitral practice. This analysis necessarily involved the presentation of the field (mostly) as a monolithic whole. To a certain extent, this is accurate – provisional measures represent a distinct species of judicial or arbitral order arising from the incidental jurisdiction of an international court or tribunal. But it is not the entire picture. Ultimately, provisional measures form part of wider international procedure and may interact with elements thereof in a manner that requires elaboration. At the same time, particular factual situations may call for an adjustment to the normal calculus of provisional measures.1 The purpose of this chapter is to consider distinct questions of substance and procedure that arise with respect to provisional measures. In some cases, the injection of a new element into the interim relief calculus will result in no change; in other situations, however, the principles of provisional measures discussed in Part II may be the subject of elaboration – they may be bent or even broken. As such, the individual questions raised in this chapter need to be read in the context of the developments discussed earlier. It is also worth noting that the specific character of these questions is such that they may only arise in the context of particular international courts and tribunals. It is highly unlikely, for example, that an investorstate tribunal will ever need to consider the effects of a Chapter VII resolution of the UN Security Council on its capacity to award interim relief. At the same time, the ICJ will not ordinarily have to deal with a

1

Some exceptions or elaboration to the usual rules have been discussed alongside the rules themselves: see e.g. Chapter 6, §IV.B.1(b) concerning ‘axiomatic’ urgency in the context of orders for the protection of procedural rights in investor-state arbitration.

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situation in which a party before it launches domestic litigation in order to derail or otherwise undermine the proceedings before it. The chapter first considers situations in which additional facts prompt some reconsideration of the way in which provisional measures function – threats to the wellbeing of individuals, the involvement of the UN Security Council, a threat to the exclusivity of international jurisdiction and a consideration of how provisional measures might play a role in the wider management of disputes. It then moves to address the interaction between provisional measures and different elements of international proceedings – the advisory function of some courts and tribunals, the non-appearing party, interpretation and annulment proceedings, the award of interim relief where international proceedings are suspended, and the procedure for the modification of provisional measures once ordered. In sum, its aim is to produce a three dimensional image of provisional measures as an evolving and interactive artifact of international procedure.

II Provisional Measures and Questions of Substance A Human Rights and Humanitarian Law Provisional measures are often applied for in situations where human wellbeing is threatened.2 Where this occurs, it is not unusual for the application to be argued in the shadow of that threat – even where the rights in question do not form the substance of the main claim. In such cases, Higgins remarks, ‘the evolving jurisprudence on provisional measures shows a growing tendency to recognize the human realities behind the disputes of states’.3 This may be seen, however, to place the court or tribunal in something of a quandary, especially in a post-LaGrand era 2

3

Generally: Rosalyn Higgins, ‘Interim Measures for the Protection of Human Rights’ (1998) 36 Col JTL 91; Yoshiyuki Lee-Iwamoto, ‘The Protection of Human Life through Provisional Measures Indicated by the International Court of Justice’ (2002) 15 LJIL 345; Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) 201–5; Gentian Zyberi, ‘Provisional Measures of the International Court of Justice in Armed Conflict Situations’ (2010) 23 LJIL 571; Hugh Thirlway, ‘Peace, Justice and Provisional Measures’, in G Gaja and J Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Leiden: Brill, 2014) 75. This is separate from the question of provisional measures ordered by the various human rights courts, on which see Eva Reiter, Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication (Antwerp: Intersetia, 2010). Higgins, ‘Protection of Human Rights’, 108.

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where provisional measures are seen as binding.4 On the one hand, the human element may compel intervention by the court or tribunal; on the other, the consent-based character of international jurisdiction may mean that such an injunction may be seen as illegitimate, especially where a party to the litigation has gone to some trouble to ring fence its human rights or humanitarian obligations from international adjudication.5 By virtue of its plenary jurisdiction, the ICJ provides the largest corpus of jurisprudence on this topic, much of it concerned with the right to life.6 This case law reveals the effect that human rights and humanitarian concerns may have a substantial effect on the conception of the link requirement.7

1 Cases in Which Humanitarian or Human Rights Law is the Subject of the Main Claim As discussed in Chapter 5, the link requirement reflects the notion that the rights to be protected by the imposition of provisional measures must be closely related – if not identical – to those rights that are the subject of the main claim.8 In certain instances the injection of individual rights into the dispute will not pose a problem for this requirement, as those rights in fact fall to be determined on the merits. This may be seen as early as the Sino-Belgian Treaty case, concerning the Treaty of Peace, Commerce and Navigation9 concluded by Belgium and China in 1865. The treaty guaranteed certain protections for Belgian nationals operating within China. When China denounced the agreement in 1926, Belgium brought proceedings before the PCIJ and asked for provisional measures to uphold those protections pending the Court’s final decision. In his Order of 8 January 1927, President Huber required China to protect various privileges that today would be recognized as human rights (e.g. the 4 5

6 7

8

LaGrand (Germany v US), ICJ Reports 2001 p 466, 501–2. Cf. Chapter 7, §II.C. See e.g. membership to the ICCPR, the Optional Protocol to which establishes an individual complaint mechanism via the UN Human Rights Committee. The ICCPR currently has 168 states parties, only 115 of which are party to the Optional Protocol. ICCPR Art 6(1): ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ Arguably the most recent decision of this kind is that of the ICJ in Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Cambodia v Thailand), Provisional Measures, ICJ Reports 2011 p 537. Given that this was a decision concerning Art 60 of the ICJ Statute, however, it will be discussed in the section concerning provisional measures and interpretation proceedings: see below §III.C. 9 Chapter 5, §II.C. 2 November 1865, 131 CTS 373.

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protection of Belgian nationals against insult, violence and the internationally unlawful sequestration or confiscation of property) on the basis that they were contained in a treaty the validity of which was the subject matter of the dispute. This was sufficient to satisfy the link requirement – a point underlined by the fact that four of the five measures made reference to particular provisions of the agreement.10 As noted by Higgins, ‘the protection of human rights was the concomitant of the need to protect the rights claimed in the dispute under litigation; it was not ancillary to them or separate from them’.11 The PCIJ also explored the converse of this situation in the SouthEastern Greenland case, initiated against Denmark by Norway in 1932 and concerning the question of sovereignty over certain parts of Greenland. Both parties had sent expeditions into the contested area equipped with police powers over the other’s nationals. Furthermore, sectors of the Danish press had indicated that acts of violence against any Norwegian nationals that the Danish expedition came across were likely. Referring to these indications, Norway requested interim relief directing Denmark to abstain within the contested territory from coercive measures directed against Norwegian citizens.12 The Court, taking note of the Norwegian argument that ‘the Court is also competent to indicate interim measures of protection for the sole purpose of preventing regrettable events and unfortunate incidents’ nonetheless rejected the request. This was because: [T]he incidents which the Norwegian Government aims at preventing cannot in any event, or to any degree, affect the existence or value of the sovereign rights claimed by Norway over the territory in question, were those rights to be duly recognized by the Court in its future judgment on the merits of the dispute [which are] the only rights which might enter into account [ . . . ]13

Put another way, the sole question before the Court was that of Greenland’s contested sovereignty. As the rights to be protected were not on any reasonable reading related to that issue, they could not be protected by way of provisional measures. The link requirement was not fulfilled. 10 11 12 13

Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v China) (1927) PCIJ Ser A No 8, 7–8. Higgins, ‘Measures for the Protection of Human Rights’, 95. Legal Status of the South-Eastern Territory of Greenland (Norway v Denmark) (1932) PCIJ Ser A/B No 48, 278. Ibid, 285.

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Together, the Sino-Belgian Treaty case and South-Eastern Greenland demonstrate the conventional understanding of the interaction between the link requirement and human rights or humanitarian law: unless human rights or humanitarian obligations fall to be adjudicated directly on the merits – or are closely related to rights that do – then the link requirement is not satisfied and interim relief cannot be awarded. A similar position may be seen in the jurisprudence of the ICJ. In Nicaragua, it was alleged that the US was orchestrating military and paramilitary activity in and against Nicaragua. Nicaragua requested provisional measures to protect ‘the rights of Nicaraguan citizens to life, liberty and security’, as well as ‘the right of Nicaragua to be free at all times from the use or threat of force against it by a foreign state’.14 The Court, however, did not include anything in the final orders that covered this aspect, requiring only that the US should respect the territorial sovereignty of Nicaragua and stop impeding access to Nicaraguan ports, particularly through the laying of mines.15 A more detailed example of the link requirement in this context arose in Bosnian Genocide, where the Court was confronted with an application filed by Bosnia and Herzegovina against the Federal Republic of Yugoslavia (Serbia and Montenegro) in which the former claimed that the latter had violated the Genocide Convention16 through the agency of certain paramilitary groups during the Bosnian War. The Court, in response, ordered Yugoslavia to, in particular: [E]nsure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations or persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, or of complicity in genocide, whether directed against the Moslem population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group.17

The Court further ordered that both parties ensure that no action was taken ‘which may aggravate or extend the existing dispute over the 14 15 16 17

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Provisional Measures, ICJ Reports 1984 p 169, 182. Ibid, 187. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Provisional Measures, ICJ Reports 1993 p 3, 24.

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preservation or punishment of the crime of genocide’.18 Such orders were entirely to be expected – the application of the Genocide Convention was the very subject matter of the dispute. However, Bosnia and Herzegovina also requested the imposition of a variety of additional provisional measures19 concerning other international human rights and humanitarian law instruments, including the 1949 Geneva Conventions,20 their Protocol I,21 the customary international laws of war as embodied in the 1907 Hague Convention22 and various provisions of the UN Charter. The Court declined to order interim relief on the basis that Bosnia and Herzegovina had prima face jurisdiction over the merits with respect to the Genocide Convention only; accordingly, it said it ‘ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction’.23 Reformulated, the Court was saying that as the rights contained in those additional treaties were highly unlikely to be the subject of final adjudication, the link requirement was not fulfilled and the Court could not intervene to protect them provisionally.24 This, in effect, was an amalgam of the PCIJ’s reasoning in the Sino-Belgian Treaty case and South-Eastern Greenland. Similar reasoning is contained in Georgia v Russia, in which Georgia brought proceedings against Russia in the context of the 2008 RussoGeorgian War. Prior to the outbreak of conflict, Russia had systematically contracted out of most forms of inter-state jurisdiction such that Georgia was forced to bring proceedings under the Convention on the Elimination of All Forms of Racial Discrimination25 (CERD). Doubtlessly aware of the position taken by the Court in Nicaragua and Bosnian Genocide, Georgia was careful to cast its request for interim relief solely in the context of CERD, requesting, inter alia, that the Court require Russia to: 18 20

21 22 23 24

19 Ibid. Ibid, 4–5. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflict, 8 June 1977, 1125 UNTS 3. Convention respecting the Laws and Customs of War on Land, 18 October 1907, 205 CTS 277. Bosnian Genocide, ICJ Reports 1993 p 3, 19. 25 Higgins, ‘Protection of Human Rights’, 105–6. 7 March 1966, 660 UNTS 195.

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[E]nsure that no ethnic Georgians or any other persons are subject to violent or coercive acts of racial discrimination, including but not limited to the threat or infliction of death or bodily harm, hostage-taking and unlawful detention, the destruction or pillage of property, and other acts intended to expel them from their homes or villages in South Ossetia, Abkhazia and/or adjacent regions within Georgia.26

In phrasing its request this way, Georgia was clearly attempting to obtain the widest possible measures, incorporating a range of other human rights and humanitarian protections, from a comparatively narrow base – even as it reiterated in oral argument that its application remained grounded in CERD alone.27 The Court agreed with its position, holding that: [T]he rights which Georgia invokes in, and seeks to protect by, its Request for the indication of provisional measures have a sufficient connection with the merits of the case it brings for the purposes of the current proceedings; and whereas it is upon the rights thus claimed that the Court must focus its attention in its consideration of Georgia’s Request for the indication of provisional measures [ . . . ]28

The Court, however, in granting interim relief, did not express itself in the same terms as the Georgian application. The language it employed was more firmly rooted in the language of CERD itself, requiring the parties to ‘refrain from any act of racial discrimination against persons, groups of persons or institutions’ and furthermore to ‘do all in their power [ . . . ] to ensure, without distinction as to national or ethnic origin [ . . . ] the security of persons’.29 At the same time, however, such language may be seen to go some way towards capturing the essence of the Georgian request. Where the jurisdictional base of the Court is wider, a broader suite of provisional measures for the protection of human rights and humanitarian norms may be awarded. This point is demonstrated in the Armed Activities (DRC v Uganda), initiated by the Democratic Republic of the Congo in respect of armed activities by Uganda on Congolese territory during the Second Congo War. The DRC invoked Article 36(2) of the ICJ Statute to found the Court’s jurisdiction, providing it with general jurisdiction over breaches of international law. It further claimed that Uganda was committing repeated violations of the 1949 Geneva Conventions and Additional Protocol I thereto, ‘in flagrant disregard of the elementary 26 27

Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia), Provisional Measures, ICJ Reports 2008 p 353, 366. 28 29 Ibid, 374. Ibid, 392. Ibid, 398.

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rules of international humanitarian law in conflict zones’ and was further ‘guilty of massive human rights violations in defiance of the most basic customary law’.30 The DRC requested a range of provisional measures, including the requirement that Uganda be enjoined from committing any act ‘having the aim or effect of disrupting, interfering with or hampering actions intended to give the populations of the occupied zones the benefit of their fundamental human rights’, as well as further measures designed to protect Congolese sovereignty and the rights and freedoms of all persons on Congolese territory.31 In its subsequent order, the Court noted: [T]he rights which [ . . . ] are the subject of the dispute are essentially [the DRC’s] rights to sovereignty and territorial integrity and to the integrity of its assets and natural resources, and its rights to respect for the rules of international humanitarian law and for the instruments relating to the protection of human rights.32

Having then found as an undisputed question of fact that the presence of Ugandan troops on the DRC’s territory had caused serial violations of human rights and humanitarian law,33 the Court stated that it was . . . of the opinion that persons, assets and resources present in the territory of the Congo, particularly in the area of conflict, remain extremely vulnerable, and that there is a serious risk that the rights at issue in this case [ . . . ] may suffer irreparable prejudice.34

This, the Court went on to say, justified the ordering of the following provisional measures: Both parties must, forthwith, prevent and refrain from any action, and in particular any armed action, which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case [...] Both parties must, forthwith, take all measures necessary to ensure full respect within the conflict zone for fundamental human rights and for the applicable provisions of humanitarian law.35

As these cases demonstrate, where a norm of human rights or humanitarian law is directly the subject of adjudication, the award of provisional 30 31

Armed Activities in the Territory of the Congo (DRC v Uganda), Provisional Measures, ICJ Reports 2000 p 111, 112–13. 32 33 34 35 Ibid, 115–16. Ibid, 127. Ibid, 128. Ibid. Ibid, 129.

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measures for the protection of human rights is uncontroversial. Furthermore, as Georgia v Russia demonstrates, it is arguably possible to obtain effective interim relief in this respect from an apparently narrow jurisdictional base.

2 Cases of Diplomatic Protection Less clear-cut are cases in which interim protection is sought for the protection of individuals in situations where the rights in question are formally held by the state. As Lee-Iwamoto notes, under certain treaties and rules of customary international law: [S]tates have the fundamental right to protect their nationals abroad, if these are injured, or about to be injured, by acts of another state in violation of an international obligation. The traditional view presents a ‘fiction’ of law in the sense that by taking up the case of one of its own nationals and by resorting to diplomatic action or international judicial proceedings on behalf of that national, the state asserts its own rights. [ . . . ] [T]his right, known as diplomatic protection, might be invoked as a means to protect human rights [via interim relief], although the exercise of diplomatic protection is the right of the state.36

The ‘fiction’ alluded to by Lee-Iwamoto may be used to protect human rights in situations where said rights are not directly the subject of litigation.37 This may be demonstrated by reference to Tehran Hostages, which in large part concerned the seizure by Iran of US diplomatic and consular personnel during the Iranian Revolution. The US consequently invoked the Vienna Convention on Diplomatic Relations38 (VCDR) and VCCR as the basis for a claim, and requested the provisional release of the assets and persons seized by way of interim relief.39 Pursuant to the two Conventions, the diplomatic and consular personnel concerned enjoyed personal immunity and inviolability that could be the subject 36

Lee-Iwamoto, ‘Protection of Human Life’, 353. Further: ILC Draft Articles on Diplomatic Protection, ILC Ybk 2006/II(2), 26, Art 1: [D]iplomatic protection consists of the invocation by a State, through diplomatic action or other means or peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.

37 38 39

Ibid, 353–8. Cf. Ahmadou Sadio Diallo (Guinea v DRC), ICJ Reports 2010 p 639, 655. 18 April 1961, 500 UNTS 95. United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, ICJ Reports 1979 p 7, 8–10.

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of a direct plea for diplomatic protection and interim relief40 – for all intents and purposes their continued detention represented an injury to the US. Difficulties arose, however, with respect to two further private individuals detained alongside the diplomatic and consular personnel, who did not enjoy the same personal rights under international law. The Court resolved this apparent quandary by reference to a wider right arising under the Conventions, noting in effect that as the private individuals had been seized in violation of the inviolability of diplomatic and consular premises,41 that this could be invoked so as to justify the release of the individuals. Furthermore, it was said: [T]he seizure and detention of these individuals in the circumstances alleged by the United States clearly fall also within the scope of the provisions of [VCCR] Article 5 [ . . . ] expressly providing that consular functions include the functions of protecting, assisting and safeguarding the interests of nationals; and whereas the purpose of these functions is precisely to enable the sending State, through its consulates, to ensure that its nationals are accorded the treatment due to them under the general rules of international law as aliens within the territory of the foreign State.42

A different kind of logic animates the consular relations cases of Breard, LaGrand and Avena. In all three cases, the basis of the litigation was VCCR Article 36(1)(b), which provides that whenever a foreign national is subject to the criminal process of a receiving state, they must be informed of their right to consular assistance with respect to any subsequent trial. In these cases, various states – Paraguay, Germany and Mexico – initiated proceedings with a view to preventing the execution of their nationals by various states of the US on the basis that they had not had the benefit of VCCR Article 36(1)(b) assistance and indeed had not even been informed that such assistance was available. Accordingly, the claimant states requested that any execution be postponed pending determination of the disputes.43 However, none of the claimant states sought to elaborate precisely how the execution of the individuals concerned would cause irreparable prejudice to VCCR Article 36(1)(b) and consequently the how the rights to be protected were linked to those to be decided in the final judgment. The Court was scarcely clearer. In Breard, it simply stated that 40 42 43

41 VCDR Art 31; VCCR Art 41. VCDR Art 22; VCCR Art 31. Tehran Hostages, ICJ Reports 1979 p 7, 14. Vienna Convention on Consular Relations (Paraguay v US), Provisional Measures, ICJ Reports 1998 p 248, 251–2; LaGrand, Provisional Measures, ICJ Reports 1999 p 9, 12; Avena and Other Mexican Nationals (Mexico v US), Provisional Measures, ICJ Reports 2003 p 77, 82.

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‘such an execution would render it impossible for the Court to order the relief that Paraguay seeks and thus cause irreparable harm to the rights it claims’.44 In LaGrand, the Court was even more vague, holding that ‘such an execution would cause irreparable harm to the rights claimed by Germany in this particular case’.45 A similar pronouncement appeared in Avena.46 In the event that the rationale of the measures in Breard applies to the consular relations cases en bloc, then the Court was seeking to protect the parties’ right to receive the remedy requested. Such a right, however, can only be adjudicated in the most general sense in the final judgment, and appears nowhere in the VCCR, the Optional Protocol of which formed the basis of the Court’s jurisdiction;47 accordingly, it does not satisfy the link test. But an answer of sorts, provided by Lee-Iwamoto, is that the Court interpreted expansively the legal consequences of a breach of VCCR Article 36(1)(b), namely that capital punishment, pronounced without consular assistance, triggers the exercise of diplomatic protection by reason of a violation of the right to life of nationals. Put another way, although the relevant breach of Article 36(1)(b) had already occurred in the initial failure to notify the individuals concerned of a right to assistance, that breach could only be rendered truly irreparable once sentence was carried out. Accordingly, the right to diplomatic protection under the VCCR was sufficient to establish a link between the rights in dispute and the rights to be provisionally protected from irreparable harm.48 Not every scholar, however, takes the same view of the matter, with Rosenne simply considering the consular relations cases as situations in which the threat to human life justified abandonment of the link requirement.49 This approach was criticized in all three of the consular relations cases by Judge Oda, who saw the Court as eliding the fact that their decision was animated by the threat posed to the affected individual’s right to 44 46

47 48 49

45 Breard, ICJ Reports 1998 p 248, 257. LaGrand, ICJ Reports 1999 p 9, 15. Avena, ICJ Reports 2003 p 77, 91: ‘whereas their execution would cause irreparable prejudice to any rights that may subsequently be adjudged by the Court to belong to Mexico’. Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 24 April 1963, 596 UNTS 487. Lee-Iwamoto, ‘Protection of Human Life’, 356–7. Rosenne, Provisional Measures, 203:

Although the dispute [in Breard] as presented to the Court concerned the interpretation and application of a treaty and the appropriate remedies should breach of the treaty be established, a human life was at stake, and Article 75 [of the ICJ Rules] could justify the very speedy action by the Court in the circumstances.

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life.50 Accordingly, he only supported the majority on each occasion with great hesitation: ‘[i]n this case [ . . . ] there is no question of [ . . . ] rights [constituting the subject matter of the proceedings], as provided for by the Vienna Convention, being exposed to an immediate irreparable breach’.51 With respect to the particular case of VCCR Article 36(1)(b), however, an answer to Judge Oda’s criticism was provided by the judgment in LaGrand, with the Court agreeing with Germany’s submission that the provision created a personal right that vested in the individuals concerned,52 placing them in a position analogous to that occupied (without controversy) by the diplomatic and consular personnel in Tehran Hostages. Put another way, the Court’s decision in LaGrand rendered coterminous the wellbeing of the affected individual and the interests of the state as the formal possessor of the right as a matter of international law, enabling that wellbeing to be safeguarded via diplomatic protection.

3 Cases in Which the Link is Attenuated or Broken In certain other cases, however, it is difficult to see how the link requirement could have been satisfied in a meaningful sense. Where this occurs, it may be argued that the need to protect human rights has permeated the situation to such an extent that the Court feels that it has no choice but to act. The first instance in which this may be said to occur was Tehran Hostages, in which the link requirement was formally made out. In that case, although the US formally relied on the relevant provisions of the VCDR and VCCR in grounding the jurisdiction of the Court and the bulk of its claim, it also more broadly urged the protection of ‘the rights of its nationals to life, liberty, protection and security’ and ‘the right to have its nationals protected and secure’.53 The Court linked the relief provided back to the Conventions, but also indicated that it had considered 50

Cf. Breard, ICJ Reports 1998 p 246, 264, in which Judge Koroma expressed the same view, but with approval: The Order called for the suspension of the sentence of execution of Mr Breard on 14 April 1998, thereby preserving his right to life pending the final decision of the Court on this matter [ . . . ] I concur with this finding.

51 52

53

Ibid, 261 (Judge Oda). See also LaGrand, ICJ Reports 1999 p 9, 19 (Judge Oda); Avena, ICJ Reports 2003 p 77, 93–4. LaGrand, ICJ Reports 2001 p 466, 494. The Court, however, left open the question as to whether the right set out in VCCR Art 36(1)(b) could properly be classified as a human right, a point argued by Germany. The pronouncement was met with some querulousness by Judge Oda and Vice-President Shi: ibid, 520 (Vice-President Shi), 536 (Judge Oda, diss). Tehran Hostages, ICJ Reports 1979 p 7, 19.

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the fact that ‘continuance of the situation [which is] the subject of the present request exposes the human beings concerned to privation, hardship, anguish and even danger to life and health and thus to a serious possibility of irreparable harm’.54 Higgins views this passage as a departure from formal techniques of legal reasoning: ‘[e]schewing formalism, the Court thus made a connection between harm to the individuals concerned and obligations owed by Iran to the United States under the Vienna Conventions’.55 Thirlway, in turn, describes the same stanza as reflecting the fact that the Court had ‘moved imperceptibly from the international legal rights of the United States to the injury to the persons, health and life of the individuals concerned’ and observes further that ‘the Order provides no link between these two considerations’.56 The subtext of Tehran Hostages formed the principal motivation of the Chamber in Burkina Faso/Mali. There, the parties asked the Chamber to determine ‘[w]hat is the line of the frontier between the Republic of Upper Volta [Burkina Faso] and the Republic of Mali in the disputed area as defined below?’57 Accordingly, the Chamber’s jurisdiction was confined to determining sovereignty over the disputed area – it was not required to determine human rights or humanitarian abuses occurring within that area. In 1985, Malian forces attacked Burkina Faso, prompting the latter to request provisional measures from the Chamber on the basis that the situation ‘which might be created on the ground as the outcome of the armed conflict would make it difficult, if not impossible, to implement the Court’s judgment’ and further alluded to the possible destruction of evidence.58 Mali, in turn, made its own application for interim relief, on the basis that ‘Burkinabe armed elements had beleaguered and occupied the border villages under Malian administration’.59 The parties agreed on a ceasefire before the Chamber could consider the matter, but the issue of troop withdrawals remained. The Chamber’s subsequent order sought to link the subject matter of the dispute (i.e. placement of the frontier) to the measures sought by 54 56

57

58

55 Ibid, 20–1. Higgins, ‘Protection of Human Rights’, 100. H W A Thirlway, ‘The Indication of Provisional Measures by the International Court of Justice’, in R Bernhardt (ed), Interim Measures Indicated by International Courts (Berlin: Springer, 1994) 1, 9. Thirlway generally disapproves of any departure from a strictly formalist understanding of the link requirement: Thirlway, ‘Peace, Justice and Provisional Measures’, 77–80. The disputed area was defined as ‘a band of territory extending from the sector Koro (Mali) Djibo (Upper Volta, Burkina Faso) up to an including the region of Beli’: Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986 p 554, 557. 59 Burkina Faso/Mali, Provisional Measures, ICJ Reports 1986 p 3, 4. Ibid, 6.

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reference to the destruction of evidence;60 but in a further passage, it introduced several wider factors that had no bearing on that question: Whereas the facts that have given rise to the requests of both Parties for the indication of provisional measures expose the persons and property in the disputed area, as well as the interests of both States within that area, to serious risk of irreparable damage; and whereas the circumstances consequently demand that the Chamber should indicate appropriate provisional measures in accordance with Article 41 of the Statute [ . . . ]61

The harm alluded to in this passage was sufficient in the Chamber’s view to justify interim relief, a decision that was rendered all the more remarkable by the fact that it earlier had reference to South-Eastern Greenland.62 An attempt was made to square the two situations through the argument that as the dispute had been submitted to the Chamber by compromis, the events complained of ‘comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes’ such that ‘there can be no doubt of the Chamber’s power and duty to indicate, if need be, such provisional measures as may conduce to the due administration of justice’.63 Such a rationale, however, appears unsatisfactory as the obligation of peaceful settlement at it appears in Articles 2(3) and 33 of the UN Charter applies generally as between states and therefore irrespective of whether a court or tribunal is approached by way of special agreement.64 If the Chamber’s argument is correct, then the link requirement could be effectively done away with no matter how the jurisdiction of the relevant court or tribunal is enlivened. A similar situation occurred in Cameroon v Nigeria, a case in which Cameroon asked the Court to adjudge and declare its sovereignty over the Bakassi Peninsula and the consequent illegality of its occupation by Nigeria. In 1996, Cameroon sought the indication of provisional measures, claiming that an attack by Nigerian forces along the ceasefire line had led to Cameroonian casualties and other unfortunate consequences.65 The accuracy of this account was contested by Nigeria. As Higgins notes, the Court was confronted with two central issues – whether the harm claimed was related to the subject of the dispute (i.e. sovereignty over the Bakassi 60 63 64 65

61 62 Ibid, 9. Ibid, 10. Ibid, 9. Ibid. Cf. Thirlway, ‘Peace, Justice and Provisional Measures’, 79–80. Alain Pellet, ‘Peaceful Settlement of International Disputes’, MPEPIL (2013) §3. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Provisional Measures, ICJ Reports 1996 p 13, 18.

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Peninsula) and where the forces of each side were really to be found.66 With respect to the former question, the Court could have drawn a link between the damage allegedly caused and the claim for reparation found in Cameroon’s application.67 Rather, it chose to express concern about the fact that the incidents ‘caused suffering [and] occasioned fatalities [ . . . ] while causing others to be wounded or unaccounted for’68 and further declared: Whereas the events that have given rise to the request, and more especially the killing of persons, have caused irreparable damage to the rights that the Parties may have over the Peninsula; whereas persons in the disputed area and, as a consequence, the rights of the Parties within that area are exposed to serious risk of further damage [ . . . ]69

On this basis, the Court awarded interim relief,70 notwithstanding the fact that, to paraphrase South-Eastern Greenland, the incidents in question could not affect the existence or value of the sovereign rights claimed by Cameroon and Nigeria over the territory in question, were those rights to be duly recognized by the Court in its future judgment on the merits of the dispute. This was the subject of dissonance from Judge Oda, who appended a declaration criticizing the breadth of the measures and arguing that ‘loss of life in the disputed area, distressing as it undoubtedly is, does not constitute the real subject matter of the present case’.71 A measure of justification for these decisions is provided by Higgins, who argued that these orders reflect the fact that ‘disputes about frontiers are not just about lines on the ground but are about the safety and protection of the peoples who live there’.72 There is a measure of attractiveness to this thesis – where a dispute concerns sovereignty writ large, it might perhaps be thought that this encompasses all other rights that might be held by individuals on that territory – particularly human rights. This represents a formal departure from South-Eastern Greenland, though it should be remembered in that case that the conflict at which the proposed measures were directed was purely hypothetical – and indeed there was 66 67 69 71

72

Higgins, ‘Protection of Human Rights’, 107. 68 Cameroon v Nigeria, ICJ Reports 1996 p 13, 18. Ibid, 22. 70 Ibid, 23. Ibid, 24–5. Ibid, 27 (Judge Oda). Cf. also the declaration of Judge Ranjeva, who characterized the Court’s capacity to act as ‘a contribution by the Court to ensuring the observance of one of the principal obligations of the United Nations and all of its organs in relation to the maintenance of international peace and security’: ibid, 28 (Judge Ranjeva). Higgins, ‘Protection of Human Rights’, 107. Cf. Lee-Iwamoto, ‘Protection of Human Life’, 361–4; Rosenne, Provisional Measures, 194.

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evidence before the PCIJ in that case that contact between the two expeditions was highly unlikely given the vast swathe of territory concerned.73 Had Denmark and Norway been engaged in armed conflict over the area, the Court might have decided the case differently. This pattern is by no means confined to the ICJ, and may be seen replicated by ITLOS in Arctic Sunrise.74 That case concerned the arrest by Russia of a Dutch-flagged Greenpeace vessel (the Artic Sunrise) and 30 activists (the ‘Arctic 30’) after several of the activists, bearing ropes and posters, attempted to board a Gazprom oil platform, the Prirazlomnaya, in the Russian EEZ. The Prirazlomnaya, moreover, was the subject of a safety zone declared by Russia under UNCLOS Article 60(4), within which Russia was authorized to ‘take appropriate measures to ensure the safety both of navigation and of [platform]’. Those activists who boarded the platform were arrested immediately by Russian security forces; the vessel and the remaining activists and crew, however, were arrested the following day after a brief pursuit. Both the Arctic Sunrise and Arctic 30 were detained in Murmansk pending a criminal investigation under Russian law. In response to this, the Netherlands commenced proceedings before an Annex VII tribunal, and petitioned ITLOS for provisional measures under UNCLOS Article 290(5). With respect to the rights that formed the basis of its claim, the Netherlands identified several putative breaches of UNCLOS by Russia, including breaching the vessel’s customary freedom of navigation as codified in UNCLOS Articles 58(1) and 87(1)(a) and failed to recognize the Netherlands’ customary jurisdiction over the vessel as flag state as codified in UNCLOS Article 58. Russia was also alleged to have abused its right of visit to a foreign-flagged ship under UNCLOS Article 110. The Netherlands further called on the Annex VII tribunal to recognize that Russia had breached the Arctic 30’s rights to liberty and security and their right to leave the territory and maritime zones of another state, as set out in ICCPR Articles 9 and 12(2). Significantly, each 73 74

South-Eastern Greenland (1932) PCIJ Ser A/B No 48, 283. Douglas Guilfoyle and Cameron A Miles, ‘Provisional Measures and the MV Arctic Sunrise’ (2014) 108 AJIL 271, 284–6. But cf. Enrica Lexie (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §§123–31, where the Tribunal refused to adopt the same approach that it had in Arctic Sunrise despite substantial similarities of fact. It is worth noting, however, that the Tribunal may have been swayed by the fact that India guaranteed that any criminal proceedings against the detained Italian marine would be stayed at least until such time as the Annex VII tribunal could be empanelled and issue interim relief of its own: ibid, §102.

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breach so identified was linked to the ‘boarding, investigating, inspecting, arresting [and/or] detaining’ of the Arctic Sunrise by Russian authorities.75 On this basis, the Netherlands requested that ITLOS order the release of the vessel and the Arctic 30 by way of interim relief.76 The Tribunal obliged.77 A number of observations might be made about this order. In the first place, it is possible to disagree with the implicit assumption by ITLOS that the Annex VII tribunal would have jurisdiction over claims arising out of the ICCPR as such claims in no way relate to the ‘interpretation or application of the Convention’ within the meaning of UNCLOS Article 293.78 This concern aside, however, one could also question the extent to which the Netherlands’ rights to freedom of navigation and exclusive jurisdiction with respect to the Arctic Sunrise would be protected by an order requiring the provisional release of both the vessel and those aboard it. This may be answered by reference to Lee-Iwamoto’s reading of the consular relations cases,79 i.e. that an expansive understanding of the legal consequences of the alleged breaches rendered coterminous the human rights of the detained vessel and individuals and the Dutch rights under UNCLOS that were the subject of litigation. But what such a reading of the rights in dispute cannot do is explain why the eventual order of the Tribunal required Russia to release ‘all persons who have been detained’80 – including those individuals who were arrested on the Prirazlomnaya and whose detention was therefore outside the ambit of a Dutch application drafted solely by reference to seizure of the Arctic Sunrise. Furthermore, unlike the two private individuals in Tehran Hostages and their relationship to VCCR Article 5, the Netherlands raised no general provision of UNCLOS within which it could be considered capable of exercising diplomatic protection with respect to

75 76 78

79 80

Arctic Sunrise, ITLOS Case No 22 (Provisional Measures, 22 November 2013) §33. 77 Ibid, §34. Ibid, §105. This provision has been read to permit consideration of rights arising in international law more generally: see e.g. M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea) (1999) 120 ILR 143, 196; Guyana/Suriname (2007) 139 ILR 566, 683. The better view, however, is that rules of international law external to UNCLOS can only be considered within the jurisdiction of an UNCLOS Part XV body where they are necessary to the interpretation or application of UNCLOS itself: cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 43, 105. Further: Guilfoyle and Miles, ‘MV Arctic Sunrise’, 285. Above §II.A.2. Cf. Lee-Iwamoto, ‘Protection of Human Life’, 356–7. Arctic Sunrise, ITLOS Case No 22, §105.

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those individuals. Accordingly, on no reading of the facts could the rights of those activists be linked to the main claim. Regrettably, the sparse reasoning of the Tribunal gives no indication as to why it considered itself able to order the release of the Prirazlomnaya activists. At its highest point, the order merely quotes (but does not expressly adopt) a Dutch submission that: As a consequence of the actions taken by the Russian Federation in connection with the boarding and detention of the ‘Arctic Sunrise’, the crew would continue to be deprived of their right to liberty and security as well as their right to leave the territory and maritime areas under the jurisdiction of the Russian Federation. The settlement of such disputes between two states should not infringe upon the enjoyment of individual rights and freedoms of the crew of the vessels concerned. [ . . . ] As for the continuing detention of the crew, every day spent in detention is irreversible.81

Even this submission makes reference only to the consequences of the boarding and detention of the Arctic Sunrise, leaving the reader confused as to why individuals formally unconnected to this act would be deemed to be subsumed within its legal consequences. The only conclusion to be drawn is that the human rights concerns raised by the Netherlands prompted ITLOS to forgo the link between the rights to be protected provisionally and those to be decided on the merits. This does not even have the benefit of Higgins’ justification for less egregious disconnects in Burkina Faso/Mali and Cameroon v Nigeria.

4 Understanding the Practice The above analysis presents a series of cases seemingly advancing towards incoherence. Whilst the rule set out in South-Eastern Greenland is tolerably clear (and, as a matter of jurisdictional logic, irreproachable), the principle undergoes a process of slow stretching in elements of Tehran Hostages and the consular relations cases before tending towards outright rupture in Burkina Faso/Mali, Cameroon v Nigeria and – most acutely – Arctic Sunrise. At the same time, however, the Court may be seen to reaffirm the link requirement in cases such as Bosnian Genocide and Georgia v Russia. In both those cases, the applicants succeeding in securing interim relief on the basis of the human rights treaties that were the subjects of the claim. Neither can be said to have offered complete protection to the victims of human rights abuses, however – in Bosnian Genocide, the remedy offered did not restrain the committal of such abuses or breaches of humanitarian 81

Ibid, §87.

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law that stopped short of genocide, and in Georgia v Russia the same limits applied with reference to racial discrimination. If, as Higgins asserts, South-Eastern Greenland has now been overruled,82 the Court in those cases might have felt itself able to order more comprehensive relief.83 Several factors may have contributed to this confusing picture. On the one hand, Higgins may be correct when she speaks of an evolving jurisprudence of provisional measures that recognizes the human reality of inter-state disputes. On the other, international courts and tribunals are aware of the need to ensure that they do not overstep the acceptable boundaries of international jurisdiction and pronounce upon rights that have not been submitted to it with the consent of the parties – a priority that has only increased post-LaGrand. Accordingly, the jurisprudence reveals a number of techniques available to tribunals to ensure effective protection of individuals in such cases. Firstly, where human rights or humanitarian norms are directly the subject of adjudication, to order interim relief appropriately linked to the particular rights in question, though worded in such a way as to provide a measure of de facto protection for rights arising from other regimes. This was the approach taken in Bosnian Genocide and Georgia v Russia. Second to – as was done in the consular rights cases – take an expansive view of the legal consequences of breaches such as to render individual rights recognisable to diplomatic protection. Third, in cases where no link can be ascertained but the dispute concerns title to territory, depart formally from South-Eastern Greenland, but attempt to subsume the threat of significant armed conflict within the territorial question such that sovereignty becomes coterminous with the safety of the individuals on the territory in question. If this is to be taken to be a coherent approach of sorts, then the only decision canvassed earlier that is unjustifiable is Arctic Sunrise. By way of a final remark, it would be a mistake to think that a court or tribunal that justifies a refusal to award provisional measures to protect human rights by reference to the link test – a legally correct approach – is being obdurate. The requirement provides a valuable and necessary limitation to the inherent power to award interim relief that can only increase the legitimacy of the process. It is by now firmly entrenched as 82 83

Higgins, ‘Protection of Human Rights’, 108. This is subject to the proviso that the applicant in Georgia v Russia only asked for relief connected to CERD. However, it bears remembering that the Court is not bound to order relief identical to that requested by the parties and may indeed go further if it believes it to be necessary: ICJ Rules, Art 75(2).

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a feature of international judicial practice and a prerequisite to interim relief. To claim that it can be displaced just because a particular species of rights alien to the merits might suffer disastrous prejudice is to permit the substantive tail to wag the jurisdictional dog.84 Although the limits of the link requirement can be tested in such situations, the requirement cannot be severed entirely. Further, it should be remembered that in cases where a court or tribunal is required to adjudicate an international dispute against the background of a human rights or humanitarian crisis, it retains the option of measures for the non-aggravation of the dispute.85 Although such measures are deferential to both the status quo and subjective appreciation of the parties, they may nonetheless prevent the escalation of the situation via the perpetuation of additional abuses.

B Parallel Seisin of the International Court of Justice and UN Security Council 1 Interaction Between the International Court of Justice and UN Security Council Both the UN Security Council and the ICJ have the status of principal organs of the UN within the meaning of Article 7(1) of the Charter.86 They may, in addition, be perceived to possess overlapping competencies concerning the maintenance of international peace and security and the settlement of international disputes respectively.87 Accordingly, the Court and the Council may be seised with respect to the same situation at the same time.88 Absent special rules to the contrary, there is 84 86 87

88

85 Thirlway, ‘Peace, Justice and Provisional Measures’, 76–7. Chapter 5, §III. Art 7(1) recognizes seven such organs: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the ICJ and the Secretariat. Generally: Vera Gowlland-Debbas, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1988) 88 AJIL 643; Krzysztof Skubiszewski, ‘The International Court of Justice and the Security Council’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 606; Peter Malanczuk, ‘Reconsidering the Relationship between the ICJ and the Security Council’, in W P Heere (ed), International Law and The Hague’s 750th Anniversary (The Hague: TMC Asser, 1999) 83. This is by no means unusual: see e.g. Anglo-Iranian Oil (UK v Iran), Interim Protection, ICJ Reports 1951 p 89; Aegean Sea Continental Shelf (Greece v Turkey), Interim Protection, ICJ Reports 1976 p 3; Tehran Hostages, ICJ Reports 1979 p 7; Nicaragua, ICJ Reports 1984 p 168; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK), Provisional Measures, ICJ Reports 1992 p 3; in passim (Libya v US), Provisional Measures, ICJ Reports 1992 p 114; Bosnian Genocide, ICJ Reports 1993 p 3; in passim, Provisional Measures ICJ Reports 1993 p 325;

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no clash of mandates where this occurs. As was stated by the Court in Nicaragua: The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complimentary functions with respect to the same dispute.89

The ‘separate but complimentary functions’ referred to by the Court may include the imposition of parallel forms of relief, interim or otherwise.90 The Council may make a variety of recommendations and orders under the Charter, including recommending appropriate dispute settlement procedures under Chapter VI, issuing provisional measures of its own to prevent aggravation of the situation under Article 40 and, in situations concerning threats to international peace and security, issuing a Chapter VII resolution which must under Article 103 be the subject of compliance by UN Members irrespective of whether compliance would violate another international obligation. The formal equality of the Court and Council as principal organs of the UN invigorates the principle of Organtreue (or ‘institutional loyalty’) derived from the obligation of good faith contained in Article 2(2) of the Charter.91 Under this rubric, each principal organ is under an obligation to take account of the activities of the others in an effort not to undermine them. This may create something of a ‘first come, first served’ dynamic, in which the organ second seised must deliberate in the shadow of the organ seised first. Accordingly, in situations where the Court is asked to award

89 90

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Cameroon v Nigeria, ICJ Reports 1996 p 13; Armed Activities (DRC v Uganda), ICJ Reports 2000 p 111; Georgia v Russia, ICJ Reports 2008 p 353; Temple (Interpretation), ICJ Reports 2011 p 537. Nicaragua, Jurisdiction and Admissibility, ICJ Reports 1984 p 392, 435. Louis Savadogo, ‘Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda): The Court’s Provisional Measures Order of 1 July 2000’ (2001) 72 BYIL 357, 365–8; Karin Oellers-Frahm, ‘Article 41’, in ICJ Commentary, 1026, 1069–70; Robert Kolb, The International Court of Justice (Oxford: Hart, 2013) 652–5; Giorgio Gaja, ‘Preventing Conflicts between the Court’s Orders on Provisional Measures and Security Council Resolutions’, in G Gaja and J Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Leiden: Brill, 2014) 87. Kolb, International Court, 653. The principle arises from German administrative law, where it serves as a guide for the resolution of disputes between constitutional organs. It is also a general principle of federative law. Further: E Klein, ‘Paralleles Tlitigwerden von Sicherheitsrat und intemationalem Gerichtshof bei friedensbedrohenden Streitigkeiten: Zu Fragen der Zustiindigkeit und Organtreue’, in R Bernhardt et al. (eds), Viilkenecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte: Festschrift f¨ur Hermann Mosler (Berlin: Springer, 1983) 467; Malanczuk, ‘Reconsidering the Relationship’, 91.

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provisional measures under Article 41 of its Statute where the Security Council has already taken action, the Council’s activities will impact on the Court’s willingness to award interim relief, particularly insofar as prejudice to rights pendente lite is concerned.92 It is to be pointed out, however, that the Council’s involvement will not ordinarily provide the basis of a valid objection to the admissibility of a request for provisional measures. This form of interaction between the two bodies can be seen in Aegean Sea, in which Greece and Turkey were engaged in a dispute concerning the division of their shared continental shelf. On 10 August 1976, Greece issued proceedings before the ICJ and requested interim measures. On the same day, it sent a letter to the Security Council requesting an urgent meeting of the Council in view of ‘recent repeated flagrant violations by Turkey of the sovereign rights of Greece on its continental shelf in the Aegean’.93 Following several meetings, the Council on 25 August 1976 adopted SC Resolution 395, a Chapter VI resolution appealing to Greece and Turkey to exercise restraint, reduce tensions in order to facilitate the negotiation process, resume direct negotiations and to continue to take into account the role that judicial proceedings – in particular before the ICJ – might play in the resolution of the dispute.94 In its Order of 11 September 1976, the Court found that the circumstances were not such as to require an answer to a question put before it as to whether Article 41 conferred the power to order interim relief for the sole purpose of preventing aggravation or extension of the dispute.95 In so doing, it took note of the positive reception of both the Greek and Turkish governments to SC Resolution 395, as well as observing that ‘it is not to be presumed that either State will fail to heed its obligations under the Charter of the United Nations or fail to heed the recommendations of the Security Council addressed to them with respect to their present dispute’.96 Put another way, the action taken by the Council had removed 92 93 95

96

Oellers-Frahm, ‘Article 41’, 1069; Kolb, International Court, 652–3; Gaja, ‘Security Council Resolutions’, 89. 94 Aegean Sea, ICJ Reports 1976 p 3, 12. SC Res 395 (25 August 1976) §§1–4. Aegean Sea, ICJ Reports 1976 p 3, 14. The Court’s response to that question has since varied widely, but now appears to be that measures for non-aggravation cannot be awarded independently of measures for the protection of rights pendente lite: Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, ICJ Reports 2007 p 3, 13, 16. Further: Chapter 5, §III.B.1. Aegean Sea, ICJ Reports 1976 p 3, 12–13.

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the possibility of irreparable prejudice in the context of the dispute, such that interim relief was no longer required.97 However, Organtreue does not require the Court to vacate the field entirely where the Council has pronounced upon the issue, but merely to ensure that the Council’s political work is not undermined through the Court’s management of a parallel legal dispute. Accordingly, if the Court takes the view that steps taken by the Council are insufficient, it may add to them via Article 41 on the proviso that these new measures do not conflict with those earlier issued. In Armed Activities (DRC v Uganda), the Court gave great weight to steps taken by the Council concerning the Congolese War,98 ordering that both parties ‘take all measures necessary to comply’ with action taken by the Council under Chapter VII.99 However, it further ordered that parties to take all measures necessary ‘to ensure full respect within the zone of conflict for fundamental human rights and for the applicable provisions of humanitarian law’,100 advancing and complimenting the Council’s Chapter VII action. The interaction between the Court and the Council is such that although the Council will often pronounce itself first on a particular issue due to its capacity for urgent action,101 it should in any subsequent revisiting of a topic take account of action pursued by the Court in the meantime. Accordingly, provisional measures imposed by the Court may affect Council deliberations. Following the Court’s first Order in Bosnian Genocide, the Council took note of the provisional measures imposed in the preamble to SC Resolution 819, before going on to add some consistent measures under Chapter VII imposing a safe zone around Srebrenica.102 This dynamic between Council and Court has been displaced in only one case – which, it might be fairly said, was built on an unusual set of circumstances. Lockerbie concerned the 21 December 1988 bombing of Pan Am Flight 73 over Scotland. Following an investigation by UK and US authorities, arrest warrants were issued for two Libyan nationals in 1993. Following the refusal of Libyan authorities to cooperate, the Council issued a Chapter VI resolution implying that the individuals should be surrendered.103 Further Libyan intransigence rendered it likely 97 99 101 102

98 Gaja, ‘Security Council Resolutions’, 89. SC Res 1304 (16 June 2000). 100 Armed Activities (DRC v Uganda), ICJ Reports 2000 p 111, 129. Ibid. But cf. the provisional measures in LaGrand, ICJ Reports 1999 p 9, which were ordered within 24 hours of the request being filed. 103 SC Res 819 (16 April 1993) §§1–6. SC Res 731 (21 January 1992).

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that binding Chapter VII action would follow. In order to prevent this, Libya instituted separate proceedings before the ICJ against the US and UK alleging a breach of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation104 and requesting the imposition of interim relief enjoining these states from taking action against Libya that might coerce or compel it to hand over its nationals.105 After that hearing closed, the Council took binding Chapter VII action by way of SC Resolution 748 and directly compelled the surrender of the individuals concerned under pain of sanctions.106 As this resolution superseded any obligation binding on the US or UK under Article 103 of the Charter, the Court held that ‘the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures’.107 As Gaja notes, in the language of the Court as subsequently adopted, the rights held by Libya at the outset of the application had ceased to become plausible.108

2 Conflict Between Provisional Measures of the International Court of Justice and UN Security Council Resolutions A further question – likely hypothetical – is how a party ought to behave if a Security Council resolution contradicts provisional measures ordered by the ICJ in a manner that defies harmonization. Post-LaGrand, it is clear that provisional measures ordered by the Court will trump nonbinding resolutions of the Council under Chapter VI of the Charter. A binding Chapter VII resolution is a different matter. In the first place, as the ICJ Statute is an integral part of the Charter,109 Article 103 – applying only to conflicts ‘between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement’ – will not give the resolution automatic priority. Accordingly, a solution must be sought in the Charter itself. Given the UN as an international organization is rooted in the need ‘to maintain international peace and security’110 and that the Council is only authorized to take binding action when that peace and security is 104 105 106 107 108 109

23 September 1971, 974 UNTS 178. Lockerbie (Libya v UK), ICJ Reports 1992 p 3, 8; in passim (Libya v US), ICJ Reports 1992 p 114, 119. SC Res 748 (31 March 1992) §1. Lockerbie (Libya v UK), ICJ Reports 1992 p 3, 15; in passim (Libya v US), ICJ Reports 1992 p 114, 126–7. Gaja, ‘Security Council Resolutions’, 90. 110 UN Charter, Art 92. UN Charter, preamble and Art 1(1).

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threatened,111 any such interpretive exercise would likely give supremacy to the Council’s directive.112 Were such a situation to arise in reality, Kolb suggests that the Council and Court would engage in consultations so as to find a viable solution,113 with the General Assembly – competent to advise on all questions relating to the powers of the UN114 – available to provide an ultimate decision. Prior to clarity being provided, however, a state would have relative liberty to comply with whichever of the conflicting obligations it saw fit. In the event that compliance with one measure placed it in breach of the other, it would likely be able to plead force majeure115 in that satisfaction of the neglected obligation was rendered materially impossible by the occurrence of an irresistible force or unforeseen event beyond the state’s control (viz. the unexpected appearance of a contradictory and equally binding obligation of international law). Alternatively, it might be accepted that compliance with one obligation immediately frees the state of the need to comply with the other, as no party may be held to the impossible.116

C Proceedings Before Other Courts and Tribunals Provisional measures may be awarded to suspend proceedings that run parallel to the deliberations of an international court or tribunal: a function redolent of the anti-suit injunction.117 Given the in personam character of interim relief, such measures will not bind the domestic court directly118 but rather direct the parties appearing before the international 111 112 113

114 115

116 117

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UN Charter, Art 39. Cf. James Crawford, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 8th edn, 2012) 759–62. Kolb, International Court, 654. See the statement made by President Owada to the Security Council in on 25 October 2011, calling for ‘an organic link of co-ordination and co-operation’ between the Court and the Council: www.icj-cij.org/presscom/files/1/16741.pdf. UN Charter, Art 10. ARSIWA Art 23(1). Further: Federica I Paddau, ‘A Genealogy of Force Majeure in International Law’ (2011) 82 BYIL 382; James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) 295–301. Kolb, International Court, 654 (citing the maxim ad impossibile nemo tentatur). Further: Pippa Rogerson, Collier’s Conflict of Laws (Cambridge: Cambridge University Press, 4th edn, 2013) 194–205. The termination of domestic proceedings can also be ordered by way of final relief: ATA Industrial, Construction and Trading Co v Jordan, ICSID Case No ARB/08/2 (Award, 18 May 2010) §124. This distinction verges on the technical where the party to whom the measures are addressed is a state, the court naturally being an organ of the unitary entity that appears in international proceedings: ARSIWA, Art 4(1).

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court or tribunal to ensure that local proceedings are suspended or where necessary discontinued. Depending on the case, the exclusivity of international jurisdiction may be considered a procedural right directly bestowed on the parties by the court or tribunal’s constitutive instrument. For example, Article VII(2) of the Claims Settlement Declaration creating the Iran–US Claims Tribunal provides in terms that: Claims referred to the Arbitral Tribunal shall, as of the date of filing such claims with the Tribunal, be considered excluded from the jurisdiction of the courts of Iran, or of the United States, or of any other court.119

Similarly, Article 26 of the ICSID Convention states: Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.120

Even without an express guarantee of jurisdictional exclusivity, an international court or tribunal may still be capable of restraining parallel domestic proceedings.121 As has been acknowledged elsewhere, a core rationale of interim relief is to secure the integrity of the court or tribunal’s jurisdiction122 or prevent prejudice to the final award.123 Alternatively, 119

120 121

122 123

Declaration of the Government of the Democratic and Popular Government of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, 20 ILM 230. Further: ICSID Commentary, 348–413. It bears noting that the jurisdiction of an international court or tribunal to restrain ongoing domestic proceedings also extends to the enforcement of domestic judgments or awards: see e.g. M/V Saiga (No 2), Provisional Measures (1999) 117 ILR 111, 124; International Quantum Resources Ltd, Frontier SPRFL and Compagnie Mini`ere de Sakania SPRL v DRC, ICSID Case No ARB/10/21 (Procedural Order No 1, 1 July 2011) §§30(3)(i), (ii); Chevron Corporation and Texaco Petroleum Company v Ecuador, PCA Case 2009–23 (Fourth Interim Award on Interim Measures, 7 February 2013) §§35–76. Also: Mouawad and Silbert, ‘Guide to Interim Measures’, 407–10. See e.g. NAFTA Art 1134, which includes intervention to ‘protect the Tribunal’s jurisdiction’ as part of an inclusive list of possible provisional measures. See e.g. Aegean Sea, ICJ Reports 1973 p 3, 15 (Judge Jim´enez de Ar´echaga): 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.

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certain kinds of domestic proceeding (notably criminal proceedings) will also be considered to aggravate or extend the dispute.124 It should be pointed out that in the case of ad hoc proceedings under the 1976 or 2010 UNCITRAL Rules the need to site the arbitration within the judicial system of a state (i.e. the arbitral forum) will render that arbitration susceptible to the supervisory jurisdiction of that state’s courts such that any ‘interference’ by those courts will not diminish the tribunal’s jurisdiction.125 In such cases, interim relief will not be appropriate, intervention by the domestic court having been built into the arbitral framework. It should also be noted that, notwithstanding the fact that any international court or tribunal may restrain domestic proceedings where necessary, the vast majority of the case law on this point comes from investorstate tribunals.126 This would seem to have more to do with the fact that investors, as natural or juridical persons, are more susceptible to pressure from a state’s judicial system than another state might be. That being said, both the PCIJ and ICJ have each had one case in which measures for the restraint of domestic proceedings were sought, though both are undeveloped in light of later investor-state jurisprudence. In Electricity Company, the PCIJ ordered measures for non-aggravation to restrain domestic proceedings in Bulgaria – though one gets the impression that as Europe was steadily descending into the Second World War at the time, the Court was more concerned with a general protection of the status quo.127 In Interhandel, the ICJ refused to grant Switzerland interim relief due to a lack of urgency.128 In M/V Saiga (No 2), ITLOS ordered that 124 125 126

127 128

Lao Holdings NV v Lao People’s Democratic Republic, ICSID Case No ARB(AF)/12/6 (Ruling on Motion to Amend the Provisional Measures Order, 30 May 2014) §14. Further: Nigel Blackaby and Constantine Partasides, Redfern and Hunter on International Commercial Arbitration (Oxford: Oxford University Press, 5th edn, 2009) ch 7. Cf. Charles N Brower and Ronald E M Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings’ (1991) 6 ICSID Rev – FILJ 431; Charles N Brower and Jason D Brueschke, The Iran–United States Claims Tribunal (The Hague: Martinus Nijhoff, 1998) 229–35; Gabrielle Kaufmann-Kohler and Aur´elia Antonietti, ‘Interim Relief in International Investment Agreements’, in K YannicaSmall (ed), Arbitration under International Investment Agreements: A Guide to the Key Issues (Oxford: Oxford University Press, 2010) 507, 523–6; Caline Mouawad and Elizabeth Silbert, ‘A Guide to Interim Measures in Investor-State Arbitration’ (2013) 29 Arb Int’l 381, 402–13; ICSID Commentary, 784–93. Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Ser A/B No 79, 199. Further: Chapter 2, §IV.C.6. Interhandel (Switzerland v US), Interim Measures of Protection, ICJ Reports 1957 p 105, 112.

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Guinea ‘refrain from taking or enforcing any judicial or administrative measure against the M/V Saiga, its Master and the other members of crew [or] its owners or operators’ in relation to the arrest and detention of the vessel.129 It did not, however, give a full explanation of why it was ordering such restraint, beyond noting that ‘the rights of the Applicant would not be fully preserved’130 if the measures were not ordered. As such, none of these cases adds much in the way of specific consideration of how domestic proceedings might generate a need for interim relief.

1 Domestic Civil Proceedings The first category of measures protecting the jurisdictional exclusivity of an international court and tribunal arises where the domestic civil court is considering an issue or subject matter that falls within international jurisdiction.131 A number of early authorities emerge from the Iran–US Claims Tribunal, which regularly ordered the suspension of proceedings before the Iranian courts.132 The Tribunal set out its position in E-Systems v Iran, where a US company filed a claim against Iran and an Iranian bank with the Tribunal. Subsequent to this, the Iranian Ministry of Defence initiated proceedings in the Iranian courts that concerned the same contract as the Tribunal proceedings. Iran could have – but did not – elect to deal with these by way of counterclaim before the Tribunal. While the Tribunal held that Iran was not obligated to file the counterclaim under the Claims Settlement Declaration, it nevertheless held that proceedings in the Iranian courts be stayed in order to render its jurisdiction fully effective: This Tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the parties and to ensure that this Tribunal’s jurisdiction and authority are made fully effective. Not only 129 130 131

132

M/V Saiga (No 2) (1999) 117 ILR 111, 124. Ibid, 123. Cf. ibid, 128 (Judge Vukas), criticizing the Tribunal for ordering such measures when there was no evidence that Guinea was contemplating any action of the sort. Cf. Teinver SA, Transportes de Cercan´ıas SA and Autobuses Urbanos del Sur SA v Argentine Republic, ICSID Case No ARB/09/1 (Provisional Measures, 8 April 2016) §§192–7, where it was suggested that domestic criminal proceedings might also violate jurisdictional exclusivity in certain confined situations. In that case, however, both parties admitted that the domestic court’s determinations could not bind the Tribunal, and so the Tribunal did not need to make a definitive finding on the issue: ibid, §§196–7. See David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran–United States Claims Tribunal’ (1986) 46 Za¨oRV 465, 469, identifying 16 interim awards restraining proceedings in Iranian courts issued in the first five years of the Tribunal’s operation.

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should it be said that the award to be rendered in this case by the Tribunal, which was established by inter-governmental agreement, will prevail over any decisions inconsistent with it rendered by Iranian or United States courts, but, in order to ensure the full effectiveness of the Tribunal’s decisions, the Government of Iran should request that actions in the Iranian court be stayed until proceedings in this Tribunal have been completed.133

Further decisions of the Tribunal spelled out what it was looking for when it considered suspension of domestic proceedings.134 The Tribunal focused on two elements: (1) identity of the parties to both proceedings; and (2) identity of the subject matter in those proceedings, whether as a matter of fact or law.135 This approach was inherited by subsequent investor-state bodies, and is seen reflected in a plethora of later investorstate cases.136 (a) Identity of Parties Although complete identity of the parties to the domestic and international proceedings is preferred, relief may still be awarded where the parties to the domestic proceedings are merely related to those in the arbitration. In Tadjer-Cohen v Iran, for example, the Tribunal directed a stay of proceedings involving the assignor of a claim insofar as they related to the assignee, which was a party to the arbitration.137 The same pattern may be seen more recently in Millicom v Senegal. In that case, the claimants – Millicom International Operations BV (MIO) and 133

134

135 136

137

E-Systems Inc v Iran (1983) 2 Iran-US CTR 51, 57. The Tribunal’s acts in this regard indicate that it sought to protect its jurisdiction with respect to issues that were not only before it at the time the order was made, but also issues that might come before it in the future: see further Component Builders Inc, Wood Components Co and Moshovsky Enterprises Inc v Iran (1985) 8 Iran–US CTR 216, 225. It goes almost without saying that where a counterclaim was filed before the Tribunal and then pursued before a domestic court, the Tribunal was equally willing to order interim relief: QuesTech Inc v Iran (1983) 2 Iran-US CTR 96, 98. See e.g. Rockwell International Systems v Iran (1983) 2 Iran–US CTR 310, 310–11; CBA Development Corporation v Iran (1983) 4 Iran–US CTR 53, 54–5; Linen, Fortenberry and Associates v Iran (1985) 8 Iran–US CTR 85, 87; Westinghouse Electric Corporation v Iran (1987) 14 Iran–US CTR 104, 107–10; Harris International Telecommunications Inc v Iran (1987) 17 Iran–US CTR 31, 80–1. Brower and Brueschke, Iran–US Claims Tribunal, 231. See e.g. Maritime International Nominees Establishment v Guinea (1988) 4 ICSID Rep 54, 69; Vacuum Salt Products Ltd v Ghana, Provisional Measures (1993) 4 ICSID Rep 320, 323; Tokios Tokel´es v Ukraine, ICSID Case No ARB/02/18 (Procedural Order No 1, 1 July 2003) §3; Perenco Ecuador Ltd v Ecuador and Empresa Estata Petr´oleos del Ecuador (PetroEcuador), ICSID Case No ARB/08/6 (Provisional Measures, 8 May 2009) §61. Cf. Atlantic Triton Company Ltd v Guinea (1986) 3 ICSID Rep 13, 34–7. Tadjer-Cohen Associates Incorporated v Iran (1985) 9 Iran-US CTR 302, 304–5.

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Sentel GSM SA (Sentel) – were subsidiaries of a Luxembourgian company, Millicom International Cellular SA (MIC). At the same time as MIO and Sentel were engaged in proceedings before an ICSID tribunal regarding the allegedly unlawful termination of a telecommunications concession, Sentel and MIC were sued by Senegal in the Dakar Regional Court for operating without a valid concession. Notwithstanding the fact that MIC was not a party to the arbitration and MIO was not a party to the Senegalese proceedings, the Tribunal nonetheless ordered interim relief on the basis that ‘[MIO] has an obvious interest in the outcome of the Senegalese proceedings; if it can claim the benefit of a protected investment by virtue of its interest in Sentel’s capital’.138 Depending on the circumstances, it is possible to restrain domestic proceedings even in cases with no formal identity between the parties to the arbitration. In Zhinvali v Georgia, the claimant requested interim relief in order to suspend proceedings in Georgia between a municipal government entity, Tbilisi Water Utilities Ltd, against the City of Tbilisi that would have the effect of cancelling the agreement that was the subject of the litigation. The claimant was named as a third party to the domestic proceedings. The Tribunal found that the lawsuit was designed purely to strip the Tribunal of jurisdiction whilst at the same time binding the claimant in local judgment. Provisional measures suspending the local proceedings followed.139 (b) Identity of Subject Matter With respect to the second element, parallel litigation may be restrained if there is a risk that a domestic court will pronounce on a legal right that is or might fall to be determined by an international court or tribunal – or even on rights that are formally unconnected but arise from the same factual matrix. In CSOB v Slovak Republic, a ‘Consolidation Agreement’ between the parties provided for the payment of non-performing receivables by the claimant to a Collection Company created for this purpose in exchange for assigned receivables under a loan arrangement. When the Collection Company defaulted, the claimant instituted ICSID proceedings against the Slovak Republic on the basis of a guarantee. Following constitution of the Tribunal, the claimant requested interim relief to suspend bankruptcy proceedings against the Collection Company on the basis that this would determine issues that 138 139

Millicom International Operations BV and Sentel GSM SA v Senegal, ICSID Case No ARB/08/20 (Provisional Measures, 9 December 2009) §45(c). Zhinvali Development Ltd v Georgia (2003) 10 ICSID Rep 3, 16–18.

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were before the Tribunal. The Tribunal initially declined relief on the basis that it had no reason to suspect that the Slovak courts would not suspend the bankruptcy proceedings.140 When it became apparent that no stay would be forthcoming, however, the Tribunal intervened, ordering suspension: [ . . . ] to the extent that such proceedings might include determinations as to whether the [Collection Company] has a valid claim in the form of a right to receive funds from the Slovak Republic to cover its losses as contemplated in the Consolidation Agreement at issue in this arbitration.141

Another right that may be protected is the claimant’s right to access investor-state arbitration. In SGS v Pakistan, the Supreme Court of Pakistan enjoined the claimant from pursuing arbitration before ICSID in accordance with the Switzerland–Pakistan BIT, instead directing it to go forward with domestic arbitration in Islamabad under the Pakistani arbitration legislation.142 In response, the claimant applied for and received interim relief from the ICSID Tribunal requiring: (1) the respondent to withdraw from and cause to be discontinued all proceedings before the Pakistani courts relating to the ICSID arbitration, and (2) that domestic arbitration proceedings in Islamabad also be stayed until the Tribunal had issued its final award.143 In making this order, the Tribunal noted: It is clear that SGS has a prima facie right to seek access to international adjudication under the ICSID Convention. It has consented to submit its claim to arbitration under Article 9(2) of the Bilateral Investment Treaty. It has alleged both breach of contract and breach of substantive obligations contained in the BIT. The Islamic Republic of Pakistan is a signatory to the ICSID Convention and has duly ratified it. It is essential for the proper operation of both the BIT and the ICSID Convention that the right of access to international adjudication should be maintained. In the Tribunal’s view, it has a duty to protect this right of

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141 142 143

Ceskoslovenska Obchodni Banka AS v Slovak Republic, ICSID Case No ARB/97/4 (Procedural Order No 2, 9 September 1998) 2–3; in passim (Procedural Order No 3, 5 November 1998) 2–3. CSOB v Slovak Republic, ICSID Case No ARB/97/4 (Decision on Jurisdiction, 24 May 1999) §9. SGS Soci´et´e G´en´erale de Surveillance SA v Pakistan, through Secretary, Ministry of Finance (2002) 8 ICSID Rep 356. SGS Soci´et´e G´en´erale de Surveillance SA v Pakistan, Procedural Order No 2 (2002) 8 ICSID Rep 388, 392–6.

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questions of substance and procedure access and should exercise such powers as are vested in it under Article 47 of the ICSID Convention in furtherance of that duty.144

(c) Limitations to the Restraint of Domestic Civil Proceedings There are, however, limits to the susceptibility of domestic proceedings to provisional measures.145 In RCA Globcom v Iran, for example, the claimant based a claim on a contract for services with the Iranian Army Joint Staff, and further asserted that the contract was subsequently cancelled due to force majeure. The claimant, however, had taken out an insurance policy on the contract with a third party insurer. Following the contract’s putative cancellation, the insurer had pursued the claimant in the Iranian courts for premiums post-dating the frustrating event, and secured judgment in its favour. The Tribunal refused to award provisional measures for the vacation of the judgment on the basis that ‘the proceedings before the domestic court concern a dispute arising out of a separate contract’ (i.e. the insurance policy), and ‘[t]he alleged interrelationship between the two cases is not quite clear’.146 Put another way, the legal rights to be protected by provisional measures were not linked to those that fell to be determined in the final judgment. Domestic proceedings will also not be stayed if they are unlikely to affect the outcome of the arbitration. In Plama v Bulgaria, interim relief was requested with respect to bankruptcy proceedings on foot before the Bulgarian courts. The Tribunal held that whilst it was entitled to order interim relief to protect its jurisdiction by way of provisional measures,147 the claims and causes of actions were different in the domestic proceedings and there was no identity between the parties.148 Relief was therefore 144 145

Ibid, 393. This is especially the case where such an order might deny one of the parties a judicial remedy. See Fluor Corporation v Iran (1986) 11 Iran–US CTR 296, 297: [T]he Tribunal does not accept the view that a claimant is automatically barred from instituting a claim in another forum by the simple fact of having filed the same claim with this Tribunal, particularly when filing elsewhere might be necessary to preserve rights which might otherwise be time-barred. For if this Tribunal were to determine that it lacks jurisdiction it would be unjust to prevent a party thereafter from pursuing its claims in a forum that does have jurisdiction.

146

147 148

RCA Globcom Communications and Ors v Iran (1983) 4 Iran-US CTR 9, 12. See also Paul Donin De Rosiere v Iran (1986) 13 Iran–US CTR 193, 197–8; United Technologies International Inc v Iran (1986) 13 Iran–US CTR 254, 258–9. Plama Consortium Limited v Bulgaria, ICSID Case No ARB/03/24 (Order, 6 September 2005) §38. Ibid, §43.

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refused due to lack of prejudice, with the Tribunal adding that it was especially reluctant to ‘recommend to a State that it order its courts to deny third parties the right to pursue their judicial remedies’.149 A further factor to be borne in mind in considering the effect of domestic proceedings on an arbitration is that an international tribunal will not ordinarily be bound by the findings of a domestic court.150 In Bear Creek Mining v Peru, the Tribunal agreed with the claimant that regulatory proceedings concerning mining concessions in Peru ‘relate[ed] broadly to the same subject matter of the arbitration’.151 It went on to find, however, that ‘the Peruvian Courts’ ruling on the concession rights [ . . . ] would not be binding on this Tribunal’.152 It was further noted that the status quo of the dispute was such that unless or until the Tribunal ruled in its favour, the Claimant had no ongoing operations in relation to the concessions and would be unable to develop its alleged investment.153 Put differently, the domestic proceedings could cause no harm to the Claimant that could not subsequently be undone by the Tribunal.154 Provisional measures were consequently unnecessary – though the result may have been different had the investment been a going concern.

2 Domestic Criminal Proceedings The second situation where provisional measures for the restraint of domestic proceedings might be required is where the state uses its criminal law to harass or punish the claimant.155 Unlike the civil proceedings detailed above, issues that may arise in the course of criminal proceedings will not generally156 fall within the jurisdiction of an investor-state arbitration tribunal.157 Consequently, such proceedings will not violate 149 150

151 152

153 154 155 156 157

Ibid, §46. See e.g. Himpurna California Energy Ltd v Indonesia, UNCITRAL (Interim Award, 26 September 1999) §73, where the Tribunal issued an interim decision expressly disregarding an Indonesian court order purporting to suspend the proceedings. Bear Creek Mining Ltd v Peru, ICSID Case No ARB/14/21 (Procedural Order No 2, 19 April 2015) §58. Ibid. Another relevant consideration is whether the domestic decision is expressed to have res judicata effect: Victor Pey Casado and President Allende Foundation v Chile, Provisional Measures (2001) 6 ICSID Reports 373, 389–90. Bear Creek Mining v Peru, ICSID Case No ARB/14/21, §65. Moreover, under the applicable law of the arbitration, Peru retained the option in any event to pay compensation for any damage caused: ibid, §72. Mouawad and Silbert, ‘Guide to Interim Measures’, 410–13. But cf. Teinver v Argentine Republic, ICSID Case No ARB/09/1, §§192–7. The same is not necessarily true of the ICJ, which possesses plenary jurisdiction such that domestic criminal process may on occasion form the subject matter of the case: see e.g.

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the jurisdictional exclusivity of a tribunal – though they may be of such a character as to aggravate the dispute.158 Tribunals have, moreover, indicated that the sovereign right of a state to pursue a criminal investigation within its territory is privileged and should not be interfered with lightly.159 As noted by the Tribunal in Abaclat v Argentina, a tribunal ‘can in principle not prohibit a Party from conducting criminal court proceedings before competent authorities’.160 As further noted in Caratube v Kazakhstan, ‘a particularly high threshold must be overcome before a [tribunal] can recommend provisional measures regarding criminal investigations conducted by a state’.161 In an evidentiary sense, this meets with the general rule in international law that the more serious the allegation, the higher the burden of proof.162 What, then, must be proved to the requisite degree in order for a court or tribunal to order that domestic criminal proceedings be stayed? As indicated in Quiborax v Bolivia, a court or tribunal must be satisfied that the state in question is abusing its prerogative as sovereign so as to aggravate or extend the dispute: Bolivia has the sovereign power to prosecute conduct that may constitute a crime on its own territory, if it has sufficient elements justifying prosecution. Bolivia also has the power to investigate whether Claimants have

158

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160 161

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Arrest Warrant of 11 April 2000 (DRC v Belgium), Provisional Measures, ICJ Reports 2000 p 182; Certain Criminal Proceedings in France (Congo v France), Provisional Measures, ICJ Reports 2003 p 102. This remains the case even where the criminal proceedings would uncover evidence that could later be used by the state in defending an investment claim: Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kapl´un v Bolivia, ICSID Case No ARB/06/2 (Provisional Measures, 26 February 2010) §§130, 138; Lao Holdings v LPDR, ICSID Case No ARB(AF)/12/6, §29. City Oriente Ltd v Ecuador and Empresa Estatal Petr´oleos del Ecuador (PetroEcuador), ICSID Case No ARB/06/21 (Provisional Measures, 19 November 2007) §§61–6; Lao Holdings v LPDR, ICSID Case No ARB(AF)/12/6, §21; PNG Sustainable Development Program Ltd v Papua New Guinea, ICSID Case No ARB/13/33 (Provisional Measures, 21 January 2015) §145; Hydro Srl and Ors v Albania, ICSID Case No ARB/15/28 (Provisional Measures, 3 March 2016) §§3.14–3.16; Teinver v Argentine Republic, ICSID Case No ARB/09/1, §185. Abaclat and Ors v Argentine Republic, ICSID Case No ARB/07/5 (Procedural Order No 13, 27 September 2012) §§39, 45. Caratube International Oil Co LLP v Kazakhstan, ICSID Case No ARB/08/12 (Provisional Measures, 31 July 2009) §§134–7. See also Tokios Tokel´es v Ukraine, ICSID Case No ARB/02/18 (Procedural Order No 3, 18 January 2005) §12. See Corfu Channel (UK v Albania), ICJ Reports 1949 p 4, 17: ‘A charge of such exceptional gravity against a state would require a high degree of certainty that has not been reached here’. Further: Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2007) 97–101.

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made their investments in Bolivia in accordance with Bolivian law and to present evidence in that respect. But such powers must be exercised in good faith and respecting Claimants’ rights, including their prima facie right to pursue this arbitration.163

In that case, Bolivia was pursuing criminal charges against a number of individuals involved in the dispute including, inter alia, one of the claimants, the claimants’ business partner, the claimants’ current and former legal counsel and certain of their employees. The Tribunal held that these proceedings related to ‘and may even [have been] motivated by’ the ICSID proceedings brought by the claimant.164 It further observed: [A]lthough the Tribunal has every respect for Bolivia’s sovereign right to prosecute crimes committed within its territory, the evidence on the record suggests that the criminal proceedings were initiated as a result of a corporate audit that targeted Claimants because they had initiated this arbitration. Indeed, the [Criminal Complaint] expressly states that the alleged irregularities in Claimants’ corporate documentation were detected in consideration of [ . . . ] the Request for Arbitration filed by Claimants against Bolivia. [ . . . ] Indeed, the very content of [the audit] suggests that the underlying motivation [ . . . ] was to serve Bolivia in defence of this arbitration claim, as it contained specific recommendations for such defence. [ . . . ] [T]he corporate audit and the criminal proceedings appear to be part of the defence strategy adopted by Bolivia with respect to the ICSID arbitration.165

In this light, the Tribunal required Bolivia to take all appropriate measures to suspend the criminal procedures against the relevant individuals, and further to refrain from initiating any other criminal proceedings directly related to the arbitration, or engaging in any other course of conduct that might jeopardize its procedural integrity.166 The decision in Quiborax v Bolivia was considered and elaborated on in Lao Holdings v LPDR. In that case, the respondent sought modification of measures for non-aggravation that had been ordered for the purpose of commencing a criminal investigation against employees of the claimant.167 The Tribunal recounted the principles set out above, before noting: In other words, a criminal proceeding does not per se violate the principle of the exclusivity of ICSID arbitration, or aggravate the dispute. Something 163 164 166

Quiborax v Bolivia, ICSID Case No ARB/06/2, §123. 165 Ibid, §119. Ibid, §§121–2. 167 Ibid, dispositif 3. Lao Holdings v LPDR, ICSID Case No ARB(AF)/12/6, §1.

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questions of substance and procedure more has to be at stake to justify a tribunal enjoining a State to suspend or defer a criminal investigation. [ . . . ] In order for this Tribunal to enjoin a sovereign State from pursuing a criminal case in its own legal order, it must be convinced that there is a strong linkage between the criminal proceedings and the legal dispute arising out of the investment which is before it, and that such a situation threatens the integrity of the arbitral process.168

In essence, the Tribunal set out a two-limbed test for determining whether a situation of exceptional gravity existed such that domestic criminal proceedings should be restrained: (1) that the proceedings be linked directly to the arbitration; and (2) that the proceedings threaten the procedural integrity of the arbitration. On the facts as presented to them, the Tribunal found both limbs to have been satisfied. With respect to the first limb, the respondent admitted that the acts it proposed to investigate domestically also formed the basis of its defence of illegality in the arbitration.169 With respect to the second, the Tribunal noted that the claimant would be forced to divert vital resources immediately prior to the arbitration’s final hearing on the merits in order to deal with issues arising out of the investigation and further observed that concurrent criminal proceedings would be a powerful deterrent to Laotian witnesses planning to testify against the respondent.170 On this basis, modification of the provisional measures was refused.171 A similar approach was adopted by the Tribunal in Hydro v Albania. In that case, it was ordered that the respondent suspend criminal and regulatory proceedings in Albania until after the issuance of a final award, lift seizure and security measures taken against the bank accounts and assets connected to persons and entities involved in the proceedings, suspend or refrain from bringing any other proceedings against the claimants or their investments and – perhaps most remarkably – to suspend extradition proceedings on foot in England which aimed to bring certain of the claimants back to Albania to face investigation for money laundering, falsification of documents and tax evasion.172 In reaching this conclusion, the Tribunal pronounced itself satisfied that the proceedings were sufficiently linked to the arbitration to justify action under Article 47 of the ICSID Convention. It noted: 168 170 171 172

169 Ibid, §§30, 37 (emphasis original). Ibid, §38. Ibid, §§40–1. Similar concerns were also raised in Quiborax v Bolivia, ICSID Case No ARB/06/2, §§143–4, 147. Lao Holdings v LPDR, ICSID Case No ARB(AF)/12/6, §76. Hydro v Albania, ICSID Case No ARB/15/28, §4.1.

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[T]here may be situations where incarceration of a claimant would disrupt an arbitration but where it would be improper for the tribunal to intervene. An example given by counsel is where a person is charged with a serious offence totally unrelated to the factual circumstances of the dispute being arbitrated, such as murder. But that is not the situation here. The alleged offences here are not divorced from the investments made by the Claimants.173

The limits of this approach were demonstrated in PNGSDP v PNG. In that case, the claimant requested provisional measures that would restrain the respondent from commencing criminal proceedings against individuals associated with the claimant.174 By way of evidence of pending harassment, the claimant pointed to the respondent’s deportation of one of the claimant’s employees and to the establishment of a Commission of Inquiry into the claimant’s activities. It also claimed that officials of the respondent had threatened the initiation of criminal proceedings against the claimant and its associates. The Tribunal, citing Lao Holdings v LPDR, denied the request, noting that although both the deportation and the proposed Commission of Inquiry were likely connected to the arbitration to some degree by virtue of their timing, a temporal coincidence alone was not sufficient to justify intervention by the Tribunal. Furthermore, the claimant was unable to establish that either action was such as to threaten the integrity of the arbitration: it could not prove that the deportation was not due to the fact that the employee breached his visa conditions, and it could not provide evidence that the Commission of Inquiry would not carry out its work in an independent and transparent fashion.175 The requirements set out in Lao Holdings v LPDR balance sovereignty and the need to protect the procedural integrity of the arbitration in a manner that is largely successful. On the basis of its adoption in PNGSDP v PNG, the test further appears to be on its way to wider acceptance. Its insistence on proven (or at least strongly suspected) linkage, however, may create spaces in which state abuse may occur. It is one thing for the respondent – as it did in Quiborax v Bolivia and Lao Holdings v LPDR – to admit point blank that the proceedings are motivated by a desire to affect the arbitration. It is another entirely where the link in question is not patently obvious or the respondent is unwilling to concede its existence. One could imagine a case where an associate of an investor is subjected to trumped-up charges of tax evasion (or worse) that 173 175

174 Ibid, §3.19. PNGSDP v PNG, ICSID Case No ARB/33/13, §138. Ibid, §§142–7. See also Teinver v Argentine Republic, ICSID Case No ARB/09/1, §§226–30.

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are not connected with the arbitration in anything other than a temporal sense.176 In such a situation, a tribunal would be justifiably reluctant to review the bona fides of the prosecution and the evidence underpinning it in anything more than a transitory fashion. The need to prove abus de droit with respect to each individual proceeding is also problematic. One can imagine a situation in which a state, rather than launching one or two large prosecutions, instead opts for a ‘death by a thousand cuts’, in which the investor is faced with dozens of criminal or regulatory investigations on a multitude of fronts. Under the present regime, the claimant would be forced to prove that each ‘cut’ was made in bad faith if it wished to satisfy a tribunal that provisional measures are required – a resourceintensive and time-consuming task. However, one could also imagine a sufficiently inquisitive tribunal looking at the sheer scale of proceedings against the claimant and its associates, comparing it to the ordinary procedure of the state in question, and drawing the obvious conclusion in light of overwhelming circumstantial evidence. In such a case, this process would presumably lead to the award of broad-based provisional measures ordering the state to suspend any ongoing criminal or regulatory investigations and preventing the institution of new inquiries.

3 Other International Proceedings A brief word might be said on the capacity for provisional measures to be used by an international court or tribunal in order to restrain proceedings before another international court or tribunal. There is no reason in theory why this might not be possible due to the horizontal integration (absent lex specialis) of all international courts and tribunals, though it has yet to occur in practice, even as examples of institutional fragmentation, so-called, accumulate.177 By way of a proof of concept, one can see how provisional measures might have been of use in the cases of Lauder v Czech Republic178 and CME v Czech Republic,179 which combined represented ‘the ultimate fiasco 176

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178 179

See Hydro v Albania, ICSID Case No ARB/15/28, §§2.31–2.38, where one of the claimants was subjected to tax evasion charges. In that case, however, the tax evasion related to the claimant’s failure to pay tax in his capacity as the administrator of one of the investment vehicles. Further: Benedict Kingsbury, ‘Is the Proliferation of International Courts and Tribunals a Problem?’ (1999) 31 NYUJILP 679; James Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Hague Recueil 9, 217–24. Ronald S Lauder v Czech Republic (2001) 9 ICSID Rep 66. CME Czech Republic BV (The Netherlands) v Czech Republic, Partial Award (2001) 9 ICSID Rep 121; in passim, Final Award (2003) 9 ICSID Rep 264.

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in investment arbitration’.180 Both cases concerned investment by a US national, Ronald Lauder, in the Czech private broadcaster, TV Nova, through a Dutch-incorporated investment vehicle, CME Czech Republic BV (CME). Following alleged interference in TV Nova’s affairs by the Czech Media Council, Lauder filed proceedings against the Czech Republic under the US–Czech Republic BIT. Shortly after these proceedings commenced, CME initiated an arbitration against the Czech Republic under the Netherlands–Czech Republic BIT with respect to exactly the same conduct by the Czech Media Council. Somewhat predictably,181 the situation ended in disarray: the Lauder Tribunal held that although the Czech Republic had breached the BIT, damage to TV Nova could not be sheeted home to the state in a causative sense, forestalling liability. Shortly after this award was handed down, however, the CME Tribunal issued a partial award benefiting the claimant to the tune of some US$270 million in damages. An attempt to have the award set aside in the Swedish courts subsequently failed on the basis that the lack of formal identity between Lauder and CME as claimants prevented issues of lis pendens from arising.182 The Lauder/CME debacle could have been avoided in three ways. In the first place, as suggested by Crawford, the CME Tribunal could have stayed its proceedings until the Lauder Tribunal determined that it lacked jurisdiction – an exercise of comity as between international tribunals.183 In the second, it could have determined that CME in bringing the case was engaged in a clear abuse of the Tribunal’s process and deemed its claims inadmissible as a result. Both of these options relied, however, on the CME Tribunal taking action, with the Lauder Tribunal largely powerless to prevent the unfolding disaster.184 180

181 182 183

184

August Reinisch, ‘The Proliferation of International Dispute Settlement Mechanisms: The Threat of Fragmentation vs. the Promise of a More Effective System? Some Reflections from the Perspective of Investment Arbitration’, in I Buffard et al. (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Leiden: Martinus Nijhoff, 2008) 107, 116. But cf. Lauder v Czech Republic (2001) 9 ICSID Rep 66, 87. Czech Republic v CME Czech Republic BV (2003) 9 ICSID Rep 439. Crawford, ‘Chance, Order, Change’, 221–4. See also Caroline Henckels, ‘Overcoming Jurisdictional Isolationism at the WTO–FTA Nexus: A Potential Approach for the WTO’ (2008) 19 EJIL 571. Further: Chapter 4, §V.D. But cf. Lauder v Czech Republic (2001) 9 ICSID Reports 66, 87, in which the Lauder Tribunal found that the proceedings in CME v Czech Republic were not an abuse of process as they formally arose between different parties and under a different BIT. The same conclusion was reached in CME v Czech Republic (2001) 9 ICSID Reports 121, 195.

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A third option, however, would have allowed the Lauder Tribunal a measure of initiative, namely a request by the Czech Republic for provisional measures ordering Lauder in personam to suspend or discontinue proceedings before the CME Tribunal. One can see how such an order would analogize neatly with the extant practice concerning domestic civil proceedings: the subject matter of the two arbitrations was identical and the parties closely related. Furthermore, although the lack of precise identity between the two claimants prevented a finding of lis pendens by the courts of the forum, Lauder’s position as the majority owner of CME arguably placed him in a position to direct that CME v Czech Republic be abandoned.185 In the event that Lauder disobeyed this directive, then having determined for itself that the Czech Republic was not liable, the Lauder Tribunal could suspend its proceedings pending the grant of a contrary award by the CME Tribunal.186 If or when this occurred, the Lauder Tribunal could then enter a final award, granting the Czech Republic damages in the amount of US$270 million as compensation for a breach of binding interim relief – a result similar to the outcome contemplated in Chevron v Ecuador.187

D Integarated Dispute Settlement 1 Integrated Approaches to International Dispute Settlement One of the principal obligations of courts and tribunals is, self-evidently, to settle disputes. As Shelton notes, discharge of this duty is especially

185

186 187

Little or no attention appears to have been paid by either the Lauder or CME Tribunal to the economic reality of the situation or to the fact that abuse of process is not a doctrine rooted in arid technicality (as is, for example, lis pendens) but good faith. The conclusions so drawn are likely wrong: Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford: Oxford University Press, 2003) 258–60; Hanno Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (Oxford: Oxford University Press, 2013) 218–25; Tania Voon et al., ‘Good Faith in Parallel Trade and Investment Disputes’, in A D Mitchell et al. (eds), Good Faith and International Economic Law (Oxford: Oxford University Press, 2015) 60, 81–3. This would obviously depend on the precise wording of CME’s company constitution, although the Lauder Tribunal did note that Lauder ‘exercised control’ over CME: Lauder v Czech Republic (2001) 9 ICSID Reports 66, 76. It should also be noted that whilst the corporate veil is generally as sacrosanct on the international plane as it is in the domestic, it may still be pierced in order to prevent ‘the misuse of the privileges of legal personality’, i.e. fraud or abuse of process: Barcelona Traction, Light and Power Company Limited (Belgium v Spain), ICJ Reports 1970 p 3, 39. Cf. MOX Plant (Ireland v UK) (Annex VII) (2003) 126 ILR 314, 318–20. Chevron v Ecuador, PCA Case 2009–23 (Fourth Interim Award on Interim Measures, 7 February 2013) §81.

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critical on the international plane, as ‘the consequences of an inter-state conflict are likely to go well beyond those conflicts that may arise between two individuals or two companies’.188 As such, Article 38(1) of the ICJ Statute refers to ‘[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it’. It is further clear that international arbitration and litigation are seen from an organizational standpoint to be a mechanism for the amelioration of such disputes – as a vastly preferable alternative to outright conflict. In this respect, the ICJ plays a prominent role. Article 33(1) of the UN Charter provides that parties to an international dispute should first seek ‘a solution by [ . . . ] arbitration or judicial settlement [ . . . ] or other peaceful means of their own choice’.189 The Manila Declaration on the Pacific Settlement of International Disputes, in turn, makes reference to the fact that ‘legal disputes should as a general rule be referred to the [ICJ]’,190 but also provides that states ‘may entrust the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future’.191 Given the oft-glacial pace of international proceedings, it is not uncommon for relations between states to degrade whilst judgment is pending. Consequently, the notion of dispute ‘settlement’ carries with it an implication of stability not only with respect to a final result, but also with respect to the legal process by which that result is reached. Dispute settlement, in this sense, entails dispute ‘management’, which may require ensuring that the greatest range of dispute settlement procedures remains available to the parties. Third party adjudication – whether via arbitral or judicial means – is not the only method of dispute settlement available in international law, and indeed Article 33(1) of the Charter also makes reference to ‘negotiation, enquiry, mediation, conciliation [and] resort to regional agencies or arrangements’, all of which have developed as distinct

188

189

190

191

Shelton, ‘Form, Function and the Powers’, 558. Further: John Merrills, ‘The place of international litigation in international law’, in N Klein (ed), Litigating International Disputes: Weighing the Options (Cambridge: Cambridge University Press, 2014) 3, 19–22. Further: Christian Tomuschat, ‘Article 33’, in B Simma, D-E Kahn, G Nolte and A Paulus, The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 3rd edn, 2012) 1069. GA Res 37/10 (15 November 1982) Annex, §II.5(a). UN Charter, Art 36(3) also provides that in making recommendations, the Security Council should take into account the general rule that ‘legal disputes [ . . . ] should be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court’. GA Res 37/10 (15 November 1982) Annex, §II.5.

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international institutions192 with their own strengths and weaknesses. For example, just as third party adjudication may often be costly and slow, negotiation is not binding and relies on a degree of cordiality or bonhomie between the parties that may no longer exist. At the same time, however, these methods – alongside third party adjudication – function as part of a coordinated suite of options for the settlement of international dispute.193 Insofar as the relationship between the parties is concerned, the likelihood that a good result will be achieved may be maximized by ensuring that as many options as possible remain open and are utilized. In this connection, the relatively mandatory character of third party dispute settlement provides a structure by which some of these alternate avenues may be explored.194 As Spain notes: The ICJ [or for that matter, any other international court or tribunal] can enhance the problem solving qualities of mediation by providing the institutional capacity of a powerful framework that establishes a protective environment as parties engage in the cooperative, and sometimes vulnerable, venture of problem solving. At the same time, mediation can pick up where legal settlement stops by assisting parties in resolving matters that extend beyond legal questions, into political, environmental and social matters. Such approaches can enhance the complimentary dynamics of power and cooperation.195

Accordingly, Spain argues for an integrated system of international dispute settlement techniques whereby the parties are encouraged to use multiple systems of conflict resolution in order to reach a peaceful solution whilst avoiding multiplicity and fragmentation of international proceedings.196 Such an approach, where it has previously occurred, has generally been sequential in character. In Pedra Branca/Pulau Batu 192

193

194

195 196

John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford: Oxford University Press, 1999) 19–31; J G Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 5th edn, 2011) chs 1–4, 11. This does not always work as intended. The ICSID Convention (Arts 28–35) provides for a regime of conciliation to function alongside arbitration. Compared to the latter, use of the former has been minimal: ICSID Commentary, 431–2. This leaves to one side the function of a court or tribunal as a mechanism for the development of international law. In the context of international peace and security, however, this function is clearly subsidiary: Merrills, ‘The place of international litigation’, 15–19. Anna Spain, ‘Integration Matters: Rethinking the Architecture of International Dispute Resolution’ (2010) 32 U Pa JIL 1, 42. Ibid, 30ff.

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Puteh,197 for example, Malaysia and Singapore both contested the sovereignty of several small features that had the potential to alter the course of their shared maritime border. Although the ICJ eventually resolved the issue in a legal sense – awarding sovereignty over some features to Malaysia and others to Singapore – the parties initially attempted to resolve the dispute via negotiation.198 This led to an agreement to submit the dispute to the ICJ. Following the Court’s determination, the parties then developed a joint technical commission to delimit the maritime boundary. Parties may also explore multiple methods of dispute settlement in parallel. In Eritrea/Yemen, the parties engaged in a dispute over the sovereignty of certain islands in the Red Sea, which again affected their maritime boundary. This led to a low-level armed conflict resolved temporarily through a cease-fire negotiated by the presidents of the two states. The parties then attempted a complex combination of negotiation and mediation through the good offices of the UN Secretary-General, conducted against a background of suggested troop withdrawals. This led to an agreement to submit the dispute to a PCA tribunal, which issued two awards resolving the matter.199

2 Provisional Measures and Integrated International Dispute Settlement Throughout this book, the point has been made that provisional measures represent the primary mechanism by which an international court or tribunal may regulate the parties’ relationship pendente lite. However, courts and tribunals have proved capable of regulating more than just that relationship via interim relief – where appropriate, they have used provisional measures to encourage interaction between the parties, reduce tensions within the wider matrix of the dispute and maximize the chances of successful resolution. Put another way, they may be used to encourage integrated international dispute settlement. Two types of provisional measure have emerged that fulfill this function. In the first place, ITLOS has ordered measures that require the parties 197 198 199

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008 p 12. Noted: Tan Hsien-Li (2008) 12 SYIL 257. S Jayakumar and Tommy Koh, Pedra Branca: The Road to the World Court (Singapore: National University of Singapore Press, 2009) chs 3 and 4. Eritrea/Yemen (Phase 1: Territorial Sovereignty and Scope of the Dispute) (1998) 114 ILR 1; Eritea/Yemen (Phase 2: Maritime Delimitation) (1999) 119 ILR 418. Further: Spain, ‘Integration Matters’, 37–41.

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to negotiate or cooperate with respect to certain issues. In the second, the ICJ has ordered measures that introduce a third party to regulate the relationship between the parties. (a) UNCLOS Article 290 and Provisional Measures for the Protection of the Marine Environment UNCLOS Article 290 permits any body having jurisdiction under Part XV of the Convention to issue provisional measures ‘to prevent serious harm to the marine environment’. This is a power that is unique within international law – with respect to the other courts and tribunals examined by this study, the only rights or interests that may be subjects of interim protection are those which fall directly to be adjudicated on the merits. Consequently, when considering the prerequisites for provisional measures for the protection of the marine environment, there is no need for a direct relationship between rights pendente lite and the substance of interim relief.200 Put another way, for the purposes of disputes regulated by UNCLOS Part XV, the marine environment is always considered to a de facto right pendente lite.201 ITLOS and Annex VII tribunals have used the freedom provided by this aspect of UNCLOS Article 290 to introduce innovative forms of interim relief that promote integrated dispute settlement. This would appear to be motivated by the fact that the international community has a common interest in the preservation of the marine environment202 such that, whatever else their differences, the parties cooperate in order to prevent serious damage from occurring. This first occurred in Southern Bluefin Tuna. In that case, Japan objected to the prescription of provisional measures under UNCLOS Article 290(5) due to a prima facie lack of jurisdiction with respect to any Annex VII tribunal. However, it further requested in arguendo that if measures had to be awarded, ITLOS should require that the parties recommence negotiations for a six-month period, after which point any outstanding differences would be left to an independent panel 200

201

202

Karin Oellers-Frahm, ‘Use and Abuse of Interim Protection before International Courts and Tribunals’, in H P Hestermeyer et al., 1 Coexistence, Cooperation and Solidarity: Liber Amicorum R¨udiger Wolfrum (Leiden: Martinus Nijhoff, 2012) 1685, 1696. Further: Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005) 79–85; Igor V Karaman, Dispute Resolution in the Law of the Sea (Leiden: Martinus Nijhoff, 2012) 138–40. Indeed, protection of that environment beyond 200nm was recently confirmed as an obligation erga omnes by the Seabed Disputes Chamber of ITLOS: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (2011) 150 ILR 244, 292.

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of scientists.203 The Tribunal went halfway. Observing ‘the parties should intensify their efforts to cooperate with other participants in the fishery for southern bluefin tuna with a view to ensuring conservation and promoting the objective of optimum utilization of the stock’,204 the Tribunal ordered that whilst the dispute would proceed in due season to an Annex VII tribunal, the parties were in the meantime to ‘resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna’.205 ITLOS also displayed similar instincts in MOX Plant. Whilst the Tribunal in that case held that UNCLOS Article 290(5) measures concerning the commissioning of the Sellafield plant were unnecessary due to a lack of prejudice,206 it further noted that ‘the duty to cooperate is a fundamental principle in the prevention of the pollution of the marine environment [ . . . ] and that rights arise therefrom which the Tribunal may consider appropriate to preserve under [UNCLOS Article 290]’.207 In this connection, the Tribunal ordered that: Ireland and the United Kingdom shall cooperate and shall, for this purpose, enter into consultations forthwith in order to: (a) exchange further information with respect to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant; (b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea; (c) devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.208

These measures were subsequently affirmed by the Annex VII tribunal, even as it stayed its jurisdiction pending a decision by the ECJ.209 Finally, in Land Reclamation, ITLOS – again operating under UNCLOS Article 290(5) – considered whether interim relief for the protection of the marine environment should be ordered with respect to Singapore’s landfill operations in the Strait of Johor. Whilst it directed Singapore to conduct its operations in such a way that neither Malaysia’s rights nor the marine environment were damaged to an impermissible degree, it also put into place a suite of measures requiring the parties to keep discussing 203 204 207 209

Southern Bluefin Tuna (Australia v Japan; New Zealand v Japan), Provisional Measures (1999) 117 ILR 148, 159. 205 206 Ibid, 164. Ibid, 166. MOX Plant (Ireland v UK) (2001) 126 ILR 257, 277. 208 Ibid. Ibid, 278. MOX Plant (Ireland v UK), Procedural Order No 3 (2003) 126 ILR 310, 331.

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the situation prior to the constitution of the Annex VII tribunal.210 This was centred on a requirement that the parties empanel an independent group of experts to conduct a study, on terms also agreed by the parties, on the effects of Singapore’s land reclamation. The group was to prepare an interim report on the subject of infilling works in the particularly at risk ‘Area D’ at Pulau Tekong and to submit within one year a final report on the effect of the works overall combined with suggestions for the mitigation of any harmful effects. The parties were further under a provisional obligation to regularly exchange information on and otherwise assess risks related to Singapore’s operations. Singapore was under an additional obligation, in assessing its ability to undertake landfill activities that would not impermissibly damage Malaysia’s interests or the marine environment, to take into account the interim and final conclusions of the independent group of experts. To the extent that the measures were intended to aid in the resolution of the dispute, they were a rousing success – the parties resumed negotiations and the matter ended with an award on agreed terms by the Annex VII tribunal endorsing a complete settlement.211 The cases described here – and particularly Land Reclamation – demonstrate the benefit of such interventions. But they have been criticized in some quarters as not upholding the quintessential rationale of interim relief and for having been ordered in the absence of any sense of overt urgency.212 As Oellers-Frahm has noted: The use of interim protection in these cases constitutes a means of ‘gestion du diff´erend’ rather than a means of urgently protecting the rights at stake on the merits. The court or tribunal acts more like a mediator than a judicial body, merely reminding the parties to honour their obligations, which obligations are self-evident and in particular not of an interim or provisional character which, in order to become definitive, need to be confirmed by the judgment. This makes the measures issued in these cases comparable in their implications to an interim judgment although lacking the res judicata effect.213

Oellers-Frahm then goes on to note that in cases concerning environmental questions before the ICJ, measures of the kind awarded by ITLOS were 210 211 212 213

Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures (2003) 126 ILR 487, 505. Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), PCA (Annex VII) (Award on Agreed Terms, 1 September 2005). See e.g. Land Reclamation (2003) 126 ILR 487, 508–9 (Judge Anderson). Oellers-Frahm, ‘Use and Abuse’, 1699–1700.

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part of the final judgment, and further observes that in Pulp Mills, measures for environmental protection were excluded for lack of irreparable harm.214 This is true so far as it goes, but it misses the point. In the first place, measures for the protection of the marine environment possess a sui generis character within the wider regime of provisional measures in international law. They do not need to comply with the link test, the contemplated harm must be merely ‘serious’ and not ‘irreparable’, and ITLOS has implied a willingness to consider the precautionary principle as relevant to the assessment of urgency.215 To the extent that ITLOS or an Annex VII body purports to award measures on this basis, they are granted a measure of latitude that is not available to the ICJ under Article 41 of its Statute. In the second, the allegation that the Tribunal in Land Reclamation acted more like a mediator mischaracterizes that office. ITLOS did not purport to become a part of the negotiations between Singapore and Malaysia and work with both parties in order to find a constructive middle ground – it simply ordered that the parties keep talking their dispute over with reference to scientific data. As such, the correct comparison is not with the office of the mediator per se, but with a court that orders mediation in the first place, a perfectly acceptable interlocutory order in many domestic jurisdictions. Finally, the charge that such measures are ‘comparable in their implications’ to an interim judgment save for their res judicata effect is to misunderstand the nature of an interim judgment. Res judicata effect is the defining characteristic of an interim judgment; if an order lacks this property it cannot, by definition, be an interim judgment.216 On balance, the better view would be that of Klein, who although she ascribes to the Tribunal an ‘activist role’ with respect to such measures, points out that in many cases they were the subject of agreement between the parties. On this basis, she notes: In this regard, the Tribunal was not the instigator of these initiatives but the availability of its procedures and its potential to order binding provisional measures was a catalyst for these agreements being reached. Through this process, the function of ITLOS can be viewed as predominantly facilitative, as it provided a forum for the parties to reach these agreements after they were otherwise stalemated. In other words, ITLOS carried with it the threat of imposing measures on the parties that would not accord 214 216

215 Ibid, 1700. Chapter 6, §III. Though it may be disproportionate: Chapter 7, §III.B.3.

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questions of substance and procedure precisely the wishes of either party, since it may vary the orders sought by the requesting State. These coercive powers may have further persuaded the parties to reach agreement on certain issues that may not have been possible without such intervention.217

In other words, although the approach taken by ITLOS in these cases is unusual when viewed against the backdrop of ‘conventional’ interim relief, there is inherently objectionable in these measures provided they are ordered for the protection of the marine environment only. In such situations, measures requiring cooperation reflect the need for the parties to protect a community interest and to fulfill their obligation to cooperate in the preservation of the marine environment under UNCLOS Articles 192 and 197. Beyond this, the results of the Tribunal’s ‘activism’ are uniformly positive. Even if they stretched the conventional parameters of interim relief, the orders enabled the resolution of the relevant disputes in a manner that – from the perspective of the parties’ ongoing relationship – was perhaps preferable to the final award on the merits. (b) The International Court of Justice and Third Party Regulation of the Parties’ Behaviour Whilst the above form of measure is all well and good while negotiations between the parties might still be fruitful, a court or tribunal may on other occasions be confronted with a state of affairs in which productive discussions are impossible. One may point, for example, to territorial disputes where the situation threatens to devolve – or has already devolved – into armed conflict. In dealing with such cases, the response of the ICJ has been to order that the parties withdraw from the disputed area and adhere to any provisional ceasefire brokered: the substance of the orders in Burkina Faso/Mali 218 and Cameroon v Nigeria.219 But such measures may not be sufficient to fully protect the rights subject to litigation, and one or both parties may be urgently required to take action within the contested area so as to prevent further damage. In such cases, the Court has been placed in something of a dilemma. On the one hand, action is clearly necessary. On the other, one party may be justifiably suspicious if the other is permitted to enter the contested area, placing further stress on an already tense relationship. In Border Area, the Court had to deal with precisely this situation. The dispute concerned a contested area on the border between Nicaragua and 217 218 219

Klein, Dispute Settlement in UNCLOS, 83–4. Burkina Faso/Mali, ICJ Reports 1986 p 3, 11–12. Cameroon v Nigeria, ICJ Reports 1996 p 13, 24.

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Costa Rica, a three-km2 patch of land at the northern end of the Isla Portillos that was further designated a wetland of international importance (the Humidal Caribe Noreste) within the meaning of the Convention on Wetlands of International Importance especially as Waterfowl Habitat220 (Ramsar Convention) to which both states were party. Sovereignty over the area had purportedly been granted to Costa Rica by an 1858 boundary treaty between the parties,221 affirmed as valid by an arbitral award of US President Grover Cleveland.222 Nonetheless, Nicaragua in 2010 asserted that ambiguities in both the treaty and award had obscured the fact that it possessed sovereignty over the contested area, and deployed its armed forces to the Isla Portillos as a result. At the same time, Nicaragua undertook to dredge a small watercourse at the edge of the contested area so as to connect the Laguna los Portillos to the San Juan River, asserting that this was required to return the watercourse to its historical flow. Costa Rica, for its part, asserted that it possessed sovereignty over the area, that Nicaragua had effectively invaded its territory illegally and that the dredging operation was tantamount to digging a canal or ca˜no that was causing considerable damage to the local environment and the Colorado River. With this in mind, Costa Rica launched proceedings before the ICJ and requested provisional measures, alleging that the presence of Nicaragua’s forces in the contested area and its dredging activities threatened to ‘damage the territory of Costa Rica’ and further posed ‘a serious threat to its internationally protected wetlands and forests’.223 In its decision on provisional measures, the Court recognized the need to prevent further environmental damage in the disputed area.224 But it was also aware of the tension between the two states, and the possibility that, even if Nicaraguan forces were ordered with withdraw from the area, the presence of Costa Rican forces could aggravate the situation. It resolved this quandary by effectively drafting the Secretariat of the Ramsar Convention to aid in the implementation of provisional measures, ordering the following by way of interim relief: 220 221 222

223 224

2 February 1971, 996 UNTS 245. Treaty of Territorial Limits between Costa Rica and Nicaragua, 15 April 1858, 118 CTS 439. Validity of the Treaty of Limits between Costa Rica and Nicaragua of 15 July 1858 (Nicaragua/Costa Rica) (1888) 28 RIAA 189. This decision had been affirmed by an earlier decision of the ICJ: Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213, 233–4. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Costa Rica: Application for Provisional Measures (18 November 2010) §15. Border Area, ICJ Reports 2011 p 6, 25–6.

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questions of substance and procedure Costa Rica may dispatch civilian personnel charged with the protection of the environment to the disputed territory, including the ca˜no, but only in so far as it is necessary to avoid irreparable prejudice being caused to the part of the wetland where that territory is situated; Costa Rica shall consult with the Secretariat of the Ramsar Convention in regard to these actions, give Nicaragua prior notice of them and use its best endeavours to find common solutions with Nicaragua in this respect [ . . . ]225

Following alleged recalcitrance by Nicaragua in removing its personnel from the disputed area and in constructing two ca˜nos additional to that already dug, the Court ordered further involvement by the Ramsar Secretariat: Following consultation with the Secretariat of the Ramsar Convention and after giving Nicaragua prior notice, Costa Rica may take appropriate measures related to the two new ca˜nos, to the extent necessary to prevent irreparable prejudice to the environment of the disputed territory; in taking these measures, Costa Rica shall avoid any adverse effects on the San Juan River [ . . . ]226

Put another way, the ICJ required that Costa Rica discuss any potential intervention in the disputed area with the Ramsar Secretariat, such consultations presumably being limited to the areas of the Secretariat’s expertise as identified by the Court, i.e. whether an intervention by Costa Rica was necessary to prevent irreparable degradation in the Humedal Caribe Noreste, how such degradation might be arrested or prevented and how Costa Rica might undertake such an intervention without causing further damage. It is worth noting that the Court did not give the Secretariat the power of veto over any Costa Rican intervention and it would be possible, depending on the parties’ definition of the obligations inherent in ‘consultation’, that the Costa Rican obligation would be fulfilled if the Ramsar Secretariat counseled non-intervention and Nicaragua proceeded regardless.227 But it is also worth pointing out that international law does not consider obligations of consultation to be without normative weight. In Lake Lanoux, it was said that where an obligation to consult arises on an inter-state basis ‘[c]onsultations and negotiations between the two states must be genuine, must comply with the rules of good faith, and not 225 226

227

Ibid, 27. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, ICJ Reports 2013 p 354, 370. Although such an intervention could well be deemed to be in breach of the measures for non-aggravation that the Court also ordered: Border Area, ICJ Reports 2011 p 6, 27.

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be mere formalities’.228 Similarly, in Gabˇc´ıkovo-Nagymaros, it was said, citing the North Sea Continental Shelf cases,229 that consultations must be ‘meaningful’.230 As such, it would have been an error for Costa Rica to consider that the Secretariat’s role was limited to ‘rubber-stamping’ its decision to enter the disputed area; rather, Costa Rica was under a substantive obligation to seriously avail itself of the Secretariat’s expertise with a view to avoiding further environmental damage. The use of the Ramsar Secretariat in this fashion was presumably intended to provide a measure of comfort to Nicaragua that Costa Rica would not use the cover of provisional measures to take control of the contested area or otherwise enter it unnecessarily. In this sense, the Secretariat proved an ideal organ to regulate the situation: under the terms of the Ramsar Convention, its mandate was confined solely to the preservation and ‘wise use’ of the wetlands,231 it possessed the relevant scientific expertise to determine if and on what terms Costa Rica could enter the area and both parties were members. Furthermore, it was already involved in the situation, with both Costa Rica and Nicaragua requesting a Ramsar Advisory Mission with respect to the Humedal Caribe Noreste in 2010.232 Given the amount of trust that both parties seemed to place in the Secretariat, it was an ideal regulator of the situation. Even if it did not possess any formal capacity for dispute settlement, the Court was interested in its capacity to provide a scientific – and thus objective – assessment of environmental harm. Indeed, its status as a relative ing´enue with respect to armed conflict and territorial disputes may have been considered an advantage, highlighting its status as an ‘honest broker’. The other case in which the Court has incorporated a third party into a dispute by way of provisional measures is Temple (Interpretation). There, Cambodia requested that the Court revisit and interpret its earlier judgment in the Temple case233 under Article 60 of its Statute. This had concerned the question of ownership over Prasat Preah Vihear, a Khmer temple of the tenth and twelfth centuries CE, and the surrounding area as between Cambodia and Thailand. Notwithstanding its earlier decision

228 229 230 231 232 233

Lake Lanoux (France v Spain) (1957) 24 ILR 101, 119. North Sea Continental Shelf (FRG/Denmark; FRG/Netherlands), ICJ Reports 1969 p 3, 47. Gabˇc´ıkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997 p 7, 78. See e.g. Ramsar Convention, Arts 3(1), 8(2). Ramsar Notification 2010/8 (13 December 2010). Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962 p 6. Noted: D H N Johnson (1962) 11 ICLQ 1183; Covey Oliver (1962) 56 AJIL 1033.

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that the temple belonged to Cambodia, the Court did not make a complete determination with respect to the land surrounding the temple.234 This provided the seed for a long-running border dispute that led to sporadic armed conflict from 2008 onwards, when Cambodia nominated the temple as a UNESCO World Heritage site and included within that nomination territory purportedly belonging to Thailand.235 The Security Council expressed its concern and supported efforts by ASEAN to defuse the situation through the posting of observers.236 Although the parties were in principle cooperative with ASEAN, proposals as to the posting of observers were initially rejected due to disagreements over implementation.237 In a bid to reduce tensions between the parties, the Court ordered the imposition of a provisional DMZ, and further required that the parties ‘continue the co-operation which they have entered into with ASEAN and, in particular, allow the observers appointed by that organization to have access to [the DMZ]’.238 In terms of its mandate, ASEAN is the polar opposite of the Ramsar Secretariat, being a regional organization dedicated to broad-based issues such as economic development and conflict prevention.239 Rather than merely regulate entry into the disputed area (which was in any event precluded under the terms of the DMZ), ASEAN was expected to observe the situation and act as mediator between the parties.240 In these two decisions, the Court has demonstrated a willingness to coopt third parties already peripherally involved into the dispute settlement process. In both cases, the international organizations could not be forced to co-operate with the Court’s order – indeed, they could not even be parties to the Court’s procedure241 – but they nonetheless did as was requested. In so doing, the Court – recognizing perhaps that it could not be everywhere at once – injected a laudatory stabilizing force into

234

235 236 237 238 239 240

Cf. Temple, ICJ Reports 1962 p 6, 36–7, finding that the temple was ‘situated in territory under the sovereignty of Cambodia’ and consequently requiring that Thailand withdraw its forces from the ‘vicinity’ of the temple. Alexandra C Traviss, ‘Temple of Preah Vihear: Lessons on Provisional Measures’ (2012) 13 CJIL 317, 326–7. UN Doc SC/10174 (14 February 2011). Temple (Interpretation), ICJ Reports 2011 p 537, 554. Ibid, 555. Treaty of Amity and Cooperation in Southeast Asia, 24 February 1976, 1025 UNTS 317, Art 2. 241 Traviss, ‘Temple of Preah Vihear’, 342–3. ICJ Statute, Art 34(1).

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the parties’ relationship that enhanced the likelihood that these measures would be the subject of compliance.

III Provisional Measures and Questions of Procedure A Advisory Proceedings 1 Scope of the Advisory Jurisdiction A special form of jurisdiction in international law is the jurisdiction to give an advisory opinion, the purpose of which – as its name suggests – is to give legal advice to defined parties.242 It is not an inherent power of international courts and tribunals generally, but must be granted specifically via a court or tribunal’s constituent instrument.243 Several international adjudicatory bodies have been granted this power, but for the purpose of the courts and tribunals considered by the present study, only two are relevant:244 the ICJ and ITLOS.245 The ICJ possesses advisory jurisdiction by virtue of Article 65(1) of its Statute,246 which provides as follows: The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.247

Article 96(1) of the UN Charter enables the Security Council and General Assembly to request that the Court give an advisory opinion on any legal question. The same competence is allocated to other UN organs by virtue of Article 96(2), but only if granted authorization by the General Assembly to do so and only if the legal question arises within the scope of 242

243 244 245 246

247

For an early comparison of the function as it exists in international and domestic law, see Manley O Hudson, ‘Advisory Opinions of National and International Courts’ (1923– 1924) 37 Harv LR 970. Collier and Lowe, Settlement of Disputes, 182 (fn. 268). Other courts and tribunals with the power to give advisory opinions include the ECtHR, IACtHR and ECJ. Further: Rosenne, Provisional Measures, 180–1. See also PCIJ Statute, Art 65. On the practice of the PCIJ, see Manley O Hudson, The Permanent Court of International Justice, 1920–1942 (New York: Macmillan, 1943) 483– 524; Kolb, International Court, 1026–32. Further: Collier and Lowe, Settlement of Disputes, 182–5; Merrills, International Dispute Settlement, 132–4; Brownlie’s Principles, 730–2; Joachem A Frowein and Karin Oellers-Frahm, ‘Article 65’, in ICJ Commentary, 1063; Kolb, International Court, ch 8.

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their activities.248 Such opinions may concern questions of general interest to the international community,249 or reflect a request by an international organization for the Court to aid it in the interpretation of its constitutive instrument.250 It may also provide an avenue for appeal from decisions of the internal UN tribunals.251 But advisory opinions also represent a forum in which the Court may give an opinion on an international controversy falling outside of its contested jurisdiction, be it between states252 or between an international organization and its members and a state.253 ITLOS, conversely, contains a more limited form of advisory jurisdiction arising out of UNCLOS Part XI concerning areas of the seabed falling outside national jurisdiction (i.e. beyond the 200nm limit and beyond any state’s claimed outer continental shelf). Under UNCLOS Article 191, the Seabed Disputes Chamber of the Tribunal: [S]hall give advisory opinions at the request of the Assembly or Council [of the International Seabed Authority on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency.254 248 249

250

251 252

253

254

Cf. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66. See e.g. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951 p 15; Legality of the Use or Threat of Nuclear Weapons, ICJ Reports 1996 p 266. This form of request was particularly prevalent in the early years of the UN: see e.g. Admission of a State to the United Nations (Article 4 of the Charter), ICJ Reports 1948 p 57; Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949 p 174; Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), ICJ Reports 1962 p 151. More widely, see Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, ICJ Reports 1960 p 5. See e.g. Application for Review of Judgment No 333 of the United Nations Administrative Tribunal, ICJ Reports 1987 p 18. See e.g. Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Ser B No 4; Interpretation of Peace Treaties, ICJ Reports 1950 p 65; Western Sahara, ICJ Reports 1975 p 12. This was particularly the case before the PCIJ, where 17 out of 21 advisory opinions rendered by the Court related to pending inter-state disputes: Leland M Goodrich, ‘The Nature of the Advisory Opinions of the Permanent Court of International Justice’ (1938) 32 AJIL 738. See e.g. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971 p 16; Difference Relating to the Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1998 p 423. See e.g. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (2011) 150 ILR 244. Further: 6 Virginia Commentary, 641–4; Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University Press, 2012) 414–15; R¨udiger Wolfrum, ‘Advisory Opinions: Are They a Suitable

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Furthermore, the ITLOS Rules in Article 138(1) also provide that the Tribunal as a whole may give an advisory opinion if granted jurisdiction to do so by ‘an international agreement related to the purposes of the Convention’.255 Depending on the precise contours of the situation that motivates a question asked of ITLOS, the Tribunal could also find itself adjudicating on an inter-state dispute brought before it through the mechanism of its advisory jurisdiction – though such a scenario has yet to occur in the UNCLOS context in quite so emphatic a fashion as, say, the Wall advisory opinion.256 Significantly, advisory opinions given under Article 65 of the ICJ Statute, UNCLOS Article 191 and Article 138 of the ITLOS Rules, though they may pronounce upon the legal obligations of states, are not ordinarily binding on states.257 Chapter IV of the Statute on advisory opinions contains no equivalent of Article 60, which provides that judgments of the Court are ‘final and without appeal’. Similarly, the wording and structure of Chapter IV indicates that ‘opinions’ and ‘decisions’ of the Court are separate creatures, such that an opinion need not be complied with as a matter of course under Article 94(1) of the Charter. Similar logic applies with respect to the Seabed Disputes Chamber of ITLOS,258 with Article 296(1) confining binding force to ‘decisions’ only and further providing

255

256 257

258

Alternative for the Settlement of International Disputes?’, in R Wolfrum, International Dispute Settlement: Room for Innovations? (Heidelberg: Springer, 2012) 35, 48–53. See e.g. Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS Case No 21 (Advisory Opinion, 2 April 2015). Further: P Chandrasekhara Rao and Philip Gautier, The Rules of the International Tribunal for the Law of the Sea: A Commentary (Leiden: Martinus Nijhoff, 2006) 373–94; Ki-Jun You, ‘Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, Revisited’ (2008) 39 ODIL 360; Tanaka, International Law of the Sea, 416–17; Wolfrum, ‘Suitable Alternative’, 53–4; Yoshifumi Tanaka, ‘Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015’ (2015) 14 LPICT 318; Tom Ruys and Anemoon Soete, ‘“Creeping” Advisory Jurisdiction of International Courts and Tribunals? The Case of the International Tribunal for the Law of the Sea’ (2016) 29 LJIL 155; Massimo Lando, ‘The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission’ (2016) 29 LJIL 441. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 p 136. This need not be the case. For example, in the case of Art 65(1) of the ICJ Statute, an advisory opinion may be made binding and given the force of res judicata on the basis of agreements or unilateral promises to treat the opinion as binding. Binding force does not, however, arise from the standing of the opinion as a jurisdictional act: cf. Kolb, International Court, 1100–2. Tanaka, International Law of the Sea, 416.

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in paragraph (2) that binding force does not arise ‘except between the parties and in respect of that particular dispute’. As an advisory opinion does not formally concern a dispute, much less defined parties, it will not carry binding effect. The same logic applies, mutatis mutandis, to requests for advisory opinions under Article 138 of the ITLOS Rules.

2 Provisional Measures and Advisory Proceedings Given that they may touch on disputes that could, jurisdiction presuming, be susceptible to the contentious procedures of the ICJ and ITLOS (i.e. inter-state matters), the question naturally arises as to whether provisional measures under Article 41 of the ICJ Statute and UNCLOS Article 290 may be awarded in the course of advisory proceedings. The possibility of such measures is not excluded a priori by either the ICJ Statute or UNCLOS Parts XI and XV. Article 68 of the former provides that, in the exercise of the advisory function, ‘the Court shall further be guided by the provisions of the present Statute which apply to contentious cases to the extent to which it recognizes them to be applicable’. Similarly, UNCLOS Article 186 says with respect to the Seabed Disputes Chamber that ‘the manner in which it shall exercise its jurisdiction shall be governed by the provisions of [Part XI, section 5], of Part XV and of Annex VII’, which include UNCLOS Article 290 and Annex VI, Article 25 concerning provisional measures. The above notwithstanding, the issue has been raised only once before these bodies,259 and even then it was not the subject of extended consideration. In UN Headquarters Agreement,260 the ICJ was called to give an advisory opinion on an item of US legislation that purported to shutter the observer mission of the Palestine Liberation Organization to the UN – an act viewed by the Secretary-General to be in violation of the UN

259

260

The question was also raised obliquely before the PCIJ in the redrafting of its procedural rules in 1936, where it was proposed by the Commission that all such rules concerning the Court’s contentious proceedings be modified to make reference to advisory proceedings, including Art 57(1) concerning the award of provisional measures: PCIJ Ser D No 2, Add 3, 801, 875. The Court refused the proposal, not due to any overt objection to the concept of interim relief and advisory proceedings, but because it did not wish to modify the rules such that advisory proceedings were the subject of express mention in every provision conceivably relevant: ibid, 40. Further: Oellers-Frahm, ‘Article 41’, 1061–2; Kolb, International Court, 650–1. Rosenne, Provisional Measures, 181; Oellers-Frahm, ‘Article 41’, 1061–2; Thirlway, 1 Law and Procedure, 969; Kolb, International Court, 651.

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Headquarters Agreement.261 Section 21(a) of the Agreement provided that in the event of disagreement concerning its interpretation or application, the matter could be referred to ad hoc arbitration; Section 21(b), in turn, provided that the Secretary-General or US could ask the General Assembly to request that the ICJ give an advisory opinion on any legal question arising in the course of the proceedings. When the possibility of arbitration was raised, the US refused to accept that Section 21(a) was applicable. The General Assembly responded with several resolutions. GA Resolution 42/229A of 2 March 1988 reminded the US of its obligations under the Headquarters Agreement and called for Section 21(a) arbitration to take place. This was accompanied by GA Resolution 42/229B, which referred the question of the applicability of Section 21(a) to the ICJ for an advisory opinion under the terms of Section 21(b). In the meantime, however, implementation of the US legislation was pending. Accordingly, the General Assembly included two further recitals in its request for an advisory opinion: Bearing in mind the constraints of time that require the immediate implementation of the dispute settlement procedure in accordance with section 21 of the Agreement; [ . . . ] Taking into account the provisions of the Statute of the International Court of Justice, in particular Articles 41 and 68 thereof [.]

These recitals may be interpreted as a suggestion to the Court that it should impose provisional measures restraining the US from implementing the offending legislation.262 However, in a procedural order, the Court demurred, noting:

261 262

Agreement regarding the Headquarters of the United Nations, 26 June 1947, 11 UNTS 11. Had such a request been the subject of a direct submission (assuming one could be made), it would almost certainly have been rejected: the situation was an almost exact parallel of the Arbitral Award case decided two years later, in which the Court declared that a challenge to the validity of an arbitral award did not permit the grant of interim relief governing the rights purportedly decided in the award as these did not fall to be decided as part of the main claim: Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Provisional Measures, ICJ Reports 1990 p 64, 70. Similarly, in this case, the question of whether the arbitration agreement in Section 21(a) of the Headquarters Agreement was live was the subject of the request for the advisory opinion: the underlying dispute as to the validity of US legislation with respect to other provisions of the Agreement was not. Further: Chapter V, §II.C.1.

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questions of substance and procedure Whereas resolution 42/229B, while it contains in its preamble a reference to Articles 41 and 68 of the Statute, does not constitute a formal request for the indication of provisional measures; Whereas it is not appropriate, in the circumstances of the case, for the Court to consider whether or not provisional measures may be indicated in proceedings on a request for an advisory opinion [.]263

The Court then made reference to the fact that in GA Resolution 42/229A, the General Assembly had called on the US to abide by its obligations under the Headquarters Agreement.264 This injunction was presumably considered sufficient to render the imposition of provisional measures under Article 41 of the Statute unnecessary, enabling the Court to avoid the question entirely. Judge Schwebel appended a separate opinion to the Court’s order, objecting to the fact that the Court had seen fit to quote GA Resolution 42/229A on the basis that this encroached on the matter to be decided in the Section 21(a) arbitration. He also noted that: In defence of the Court, it may be said that the Court, being unable to indicate provisional measures in this advisory proceeding, took note of the paragraph at issue in lieu of them. This may be an accurate explanation of the intention of the Court, but it cannot be a defence of its action.265

This objection notwithstanding, Judge Schwebel voted for the order in full – including the reservation on the question of provisional measures. It may therefore be fairly argued that the Court as a whole held doubts as to its capacity to award provisional measures in advisory proceedings.266 Although subsequent requests for advisory opinions have directed the 263 264 266

Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Order of 9 March 1988, ICJ Reports 1988 p 3, 4. 265 Ibid. Ibid, 7. Thirlway, 1 Law and Procedure, 969. At the same time, however, the wording used by Judge Schwebel (‘this advisory proceeding’ and opposed to ‘advisory proceedings’) may simply mean that he was aware of the difficulties with the linkage requirement highlighted above at n 262. If this is the case, then the Court’s declaration provides no indication one way or the other as to the possibility of provisional measures in advisory proceedings. That being said, the Court’s wording is so ambiguous that different commentators have ascribed different meanings to the passages quoted. Others consider the Court to have been completely neutral on the basis that no formal request was made: Rosenne, Provisional Measures, 181; Oellers-Frahm, ‘Article 41’, 1062. Kolb, however, considers the passage to ‘suggest that, if [the Court] had been seised of a request for Provisional Measures by the body requesting the advisory opinion, it would have been in a position to respond positively’: International Court, 651.

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ICJ’s attention to the need for a quick answer, none have made express mention of Articles 41 and 68 of the Statute, and the Court has not returned to the question sua sponte.267 It is to be admitted that there are textual difficulties to the grant of provisional measures in advisory proceedings.268 Although Article 68 of the ICJ Statute seems to adapt the contentious procedures of the Court to the advisory context, the provision itself merely says that the Court is to be ‘guided’ by these procedures – it does not expressly say that they are to be adapted mutatis mutandis. UNCLOS Article 186 does not even do this with respect to the Seabed Disputes Chamber’s capacity to give advisory opinions under Article 191, merely saying that Chamber’s jurisdiction as a whole – which includes substantial contentious elements269 – is to be ‘governed’ by Part XV and Annex VI. The jurisdiction of ITLOS as a whole to hear referred advisory opinions under Article 138 of the ITLOS Rules suffers from the same difficulty in that the procedures of Part XV and Annex VI make no mention of how contentious procedures might be adapted to an advisory opinion. Other, more substantial difficulties exist. Article 41 of the Statute and UNCLOS Article 290 make reference to provisional measures to protect the rights of ‘the parties’, which are absent in an advisory context.270 Given that advisory opinions are not binding, 267

268 269 270

See e.g. ECOSOC Res 1989/75 (24 May 1989) requesting the giving of an advisory opinion ‘on a priority basis’. President Ruda’s subsequent order setting out the timetable of the proceedings made no reference to provisional measures: Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Order of 14 June 1989, ICJ Reports 1989 p 9. Thirlway, 1 Law and Procedure, 969. UNCLOS Art 187. Further: Tanaka, International Law of the Sea, 407–8. Considerations of this kind also apply in cases involving intervention of a third state under Arts 62 and 63 of the ICJ Statute. Again, interveners are not ‘parties’ to the dispute, and so are not caught by the bare wording of Art 41. Moreover, specific wording designed to prevent the respondent from doing or not doing a particular thing is unlikely to capture the behaviour of the intervener – though measures of non-aggravation conceivably might. In such situations, the intervener would be well advised to follow the Court’s directive, even though the opportunities to breach might necessarily be limited, and the capacity to pronounce on such breaches in a declaratory sense outside the Court’s jurisdiction. In addition, an intervener is in any event incapable of requesting provisional measures, for the simple reason that it ipso facto does not hold any of the rights that are subject to litigation in anything other than a general sense and hence cannot pass the plausibility and link requirements of interim relief. It might also be added that if an intervener was sufficiently caught up in the dispute that it could conceivably succeed in bringing an application for interim relief (were it hypothetically a party) then the Court ought already to have declared the dispute inadmissible under the rule in Monetary Gold Removed from

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it would be at the very least highly unusual for either the ICJ or ITLOS to be capable of ordering binding interim relief in the context of such proceedings. The purpose of provisional measures is to preserve rights pendente lite, but an advisory opinion does not purpose to pronounce on the existence of disputed rights with the force of res judicata, preventing the measures from being replaced by the final award. But these difficulties – whilst they are substantial – need not be determinative of the issue.271 The first objection does not take account of the fact that whilst there are no formal parties to advisory proceedings, there is a body requesting the opinion that is also in a position to ask for interim relief – witness the situation in UN Headquarters Agreement. Moreover, the objection neglects the fact that under Article 75(1) of the ICJ Rules the Court is able to award provisional measures proprio motu – though ITLOS and its Seabed Disputes Chamber lack this capacity per UNCLOS Article 290(3). The second objection regarding the non-binding character of advisory opinions also overlooks the fact that although the default position of interim relief post-LaGrand may be that it is binding, there is nothing that says that an international court or tribunal cannot, if it wishes, award interim relief that is non-binding: a form of judicial suggestion.272 The third objection – regarding the lack of rights subject to litigation and the absence of a final judgment – can be broken into two halves. In the first place, in response to the argument that such proceedings lack rights pendente lite, Kolb notes that an advisory proceeding may nonetheless be designed to protect a legal situation such that ‘it is perfectly possible to seek to protect the subject matter of that recommendation against the (deliberate) creation of a situation in which the [court or tribunal’s] advice would no longer be of any practical utility’.273 It might also be mentioned that both the ICJ and ITLOS possess the capacity to protect objective interests not necessarily linked to any particular right or interest: both

271 272

273

Rome in 1943 (Italy v France, UK and US), Preliminary Question, ICJ Reports 1953 p 19. On intervention generally, see further Collier and Lowe, Settlement of Disputes, 162–8; Kolb, International Court, 694–743. Ibid, 651–2. Indeed, Dumbauld characterized provisional measures in the early part of the twentieth century as constituting ‘a special form of advisory opinion’: Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) 169. Kolb, International Court, 651–2.

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may issue measures for the non-aggravation or escalation of a dispute or situation, and in the case of UNCLOS Article 290(1), ITLOS may award provisional measures for the prevention of serious harm to the marine environment. In the second, although a hypothetical provisional measure in an advisory proceeding cannot be replaced by a judgment with res judicata effect, this does not mean that provisional measures will run indefinitely. As incidental proceedings, provisional measures rely on the presence of a main action in order to exist:274 accordingly, once the court or tribunal issues its advisory opinion, the proceedings will have formally ended, causing the provisional measures to lapse automatically.275 The above analysis is not intended to stand as a case for the award of provisional measures in advisory proceedings, but merely to indicate that despite substantial textual arguments to the contrary, the possibility that provisional measures of some kind can be ordered to protect advisory jurisdiction cannot be excluded a priori. As has been argued throughout this book, provisional measures represent an inherent power of international courts and tribunals that may be adapted so as to protect the integrity of their jurisdiction and procedure. This basal logic applies equally where – as in Peace Treaties, Western Sahara, Wall and other cases – the advisory jurisdiction is invoked in order to bring a dispute between two states, or between a state and an international organization, before an international court or tribunal.276 But the matter remains fundamentally uncertain, such that at this stage it can only be said that the question remains open, and that practice and scholarship would welcome judicial elaboration – however long it may take to arrive.

B Non-Appearing Parties 1 The Practice of Non-Appearance There is no such thing as an international bench warrant, nor an international bailiff or sheriff. Consequently, when a party decides that it does not 274 276

275 Chapter 4, §II. Chapter 7, §III.B. Cf. Kolb, International Court, 652:

The Court undoubtedly has an inherent power to indicate such measures. It is the master of its own procedure, and can take any step necessary to safeguard the practical value and utility of its proceedings. For present purposes one need say no more than that, until now, the Court has not felt the need to exercise this power. One might conclude that is a less urgent issue in advisory proceedings, and therefore a dormant question, at least for the time being.

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recognize the legitimacy of international adjudication, and accordingly does not wish to present itself to a court or tribunal on commencement of proceedings, there is no immediate means for the court or tribunal to compel such attendance. As a practice, non-appearance reached its peak in the first few decades of the ICJ.277 In the Fisheries Jurisdiction cases,278 Nuclear Tests cases,279 Pakistani POWs,280 Aegean Sea281 and Tehran Hostages,282 the various respondents failed to appear, and replied to the initiation of proceedings by either ignoring them entirely or writing letters explaining to the Court why it lacked jurisdiction. Non-appearance may also be partial. In Anglo-Iranian Oil, Iran ignored the Court’s deliberations regarding provisional measures before appearing to (successfully) argue against jurisdiction.283 In Nicaragua, the US participated in the jurisdictional phase of the proceedings, but when the Court found that it possessed jurisdiction,284 withdrew and failed to appear on the merits.285 Since then, the problem has declined somewhat, such that one can detect in the leading texts on the subject a certain common vintage.286 But that is not to say that it has been eradicated completely, with the most recent incidence of the practice prompted by Russia’s absence before ITLOS and

277

278 279 280 281 282 283 284 285 286

It was comparatively rare before the PCIJ, although parties failed to appear in both SinoBelgian Treaty and Electricity Company – though in the latter case Bulgaria was prevented from appearing by the outbreak of the Second World War. Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1974 p 3; Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1974 p 253. Nuclear Tests (Australia v France), ICJ Reports 1974 p 253; Nuclear Tests (New Zealand v France), ICJ Reports 1974 p 457. Trial of Pakistani Prisoners of War (Pakistan v India), Provisional Measures, ICJ Reports 1973 p 328. Aegean Sea Continental Shelf (Greece v Turkey), Jurisdiction, ICJ Reports 1978 p 3. United States Diplomatic and Consular Personnel in Tehran (US v Iran), ICJ Reports 1980 p 3. Anglo-Iranian Oil, Preliminary Objection, ICJ Reports 1952 p 93. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Jurisdiction and Admissibility, ICJ Reports 1984 p 392. Nicaragua, ICJ Reports 1986 p 14. See e.g. Gerald Fitzmaurice, ‘The Problem of the “Non-Appearing” Defendant Government’ (1980) 51 BYIL 89; Jerome Elkind, Non-Appearance before the International Court of Justice (Dordrecht: Martinus Nijhoff, 1984); H W A Thirlway, Non-Appearance before the International Court of Justice (Cambridge: Cambridge University Press, 1985); Jerome Elkind, ‘The Duty to Appear before the International Court of Justice’ (1988) 37 ICLQ 674. For more recent assessments of the practice, see Hans von Mangoldt and Andreas Zimmermann, ‘Article 53’ in ICJ Commentary, 1324; Kolb, International Court, 677–93; Thirlway, 1 Law and Procedure, 994–1007; Thirlway, 2 Law and Procedure, 1824–7.

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the Annex VII tribunal in Arctic Sunrise287 and China’s absence before the Annex VII tribunal in South China Sea.288 Non-appearance can place both the claimant and the relevant international court or tribunal in a delicate position. On the one hand, the claimant has a right to have its case heard. On the other, the court or tribunal remains under a positive obligation to determine (a) that it has jurisdiction and that the claim is admissible, and (b) that the claimant has proved its case on the merits. Both tasks are rendered altogether more difficult by the absence of the respondent, which – as Fitzmaurice put it – leaves the ‘outward shell’ of the system of international dispute settlement intact whilst hollowing out ‘the core’.289 But non-appearance will not save the respondent from international adjudication, and in the event that it does not assist the court or tribunal in its deliberations, the proceedings will continue without it, a point made aptly by the ICJ in Nicaragua: A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute. There is however no question of a judgment automatically in favour of the party appearing, since the Court is required, as mentioned above, to ‘satisfy itself’ that that party’s claim is well founded in fact and law. [ . . . ] The use of the term ‘satisfy itself’ in the English text of the Statute (and in the French text the term ‘s’assurer’) implies that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence.290

287

288 289 290

Arctic Sunrise (Netherlands v Russian Federation), PCA Case No 2014–02 (Annex VII) (Award, 14 August 2015). The most recent incident before the ICJ was Bahrain’s failure to appear in relation to jurisdiction and admissibility in Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Jurisdiction and Admissibility, ICJ Reports 1994 p 112. It has also been known to occur in the investorstate context, though the steadily increasing willingness of tribunals to impose cost consequences in the face of non-appearance – not to mention the prospect of real enforcement of any award – gives states a substantial incentive to appear: see e.g. Kaiser Bauxite Company v Jamaica, Jurisdiction (1975) 1 ICSID Reports 298; Liberian Eastern Timber Corporation v Liberia (1986) 2 ICSID Reports 346; Goertz and Ors v Republic of Burundi (1999) 6 ICSID Reports 5. Further: ICSID Commentary, 708 Philippines v People’s Republic of China, PCA Case No 2013–19 (Annex VII) (Award, 12 July 2016). Fitzmaurice, ‘Defendant Government’, 115. Nicaragua, ICJ Reports 1986 p 14, 24–5.

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For this reason, all of the international courts and tribunals under consideration deploy a form of default procedure, to be utilized in the event of non-appearance by a party (invariably the respondent). Article 53(1) of the ICJ Statute provides that in the event of non-appearance by one party, ‘the other party may call upon the Court to decide in favour of its claim’ so as to, in effect, award default judgment. At the same time, however, paragraph 2 of the same provision states that prior to such judgment being given, the Court must ‘satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law’. The same instincts may be seen in UNCLOS Annex VI, Article 28, which provides: When one of the parties does not appear before the Tribunal or fails to defend its case, the other party may request the Tribunal to continue the proceedings and make its decision. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its decision, the Tribunal must satisfy itself not only that it has jurisdiction over the dispute, but also that the claim is well-founded in fact and law.

Article 45 is based on a different model, but similarly does not take the award of default judgment for granted. It states in terms that: (1) Failure of a party to appear or to present his case shall not be deemed an admission of the other party’s assertion. (2) If a party fails to appear or present his case at any stage of the proceedings the other party may request the Tribunal to deal with the questions submitted to it and to render an award. Before rendering an award, the Tribunal shall notify, and grant a period of grace to, the party failing to appear or to present its case, unless it is satisfied that that party does not intend to do so.291

In short, the common default procedure in international dispute settlement is to permit the court to carry out its mandate to decide a dispute validly brought before it whilst still giving the absent respondent the benefit of the burden of proof.292 From a certain point of view, this may appear to penalize the claimant, as it is now required to argue the case by reference to objections that the respondent might have made had it been present.293 291 292

See also 1976 UNCITRAL Rules, Art 30; 2010 UNCITRAL Rules, Art 30. 293 Collier and Lowe, Settlement of Disputes, 181. Ibid.

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2 Provisional Measures and Non-Appearing Parties (a) General Practice It will not have escaped the reader’s notice that in nearly all the examples of non-appearance earlier identified, the respondent’s failure to appear was accompanied by a request for provisional measures by the claimant. This might be thought to follow from the fact that non-appearance occurs (at least in some cases) where the issue to be decided is so vital to a respondent’s interest that it dare not risk subjecting it to third party adjudication. In such situations, it is not surprising that the claimant might feel the same way about the matter, such that interim relief is required as a matter of priority. The consistent approach of international courts and tribunals has been to hold – in keeping with the terms of their constituent instruments – that non-appearance does not affect the ordinary operation of a court or tribunal’s procedure. This position holds true with respect to provisional measures, even where the non-appearing respondent does not even offer written observations on an application for interim relief. When dealing with the application for interim relief in Fisheries Jurisdiction, the Court merely took note of the fact that Iceland was not present before remarking: Whereas according to the jurisprudence of the Court and of the Permanent Court of International Justice the non-appearance of one of the parties cannot by itself constitute an obstacle to the indication of provisional measures, providing the parties have been given the opportunity of presenting their observations on the subject.294

This has since proven to be the consistent position of the Court,295 and has been readily adopted by other dispute settlement bodies, notably ITLOS in Arctic Sunrise. That decision, however, demonstrates the potential for courts and tribunals to apply this test in a manner that disadvantages the non-appearing respondent, thereby doing a disservice to the wider institution of interim relief. (b) The Errors of Arctic Sunrise As has been related, Arctic Sunrise concerned the seizure of a Dutch-flagged Greenpeace vessel in Russia’s 294 295

Fisheries Jurisdiction (UK v Iceland), Interim Protection, ICJ Reports 1972 p 12, 15; Fisheries Jurisdiction (FRG v Iceland), Interim Protection, ICJ Reports 1972 p 30, 31–2. See e.g. Nuclear Tests (Australia v France), Interim Protection, ICJ Reports 1973 p 99, 101; Nuclear Tests (New Zealand v France), Interim Protection, ICJ Reports 1973 p 135, 137; Aegean Sea Continental Shelf (Greece v Turkey), Interim Protection, ICJ Reports 1973 p 3, 6; Tehran Hostages, ICJ Reports 1979 p 7, 13.

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EEZ.296 In response to the Netherlands decision to institute Annex VII proceedings and lodge a request for provisional measures with ITLOS under UNCLOS Article 290(5), Russia (via a note verbale) informed the Tribunal that it did not accept UNCLOS dispute resolution procedures regarding matters of its ‘sovereign rights or jurisdiction’ and that it did ‘not intend to participate in the proceedings’.297 It consequently absented itself from both the provisional measures proceedings before ITLOS and the hearing of the merits by the Annex VII tribunal. With respect to the former phase of the dispute, Russia’s failure to appear influenced the Tribunal’s perception of the situation presented. Several paragraphs of the Tribunal’s Order of 22 November 2013 and its accompanying separate opinions detailed the consequences of Russia’s non-appearance, making it the most substantial consideration to date of default procedure in the case of provisional measures. The Tribunal clearly drew on the approach of the ICJ in determining how to proceed, and referenced the Court’s jurisprudence on several occasions. For example, the Tribunal noted that ‘the absence of a party or failure of a party to defend its case does not constitute a bar to the proceedings and does not preclude the Tribunal from prescribing provisional measures, provided that the parties have been given an opportunity of presenting their observations’,298 mirroring the Court’s characteristic formulation. The Tribunal further observed that ‘the non-appearing State is nevertheless a party to the proceedings [ . . . ] with ensuing rights and obligation’,299 before quoting the passage from Nicaragua cited earlier.300 Furthermore, the Tribunal noted that it was ‘ready to take into account any observations that were presented to it by a party before the close of the hearing’,301 that ‘the Russian Federation [ . . . ] was given ample opportunity to present its observations, but declined to do so’,302 and that ‘the Russian Federation could have facilitated the task of the Tribunal by furnishing it with fuller information on questions of fact and law’.303 Even stronger views were presented within the various separate opinions. Judge ad hoc Anderson noted that Russia’s refusal to participate had rendered it necessary to infer its stance through diplomatic communications, legislation and judicial decisions, making the Tribunal’s task more 296 297 298 301

The following analysis is drawn from Guilfoyle and Miles, ‘MV Arctic Sunrise’, 277–81. Arctic Sunrise, Russian Federation: Note verbale from the Embassy of the Russian Federation in the Federal Republic of Germany (23 October 2013). 299 300 Arctic Sunrise, ITLOS Case No 22, §48. Ibid, 51. Above n 290. 302 303 Arctic Sunrise, ITLOS Case No 22, §49. Ibid, §50. Ibid, §54.

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difficult than it had to be. He concluded: ‘Non-appearance does not serve the efficient application of Part XV of the Convention or, more widely, the rule of law in international relations’.304 Judges Wolfrum and Kelly similarly noted that through non-appearance, a state not only weakens its own position in the legal dispute but also hampers the other party and the international court or tribunal itself.305 They further observed that by not appearing, Russia was acting in a manner contrary to the object and purpose of the dispute settlement system set out in UNCLOS Part XV.306 Beyond this, the Tribunal permitted the fact of Russia’s non-appearance to influence its approach to the Dutch application. The Tribunal noted that ‘the Netherlands should not be put at a disadvantage’307 because of Russia’s non-appearance, and therefore that ‘the Tribunal must [ . . . ] identify and assess the respective rights of the parties involved on the best available evidence’.308 This position may account for the Tribunal’s reasoning on the question of urgency, which was little better than perfunctory. The Tribunal first extracted a section of the Dutch oral argument that the arrest of the Arctic Sunrise presented a risk of environmental harm, that the continuing detention of the Arctic 30 breached certain of their human rights, that the continued detention of the vessel and its crew breached certain of their human rights, and that ‘prolong[ing] the detention pending the constitution of the [Annex VII] tribunal and the resolution of the dispute would further prejudice the rights of the Kingdom of the Netherlands’.309 The Tribunal then cited, without comment, an extract from the Official Report on Seizure of Property released publicly by Russia, which described the allocation of responsibility for the Arctic Sunrise within the various Russian municipal authorities.310 Without further analysis, the Tribunal then found that ‘under the circumstances of the present case [ . . . ] the urgency of the situation requires the prescription [ . . . ] of provisional measures’.311 Such an approach on the part of ITLOS is troubling. It is one thing to, in the absence of contrary evidence, to take the factual assertions of the Netherlands at face value. After all, the Tribunal cannot be expected to procure its own evidence. But it is quite another to readily accept the legal assertions contained in the Dutch argument. Yet that 304 306 309

305 Ibid, §2 (Judge ad hoc Anderson). Ibid, §5 (Judges Wolfrum and Kelly). 307 308 Ibid, §6 (Judges Wolfrum and Kelly). Ibid, §56. Ibid, §57. 310 311 Ibid, §87. Ibid, §88. Ibid, §89.

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is exactly what occurred. Having accepted the Dutch account as factually accurate, the majority simply moved to declare the situation urgent, without explicitly enunciating any intermediate legal reasoning of its own. Some might argue that this response is appropriate in the face of Russian non-appearance312 and that the Tribunal is firmly communicating that it is unwilling to have its compulsory jurisdiction challenged and proceedings thereby disrupted. But non-appearance cannot be the legal explanation. The Tribunal remains obligated to reach its own conclusions as to whether the legal conclusions of UNCLOS Articles 290(5) have been met. This point is reinforced by the character of provisional measures themselves; given that such measures may be awarded prior to confirmation of a court or tribunal’s jurisdiction, they have correctly been characterized as an affront to the sovereignty of the party against whom they are awarded,313 as a result of which they are considered an exceptional remedy. This exceptional character is not altered by the fact of non-appearance. In cases of non-appearance, as in all disputed cases, tribunals should independently scrutinize applications against the relevant criteria and enunciate the legal reasoning leading to their conclusions. Such a process may result in the legal application being declined despite the nonappearance of the respondent. In Aegean Sea, for example, the ICJ was faced by a Greek application for provisional measures and by a Turkish non-appearance. Greece requested interim relief that would prevent Turkish vessels from conducting seismic surveys in contested waters – which, Greece argued, would violate, pendente lite, Greece’s claimed exclusive rights of exploration. Although the Court considered that ‘Turkey’s activity in seismic exploration might then be considered [ . . . ] an infringement and invoked as a possible cause of prejudice to the exclusive rights of Greece’,314 it concluded that any prejudice so caused was not ‘irreparable’, rejecting the request as a result.315 Although Turkey actually submitted, despite its non-appearance, observations on the Greek application in Aegean Sea, the failure of Russia to do likewise in Arctic Sunrise (beyond the note verbale outlining its objections to jurisdiction) did not free the Tribunal from its obligation to subject the Dutch application to probing legal analysis. 312 313 314

Cf. Collier and Lowe, Settlement of Disputes, 181. Anglo Iranian Oil, ICJ Reports 1951 p 89, 97 (Judges Winiarski and Badawi Pasha, diss). 315 Aegean Sea, ICJ Reports 1976 p 3, 11. Ibid.

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It is fair to ask what might have happened if the Tribunal had undertaken an explicit, independent analysis of the Dutch position. Clearly, the Tribunal had jurisdiction to consider the matter within the meaning of UNCLOS Article 290(5). But beyond that, the situation is problematic. Firstly, the order was not clear as to its legal or factual basis. The quoted paragraphs of the Dutch submissions referred to serious environmental harm arising from the continuing detention of the Arctic Sunrise and to prejudice to the human rights of those detained. The Tribunal seemingly accepted these at face value and considered them dispositive, making no specific reference to the provisions of UNCLOS that it sought to protect, much less how the measures prescribed protected those rights. Secondly, if the reader is to infer from the quoted submissions that the measures prescribed were intended to prevent serious harm to the marine environment in and around Murmansk, and to protect Dutch freedom of navigation in the Russian EEZ pending resolution of the dispute, further questions as to urgency and irreparable prejudice arise. With respect to urgency, the purpose of the provisional measures proceedings was only to protect the marine environment until such time as an Annex VII tribunal would have the opportunity to order its own measures.316 It was unlikely, however, that the detention of the Arctic Sunrise would result in ‘serious harm’ prior to the composition of the Annex VII tribunal.317 As noted earlier, a publicly released Russian report indicated specifically how the responsibility for the vessel’s maintenance was allocated between the Russian municipal authorities. Such an allocation may well have been taken as equivalent to Spain’s submission regarding the Louisa, which ITLOS interpreted as removing the risk of serious harm to the marine environment.318 Although the environmental issue therefore lacks bite, it is arguable at the time of the order, the Netherlands’ freedom of navigation was compromised, that it was further compromised each day that the vessel and its crew remained in detention, and that the detention of the crew likewise infringed their rights. As seen in M/V Saiga (No 2), however, ITLOS has been willing to provide monetary compensation in similar circumstances, and there was no apparent reason – beyond Russia’s 316 317 318

Chapter 6, §III.B.1(a). Arctic Sunrise, ITLOS Case No 22, §§3–7 (Judge Kulyk, diss). M/V Louisa (St Vincent and the Grenadines v Spain), Provisional Measures (2010) 148 ILR 459, 471–2.

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non-appearance – why Arctic Sunrise should have been treated any differently. Although many legal systems distinguish detention from other wrongs that can be sufficiently addressed by compensation (hence the existence of habeas corpus proceedings), it was not clear in this case that the detention was illegal, and the Netherlands did not allege that the specific conditions of the detention somehow rendered it unlawful. The individuals detained were at the time subject to criminal investigation and the measures so ordered undermined that investigation in its entirety. In light of such concerns, one must ask if the Tribunal in Arctic Sunrise was the best custodian of its own institutional legitimacy. The fact of Russia’s non-appearance seemed to dominate the Tribunal’s approach. The resulting order adopted the Dutch submissions on both factual and legal questions in their entirety without a fully articulated engagement with the Tribunal’s earlier jurisprudence on interim relief or its obligation to satisfy itself as to whether the application was well-founded in law. In the process, the Tribunal did itself no favours in the process of buttressing its legitimacy against the attack implicit in the non-appearance of a major maritime power. Moreover, Arctic Sunrise introduced a precedent of questionable value into the limited corpus of UNCLOS Article 290 case law. As Judge Jesus pointed out, such decisions have precedential value, and the radical remedy adopted in Arctic Sunrise may yet be used in other, less deserving cases.319

C Interpretation Proceedings 1 Interpretation of Judgments and Awards Procedures for interpretation permit an international court or tribunal to revisit an earlier award or judgment post-adjudication.320 As a device, this is intended to soften somewhat the rigours of the rule of res judicata in international law321 – under which the ordinary rule is that a decision of a court or tribunal is final and without appeal – so as to avoid ‘perpetuating’

319 320

321

Arctic Sunrise, ITLOS Case No 22, §15 (Judge Jesus). Generally: Collier and Lowe, Settlement of Disputes, 179–80; Brown, Common Law, ch 5; Shabtai Rosenne, Interpretation, Revision and Other Recourse from International Judgments (Leiden: Martinus Nijhoff, 2007); ICSID Commentary, 866–77; Andreas Zimmermann and Tobias Theinel, ‘Article 60’, in ICJ Commentary, 1469; Kolb, International Court, 776–801. Brown, Common Law, 153–7.

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judicial error or obscurity and enhancing thereby the administration of justice.322 In essence, where uncertainty arises in the implementation of a judgment or award, and that uncertainty is the product of the wording of the judgment or award, a party may be permitted to return to the court or tribunal in question and ask it precisely what it meant. This is, in effect, a special form of jurisdiction that is linked to the fact of the original decision such that there is no need for the manifestation of additional consent by the parties.323 Subject to a lex specialis,324 this jurisdiction is virtually unlimited ratione temporis (being capable of invocation at any time after the original decision, irrespective of whether the initial jurisdictional basis of that decision has lapsed) but heavily conditioned ratione materiae (being limited to disputes as to the meaning of that decision).325 Many international courts and tribunals are granted jurisdiction to interpret their judgments or awards by the express wording of their constitutive instruments.326 The power of interpretation was included in Article 60 of the PCIJ Statute as a codicil to the declaration that judgments of the Court were res judicata. This position has not been altered under the ICJ Statute: The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party. 322

323 324

325

326

Shany, Competing Jurisdictions, 245. This is, self-evidently, not the only form of review of international decisions – Brown identifies a spectrum of possible forms of review, including appeal, cassation, rehearing de novo, rectification, interpretation and revision: Common Law, 156. Annulment – another form of review confined to the ICSID context – will be examined below: §III.D. Brown, Common Law, 175–6. See e.g. 1976 UNCITRAL Rules, Art 35(1), requiring that any request for interpretation be given within 30 days of the original award. This limitation was also contained in the Iran–US Claims Tribunal Rules, Art 30(1) and 2010 UNCITRAL Rules, Art 37(1). The reason for this limitation appears to be the temporary character of the tribunals in question – though it is to be noted that Art 50(1) of the ICSID Convention imposes no such limitation, and simply provides that in the event that the original tribunal is unable to give an interpretation of the award, a new tribunal may be empaneled to do so. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v US) (Mexico v US), Provisional Measures, ICJ Reports 2008 p 311, 323; Temple (Interpretation), ICJ Reports 2011 p 537, 615 (Judge Donoghue, diss). Further: Shabtai Rosenne, 3 The Law and Practice of the International Court of Justice, 1920–2005 (The Hague: Martinus Nijhoff, 4th edn, 2006) 1611–16. The omnipresence of the power has caused some commentators to declare it an inherent power of all international courts and tribunals, not unlike the capacity to award interim relief: Brown, Common Law, 161–73.

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A similar power is bestowed on ITLOS,327 Annex VII tribunals328 and investor-state arbitration tribunals operating under both ICSID329 and the UNCITRAL Arbitration Rules.330 With respect to the preconditions for the invocation of the interpretation jurisdiction, most international courts and tribunal draw their practice from the model established by the PCIJ and ICJ.331 In Chorz´ow Factory (Interpretation), the PCIJ held that there were essentially two prerequisites for an application to be validly made under Article 60 of the Statute. In the first place, it was said, there needed to be a dispute ‘as to the meaning and the scope of a judgment of the Court’, in that ‘the two Governments have in fact shown themselves as holding opposing views in regard to the meaning or scope of a judgment of the Court’.332 In the second, it was said that the request for interpretation ‘should have as its object an interpretation of the judgments’, being ‘to give a precise definition of the meaning and scope which the Court intended to give to the judgment in question’.333 In essence, this meant that the object of the application ‘must be solely to obtain clarification of the meaning and scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided’.334 This has been held to include not only the operative part of the judgment and award, but also aspects 327 329 330 331

328 UNCLOS, Annex VI, Art 33(3). UNCLOS, Annex VII, Art 12. ICSID Convention, Art 50(1). 1976 UNCITRAL Rules, Art 35; 2010 UNCITRAL Rules, Art 37. See also Iran–US Claims Tribunal Rules, Art 30. Rosenne, 3 Law and Practice, 1620–3; Brown, Common Law, 178; ICSID Commentary, 871; Zimmermann and Theinel, ‘Article 60’, 1489–92. Cf. Wena Hotels Ltd v Egypt, ICSID Case No ARB/98/4 (Decision on Interpretation, 31 October 2005) §72:

Wena’s Application for Interpretation is the first request of its kind ever received by ICSID. Accordingly, no previous decisions by ICSID arbitral tribunals exist that deal with the purpose, scope and limits of the interpretation procedure. However, in making its decision, the Tribunal was able to rely not only on the relevant provisions of the ICSID Convention and the ICSID Arbitration Rules and their interpretation by well-known scholars, but also on decisions by other tribunals, in particular, the [PCIJ] and its successor, the ICJ. 332 333

334

Interpretation of Judgments Nos 7 and 8 (Factory at Chorz´ow) (Germany v Poland) (1927) PCIJ Ser A No 13, 10–11. Ibid, 11. Further: Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia/Peru) (Columbia v Peru), ICJ Reports 1950 p 395, 402; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), ICJ Reports 1984 p 192, 217. Asylum (Interpretation), ICJ Reports 1950 p 395, 402.

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of its reasoning insofar as they are inseparable from the dispositif.335 As alluded to earlier, it also has the effect of constraining the subject matter jurisdiction of the court or tribunal within its earlier decision, and renders it unable to pronounce on rights that were not the subject of consideration – and express comment – in the earlier judgment or award.

2 Provisional Measures and Interpretation Proceedings Interpretation proceedings arise infrequently in international law – and interact with provisional measures less frequently still. It is therefore somewhat surprising that on the last two occasions that the ICJ has been asked to interpret a judgment under Article 60 of its Statute, the request has been accompanied by a request for urgent interim relief.336 There is nothing wrong in principle with such a request in the sense that it is not reliant on any basis of jurisdiction additional to Article 60337 – but the indication of the measures will intrinsically depend on the admissibility of the request for interpretation, and in particular on the two prerequisites set out in Chorz´ow Factory (Interpretation) and adopted in later cases.338 The way in which the Court has dealt with such requests has, in turn, led to no small amount of consternation amongst academic commentators – particularly with respect to the way in which the Court has applied the strict parameters of Article 60 to the link requirement.339 The ICJ was first asked to award provisional measures in conjunction with interpretation proceedings in Avena (Interpretation), a case that demonstrates how these two procedural institutions interact. In that case, Mexico requested interpretation of the Court’s earlier judgment in Avena on the basis that the execution of some of the Mexican nationals identified in that case was imminent despite the fact that they had not been accorded 335 336 337

338 339

Avena (Interpretation), ICJ Reports 2008 p 311, 323. A similar situation has yet to arise with respect to any of the other international courts and tribunals examined in this study. This logic may also be seen to apply with respect to proceedings for revision under Art 61 of the ICJ Statute, but no request for revision has as yet invoked a need for interim relief. It is arguable that the same goes for intervening parties under Arts 62 and 63, so long as they only seek protection with respect to those rights and obligations that are in interest from their perspective: Kolb, International Court, 796–7. Oellers-Frahm, ‘Article 41’, 1056; Zimmermann and Thienel, ‘Article 60’, 1482–4. See e.g. ibid, 1056–8; Thirlway, 2 Law and Procedure, 1786–91; Traviss, ‘Lessons on Provisional Measures’, 333–9; Yoshifumi Tanaka, ‘A New Phase of the Temple of Preah Vihear Dispute before the International Court of Justice: Reflections on the Indication of Provisional Measures of 18 July 2011’ (2012) 11 Chinese JIL 191, 216–18.

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review or reconsideration of their sentences by the Texas Court of Criminal Appeals. This was in violation of paragraph 153(9) of the Court’s judgment in Avena, which required that the US ‘provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals’, further referring in this connection to the need for the US to take account ‘both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of [the Avena judgment]’.340 The US response to this was to frankly admit that a breach of the paragraph was on foot, but that it agreed with Mexico’s interpretation of its terms such that no ‘dispute’ as to its meaning within the meaning of Article 60 arose. The Court nonetheless found that a dispute was extant, in the sense that the parties did not agree on the meaning and scope of the object of result set out in paragraph 153(9).341 The Court then moved to consider the request for provisional measures, whereby Mexico asked that the pending executions be postponed until such time as the Court was able to interpret the 2004 judgment. The Court granted the request, indicating that the request for interpretation constituted a set of proceedings independent from the original case. With respect to the requirement that the measures be designed to protect rights which fell to be adjudicated on the merits, Mexico asserted that the relevant rights were those that fell to be interpreted as part of the request, viz. those contained within paragraph 153(9). The US, for its part, argued that by focusing in the request for the indication of provisional measures on the carrying out of the sentence and not on its review and reconsideration, Mexico was in reality attempting to protect rights that are not asserted in its application for interpretation – put another way, it was in violation of the link requirement.342 The Court disagreed with this analysis, holding that: Mexico seeks clarification of the meaning and the scope of paragraph 153(9) of the operative part of the 2004 Judgment in the Avena case, whereby the Court found that the United States is under an obligation to provide, by means of its own choosing, review and reconsideration 340 341

Avena, ICJ Reports 2004 p 12, 72. Avena (Interpretation), ICJ Reports 2008 p 311, 326: [T]he Parties nonetheless apparently hold different views as to the meaning and scope of that obligation of result, namely, whether that understanding is shared by all United States federal and state authorities and whether that obligation falls upon those authorities [ . . . ]

342

Ibid, 327.

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of the convictions and sentences of the Mexican nationals, taking into account both the violation of the rights set forth in Article 36 of the Vienna Convention and paragraphs 138 to 141 of the Judgment; whereas it is the interpretation of the meaning and scope of that obligation, and hence of the rights which Mexico and its nationals have on the basis of paragraph 153(9) that constitutes the subject of the present proceedings before the Court on the Request for interpretation; whereas Mexico filed a request for the indication of provisional measures in order to protect these rights pending the Court’s final decision; [ . . . ] Whereas, therefore, the rights which Mexico seeks to protect by its request for the indication of provisional measures [ . . . ] have a sufficient connection with the Request for interpretation [ . . . ]343

In part, complaints as to the attenuation of the link test in this respect are no different to those that have been previously considered in relation to provisional measures designed to protect human rights.344 In a later analysis of the Court’s conclusion on the point, Judge Donoghue pointed out – correctly – that ‘the link between the pending interpretation [ . . . ] and the measures requested was [ . . . ] clear to the Court: an execution prior to its interpretation decision would render it impossible to order the relief sought in the interpretation proceeding’.345 However, as Thirlway points out, a less obvious difficulty with this passage is that it does not reflect the conventional understanding of the link test, which is to protect those rights that may subsequently be adjudged by the Court to belong to the applicant.346 In the case at bar, Mexico’s rights had already been the subject of adjudication – in the Avena decision itself. Consequently, given that there were no real rights that were the subject of contest, the link test did not permit the award of interim relief – a point that might be thought to apply more generally such that provisional measures cannot be awarded in the course of interpretation proceedings. If one considers the link requirement to be a basic jurisdictional point then this criticism has the ring of validity about it. At the same time, however, one does feel that this approach is unduly black letter, and neglects the fact that one of the purposes of provisional measures is to prevent the jurisdiction of an international court or tribunal from being rendered nugatory by action prior to judgment that damages or prejudices the 343 344 345 346

Ibid, 328. More particularly, with respect to situations of diplomatic protection in the consular rights cases of Breard, LaGrand and Avena: above §II.A.2. Temple (Interpretation), ICJ Reports 2011 p 537, 618. Thirlway, 2 Law and Procedure, 1788.

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rights that the court is to consider. This logic applies equally to rights that are to be interpreted as well as to rights that are to be adjudicated, with a court or tribunal being justified in taking interlocutory action that is capable of protecting those rights to their greatest plausible extent. Another criticism arises from the fact that in Avena (Interpretation), the provisional measures requested were strictly superfluous,347 as an order for interim relief requiring compliance with the obligation set out in paragraph 153(9) of Avena did nothing that the paragraph itself did not do by virtue of the first sentence of Article 60 of the Statute: ‘[t]he judgment is final and without appeal’. But that being said, one might ask whether reiteration of an international obligation is really that objectionable, forming as it does part of the settled practice of the Court. In Bosnian Genocide, the apparent Bosnian breach of the ICJ’s first order of provisional measures was followed by another set of orders in which original measures were vigorously affirmed.348 Similarly, in Border Area/San Juan River, the Court’s initial response to Nicaragua’s recalcitrance following an award of interim relief was to reaffirm its earlier orders.349 However, this criticism makes more sense when one realizes that following the judgment in Avena, the US had withdrawn from the Optional Protocol to the VCCR that enabled the consular relations cases of Breard, LaGrand and Avena to be brought before the Court.350 As a consequence, Avena (Interpretation) was really about Mexico attempting to secure compliance with the Avena judgment rather than achieve a favourable interpretation351 – and its application for interim relief was a natural supplement to this final goal. Whilst this was seen by some of the judges to be laudable,352 it also set a precedent that others considered to be troubling.353 That being said, however, such criticisms are not really about provisional measures per se, but about their use in situations in which the interpretive jurisdiction of the Court is allegedly abused. Consequently, this criticism has less to do with provisional measures, and more to do with the Court policing the limits of Article 60, a question formally beyond the scope of this study. This point, however, should not be taken as granting international courts and tribunals complete discretion in awarding interim relief in interpretation proceedings. Although the link requirement is somewhat 347 348 349 350 351 353

Oellers-Frahm, ‘Article 41’, 1057. Bosnian Genocide, Provisional Measures, ICJ Reports 1993 p 325, 349–50. Border Area/San Juan River, ICJ Reports 2013 p 230, 241. Avena (Interpretation), ICJ Reports 2008 p 311, 334 (Judge Buergenthal). 352 Ibid, 351 (Judge Skotnikov, diss). Ibid, 348 (Judges Owada, Tomka and Keith). Oellers-Frahm, ‘Article 41’, 1057; Kolb, International Court, 797–8.

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flexible, it is not without its limits. While application of the requirement in the context of interpretive proceedings may lead to a court or tribunal taking a generous view of the width of the right to be interpreted, that does not excuse decoupling it entirely from the legal reality of the dispute and the scope of the original judgment. This may be demonstrated by the decision of the Court in Temple (Interpretation), which considered a request for interpretation issued some 50 years after the Court’s original decision in the Temple case. The original 1962 decision concerned the question of sovereignty over a tenth century Khmer temple constructed on the border between Cambodia and Thailand. In deciding the dispute, the Court placed particular reliance on the fact the Thailand had tacitly accepted Cambodia’s sovereignty over the temple by, inter alia, failing to object to Cambodia’s rival claim – reflected by a 1907 map – for some 50 years.354 Consequently, the Court concluded that ‘the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia’,355 and further held that: Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.356

The amorphous phrase ‘in its vicinity’ was to cause considerable trouble. In 2008, armed conflict broke out between Cambodia and Thailand over the former’s decision to ask UNESCO to list the temple and parts of the surrounding area as a World Heritage Site. In particular, Thailand considered part of the listed area to constitute Thai territory and that, in requiring Thailand to withdraw its forces from the ‘vicinity’ of the temple in 1962, the Court was not purporting to grant sovereignty to Cambodia over that area. Cambodia disagreed, and in 2011 requested an interpretation of the Court’s judgment in Temple, along with certain provisional measures. The parties argued the matter before the Court, and submitted territorial claims with an overlapping entitlement of approximately five square kilometres. When giving its decision on interim relief, the Court – in addition to the orders urging cooperation with ASEAN mentioned previously357 – set out a demilitarized zone (DMZ) comprising approximately 17 square kilometres surrounding the temple.358 354 355 356 357

Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962 p 6, 30–1. Ibid, 36. The Court further ordered that Thailand restore to the temple any objects removed therefrom by the Thai authorities: ibid, 37. 358 Above §II.D.2(b). Temple (Interpretation), ICJ Reports 2011 p 537, 552–5.

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Judge Donoghue penned a persuasive dissent against this measure, noting that the Court’s authority to give it stemmed from the interaction between Articles 41 and 60 of the Statute. Under the terms of the latter, she remarked, the Court only had jurisdiction to interpret rights that had been declared in the original proceedings and, further still, to interpret only those rights that had been the subject of dispute between the parties. As indicated previously, the scope of the dispute related only to the contested area in the ‘vicinity’ of the temple, which the parties defined as encompassing approximately five square kilometres. It excluded any area beyond that contested zone, and further excluded the temple itself, with both parties acknowledging that the 1962 judgment in Temple had unequivocally decided that question in Cambodia’s favour.359 For the Court to order a DMZ of 17 square kilometres that encompassed both the temple and areas that were not in dispute between the parties was accordingly to pronounce on rights that were not within the radically constrained jurisdiction ratione materiae provided to the Court under Article 60. Unlike Avena (Interpretation), therefore, the Court did not merely take a wide view of the rights that could fall to be interpreted – rather, the only equivalent within the existing jurisprudence on provisional measures is the decision of ITLOS to order the release of individuals arrested on the Prirazlomnaya in Arctic Sunrise where the only basis of jurisdiction invoked by the Netherlands concerned arrest of the vessel itself.360 As further argued above,361 whilst it is commendable that an international court or tribunal demonstrate some flexibility in its application of the link requirement, this does not justify an exercise in colouring outside the lines of its own jurisdiction – even where human life is threatened, as indeed it was in Temple (Interpretation).362 As Judge Donoghue noted: [I]n the case before the Court today, the present-day conflict between the Parties may be the impetus for the institution of an Article 60 proceeding, but the Court has no jurisdiction over it. It has no jurisdiction to delimit a boundary, to decide on sovereignty, to decide on State responsibility, to order the movement of military personnel or to impose any other remedy. It has jurisdiction only to decide legal questions that will resolve a dispute – a contestation – over three aspects of the meaning or scope of a prior judgment ‘within the limits of what was decided’ in 1962 [ . . . ]363 359 362

363

360 361 Ibid, 614 (Judge Donoghue, diss). See above §II.A.3. See above §II.A.4. For an examination of these aspects of the decision see Michelle Barnett, ‘Cambodia v Thailand: A Case Study on the Use of Provisional Measures to Protect Human Rights in Border Disputes’ (2012–2013) 38 Brook JIL 269. Temple (Interpretation), ICJ Reports 2011 p 537, 620 (Judge Donoghue, diss).

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Judge Donoghue continued to ask whether the DMZ could be justified as a measure designed to avoid aggravation of the dispute – though the Court did not seek to defend its order in these terms. However, she concluded that this was also not possible, again due to the restricted character of the dispute that was actually before the Court: Put another way, the conduct of the parties in the border region would not ‘aggravate’ the narrow and limited dispute about the meaning or scope of the words in a judgment. Thus, I do not find a jurisdictional basis for the include of the standard non-aggravation clause in today’s Order, nor do I see how the concept of non-aggravation could explain the decision of the Court to extend today’s measures beyond the areas that are the subject of the dispute over interpretation in the Article 60 proceeding.364

This summation appears to be quite correct – and is again uniquely linked to the restrained character of Article 60 jurisdiction, described by Judge Donoghue as long in duration, but narrow in scope.365 The dispute concerned the meaning of certain words that were penned in 1962. In a sense, therefore, the Court was excavating a time capsule and attempting to determine what it had actually buried some 50 years prior. The dispute between Cambodia and Thailand focused solely on the contents of the capsule, and the fact that certain other events (viz. armed conflict) were taking place contemporaneously with its excavation did not alter this fact or otherwise aggravate the fundamental difference of opinion – a further element that distinguishes Temple (Interpretation) from Avena (Interpretation), where individuals who were the subject of the original judgment were about to be executed. The distinction between these two cases, therefore, shines a light on the limits of permissible interlocutory action in interpretation proceedings and emphasizes the difference between acknowledging the wider reality of a dispute on the one hand and engaging in ‘unfettered legislation’366 on the other.

D ICSID Annulment Proceedings 1 The ICSID Annulment Mechanism The ICSID Convention provides for another form of post-adjudication review that goes further than interpretation, and authorizes the overturning of an ICSID award by another international body formed under the 364

Ibid, 623.

365

Ibid, 615.

366

Thirlway, 2 Law and Procedure, 1791.

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terms of the Convention, the ad hoc Committee. Described by the principal architect of ICSID as an ‘extraordinary and narrowly circumscribed remedy’,367 the core of the annulment mechanism is contained in Article 52(1) of the ICSID Convention, which provides as follows: Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) (b) (c) (d)

that the Tribunal was not properly constituted; that the Tribunal has manifestly exceeded its powers; that there was corruption on the part of a member of the Tribunal; that there has been a serious departure from a fundamental rule of procedure; and (e) that the award has failed to state the reasons on which it is based.

Excluded from these categories (which have been the subject of extensive commentary368 ) are the grounds of error of law and error in appreciation of fact. In this sense, the aim of the annulment mechanism is not to determine whether the original award was ‘right’ or ‘wrong’, but rather to balance the finality of awards with the need to prevent flagrant cases of excess jurisdiction and injustice. Moreover, a decision on annulment cannot replace the substantive conclusions of the original tribunal – it merely renders those proceedings a nullity so such that new proceedings must be initiated.369 In this sense, it is distinct from appeal as a method for the displacement of res judicata.370 Under the terms of Article 52, only ‘awards’ may be subject to annulment. For the purposes of the ICSID Convention, an award includes any 367

368

369 370

Aron Broches, ‘Observations on the Finality of ICSID Awards’ (1991) 6 ICSID Rev – FILJ 321, 327. This notwithstanding, the annulment facility has been bedeviled since inception by accusations that ad hoc Committees are threatening to break their banks at any second and convert their ‘circumscribed’ mandate into a fully-fledged appeal mechanism: see e.g. W Michael Reisman, ‘The Breakdown of the Control Mechanism in ICSID Arbitration’ [1989] 4 Duke LJ 739; Christoph Schreuer, ‘From ICSID Annulment to Appeal: Half Way Down the Slippery Slope’ (2011) 10 LPICT 211; Stephanie Mullen and Elizabeth Whitsitt, ‘Quantum, Annulment and the Requirement to Give Reasons: Analysis and Reform’ (2016) 32 Arb Int’l 59. See e.g. ICSID Commentary, 931–1023; Katia Yannaca-Small, ‘Annulment of ICSID Awards: Limited Scope Bit is There Potential?’, in K Yannaca-Small (ed), Arbitration under International Investment Agreements: A Guide to the Key Issues (New York: Oxford University Press, 2010) 603, 610–18; Doak Bishop and Silvia M Marchili, Annulment under the ICSID Convention (Oxford: Oxford University Press, 2012) Part II. Cf. ICSID Convention, Art 52(6); ICSID Rules, Rule 55. ICSID Commentary, 901–3; Yannaca-Small, ‘Annulment of ICSID Awards’, 608–10; Bishop and Marchili, ICSID Annulment, 22–4.

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decision of a tribunal that purports to dispose of a matter finally, whether it be a decision accepting or rejecting the claimant’s case on the merits and awarding or not awarding damages as a result, or a decision rejecting jurisdiction, which may be just as final and must be issued per Article 41(5) of the Convention as an award.371 Articles 52(2) and (3) establish certain procedural parameters for the ad hoc Committee. Article 52(2), any application for annulment must be made within 120 days of the handing down of the original award, save in cases of arbitrator corruption under Article 52(1)(c), in which case an application may be made within 120 days after the corruption is discovered and in any event within three years of the original award. Article 52(3) describes the process by which the ad hoc Committee is empanelled. Unlike the original tribunal, all three members of the Committee are selected from the Panel of Arbitrators by the Chairman of the ICSID Administrative Council, a function performed ex officio by the president of the World Bank per Article 5 of the Convention – though the Secretariat plays a large role in suggesting appropriate candidates. No member of the Committee may have been a member of the original tribunal, and none may be a national of either the host state of the investment or the home state of the claimant, or designated to serve on the Panel of Arbitrators by either of those states. The appointment procedure is further regulated by Rule 52 of the ICSID Rules.372

2 Provisional Measures in ICSID Annulment Proceedings In recent years, there has been a measure of quiet controversy as to whether an ad hoc Committee is capable of awarding interim relied.373 As a matter of principle, there is no reason why relief similar to that might be issued by an ICSID tribunal could be granted: the ad hoc Committee is essentially dealing with the same dispute as the original tribunal, though as a general rule both the factual and legal issues will be fewer and more specific. Indeed, the Preliminary Draft of the ICSID Convention expressly stated 371

372 373

It will not include a decision affirming jurisdiction, which in order to be final (and thus susceptible to annulment) must be incorporated into the final award expressly or by implication: ICSID Commentary, 538, 921. Ibid, 1027–35. The intricate procedural framework of ICSID seems to throw issues such as this up endlessly, even if they have not been expressly raised before any particular tribunal (even obliquely) and exist only as hypotheticals. For an example of one such procedural issue, not considered in the course of this study, see Matthew Coleman and Thomas Innes, ‘Provisional Measures During Suspension of ICSID Proceedings’ (2015) 30 ICSID Rev – FILJ 713.

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that ad hoc Committees had the capacity to award interim relief,374 such that it is clear that the drafters of the Convention did not see any general impediment to the award of provisional measures.375 The principal difficulty with the award of provisional measures annulment proceedings arises from the ICSID Convention itself. Article 52(4) provides on its face that ‘[t]he provisions of Articles 41–45, 48, 49, 53 and 54, and of Chapters VI and VII shall apply mutatis mutandis to proceedings before the Committee’. Conspicuous by its absence is Article 47 on provisional measures. Schreuer et al. relate that the absence of Article 47 from the expressly enumerated powers is explained by the fact that ‘under [Article] 52(5) an ad hoc committee has its own specialized power to impose interim measures pending the outcome of proceedings before it’.376 But this rather overstates the content of the referenced provision. Far from a general power to award interim relief during the pendency of annulment proceedings, Article 52(5) provides only that the Committee ‘may, if it considers that the circumstances so require, stay enforcement of the award pending its decision’.377 It is not difficult to see how narrowing the availability of interim relief in this way might result in an injustice. Two hypotheticals may be considered. In the first, the claimant is successful in obtaining a substantial award of damages against the respondent. There are concerns on the part of the respondent that the Tribunal failed to observe due process so as to result in the violation of a fundamental rule of procedure within the meaning of Article 52(1)(d). The case for annulment is strong, the respondent is willing to provide security and there will be no apparent hardship caused to the claimant. In such a case, it is clear to see how a simple stay of enforcement might be sufficient to alleviate any possibility of prejudice to the respondent. In the second, the respondent is successful in arguing that the Tribunal does not possess jurisdiction in a case concerning the expropriation of the claimant’s assets and the unlawful harassment and imprisonment 374 375

376

II-1 ICSID History, 218. In this, recourse may be had to the more relaxed form of the link requirement that has developed in ICSID jurisprudence, which requires only that the rights to be protected ‘relate’ to those that are the subject of the proceedings: Plama Consortium v Bulgaria, ICSID Case No ARB/03/24 (Order, 6 September 2005) §40. Further: Chapter 5, §II.C.3(a). Such recourse, however, would only be necessary if one took a very narrow view of the rights subject to litigation in an annulment proceeding, i.e. that the only right (other than allied procedural rights) that was considered pendente lite was the parties’ right to receive an award free from the defects enumerated in Art 52(1) of the ICSID Convention. 377 ICSID Commentary, 1055. Further: ibid, 1062–83.

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of its employees and associates. The Tribunal issues an award to this effect. The claimant is surprised by the decision and immediately acts to set it aside under Article 52(1)(b), arguing that the Tribunal is not empowered to decline jurisdiction when as a matter of law it possesses it. To make matters worse, evidence emerges that the arbitrator appointed by the respondent has recently assumed a position on the board of the state-owned corporation to which the claimant’s assets were transferred following their expropriation, raising the possibility of corruption under Article 52(1)(c). In such a case, Article 52(5) would offer little in the way of comfort to the claimant, as the only decision of the Tribunal is a negative one, and thus not susceptible to enforcement.378 When dealing with a problem of this kind, the first hurdle to clear is the textual impediment of Article 52(4) of the ICSID Convention. Two solutions present themselves. The first is based on Rule 53 of the ICSID Rules, which provides that ‘[t]he provisions of these Rules shall apply mutatis mutandis to any procedure relating to the interpretation, revision or annulment of an award and to the decision of the Tribunal or Committee’. Unlike Article 52(4), Rule 53 does not carve out Rule 39 concerning provisional measures. This, however, is a late development, with the first edition of the ICSID Rules of 1968 providing with respect to the interpretation, revision and annulment proceedings that ordinary procedure ‘excepting rules 39 and 40’ would apply, with the explanatory Note C confirming Schreuer et al.’s point that the relevant rules ‘relating respectively to provisional measures and ancillary claims, are not applicable to the procedures here specified’ and substituting instead the power of the relevant body to stay enforcement of an award under Rule 54.379 This carve out, however, was removed in ICSID’s 1984 revision of the Rules, which forms the basis of the current procedural regulation.380 378

379 380

It would further not be a defence to claim that in such a situation the ad hoc Committee could resurrect any provisional measures ordered by the Tribunal under Article 47 – the jurisdictional basis of such a power is by no means clear, the provisional measures in question will have lapsed formally with the handing down of the award, and it does not effectively deal with a situation in which the Tribunal in question did not award interim relief. 1 ICSID Reports 63, 113. As Rule 53 of the ICSID Rules also applies to interpretation and revision proceedings before the same or an equivalent tribunal, the removal of the excision further confirms that provisional measures are available with respect to those proceedings, to which a carve out similar to Art 52(4) does not apply. On the subject of the 1984 revision, see Antonio R Parra, The History of ICSID (Oxford: Oxford University Press, 2012) 138–41.

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This might be taken as an indication that the Centre now considers it possible for ad hoc Committees to award provisional measures and that as a consequence, Rule 53 now provides a basis of jurisdiction with respect to provisional measures similar to that granted to ITLOS with respect to advisory opinions by Article 138 of the ITLOS Rules.381 However, the fact remains that such a jurisdiction would appear to contradict Article 52(4) of the ICSID Convention and, furthermore, that ITLOS has justified the insertion of this apparent jurisdiction into its procedural rules by reference to an express provision in its constituent instrument, namely UNCLOS, Annex VI, Article 21.382 Put another way, ICSID may not be able to use its power over the procedural rules of its tribunals to bestow on them a power that does not appear in a constitutive instrument that reflects the will of the states parties thereto. The general wording in Article 44 that ‘[a]ny arbitration proceedings shall be conducted in accordance with the provision of this Section [including Article 47] and [ . . . ] in accordance with the [ICSID] Rules in effect on the date on which the parties consented to arbitration’ is not sufficient to override the express carve out of Article 52(4) in this respect. It was this position that was taken in obiter by the ad hoc Committee in Libananco v Turkey, which engaged in the only consideration of provisional measures and annulment proceedings to date. In that case, the claimant, on bringing annulment proceedings, requested interim relief and cited Rule 53 of the ICSID Rules in claiming that the Committee possessed the power to award interim relief on the basis of findings of fact made by the Tribunal – in effect, to revive provisional measures previously ordered by the Tribunal.383 The respondent resisted, relying on the carve out in Article 52(4) of the ICSID Convention.384 The Committee, for its part, found that the requirements for the award of provisional measures under Article 47 had not been met due to a lack of evidence of the relevant prejudice and urgency385 – but not before it expressed strong doubts about the existence of a power to award interim relief: The fact that Article 52(4) of the ICSID Convention does not refer to Article 47 of the Convention provides considerable support for the view that the Committee has no such competence. Moreover, it is at least doubtful whether the general reference in Article 44 of the ICSID Convention to the 381 383 384

382 Above §III.A.1. Fisheries Commission, ITLOS Case No 21, §58. Libananco Holdings Co Limited v Republic of Turkey, ICSID Case No ARB/06/8 (Provisional Measures: Annulment, 7 May 2012) §§5–9. 385 Ibid, §10. Ibid, §17.

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Arbitration Rules, as read together with Rules 39 and 53 of the Arbitration Rules, is sufficient to provide the Committee with such competence despite the absence in Article 52(4) of a reference to the specific Article dealing with provisional measures.386

Another issue is that of the limited mandate of ad hoc Committees within the wider ICSID framework. This position can be seen in the decision of the ad hoc Committee in Micula v Romania. In that case, the Committee dismissed a claimant request for interim relief at the annulment stage on the basis that a stay of enforcement of the award had already been granted by the Committee under Article 52(5) of the ICSID Convention and the claimant’s interest was therefore adequately protected. However, the Committee also considered its capacity to order interim relief to be restrained by the fact that it was not an appellate court and consequently had limited jurisdiction over the dispute. Accordingly, it was said: The Committee considers that the annulment proceeding, by its very nature, has a limited scope and function, established under Article 52 of the Convention, with respect to the award of the tribunal and its possible annulment on one of the specified grounds listed in Article 52(1). Also, the Committee notes that an ad hoc committee is not a court of appeal and cannot consider the substance of a dispute, nor can it entertain again the arguments of the parties relating to their respective rights in the dispute adjudicated by the tribunal. Taking into consideration the limited scope of the annulment proceeding, at this stage of the annulment proceeding, as distinguished from the proceedings before the Tribunal, the rights of the Respondents on annulment relate mainly to the enforcement of the Award. [ . . . ] The Claimants [ . . . ] appear to be seeking the protection of their rights to the preservation of the ‘status quo’ between the parties, but that is neither the purpose for which provisional measures should be granted nor does it fall within the scope and functions of the annulment proceedings as foreseen in Article 52 of the Convention.387

However, even with Article 47 removed as a possible basis for the award of provisional measures, it may be argued that the ad hoc Committee can nonetheless rely on its implied power as an international judicial or arbitral body to award interim relief in the absence of an express lex 386 387

Ibid, §15. Ioan Micula, Viorel Micula, SC European Food SA, SC Starmill SRL and SC Multipack SRL v Romania, ICSID Case No ARB/05/20 (Provisional Measures: Annulment, 18 August 2014) §§37–41.

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specialis to the contrary.388 This is the case irrespective of the Committee’s limited function as an annulment body (the issue foreshadowed in Micula v Romania) and constitutes the second – and more plausible – solution to the problem. Its general parameters may be seen in the case of Commerce Group v El Salvador,389 a case pertaining to the revocation of environmental permits and a refusal to renew mining licenses brought against El Salvador by two US investors under DR-CAFTA. The Tribunal initially found in favour of the respondent,390 and the claimants applied to have the decision annulled. After the claimants evidenced some difficulty in producing the advance on costs required in ICSID annulment proceedings (though this was ultimately paid),391 the respondent filed an application for security for costs. The characterization of applications for security for costs is a difficult one. The power to award such security is mentioned nowhere in the ICSID Convention or ICSID Rules – although some tribunals have held that security for costs can be awarded as a form of interim relief under Article 47.392 This point was not argued before the ad hoc Committee, however, with the respondent relying instead on ‘the Committee’s inherent powers to preserve the integrity of the proceeding’, and drawing a parallel with the Committee’s expressly granted power to order security when staying enforcement of an award.393 The claimants, in response, argued inter alia that granting the application would impose an ‘economic bar to the annulment proceeding’394 and further that the respondent’s request was in reality a request for interim relief which was barred by virtue of Article 52(4).395 Moreover, it was said, the respondent’s request had very little to do with the integrity of proceedings, but was overtly concerned with the respondent’s self-interest.396 388 389

390 391 392

393 394

Biwater Gauff (Tanzania) Ltd v Tanzania, ICSID Case No ARB/05/22 (Procedural Order No 3, 29 September 2006) §135. Further: Chapter 4, §§III.A, B. Commerce Group Corp and San Sebastian Gold Mines v El Salvador, ICSID Case No ARB/09/17 (Decision on El Salvador’s Application for Security for Costs, 20 September 2012). Further: Chester Brown, ‘Commerce Group Corp and San Sebastian Gold Mines, Inc v Republic of El Salvador: Security for Costs in ICSID Proceedings’ (2013) 28 ICSID Rev – FILJ 6. Commerce Group v El Salvador, ICSID Case No ARB/09/18 (Award, 14 March 2011). Brown, ‘Security for Costs’, 9. See e.g. RSM Production Corporation v Saint Lucia, ICSID Case No ABR/12/10 (Decision on Saint Lucia’s Request for Security for Costs, 13 August 2014) §§46–57. Further: Brown, ‘Security for Costs’, 10. Commerce Group v El Salvador, ICSID Case No ARB/09/18, Costs, §23. 395 396 Ibid, §31. Ibid, §33. Ibid, §33–4.

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The Committee began its analysis by neatly sidestepping the question of whether it had the power to order interim relief under the terms of Article 52, noting simply that the respondent had not phrased its application in such terms – accordingly, said the Committee, it would ‘assess the Respondent’s application only in the context of the Committee’s inherent power to safeguard the integrity of proceedings’.397 In this sense, the Committee agreed that it did indeed possess inherent powers, noting: [T]he exercise of an international tribunal’s inherent powers to safeguard the integrity of the proceedings is an extraordinary control and is to be resorted to only in compelling circumstances. As the guardian of the integrity of the proceeding, the Committee may, in the appropriate situation, use its inherent powers to order security for costs. However, the power to order security for costs should be exercised only in extreme circumstances, for example, where abuse or serious misconduct has been evidenced.398

In this connection, the Committee noted that several tribunals had refused to award security costs as a form of provisional measures on the basis that the situation was insufficiently ‘extraordinary’ to justify such relief.399 As such, the Committee similarly found that the situation before was similarly such as to not justify security for costs.400 The decision of the Committee in Commerce Group v El Salvador to rely on a series of provisional measures decisions – and apply their reasoning to an ostensibly separate inherent power to award security for costs – is an interesting one. In essence, what the Committee did was to issue interim relief by another name, and one gets the impression that had the respondent framed its application in terms of provisional measures, that the Committee would have agreed that it had the power to grant such a request. In any event, it was not the first time that an ad hoc Committee had determined that it possessed such powers in a general sense: a similar conclusion was reached in RSM Production v Grenada, with the Committee there holding that ‘international courts and tribunals have certain inherent powers which permit them to exercise powers that go beyond the terms of their constitutive instruments’, although it also cautioned that such powers could only be exercised where ‘necessary to ensure the performance of functions that have been expressly conferred’.401 397 401

398 399 400 Ibid, §43. Ibid, §§44–5. Ibid, §46. Ibid, §47. RSM Production Corporation v Grenada, ICSID Case No ARB/05/14 (Decision on RSM Production Corporation’s Application for a Preliminary Ruling, 7 December 2009) §20. On inherent powers in ICSID proceedings more generally, see Martins Paparinskis,

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This leads back to the question of whether, as suggested obliquely by the Tribunal in Libananco v Turkey and expressly by the respondent in Commerce Group v El Salvador, Article 52(4) is sufficient to prevent an ad hoc Committee from issuing any interim relief whatsoever, or only precludes such relief as awarded under the rubric of Article 47. In this sense, Article 52(4) is a lex specialis modifying the scope of the inherent power to the vanishing point.402 Given the negative wording of the provision – in the sense that one only knows that the provision is unavailable to the ad hoc Committee because it not mentioned expressly – any exclusion of an inherent power to award interim relief is by implication only: in removing recourse to Article 47, the argument runs, the parties to the ICSID Convention must also have meant that any equivalent inherent power was also excluded, otherwise the carve out would be without meaningful effect. Against this must be weighed the argument that during the pendency of annulment proceedings, considerable damage may be done to the interests that formed the subject matter of the original proceedings and thus to the jurisdictional mandate of the Committee. The arguments are finely balanced, but it is here submitted that the essential character of an inherent power is such that only an unusually specific lex specialis (e.g. one stating in terms that the Committee is incapable of issuing any interim relief other than a stay of enforcement) will suffice to remove the power entirely – and that threshold is not met on the face of Article 52(4). Otherwise, as highlighted in the second hypothetical mentioned previously, there is a risk of substantial injustice that may not be capable of remedy by a new tribunal in the event that the original award is annulled. That being said, the point alluded to by the Committee in Micula v Romania is a good one. Under Article 52 of the ICSID Convention, the role of the ad hoc Committee is limited. It is not an appellate court, and unless or until the Committee determines that one or more of the bases of annulment listed in Article 52(1) is applicable, any findings of law or fact made by the tribunal are formally res judicata.403 This will affect the provisional measures calculus. Accordingly, on the assumption that

402 403

‘Inherent Powers of ICSID Tribunals: Broad and Rightly So’, in I Laird and T Weiler (eds), Investment Treaty Arbitration and International Law: Volume 5 (New York: JurisNet, 2012) 11. Further: Chapter 4, §III.D.2. An award determining that a tribunal lacks jurisdiction is exempt from this: the ad hoc Committee is granted its own basis of jurisdiction via the operation of Art 52 of the ICSID Convention. It is accordingly not reliant on the tribunal’s jurisdiction (vel non) to establish prima facie jurisdiction for the purposes of provisional measures.

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the Tribunal has dismissed the claim, the Committee is unable to make any interim measures decision predicated on the substantive rights of the claimant, as the tribunal has already determined that those rights either do not exist or have not been breached by the respondent. Accordingly, there is no recognizable right (in this sense) that might be protected by provisional measures. But this cuts both ways. If the Tribunal has affirmed that the claimant possesses rights and that those rights had been breached, then the position is reversed, and the Committee could recognize a basis on which substantive provisional measures could be granted, i.e. as protection of the rights recognized in the award.404 Moreover, even assuming a situation in which the Tribunal dismissed a claim in its entirety, measures for the protection of rights pendente lite are not the only valid basis for provisional measures. Parties may still act so as to aggravate or extend the dispute and the Committee would retain the jurisdiction to intervene in this respect. Further and in addition, the claimant’s ongoing procedural rights and the integrity of proceedings may also fall to be protected. Consequently, the limitation identified in Micula v Romania, whilst substantial, by no means eliminates the potential for Committee action completely.

E Modification or Revocation of Provisional Measures 1 Procedures of Modification or Revocation As has been reiterated throughout this book, provisional measures remain a somewhat exceptional remedy in international law, to be ordered when required urgently by the circumstances of the case. Furthermore, specific measures may reflect a particular situation at the time at which the measures are ordered. When this underlying factual matrix shifts, these measures may not be sufficient to protect the rights that are to be safeguarded. Alternatively, the urgency that required that provisional measures be awarded in the first place may have dissipated, rendering them surplus to requirements. Given this sensitivity to underlying circumstances, it may be necessary for a court or tribunal to modify provisional measures – or revoke them altogether.405 404 405

This is only true to the extent that the right in question has not already been discharged at first instance, e.g. via an award of damages. In this connection, ‘revocation’ refers to the total nullification of existing provisional measures – a ‘revocation in part’ would be considered to be a modification or amendment: Oellers-Frahm, ‘Article 41’, 1060.

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Many of the courts and tribunals surveyed provide for the modification or revocation of provisional measures as part of their procedural rules. The ICJ Rules contain a lengthy provision to this effect in Article 76, which provides in terms: (1) At the request of a party the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification. (2) Any application by a party proposing such revocation or modification shall specify the change in the situation considered to be relevant. (3) Before taking any decision under paragraph 1 of this Article the Court shall afford the parties the opportunity of presenting their observations on the subject.

Similarly, UNCLOS Article 290(2) provides that ‘[p]rovisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist’. Connected to this is Article 93 of the ITLOS Rules, which states in terms: A party may request the modification or revocation of provisional measures. The request shall be submitted in writing and shall specify the change in, or disappearance of, the circumstances considered to be relevant. Before taking any decision on the request, the Tribunal shall afford the parties an opportunity of presenting their observations on the subject.

In the investor-state context, Rule 39(3) of the ICSID Rules provides that a tribunal ‘may at any time modify or revoke its recommendations’, with paragraph (4) of the same providing that parties must be given the opportunity to comment before any modification or revocation is made.406 Article 26(5) of the 2010 UNCITRAL Rules provides that a tribunal may ‘modify, suspend or terminate and interim measure it has granted, upon application of party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative’. A related provision is paragraph (7) of the same, which requires a party promptly to disclose any material change in the circumstances on the basis of which the interim measure was requested or granted. No such elaborations, however, were contained in Article 26 of the 1976 UNCITRAL Rules, with the question of revocation or modification governed by the antecedent issue of whether the tribunal had availed 406

See also ICSID (AF) Rules, Arts 46(2), (3).

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itself of the option – given in Article 26(2) – that interim measures be established in the form of an interim award, or whether it had elected to issue them as a simple procedural order.407 If the latter was the case, then a tribunal’s general control over its own procedure pursuant to Article 15(1) would permit modification or revocation. If the former applied, however, then under Article 32(2), the interim award was final and binding on the parties, and could only be superseded in effect by a later award.408 This potential still exists in relation to Article 26 of the 2010 UNCITRAL Rules. Although that provision removed the express power to issue provisional measure in the form of an interim award, Article 34 permits a tribunal to issue ‘separate awards on different issues at different times’, a form of words that includes provisional measures.409 The option to modify or revoke a previously awarded provisional measure is also completely absent from Paragraph 28 of Annexure G to the Indus Waters Treaty. But it does not seem unfair to – in the absence of any express authorization in a court or tribunal’s constitutive instrument or procedural rules – extend that capacity to the body in question (or indeed any international court or tribunal) on the basis that it is necessary for the effective use of the power to award interim relief. It is clear that certain courts and tribunals consider this proposition to be uncontroversial – as noted earlier, with respect to the ICJ, the power appears in the procedural rules of the Court, as prepared and revised by the Court itself, rather than the ICJ Statute, which is the subject of consent by the states parties thereto. At any rate, absent a procedural inconsistency (i.e. lex specialis) of the kind seen in the 1976 and 2010 UNCITRAL Rules (and even then, only if interim relief is given as an award), it may safely be assumed that the capacity to modify or revoke provisional measures is part of an international court or tribunal’s inherent power order interim relief. A separate question concerns whether a court or tribunal is capable or modifying or revoking provisional measures of its own volition. Article 76(1) of the ICJ Rules would seem to indicate that modification or revocation may only occur ‘[a]t the request of [a] party’.410 This may be contrasted with Rule 39(3) of the ICSID Rules, which permits such action to be taken ‘at any time’. With respect to courts and tribunals 407 408 410

David D Caron and Lee M Caplan, The UNCITRAL Arbitration Rules: A Commentary (Oxford: Oxford University Press, 2nd edn, 2013) 525. 409 Ibid, 526. Ibid, 524. Interestingly, Art 61 of the 1946 iteration of the ICJ Rules (based on Art 36 of the 1936 PCIJ Rules) and Art 66 of the 1972 ICJ Rules provided the Court with the power to modify or revoke interim relief proprio motu: Chapter 3, §II.C.1.

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such as the ICJ that appear to condition modification or revocation on a party’s request, it would indeed appear that the default position of such a court is that modification or revocation will not be ordered sua sponte.411 However, three important qualifications apply. In the first place, where provisional measures were themselves ordered pursuant to a court or tribunal’s power to order interim relief proprio motu, it seems logical to assume that such measures can also be modified or revoked proprio motu if the court or tribunal considers it necessary.412 In the second, given the essential interests that provisional measures protect and the weighty burden they can impose, in the event that the underlying circumstances shift such that modification or revocation is justified, it can be assumed that the court or tribunal will not need to wait too long before a party makes an application to that effect. Finally, where the procedural regulation that requires that a party request modification or revocation before the court or tribunal can act is set by the court or tribunal itself, it can be argued that the capacity of such a body to control its jurisdiction and general considerations of the administration of justice would apply to permit modification or revocation proprio motu, such action may be possible if the circumstances are sufficiently extraordinary.413 The same will not apply where the need for a request appears in the constitutive instrument of the court or tribunal, or in a procedural regulation that is the subject of agreement by the parties. The key example of this is UNCLOS Article 290(3), providing that ‘[p]rovisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute, and after the parties have been given an opportunity to be heard’. As this is the constitutive instrument of ITLOS and any Annex VII tribunal, it represents an insoluble lex specialis with respect to provisional measures, and cannot be the subject of derogation.

2 Justifying Modification or Revocation In circumstances where interim relief has not been given proprio motu, the question arises as to what change in the underlying circumstances must 411

412 413

Oellers-Frahm, ‘Article 41’, 1060; Kolb, International Court, 635; Andr´es Sarmiento Lamus, ‘Revocation and Modification of Provisional Measures Orders in the International Court of Justice: The Court’s Order Regarding Certain Activities Carried Out by Nicaragua in the Border Area and the Case Concerning Construction of a Road in Costa Rica along the San Juan River Joint Proceedings’ (2013) 12 LPICT 463, 472–3. See Kolb, International Court, 635. Cf. Sarmentio Lamus, ‘Revocation and Modification’, 473. Kolb, International Court, 635–6. Further: Job 1:21.

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a party demonstrate before modification or revocation will be permitted. Until recently, this was something of an unknown, as parties had requested modification or revision only rarely, and in circumstances that did not permit international courts or tribunals to illuminate its thinking on the subject. Of the courts and tribunals surveyed, the ICJ has considered the issue of modification and revocation most often, and it is its practice that will likely prove the most resilient and influential. In the Sino-Belgian Treaty case, President Huber awarded provisional measures upholding certain provisions of the relevant agreement on an interim basis. Shortly thereafter, the Belgian and Chinese governments concluded a provisional regime that upheld the original treaty until such time as a new agreement could be concluded. This development was reported to the Court, accompanied by a Belgian declaration that revocation of the interim relief awarded would reflect the wishes of both governments.414 On this basis, President Huber declared: Considering that, under these conditions, the new fact brought to the knowledge of the Court by the abovementioned communication from the Agents of the Belgian Government has removed the circumstances which, according to the terms of the Order of January 8th, required the indication of measures of protection; Considering that in the present case there are no other circumstances independent of the legal situation created by the Parties, resulting either from agreements concluded between them or from unilateral declarations in regard to matters concerning which they may use their discretion, which would point to the indication of measures of protection in the interests of the procedure alone; Considering that measures of protection, indicated by the Court as being for purely legal reasons rendered necessary by circumstances, cannot be dependent, as regards their applicability, upon the position of negotiations that may be in progress between the Parties; that, consequently, the Order of January 8th, 1927, indicating measures of protection can, if revoked, only be so finally and in its entirety, [The Court declares] that the Order indicating measures of protection made [ . . . ] on January 8th, 1927, shall cease to be operative.415

This passage is notable in that it indicates formal adherence to the position that provisional measures are legal devices ordered in response to specific 414 415

Sino-Belgian Treaty, Order of 15 February 1927 (1927) PCIJ Ser A No 8, 9. Ibid, 11.

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circumstances. Even in circumstances in which the parties agree that provisional measures should be modified or revoked, a court or tribunal must still go through the process of determining whether or not the situation that justified provisional measures in the first place has now changed. Put another way, party agreement is not determinative of the issue – though it probably carries a great deal of weight. This position is also reflected in Certain Documents and Data. There, Australia decided to return the relevant documents, which it had placed under seal following the ICJ’s award of provisional measures. With the agreement of Timor-Leste, it applied to the court under Article 76(1) of the ICJ Rules, requesting that the measures be modified such that the documents could be returned. The Court agreed that the modification could take place: In view of the foregoing, and in reaching its decision on Australia’s request, the Court takes the view that the change in situation is such as to justify a modification of the Order of 3 March 2014. Taking account of the Parties’ agreement regarding the return of the seized documents and data, which, by necessary implication, includes any copies thereof, the Court considers that it should now authorize such return, while maintaining the obligation for Australia to keep under seal that material until its transfer has been completed under the supervision of a representative appointed for that purpose by Timor-Leste. The Court must be duly informed that the return has been effected and at what date that return took place. The modification resulting from the present Order is without effect on the measures indicated in points 1 and 3 of the operative part of the Order of 3 March 2014 [ . . . ], which will continue to have effect until the conclusion of the present proceedings, or until further decision of the Court.416

The presence of party agreement in both the Sino-Belgian Treaty case and Certain Documents and Data may be seen to have caused such a seismic change to the underlying situation that the Court did not require much in the way of consideration before agreeing to revoke and modify the relevant provisional measures, respectively.417 The only instance in which the ICJ has engaged in substantive reflection on what is required for modification and revocation to be justified is in Border Area/San Juan River, and its Order of 16 July 2013 stands as the most significant decision to date on this subject.418 416 417 418

Certain Documents and Data, ICJ, Order of 22 April 2015, §§18–19. Generally: Sarmiento Lamas, ‘Revocation and Modification’. Cf. Bosnian Genocide, ICJ Reports 1993 p 325, 337. There, Bosnia and Herzegovina invoked Art 76 of the ICJ Rules in order to have the ICJ modify its earlier award of interim relief. The Court found, however, that the additional measures requested by

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As has been described,419 the ICJ in Border Area awarded provisional measures requiring both Costa Rica and Nicaragua to – with some limited exceptions – refrain from sending personnel into the disputed area.420 Following the joining of Border Area to San Juan River,421 Costa Rica filed a motion with the Court requesting modification of those measures under Article 76 of the ICJ Rules. Costa Rica asserted that whilst Nicaraguan military personnel may have withdrawn from the contested area, Nicaragua continued to maintain an educational programme whereby young Nicaraguan nationals were sent into the zone. Accordingly, Costa Rica asked for the imposition of additional provisional measures so as to levy a positive obligation on the parties to prevent unauthorized persons from entering the disputed area. Nicaragua, in response, asserted that these nationals were private persons belonging to the Guardabarranco Environmental Movement, undertaking ‘environmental sustainability’ activities within the contested area, and hence outside of its control. Furthermore, in its observations on the Costa Rican request, Nicaragua requested that the Court modify its order in Border Area so as to allow for the imposition of provisional measures in San Juan River. Consequently, the Court was confronted with a situation in which both parties had lodged unilateral requests for modification under the terms of Article 76. In considering these dual applications, the Court, noted that its task should be considered: [To] first ascertain whether, taking account of the facts now brought to its attention by each of the Parties, there is reason to conclude that the situation which warranted the introduction of certain provisional measures in March 2011 has changed since that time.422

It then continued: If that is so, then it will have to consider whether such a change justifies a modification by the Court, as sought by the parties or otherwise, of the measures previously indicated.423

The Court therefore prescribed a test focusing on two questions: (1) has there been a change in the underlying situation; and (2) is that change such as to justify modification (or, alternatively, revocation)?

419 421 422

Bosnia and Herzegovina were inappropriate in the circumstances, and did not overtly consider questions of underlying change. 420 Chapter 5, §III.B.3. Border Area, ICJ Reports 2011 p 6, 27. San Juan River, Joinder of Proceedings, ICJ Reports 2013 p 184; Border Area, Joinder of Proceedings, ICJ Reports 2013 p 166. 423 Border Area/San Juan River, ICJ Reports 2013 p 230, 234. Ibid.

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In addressing the first question in the context of Costa Rica’s request, the Court noted that its original Order of 8 March 2011 made no reference to private persons entering the disputed area – it had merely required the parties not send or maintain persons in the area, both verbs implying deliberate acts. Put another way, the presence of the relevant individuals had not been contemplated when the Court made its original order, resulting in a change to the underlying situation.424 The same could not, however, be said with respect to the Nicaraguan request, which appeared to rely on the joinder of Border Area to San Juan River to claim that just as the situation in Border Area had been altered, so too had the situation in San Juan River – or, to put it another way, the factual matrix underlying the two procedures was, from the point of view of provisional measures, now the same. The Court was unimpressed by this submission, and noted that when Nicaragua had originally filed its application in San Juan River, it had asked the Court to award provisional measures proprio motu with respect to that situation – a request the Court had rejected unanimously due to a lack of irreparable prejudice.425 The procedural fact of joinder did not alter this situation, such that: Nicaragua’s request for the Order of 8 March 2011 to be modified or adapted does not have any bearing on the situation addressed in that Order. It cannot, as such, be based on any ‘change in the situation’ that gave rise to the indication of provisional measures in the [Border Area] case.426

With respect to the first limb of the test for modification or revocation as set out, therefore, two sub-elements may be seen to be present. Firstly, A new fact or circumstance sufficient to ground revocation or modification must have, in some way, not have been presented to the Court in the context of any previous request. The sudden appearance of civilian personnel in the disputed area in the guise of the Guardabarranco movement fulfilled this criterion. Secondly, the new fact or circumstance constituting the change must be related in some way to the dispute before the Court as it existed at the time at which it was first brought before the court: as such, although Border Area and San Juan River were joined by the Court to be dealt with in the context of a single judgment on the merits, the factual matrix underlying the two cases and any resulting provisional measures remained formally separate. Thus, ‘even if the situation invoked in the 424 425 426

Ibid, 236–7. Ibid, 237. Further: San Juan River, Provisional Measures, ICJ Reports 2013 p 398, 407. Border Area/San Juan River, ICJ Reports 2013 p 230, 237.

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[San Juan River] case were to justify the indication of provisional measures, the appropriate method of securing that is not the modification of the Order made in the [Border Area] case’.427 The Court then moved to address the second limb of the test as set out, equating the modification to the indication of provisional measures in the sense that it reapplied the criteria that it had utilized for the initial award of interim relief. Put another way, the Court asked, if the request were brought for the first time, would the award of the ‘new’ provisional measures requested be justified?428 Depending on the precise scope of the new measures requested, the Court may not need to revisit some of these prerequisites in anything more than a formalistic way. It is clear that in almost all cases, the Court will need to assess the presence of urgency and irreparable prejudice. Depending on the rights that the applicant seeks to have protected, it might also include considerations of the link or plausibility tests.429 Rarely, it would seem, will the Court need to revisit the question of prima facie jurisdiction or admissibility.430 When considering the revocation of provisional measures, the calculus changes slightly. The Court must at the very least assess the absence of urgency or irreparable prejudice. One can also foresee a situation, after a jurisdictional ruling, where the Court would need to engage in a wider consideration. Where multiple bases of jurisdiction were raised as part of the original provisional measures application, and some (but not all) of these have been excluded when the Court has considered the question of its jurisdiction in full, certain of the rights in respect of which interim protection was awarded may no longer qualify for adjudication and thus automatically fail the requirement of linkage, necessitating either partial (i.e. modification) or full revocation. In the case at hand, the Court considered whether the change represented by the introduction of the Guardabarranco movement to the wider 427 429

430

428 Ibid. Ibid, 238. A parallel may be drawn in this respect for the decision on revocation or modification of provisional measures by the ICSID tribunal in Lao Holdings v LPDR, ICSID Case No ARB(AF)/12/6, §§8ff. In that case, the claimant sought to build on the Tribunal’s original measures for non-aggravation through the introduction of new measures halting a domestic criminal prosecution. In deciding whether the new measures were to be awarded, the Tribunal revisited the link requirement before going on to assess in great detail whether the enjoining of the relevant criminal investigation was truly justified. See further above §II.C.2. Cf. in this respect Border Area/San Juan River, ICJ Reports 2013 p 230, 254–6 (Judge Canc¸ado Trindade, diss), 275–6 (Judge ad hoc Dugard).

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Border Area/San Juan River situation was such as to justify the modification of its original order. It concluded it was not, the factors raised by Costa Rica not being such as to demonstrate irreparable prejudice and urgency sufficient to justify the imposition of interim relief beyond what had initially been awarded: it did, however, affirm its original measures and placed its ‘concern’ on the record, an indication to Nicaragua that unless appropriate control was exercised over its nationals, any further Costa Rican requests would be viewed more favourably.431 In all, the Court’s Order of 16 July 2013 provides some helpful clarification with respect to the law surrounding modification or revocation of provisional measures – further enhanced by a consideration of the ramifications of joinder in such a situation (a confluence that, in fairness, is unlikely to be repeated). In line with the influence of the ICJ when concerning questions of interim relief generally as between international courts and tribunals, it will doubtlessly be examined closely when further requests for modification or revocation arise. 431

Ibid, 239–40. As indeed they were: Border Area/San Juan River, Provisional Measures, ICJ Reports 2013 p 354.

9 Litigation Strategy and Provisional Measures

I Introduction International litigation does not exist in a vacuum. The submission (or attempted submission) of a dispute to the jurisdiction of an international court or tribunal does not negate the fact that the dispute in question exists initially as a difference of opinion between two parties that may be described (and may have arisen) without reference to legal rules. Two observations follow. Firstly, parties do not usually litigate with a view to establishing a particular legal rule – rather, their goal is a specific factual outcome. Secondly, given the primacy of that outcome, parties may engage in parallel forms of dispute resolution (both formal and informal) to achieve their objectives. The motivations and goals of the parties that underpin a decision to initiate, join or resist litigation in particular cases may be referred to as litigation strategy.1 This chapter aims to highlight the increasing role of provisional measures as an element of litigation strategy before international courts and tribunals and, more particularly, to analyse how an application for such measures might advance some interest beyond that of safeguarding a right pendente lite or forestalling further aggravation of a dispute. It will proceed first by examining the range of different purposes that might underlie a request for interim relief: the notion of provisional measures as informing the future conduct of the proceedings; the influence of provisional measures on the wider dispute, even where compliance is not expected; and those situations in which the applicant may see provisional measures as the primary objective of the proceedings. It will also consider the viability of the so-called ‘proceed at own risk’ principle, and whether this can in its own right justify a request for interim relief, even if the prospects for the award of such relief are modest. Secondly, it will examine the doctrine 1

Terry D Gill, Litigation Strategy at the International Court: A Case Study of the Nicaragua v United States Dispute (Dordrecht: Martinus Nijhoff, 1989) 49–54.

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of abuse of rights in international law and address the question whether an application for provisional measures may be inadmissible on the basis that it constitutes an abuse of process.

II Different Purposes of Provisional Measures A frequent criticism (or perhaps observation) of provisional measures is that they are rarely complied with in full and often not at all. Certainly, this seems to be the case before the ICJ. In a 2004 study on questions of compliance before the Court,2 Schulte points out that every order on provisional measures prior to 1984 – including Anglo-Iranian Oil,3 the Fisheries Jurisdiction cases,4 the Nuclear Tests cases,5 Tehran Hostages6 and Nicaragua7 – was the subject of open defiance in whole or in part. With respect to the other orders within the scope of her study, Schulte is able to satisfy herself as to total compliance with respect to one decision only: Burkina Faso/Mali.8 Her final verdict is that the record of obedience was ‘far from satisfactory’, though she does note that in some cases partial implementation of interim relief and other ameliorative effects indicated that the orders were not completely pointless.9 Other scholars are not so kind, and academic assessment of compliance tends to range from ‘relatively weak’10 to ‘abysmal’.11 The picture is scarcely better following the ICJ’s declaration in LaGrand that measures ordered under Article 41 2

3 4

5 6 7 8 9 10 11

Constanze Schulte, Compliance with Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004) 399–402. See also Aloysius P Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’ (2008) 18 EJIL 815. Anglo-Iranian Oil Co (UK v Iran), Interim Measures of Protection, ICJ Reports 1951 p 89. Fisheries Jurisdiction (UK v Iceland), Interim Measures, ICJ Reports 1972 p 12; Fisheries Jurisdiction (UK v Iceland), Interim Measures, ICJ Reports 1973 p 302; Fisheries Jurisdiction (FRG v Iceland), Interim Measures, ICJ Reports 1972 p 30; in passim, Interim Measures, ICJ Reports 1973 p 313. Nuclear Tests (Australia v France), Interim Measures, ICJ Reports 1973 p 99; Nuclear Tests (New Zealand v France), Interim Measures, ICJ Reports 1973 p 135. United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, ICJ Reports 1979 p 7. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Provisional Measures, ICJ Reports 1984 p 169. Frontier Dispute (Burkina Faso/Mali), Provisional Measures, ICJ Reports 1986 p 3. Schulte, Compliance with Decisions, 402. Llamzon, ‘Jurisdiction and Compliance’, 821. Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992) 234 Hague Recuiel 9, 219; Michael K Addo, ‘Interim Measures for the Protection of Rights under the Vienna Convention on Consular Relations’ (1999) 10 EJIL 713, 721.

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of its Statute are binding,12 particularly in cases where the dispute boasts a nexus with armed conflict or touches on a substantial artifact of domestic policy.13 Significant breaches may be seen to have occurred in a number of high-profile cases, including Avena,14 Armed Activities,15 and Border Area16 – though there are also significant instances of compliance, such as Certain Documents and Data.17 This record, however, appears confined to the ICJ, at least amongst the courts and tribunals here addressed. Provisional measures ordered under UNCLOS Article 290 have been generally complied with (though not always fully)18 and the record of implementation in investor-state matters is also relatively high,19 the egregious example of Chevron v Ecuador aside.20 But notwithstanding the less than encouraging record described above (at least with respect to the ICJ) there remain extremely good reasons why a party would want to apply for provisional measures, even if a corresponding failure to comply is to be expected. These will now be analyzed.

A Provisional Measures and the Future Conduct of Litigation Litigation is an inherently uncertain process that effectively removes an argument from the hands of the disputants and places it in those of a neutral third party. As a consequence, parties may wish to obtain as much information as possible as to which way the adjudicator is leaning prior to its final decision. Information so obtained may enable a party to modify its approach to the court or tribunal to enhance its chances of success, or 12 14 15 16

17 18

19 20

13 LaGrand (Germany v US), ICJ Reports 2001 p 466, 502–3. Chapter 7, §IV.B.1. Avena and Other Mexican Nationals (Mexico v US), Provisional Measures, ICJ Reports 2003 p 77; in passim, ICJ Reports 2004 p 12, 70. Armed Activities in the Territory of the Congo (DRC v Uganda), Provisional Measures, ICJ Reports 2000 p 111; in passim, ICJ Reports 2005 p 168, 258–9. Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, ICJ Reports 2013 p 230, 236; in passim, Provisional Measures, ICJ Reports 2013 p 354, 368–9. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), ICJ, Order of 3 March 2014. Even if, as in Arctic Sunrise, compliance was not formally prompted by the ordering of interim relief: Arctic Sunrise (Netherlands v Russian Federation), ITLOS Case No 22 (Provisional Measures, 22 November 2013). Cf. John Vidal, ‘Arctic 30: Russia releases Greenpeace ship’ (The Guardian, 6 June 2014), www.theguardian.com/environment/2014/jun/ 06/arctic-30-sunrise-russia-to-release-greenpeace-ship. Chapter 7, §IV.B.2. Recounted in Chevron Corporation and Texaco Petroleum Company v Ecuador, PCA Case 2009–23 (Fourth Interim Award on Interim Measures, 7 February 2013) §§35–76.

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direct resources towards other forms of dispute resolution (e.g. negotiated settlement) as required.21 Furthermore, given the consensual character of international dispute resolution, information may be required not only with respect to the court or tribunal’s final view on the merits, but also in relation to any conclusions relating to jurisdiction or admissibility. Within the generally accepted model of international adjudication, the most effective way to obtain information as to the deliberations of a court or tribunal is through an application for provisional measures, as the preconditions for relief that the court or tribunal must assess to replicate at a high level the process of its reasoning on the merits can shed light on its initial views of the merits. The extent to which this is a useful exercise depends in part on the court or tribunal in question, and more particularly, the extent to which it is willing to engage in an examination of the merits prior to the award of provisional measures: the more extensive the review, the more revealing the application as a method of gauging the thinking of the court or tribunal. On the other hand, parties may be reluctant to reveal too much of their case. A fully argued application for interim relief will also give the respondent an appreciation of the applicant’s case. Furthermore, parties may wish to avoid making unnecessary concessions in the hope of increasing their chances of success with respect to provisional measures. As applications for interim relief may in some cases take place years before the merits are argued, what seems to be a wise concession of fact or law at the time of an application may prove harmful to a party’s case when the contours of the dispute are uncovered in full.

1 The International Court of Justice With respect to the ICJ, one might be forgiven for thinking that, prior to LaGrand, the capacity to extract information from the Court by way of an interim measures application was limited: in the main, the Court refused to pronounce on questions relating to the merits.22 Post-LaGrand, however, the Court’s efforts to increase its jurisprudential rigour have prompted the development of the so-called plausibility requirement,23 under which the Court has declared that ‘the power [ . . . ] to indicate 21

22

Karin Oellers-Frahm, ‘Use and Abuse of Interim Protection before International Courts and Tribunals’, in H P Hestermeyer et al. (eds), 2 Coexistence, Cooperation and Solidarity: Liber Amicorum R¨udiger Wolfrum (Leiden: Martinus Nijhoff, 2012) 1685, 1686–7. 23 Chapter 5, §II.D.1(a). Chapter 5, §II.D.1(b).

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provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible’24 in the sense that they may be said to exist and be held by the applicant as a matter of law. Although, as Collins has argued, anything short of a full merits review deprives the parties of a complete ‘sneak peek’ that might otherwise encourage settlement,25 the Court seems cognizant of the fact that the primary purpose of interim relief is not the facilitation of negotiations but the preservation of rights pendente lite. Although less stringent than a prima facie review of the merits, the plausibility test is capable of providing insight into how the Court might view the merits – especially where a right forming the basis of the claim is somewhat speculative. In Certain Documents and Data, the Timorese case as to why Australia had breached international law in respect to seizing confidential materials belonging to Timor-Leste from a Canberra solicitor’s office was premised on ownership and property rights asserted over the seized material, which were said to entail rights to inviolability and immunity of the property and to confidentiality of communications between Timor-Leste and its legal advisers. It was further argued that confidentiality of communications between legal counsel and client was covered by legal professional privilege, which Timor-Leste asserted was a general principle of law.26 Australia, for its part, denied the existence of such rights within international law in the context of retainer of an Australian legal practitioner. Thus the legal basis of the Timorese claim became a directly contested issue.27 Consequently, the Court’s determination as to whether these rights could be considered ‘plausible’ for the purposes of interim relief was highly significant, and its conclusion that at least some of the rights asserted by Timor-Leste were plausible could have contributed to Australia’s decision to settle the dispute and return the material seized.28 Collins’ criticisms do not apply to the ICJ’s assessment of preliminary objections within the interim relief calculus, with the Court engaging in a prima facie review of both jurisdiction29 and admissibility30 that gives 24

25 26 28 29

Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Provisional Measures, ICJ Reports 2009 p 139, 151. Cf. Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, ICJ Reports 2006 p 113, 140–1 (Judge Abraham). Collins, ‘Provisional and Protective Measures’, 27. 27 Certain Documents and Data, ICJ, §24. Ibid, §25. Certain Documents and Data, ICJ, Order of 11 June 2015. 30 Chapter 4, §IV.A.2. Chapter 4, §V.B.

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a clear indication of its early thinking.31 Furthermore, given the Court’s aversion to reversing its position on preliminary matters once these have been pronounced on provisionally,32 any hints given in this context take on considerable weight. A respondent relying on an objection to jurisdiction or admissibility to prevent the Court from addressing a comparatively weak case on the merits would be well-advised to take such a decision into account when deciding whether to settle. In such a situation, a claimant that secures interim measures may have obtained a substantial early victory.33 However, this should not be taken as an incentive for the claimant to apply for provisional measures in the hope of having the Court ratify its jurisdiction in every case: the Court has indicated that it reserves the right to remove a case from its list where it determines jurisdiction to be manifestly lacking.34 The same logic would apply, mutatis mutandis, to situations in which a claim is manifestly inadmissible. Consequently, every application for provisional measures by a claimant carries with it a risk of dismissal, albeit negligible in most situations. Beyond considerations of preliminary objections and the merits, a provisional measures application might also lead to the Court revealing its thinking on remedies.35 In Great Belt, for example, the Court indicated that whilst it was not minded to grant the Finnish request for provisional measures due to lack of urgency with respect to Denmark’s construction of a bridge over an international channel,36 it further noted that ‘the possibility cannot and should not be excluded a priori of a judicial finding that 31

32

33 34

35 36

Cf. E Jimenez de Ar´echaga, ‘International Law in the Past Third of a Century’ (1978) 159 Hague Recueil 9, 161: ‘interim measures will not be granted unless a majority of judges believes at the time [of the application] that there will be jurisdiction over the merits’. Such a reversal has taken place in only two cases, one of which was decided before the Court had fixed on prima facie review as the appropriate standard of inquiry: AngloIranian Oil, ICJ Reports 1951 p 89; in passim, Preliminary Objections, ICJ Reports 1952 p 93; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, ICJ Reports 2008 p 353; in passim, Preliminary Objections, ICJ Reports 2011 p 70. Oellers-Frahm, ‘Use and Abuse’, 1687. This remains, however, a rare occurrence, having occurred only once: Legality of Use of Force (Yugoslavia v Spain), Provisional Measures, ICJ Reports 1999 p 761, 769; Legality of Use of Force (Yugoslavia v US), Provisional Measures, ICJ Reports 1999 p 916, 925. Cf. Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda), Provisional Measures, ICJ Reports 2002 p 219, 249. Further: Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) 132–4. Oellers-Frahm, ‘Use and Abuse’, 1687. Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1992 p 12, 18.

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such works must not be continued or must be modified or dismantled’.37 However remote, this unwelcome possibility may have induced Denmark to negotiate a settlement rather than persist with the proceedings.38

2 Dispute Settlement Under UNCLOS Recent jurisprudence concerning UNCLOS Article 290 reveals much the same picture as concerns both ITLOS and Annex VII tribunals. Notwithstanding the fact that for much of its history ITLOS proved reluctant to engage in any express form of merits review in the course of considering a provisional measures application,39 the decision of the Special Chamber in Ghana/Cˆote d’Ivoire to incorporate a plausibility requirement by reference to ICJ practice40 indicates that ITLOS is on the way to aligning its practice with the ICJ in this respect. Given that the jurisdiction granted to UNCLOS Part XV bodies is ordinarily limited to issues concerning the interpretation and application of UNCLOS,41 plausibility can be satisfied in large part merely by being a party to the Convention. As such, the plausibility requirement perhaps takes on a lesser degree of significance when compared with the plenary jurisdiction of the ICJ. But plausibility entails not only the existence of rights in international law, but also their possession by the applicant. Accordingly, in territorial disputes such as Ghana/Cˆote d’Ivoire, the satisfaction of the plausibility test may be revealing if there are questions as to whether the applicant is capable of possessing sovereignty over a disputed area – irrespective of any competing claim by the respondent.42 37 38 39 40

41

42

Ibid, 19. Great Belt, Order of 10 September 1992, ICJ Reports 1992 p 348. Further: Rosenne, Provisional Measures, 221–2. Chapter 5, §II.D.2. Delimitation of the Maritime Boundary between Ghana and Cˆote d’Ivoire in the Atlantic Ocean (Ghana/Cˆote d’Ivoire), ITLOS Case No 23 (Provisional Measures, 25 April 2015) §§57–8, citing Border Area/San Juan River, Provisional Measures, ICJ Reports 2013 p 354, 360. UNCLOS Art 293. This provision has been read to permit consideration of rights arising in international law more generally: see e.g. M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea) (1999) 120 ILR 143, 196; Guyana/Suriname (2007) 139 ILR 566, 683. The better view, however, is that rules of international law external to UNCLOS can only be considered within the jurisdiction of an UNCLOS Part XV body where they are necessary to the interpretation or application of UNCLOS itself: cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 43, 105. Further: Douglas Guilfoyle and Cameron A Miles, ‘Provisional Measures and the MV Arctic Sunrise’ (2014) 108 AJIL 271, 284–6. Ghana/Cˆote d’Ivoire, ITLOS Case No 23, §§59–62. Cf. also Border Area, Provisional Measures, ICJ Reports 2011 p 6, 19.

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With respect to preliminary objections, both ITLOS and Annex VII tribunals have habitually undertaken a prima facie examination of their jurisdiction as part of the provisional measures calculus43 and may be seen to exhibit similar instincts with respect to admissibility.44 Moreover, only one UNCLOS Part XV body has formally denied its jurisdiction after such objections were dismissed on a prima facie basis.45 But caution should be exercised in this respect when considering the referred jurisdiction of ITLOS to award provisional measures on behalf of an Annex VII tribunal under UNCLOS Article 290(5). Given that the same body that undertook the prima facie analysis of jurisdiction or admissibility will usually not be pronouncing finally on these preliminary objections, one may apprehend a lesser degree of embarrassment if a volte-face were to occur. Furthermore, certain members of ITLOS have indicated that where assessing prima facie jurisdiction under Article 290(5), the Tribunal should give (to the extent it is not already afforded) the benefit of the doubt to the applicant in such matters,46 perhaps granting a misleading perception of strength to the applicant’s case on preliminary questions.

3 Inter-State Arbitration A brief word might be said on the capacity for the parties to gain information as to the future prospects of litigation in isolated examples of ad hoc inter-state arbitration. Questions of jurisdictional and merits review at the provisional measures stage are heavily conditioned on any lex specialis provided for in the constitutive instrument of the relevant tribunal. Nonetheless, on the basis of what was said by the Court of Arbitration in Kishenganga,47 it appears likely that absent express indication to the contrary, an ad hoc tribunal with sensitivity to the established practice of international courts and tribunal will feel compelled to reveal at least some of its thinking on both jurisdiction and the merits when deciding whether to award interim relief.48 Jurisdiction in Kishenganga was not contested and as such the Court did not need to conduct a prima facie review during the provisional measures proceedings. When addressing the merits, however, the Court, citing ‘the general practice of international and national courts and tribunals’, 43 45 46 47 48

44 Chapter 4, §IV.B. Chapter 4, §V.C.1. M/V Louisa (St Vincent and the Grenadines v Spain), Provisional Measures (2010) 148 ILR 459; in passim, ITLOS Case No 18 (Judgment, 28 May 2013). ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186, 215. Indus Waters Kishenganga (Pakistan v India), Interim Measures (2011) 150 ILR 311. Chapter 4, §IV.D; Chapter 5, §II.D.4.

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introduced a form of review that examined whether Pakistan ‘had presented a plausible, provisionally tenable argument [ . . . ] in support of its case’.49 Although couched in the language of the plausibility test, the language used is redolent of a more exacting prima facie review. Although it is too early to tell if this is to become an international standard, the Court’s reasoning if adopted more widely indicates that at least some form of merits review will become the norm when assessing applications for interim relief in the context of ad hoc inter-state arbitration.

4 Investor-State Arbitration Within investor-state arbitration, the effectiveness of an application for provisional measures as a means for eliciting the thinking of a tribunal varies depending on the model of arbitration. Within the ICSID system the utility of such an approach is reduced due to Rule 41(5) of the ICSID Rules. Introduced in 2006, this rule provides that a party, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, may apply for its opponent’s case to be struck out on the basis that a claim is manifestly without legal merit.50 This is better than an application for provisional measures in that the Tribunal may strike out a claim on the basis that the Tribunal lacks jurisdiction, or on grounds that the claim is inadmissible or has little or no chance of success on the merits.51 Rule 41(5) by its terms applies to positive claims only. Accordingly, it is ordinarily a tool for the use of the respondent – though it would presumably extend to a situation in which a claimant wished to challenge a counterclaim. If the claimant wishes to discover the 49 50

51

Kishenganga (2011) 150 ILR 311, 353. Generally: Chester Brown and Sergio Puig, ‘The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules’ (2011) 10 LPICT 227. See e.g. Trans-Global Petroleum, Inc v Jordan, ICSID Case No ARB/7/25 (Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008); Brandes Investment Partners LP v Venezuela, ICSID Case No ARB/08/3 (Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 2 February 2009); Global Trading Resource Corporation and Globex International Inc v Ukraine, ICSID Case No ARB/09/11, 1 December 2010); Rachel S Grynberg, Stephen M Grynberg, Miriam Z Grynberg and RSM Production Corporation v Grenada, ICSID Case No ARB/10/6 (Award, 10 December 2010); PNG Sustainable Development Project Ltd v Papua New Guinea, ICSID Case No ARB/13/33 (Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 28 October 2014). This may be contrasted with the procedure before the ICJ, where the Court will only remove a case from its list at the provisional measures phase where jurisdiction or admissibility is shown to be manifestly lacking – a lack of prospects on the merits will merely result in the denial of provisional measures.

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Tribunal’s views on the case and the respondent has not raised a Rule 41(5) objection, an application for provisional measures under Article 47 of the ICSID Convention remains the best option. The approach of ICSID tribunals to interim relief can reveal useful information. With respect to jurisdiction, a claimant will already have obtained an impression of the strength of its case on jurisdiction (albeit uncontested) from the ICSID Secretariat’s review of its application under Article 36(3) of the ICSID Convention. Within the ambit of Article 47, however, an ICSID tribunal will again review jurisdiction on a prima facie basis, this time with the benefit of submissions from the respondent.52 The same logic may apply to the respondent’s objections to admissibility.53 A claimant should be careful, however, to not give too much weight to the Tribunal’s conclusions on this point, or to the fact that it was able to fend off a challenge by the respondent under Rule 41(5). In PNGSDP v PNG, the claimant was successful in opposing the respondent’s Rule 41(5) application and then obtained provisional measures in support of its claim. These procedures notwithstanding, the Tribunal found with the benefit of full submissions that it did not possess jurisdiction – even though it had the benefit of those full submissions prior to handing down its decision on provisional measures.54 With respect to submissions on the merits, ICSID tribunals will undertake a review that at the very least aligns with the plausibility test developed by the ICJ,55 in the sense that the applicant must establish ‘a prima facie case that it owns a legally protected interest’.56 Some tribunals may, however, deploy an increased standard of review, comprising ‘a consideration of the prima facie strength of the parties’ respective claims, counter-claims and defences’,57 which may provide further information to the parties. UNCITRAL tribunals display similar instincts in this respect, though neither the 1976 nor 2010 UNCITRAL Rules contain a provision 52 54

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53 Chapter 4, §IV.C. Chapter 4, §V.C.2. PNGSDP v PNG, ICSID Case No ARB/33/13, Rule 41(5); in passim, ICSID Case No ARB/33/13 (Provisional Measures, 21 January 2015); in passim, ICSID Case No ARB/33/13 (Award, 5 May 2015). Chapter 5, §II.D.3. See e.g. Tethyan Copper Company Pty Ltd v Pakistan, ICSID Case ARB/12/1 (Provisional Measures, 13 December 2012) §117. Also: Burlington Resources Inc and Ors v Ecuador and Empresa Estatal Petr´oleos del Ecuador (PetroEcuador), ICSID Case No ARB/08/5 (Procedural Order No 1, 29 June 2009) §53. PNGSDP v PNG, ICSID Case No ARB/33/13, Provisional Measures, §120.

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equivalent to Rule 41(5) of the ICSID Rules. UNCITRAL tribunals review their prima facie jurisdiction over the dispute as part of the provisional measures calculus58 and extend the same treatment to the merits – though the extent to which this has not been based on a misreading of ICSID and ICJ case law is perhaps uncertain,59 at least insofar as the 1976 UNCITRAL Rules are concerned. Under the 2010 UNCITRAL Rules, the threshold of review is placed beyond doubt, with Article 26(3)(b) requiring that the party seeking interim relief satisfy a tribunal that there is ‘a reasonable possibility that the requesting party will succeed on the merits of the claim’.

B Provisional Measures and Reputational Risks 1 Reputation and International Dispute Settlement Leonhardsen cogently argues that, even if compliance with an order for interim relief is not to be expected, that order may nonetheless be used by the applicant to pursue a strategy of inflicting costs in bargaining situations.60 Given that provisional measures constitute incidental proceedings, the question as to how this might occur is tied up in the wider issue of why parties resort to international litigation in the first place – a subject with its own vast literature.61 Parties may have resort to dispute resolution, inter alia, after the failure of a negotiated settlement, as a means of rule clarification or to advance domestic political priorities.62 But they may also use dispute resolution as a tool to influence a negotiated outcome. One may point to the study by Mnookin and Kornhauser, in which is was argued that such an outcome will always be influenced by what the parties understand to be the likely result of any litigation and the presence and behaviour of a third party adjudicator: the so-called ‘shadow of the law’.63 It is true, as Leonhardsen remarks, the consensual 58 60 61

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59 Chapter 4, §IV.C. Chapter 5, §II.D.3. Erlend M Leonhardsen, ‘Trials of Ordeal in the International Court of Justice: Why States Seek Provisional Measures when Non-Compliance Is to Be Expected’ (2014) 5 JIDS 306. A useful sample of the field is provided in ibid, 326 (fn 129). See also Shirley V Scott, ‘Litigation versus dispute resolution through political processes’, in N Klein (ed), Litigating International Disputes: Weighing the Options (Cambridge: Cambridge University Press, 2014) 24. Leonhardsen, ‘Trials of Ordeal’, 326–8. Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 99 Yale LJ 950, 978: ‘Different rules give various amounts of bargaining chips to the parties’ and affect their corresponding bargaining power accordingly’.

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character of international jurisdiction and the flexibility of treaty relations – not to mention any claimed weakness of international law from a municipal standpoint64 – results in international litigation casting a somewhat shorter shadow than its domestic counterpart;65 but it cannot be the case that the initiation of proceedings before an international court or tribunal will have no impact whatsoever on relations between the parties, even when the party initiating proceedings has no expectation that those opposite will implement any adverse ruling faithfully. In such a light, and excluding extraordinary situations or regimes (e.g. the WTO system of countermeasures), the principal consequence for a failure to implement a decision of an international court or tribunal is reputational.66 Given that international is horizontally integrated, this may be seen to give the system ‘teeth’, in the sense that the diminution of a state’s reputation as an observant of international law – at the resulting caution of other actors in transacting with it on that basis – might cause it to seek a negotiated settlement rather than run the risk of being forced to defy an international court or tribunal. Findings of non-compliance by courts allow third parties to ‘form a more accurate assessment of the challenged behavior, [generate] reputational consequences for a violation, and [make] retaliation or reciprocal non-compliance more likely and more acceptable to the rest of the international community’.67 Consequently, the initiation of international proceedings places a party on notice that, unless settlement occurs, it may in due course need to decide between adjusting its behaviour to match the relevant judicial ruling or causing damage to its reputation. In cases where the jurisdiction of the court or tribunal in question is contested, affirmation of jurisdiction by that body may heighten this perception, generating a greater impetus to settle. 64

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See e.g. John Bolton, ‘Is There Really “Law” in International Affairs?’ (2000) 10 TLCP 1. Cf. Jens David Ohlin, The Assault on International Law (Oxford: Oxford University Press, 2015). Leonhardsen, ‘Trials of Ordeal’, 331. Ibid, 328–30. Cf. Othello, Act 3, scene 3, 157–61: Who steals my purse steals trash; ‘tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.

67

Andrew T Guzman, ‘International Tribunals: A Rational Choice Analysis’ (2008–2009) 157 U Pa LR 171, 181.

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2 Benefits of Seeking Provisional Measures Notwithstanding Risk of Non-Compliance A successful application for provisional measures enhances the above process by introducing new institutional structures to the bargaining process.68 In the first place, the choice between compliance and noncompliance by the party against which measures are ordered must be made a great deal sooner than expected. The respondent no longer has the luxury of waiting months or years before the court or tribunal pronounces finally on the merits; the order requires that the status quo be preserved immediately. In the second, given the capacity for the court or tribunal’s early reasoning on preliminary objections or the merits to be revealed by its decision on provisional measures,69 the success of the applicant may further increase pressure on the respondent by indicating a preference for the applicant’s position overall. A third structure (related to the first) emerges from the capacity of interim relief to impose an additional layer of legal relations between the parties.70 In the ordinary course of events, the legal relationship between the parties may be blurred through challenges to the jurisdiction of the tribunal or the admissibility of the claim, disagreement as to the existence of the legal norm on which the claim is premised or its applicability to the respondent, and questions of whether the respondent breached the norm or possesses a defence capable of excusing a breach. Provisional measures simplify this situation by imposing on one or both of the parties a legal obligation with respect to which the above factors largely do not apply. Per Leonhardsen, this ‘reverse[s] the settlement games from domestic law by allowing for a unilateral request by the parties, which sees the legal dispute come first, the real negotiations subsequently’.71 As such, provisional measures inevitably colour any future discussions between the parties, as the respondent will be aware that any breach of the order carries with it an immediate reputational cost alongside any other formal or informal remedy that the tribunal feels motivated to impose. The order will also fix ipso jure the status quo for the duration of proceedings, limiting a party’s freedom of action such that the substantive paradigm of 68 70

71

69 Leonhardsen, ‘Trials of Ordeal’, 331. Above §II.A. Cf. Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Ybk 2001/II(2), 33: ‘That every internationally wrongful act of a State entails the international responsibility of that State, and thus gives rise to new international legal relations additional to those which existed before the act took place, has been widely recognized’. Leonhardsen, ‘Trials of Ordeal’, 332.

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state sovereignty is altered. The order may also affect procedural relations between the parties where it restrains parallel proceedings or internal police activities. Where the subject matter of the dispute has dynamic value (e.g. a mine from which a tradable commodity is extracted), the respondent might consider the opportunity cost of being restrained for this length of time to be higher than the actual cost of settlement, and make an offer accordingly. A further factor to be taken into account is appreciation of the dispute by the respondent’s populace.72 Comment on proceedings from within a respondent’s borders may impose internal pressure to settle, especially where some nationals may believe their government to have behaved poorly with respect to the underlying dispute. This perception is only heightened with the ordering of provisional measures, which may represent the court or tribunal’s first formal pronouncement on the dispute and be interpreted (not unfairly) as a victory for the applicant. The extent to which this is true is naturally dependent on the state in question. One would expect a democratic state to be more susceptible to such pressure than an autocratic state, just as one would expect that pressure to be disseminated more effectively in a state with a strong and independent press.73 A further issue is the profile of the court or tribunal in question. Provisional measures ordered by the ICJ may be considered more effective in this respect than those of other tribunals, given the position of that body as the principal judicial organ of the UN and the corresponding esteem in which it is held. This may be contrasted with interim relief as ordered by an ICSID tribunal, the perception of which may be diminished by (a) the temporary character of the tribunal, (b) the fact that such an order may be confidential and (c) the increasing (but incorrect) public

72 73

Ibid, 339–40. See e.g. certain press reports from Australia surrounding the provisional measures proceedings in Certain Documents and Data: Daniel Hurst, ‘Timor-Leste files taken in Canberra ASIO raid must be sealed, court orders’ (The Guardian, 3 March 2014), www. theguardian.com/world/2014/mar/04/timor-leste-files-taken-in-canberra-asio-raidmust-be-sealed-court-orders; Tom Allard, ‘Australia ordered to cease spying on East Timor by International Court of Justice’ (The Age, 4 March 2014), www.theage.com. au/federal-politics/political-news/australia-ordered-to-cease-spying-on-east-timor-byinternational-court-of-justice-20140303-hvfya; AAP, ‘International Court of Justice bans Australia from spying on East Timor’ (The Australian, 4 March 2015), www. theaustralian.com.au/news/world/international-court-of-justice-bans-australia-fromspying-on-east-timor/story-e6frg6so-1226844389340.

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perception of the investor-state dispute settlement system as inherently ‘pro-investor’ and thus illegitimate.74

3 Risks of Seeking Provisional Measures On this basis, parties should give serious consideration to seeking interim relief, even in situations where compliance by the other side is not to be expected. At the same time, however, such an application carries a degree of risk.75 The first is that the applicant might lose or succeed in such a way that a weakness in its case is exposed.76 The applicant should remember that, irrespective of outcome, the respondent will obtain at least some idea of the strength of its case from an application for provisional measures. If that case is found wanting, then the respondent may feel that it need not be concerned about reputational damage. This perception may be heightened by the fact that provisional measures are relatively easy to secure when compared to a favourable judgment on the merits. If the applicant cannot obtain interim relief – especially on grounds connected to jurisdictional or merits review – then it might be thought even more unlikely to obtain final relief. A second problem concerns the ability of interim relief to shape third party attitudes to international litigation, especially in connection with inter-state disputes. This dynamic may be expressed through what Thompson terms ‘the sanctioners’ dilemma’,77 which refers to the costs incurred by a state in deciding whether to take action against another for a breach of international law, e.g. by initiating proceedings. For such a regime to be effective, the initiating state may need to rely on collective 74

75 76

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See e.g. Manuel P´erez-Rocha, ‘When Corporations Sue Governments’ (New York Times, 3 December 2014), www.nytimes.com/2014/12/04/opinion/when-corporations-suegovernments.html; Claire Provost and Matt Kennard, ‘The obscure legal system that lets corporations sue countries’ (The Guardian, 10 June 2015), www.theguardian.com/ business/2015/jun/10/obscure-legal-system-lets-corportations-sue-states-ttip-icsid; James Surowiecki, ‘Trade-Agreement Troubles’ (The New Yorker, 22 June 2015), www .newyorker.com/magazine/2015/06/22/trade-agreement-troubles. Leonhardsen, ‘Trials of Ordeal’, 333–6. See e.g. Bosnian Genocide, where the ICJ considered a request for provisional measures where the only basis of jurisdiction that survived a prima facie examination was the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. Consequently, this weakened considerably the Bosnia and Herzegovinian case with respect to other norms of international law, e.g. self-defence: Bosnian Genocide, Provisional Measures, ICJ Reports 1993 p 3, 18–19. Alexander Thompson, ‘The Rational Enforcement of International Law: Solving the Sanctioners’ Dilemma’ (2009) 1 Int’l Theory 307, 311–14.

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action against the transgressor, which relies in turn on its ability to convince the rest of the international community that its action is at least partially altruistic and not driven by selfish policy priorities. Thompson notes: If this effort is unsuccessful, other states can respond by imposing a variety of costs on the sanctioner, both short-term (such as opposition to the policy itself, reciprocal noncompliance in other shared regimes, and other forms of balancing) and over the long run (including a diminished reputation and loss of ‘soft power’). Even powerful states – those most likely to enforce international law – are subject to and concerned with such political costs when they act.78

In the context of provisional measures, the sanctioners’ dilemma may result in a situation in which a failed application serves as an early flag to third parties that the applicant’s case is without merit – with corresponding knock-on effects for the applicant’s reputation.79

C Provisional Measures as the Real Objective of Contested Proceedings An applicant may also have a different purpose for interim relief in mind when compliance is expected. Where this is the case, a party applying for interim relief may see an additional utility in provisional measures beyond the protection of rights subject to litigation and preservation of the jurisdictional integrity of the court or tribunal. In this connection, Treves has noted: Sometimes one has the impression that the real objective of the applicant is to bring to the Court a request for provisional measures, rather than institute proceedings in the Court. The previous institution of proceedings is often seen only as a legally necessary prerequisite for requesting provisional measures.80

Such sentiments are perhaps exaggerated, as no example exists of a state or investor discontinuing proceedings after a failed application for provisional measures81 – though certain cases have been settled amicably after interim relief was ordered. That being said, however, one can point to situations in which the applicant clearly has much to gain from the 78 80

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79 Ibid, 312. Leonhardsen, ‘Trials of Ordeal’, 335. Tullio Treves, ‘The Political Use of Unilateral Applications and Provisional Measures Proceedings’, in J A Frowein et al. (eds), Verhandeln f¨ur den Frieden/Negotiating for Peace: Liber Amicorum Tono Eitel (Berlin: Springer, 2002) 463, 466. Rosenne, Provisional Measures, 220.

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imposition of provisional measures such that the final result on the merits is rendered little more than an afterthought.

1 Time-Sensitive Situations The first situation in which provisional measures become the primary focus of the proceedings is where the measures sought resolve the dispute on a de facto basis. This may occur in two ways. The first is where the dispute is in some way time-sensitive, in the sense that the applicant need only restrain the respondent’s freedom of action for a defined period, after which point the impact of the dispute on its interests drops off dramatically. This point may be of political or extra-legal relevance only. For example, if the respondent is a democratic state, the applicant may only be seeking to preserve the status quo until the next electoral cycle, wherein the government may change and take a different view of the case such that a settlement offer may be made with no loss of face. At the same time, however, the point may have factual relevance, such that the imposition of interim relief may be tantamount to resolving the dispute. One may consider, for an example, a slight elaboration to the facts of the Pulp Mills dispute. There, Argentina objected to the construction of the CMB and Orion pulp mills on Uruguayan territory under the terms of the Statute of the River Uruguay,82 brought proceedings before the ICJ and applied for provisional measures halting construction until such time as the dispute could be resolved. This application was rejected by the Court on the basis that construction of the mills would not constitute irreparable harm.83 At the same time, however, private citizens protesting against possible environmental damage caused by the mills blockaded bridges between Argentina and Uruguay with a view to disrupting construction. Uruguay asserted that the blockade was planned to continue for at least the next three months (i.e. during the whole of the South American tourist season) and would ‘deprive Uruguay of hundreds of millions of dollars in foregone trade and tourism’.84 Consequently, Uruguay applied for provisional measures requiring that Argentina take steps to disperse the blockade for the duration of the proceedings. In Pulp Mills, observers were treated to the unusual sight of a respondent in the main proceedings applying for interim relief.85 The Court, however, recognized that Uruguay was entitled to request the protection of rights that formed the negative image of Argentina’s complaint on the merits, 82 84

83 26 February 1975, 1982 UNTS 339. Pulp Mills, ICJ Reports 2006 p 113, 132. 85 Pulp Mills, Provisional Measures, ICJ Reports 2007 p 3, 5–6. Chapter 5, §II.B.

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i.e. the right to construct the mills without impediment.86 In the event that Argentina had not brought proceedings, Uruguay would still have been entitled to bring its own claim to suspend the blockade.87 In such a situation, however, Uruguay would only have needed to dispel the protest until the close of the tourist season, or at most until such time as the mills were completed, after which point the protest would cease to have effect and (perhaps) dissolve of its own accord. Consequently – and presuming that the mills would have been completed before the likely date of judgment – Uruguay’s underlying interest would have been upheld through the imposition of interim relief, such that the result on the merits would be largely moot. Put another way, Uruguay could have used provisional measures to buy sufficient time to complete its work, with a judgment on the merits being strictly unnecessary to secure this outcome.88 Under some domestic legal systems, the response to such an application is to increase the prerequisites for the award of interim relief by raising the level to which the court or tribunal must be satisfied that the applicant will succeed on the merits.89 International law – likely due to a dearth of situations in which this problem has arisen – has yet to posit a similar solution. The situation, however, poses institutional challenges. In the first place, the consensual character of international jurisdiction is such that it would not be sufficient for the applicant to demonstrate to a higher degree the probability of success on the merits – it would also need to demonstrate a commensurate probability of success as to jurisdiction. In the second, certain international courts and tribunals (notably the ICJ) have gone out of their way to avoid examining an applicant’s prospects of success on the merits at the provisional measures stage so as not to prejudice the final outcome. A call for further scrutiny will not sit comfortably with this conception of the international judicial function. At the same time, however, if the applicant can demonstrate the existence of an imminent and substantial harm, the raison d’ˆetre of provisional measures will be 86 87 88 89

Pulp Mills, ICJ Reports 2007 p 3, 11. Hugh Thirlway, 2 The Law and Procedure of the International Court of Justice (Oxford: Oxford University Press, 2013) 1782. As it happens, the Uruguayan request was rejected due to lack of imminent prejudice, but the point stands regardless: Pulp Mills, ICJ Reports 2007 p 3, 13. See e.g. NWL Ltd v Woods [1979] 3 All ER 614, 626 (Lord Diplock), holding that for an interim injunction to be granted in circumstances where ‘the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action’, the applicant must demonstrate ‘a high degree of probability’ of success on the merits.

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engaged such that the court or tribunal may feel compelled to act. In such a situation, it may be that if the court or tribunal does not feel comfortable with raising the threshold of review (and in the case of certain investorstate tribunals, this may not be an issue), it should award interim relief according to the usual calculus and then bring forward the final hearing on the merits to ensure that the proceedings retain relevance. A shrewd applicant would be well-advised to avoid placing the court or tribunal in an invidious situation by phrasing its applications for provisional measures and final relief such that the court or tribunal is satisfied that at least some substantial issues will remain for discussion on the merits if provisional measures are granted. This will require the applicant to balance its competing interests. For example, in the adapted scenario from Pulp Mills given earlier, Uruguay would likely not wish to risk its entire project by asking the Court to rule on whether the mills could be built in the first pace; it might, however, consider it desirable to ask whether Argentina was generally entitled to permit its nationals to obstruct traffic over the River Uruguay. Thus phrased, the dispute would be about more than just one protest, but encompass hypothetical future protests as well. The extent to which this is possible will depend largely on the instrument that forms the basis of the court or tribunal’s jurisdiction. The court or the tribunal may also require an undertaking that, absent a negotiated settlement, the proceedings will not simply be discontinued once interim relief is no longer required.

2 Custody of Persons or Moveable Property The second category of situation in which provisional measures may be the objective of proceedings is where the subject matter of the dispute concerns the custody of persons or title to moveable property. In situations such as this, international courts and tribunals have demonstrated a willingness to order the release of persons or property by the respondent into the custody of the applicant,90 notwithstanding the fact that such relief ‘comes close, in substance, to the principal relief sought’.91 As noted 90

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See e.g. Tehran Hostages, ICJ Reports 1979 p 7; ARA Libertad (Argentina v Ghana), Provisional Measures (2012) 156 ILR 186; Arctic Sunrise (Netherlands v Russian Federation), ITLOS Case No 22 (Provisional Measures, 22 November 2013). That being said, this result is not guaranteed, especially if the respondent is willing to offer assurances as to the safety of the contested asset or persons: Enrica Lexie (Italy v India), ITLOS Case No 24 (Provisional Measures, 24 August 2015) §§102, 123–31. ARA Libertad (2012) 156 ILR 186, 208–9 (Judge Paik). Cf. Enrica Lexie, ITLOS Case No 24, §§6–7 (Judge Paik).

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elsewhere, although such an order does not contravene the prohibition on interim judgments set out by the PCIJ in Chorz´ow Factory (Indemnities)92 in that the court or tribunal retains (if only in theory) the right to reverse the order as part of its decision on the merits, it prioritizes the rights of one party over the other to a degree unacceptable in the ordinary course of events.93 Nonetheless, whilst such orders may be criticized as de facto resolving the dispute without the benefit of a full hearing,94 they are clearly attractive for the party seeking custody and should be sought in cases concerning the detention of individuals or moveable property in danger of degradation. Such an order, if complied with, places the applicant in a superior position pending final resolution of the dispute. Even if defied, the order may be considered an unusually clear indication of the court or tribunal’s thinking on the merits and/or any preliminary objections.95 In either event, the applicant gains considerable leverage in ongoing negotiations. A recent case of this kind, Arctic Sunrise, indicates that applicants might gain a further advantage in orders of this kind through the offering of collateral. In that case, the Netherlands suggested the provision of financial security as collateral for the (interim) release of the vessel and its crew.96 ITLOS agreed and set a bond of €3.6 million97 which the Netherlands promptly paid.98 To the extent that the availability of security alleviated anxieties that the Tribunal may have had over the disproportionate character of the order, the bond increased the Netherlands’ chances of obtaining a perhaps controversial measure. Furthermore, if Russia had been ultimately successful on the merits,99 the Netherlands would have been in a position to argue that the bond should be forfeited rather than the vessel and crew returned, insuring a notably law-abiding state against 92 93 94

95 96 98 99

Factory at Chorz`ow (Indemnities) (Germany v Poland) (1927) PCIJ Ser A No 12, 10. Cf. Chapter 7, §III.A.2. Chapter 7, §III.B.3. R¨udiger Wolfrum, ‘Provisional Measures of the International Tribunal for the Law of the Sea’, in P C Rao and R Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001) 173, 184. Though this should obviously be viewed with caution with respect to an order made by ITLOS under UNCLOS Art 290(5). 97 Arctic Sunrise, ITLOS Case No 22, §91. Ibid, §96. Arctic Sunrise, Netherlands: Report on Compliance with Provisional Measures prescribed by the Tribunal (2 December 2013). The measures awarded in Arctic Sunrise were pursuant to UNCLOS Art 290(5). An Annex VII tribunal subsequently found in favour of the Netherlands in all respects: Arctic Sunrise (Netherlands v Russian Federation), PCA Case No 2014-2 (Annex VII) (Award, 14 August 2015).

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the possibility that it would have needed to refuse an order to surrender the contested persons and assets – to the extent that such a return would even be possible given that a number of the vessel’s crew were outside the ambit of Dutch enforcement jurisdiction. The degree to which this strategy is advantageous naturally depends on the size of the suggested bond and the applicant’s ability to pay it – though in Arctic Sunrise the Netherlands could be said to have secured something of a bargain.

D The ‘Proceed at Own Risk’ Principle Depending on one’s view, a party may also ask for provisional measures not in the hope of securing interim relief, but so as to provoke the court or tribunal to invoke the so-called ‘proceed at own risk’ principle against the respondent. This is most often raised in cases that centre on a large construction project, though it is by no means confined to such situations. The source of the concept is Great Belt, in which the ICJ, as noted, indicated that whilst it was not minded to grant the Finnish request for provisional measures, would not rule out the possibility that its judgment on the merits might require Denmark to modify or dismantle the works at considerable expense.100 Put another way, the Court indicated to Denmark that unless the dispute was settled, any decision to proceed with construction of the bridge was at Denmark’s own risk. In his subsequent analysis of the case, Rosenne presented this remark to the parties as ‘advice’ on the part of the Court.101 Similarly, in Pulp Mills, the ICJ warned Uruguay of the possible consequences of continuing construction pending settlement or a final decision on the merits, stating that ‘in proceeding with the authorization and construction of the mills, Uruguay necessarily bears all risks relating to any finding on the merits that the Court might make’ and furthermore, that ‘their construction at the current site cannot be deemed to create a fait accompli’.102 The issue was raised again in Kishenganga and seemingly elevated in status, when Pakistan initially stated that in light of the ‘proceed at own risk’ principle – which it contended to be one of international law – it would not be seeking interim relief in relation to India’s construction 100 101

Great Belt, ICJ Reports 1991 p 12, 19. Rosenne, Provisional Measures, 213.

102

Pulp Mills, ICJ Reports 2006 p 113, 133.

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of the Kishenganga Hydroelectric Project (KHEP).103 It then reversed its position and sought interim relief, insisting that India acknowledge the possible consequences of an award in Pakistan’s favour, i.e. an obligation to dismantle the KHEP. India equivocated on the question of whether the principle as claim was a rule inherent in the law of provisional measures, before finally agreeing simply that it would abide by any decision of the Court of Arbitration, including an order that the KHEP be dismantled.104 Some commentators have attempted to make much out of the apparent crystallization in Kishenganga of the ‘proceed at own risk’ principle. Bhattacharya argues that in accepting the parties’ agreement as to the existence of the principle, the Court of Arbitration in Kishenganga ‘declared a hitherto unarticulated principle of international law’,105 and further asserts ‘the principle is far from a good conduit for balancing both parties’ interests against abuse’.106 Under this model, Bhattacharya argues that the use of the term ‘principle’ by the Court of Arbitration in Kishenganga has converted the ICJ’s pronouncement in Great Belt into a method by which: State A can functionally enjoin any construction of similar activities by State B to which it objects through the very institution of proceedings against State B – irrespective of merit – when the application is accompanied by a request for provisional measures. If State B is rational, it will willingly suspend all further activity that is complained of for rear of the ‘risk of proceeding’ and its associated costs. This injunctive power, however temporary its benefits may actually be, does violence to the rights of, not the applicant, but the respondent while the litigation is pending. It opens the possibility for flagrant abuse such that the concept of the preservation of party rights is turned on its head so far as State B is concerned.107

Put another way, the fact that an international court or tribunal might hint at the possibility that a large-scale construction project would need to be dismantled in the final balance gives the party applying for provisional measures an illegitimate advantage over the respondent without even needing to succeed in its application. 103 104 105

106

Kishenganga (2011) 150 ILR 311, 330. The principle was formulated as ‘a State engaged in works that may violate the rights of another State may proceed only at its own risk’. Ibid, 330–3, 347–9. Souvik Bhattacharya, ‘‘‘Proceeding at Your Own Risk”: Evaluating a New Principle of International Law for Provisional Measures’ (2013) 38 Yale JIL 511, 512. Cf. Yoshifumi Tanaka, ‘Note on the Interim Measures in the Indus Waters Kishenganga Arbitration’ (2012) 11 LPICT 555, 559–61. 107 Bhattacharya, ‘Proceeding at Your Own Risk’, 513. Ibid, 522.

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This is something of an overstatement. Firstly, it is by no means clear that the Court of Arbitration in Kishenganga was purporting to pronounce on the existence of a principle of law that might be applicable in international disputes more generally. Rather, the Court was pronouncing only on a principle that the parties agreed to exist – though not without some resistance on the part of India.108 Furthermore, even if it was purporting to pronounce on such a rule, there is nothing in its reasoning to suggest that it was doing anything that had not already been done by the ICJ in Great Belt and Pulp Mills – or indeed elsewhere in international law. This first point is buttressed by a second concerning the content of the alleged principle, which might be rendered as follows: if the respondent insists on proceeding with the project and loses on the merits, it may be required to dismantle whatever is built by way of final remedy. This is nothing more or nothing less than a summation of the rule, accepted as uncontroversial since the Chorz´ow Factory case109 and incorporated into Article 35 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts110 (ARSIWA), that restitutio in integrum is the default remedy in international law. Furthermore, the precatory language of the principle (‘cannot [ . . . ] be excluded a priori’, to quote Great Belt) indicates that it coheres with the rule expressed in ARSIWA Article 35(b) that restitution may not be ordered where it ‘involves a burden out of all proportion to the benefit deriving from restitution instead of compensation’.111 Seen in such a light, the content of the principle is little more than a reprise of the existing law of international remedies and may consequently be said to be not a principle, but a practice formulated by international courts and tribunals to remind a respondent in cases where interim relief is refused of the risks of proceeding whilst a decision on the merits is pending. This, it might be added, is nothing that the respondent may not be presumed to know already. Both of these arguments can be aptly demonstrated by reference to the Pulp Mills case, as can a third, namely that Bhattacharya overstates the coercive force of the practice. In Pulp Mills, Uruguay proceeded with construction of the mills despite the ICJ’s warning as to the possible 108 109

110

Kishenganga (2011) 150 ILR 311, 331–3. Factory at Chorz´ow (Germany v Poland) (1928) PCIJ Ser A No 17, 48. Further: James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) 510–16. 111 ILC Ybk 2001/II(2), 96. Crawford, State Responsibility, 514–15.

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consequences. It was subsequently found to have breached its procedural but not substantive obligations under the Statute of the River Uruguay with respect to the Orion mill, with Argentina arguing that the mill should be dismantled by way of final relief. The Court disagreed, noting that an order for restitutio in integrum would be a disproportional response for breach of a mere procedural obligation.112 Consequently, Uruguay may be seen to have taken a calculated risk that paid off handsomely – the very opposite of a state whose actions were circumscribed by ‘an extralegal power [ . . . ] that strains the consensual foundations of international adjudication’.113

III Use and Abuse of Provisional Measures A Abuse of Process in International Law As previously demonstrated, an application for provisional measures may provide a variety of advantages for the applicant beyond the preservation of rights pendente lite and the non-aggravation of the dispute. The tendency for parties to leverage these ancillary benefits has been criticized by scholars, usually under the rubric of ‘abuse’.114 As Bhattacharya notes with respect to the ICJ: Article 41’s use of the disjunctive ‘either’ in authorizing the Court to take provisional measures ‘to preserve the rights of either party’ should not come to mean ‘one party, paradigmatically the applicant, to the exclusion of the other’.115

This prompts a question: are these ancillary purposes really abusive in the classical sense, or do they merely reflect the tendency of parties – by no means confined to international proceedings – to seek a tactical advantage through the creative use of procedural rules? In the classical, substantive sense, abuse of rights (abus de droit) refers to ‘a State exercising a right either in a way which impedes the enjoyment by other States of their own rights or for an end different from that 112

113 114

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Pulp Mills, ICJ Reports 2010 p 14, 104. The problem was avoided in Kishenganga through the implementation of provisional measures that restrained construction of the relevant portion of the KHEP: (2011) 150 ILR 311, 358. Bhattacharya, ‘Proceeding at Your Own Risk’, 522. Cf. ibid, 518–19; Oellers-Frahm, ‘Use and Abuse’; Christine Grey, ‘The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua’ (2003) 14 EJIL 867, 888–96. Bhattacharya, ‘Proceeding at Your Own Risk’, 519.

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for which the right was created, to the injury of another State’.116 The principle has long been recognized as either a general principle or law or customary international law within the meaning of Article 38 of the ICJ Statute, and is well represented in the case law of international courts and tribunals,117 appearing in the decisions of the PCIJ,118 ICJ,119 WTO Appellate Body,120 European Court of Human Rights121 and investorstate arbitration tribunals,122 and may be seen more widely as deriving from the wider doctrine of good faith in international law.123 As noted by Kiss, abuse of rights may occur in a variety of ways.124 In a procedural sense, it manifests as abuse of process,125 defined by Kolb as: A special application of the prohibition of abuse of rights [consisting] of the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights are established, especially for a fraudulent, procrastinatory or frivolous purpose, for the 116

117 118

119

120 121 122 123

Alexandre Kiss, ‘Abuse of Rights’, MPEPIL (2006) §1. Further: Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge University Press, 1953; reissue 2006) xx; B O Iluyomade, ‘The Scope and Content of an Abuse of Right in International Law’ (1975) 16 Harv ILJ 47; ‘Abus de droit’, in J Salmon (ed), Dictionnaire de droit international public (Brussels: Bruylant, 2001) 3; Michael Byers, ‘Abuse of Rights: An Old Principle, A New Age’ (2002) 47 McGill LJ 389; Chester Brown, A Common Law of International Adjudication (Oxford: Oxford University Press, 2007) 245–50; John P Gaffney, ‘‘Abuse of Process’ in Investment Treaty Arbitration’ (2010) 11 JWIT 515; Robert Kolb, ‘General Principles of Procedural Law’, in ICJ Commentary 871, 904–6. Byers, ‘Abuse of Rights’, 397–404. Certain German Interests in Polish Upper Silesia (Germany v Poland) (1926) PCIJ Ser A No 7, 30; Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (1932) PCIJ Ser A/B No 46, 167. Fisheries (UK v Norway), ICJ Reports 1951 p 116, 141–2; Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992 p 240, 255; Avena, ICJ Reports 2004 p 12, 37–8. United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc WT/DS58/AB/R (Appellate Body Report, 12 October 1998) §158. Convention for the Protection of Human Right and Fundamental Freedoms, 4 November 1950, 213 UNTS 222, Art 35(3). Abaclat and Ors v Argentine Republic, ICSID Case No ARB/07/5 (Decision on Jurisdiction and Admissibility, 4 August 2011) §646. Cf. UNCLOS Art 300: States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.

124 125

Kiss, ‘Abuse of Rights’, §§4–6. Eric de Brabandere, ‘‘Good Faith’, ‘Abuse of Process’ and the Initiation of Investment Treaty Claims’ (2012) 3 JIDS 609, 618–21.

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litigation strategy and provisional measures purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for purposes of pure propaganda. To these situations, action with a malevolent intent or bad faith may be added.126

Lauterpacht famously recognized that ‘[t]here is no right however well established, which could not, in some circumstances, be refused recognition on the ground that it has been abused’.127 There is no reason to exclude provisional measures from this pronouncement and, as described earlier, it is entirely possible to conceive of situations where interim relief might be used in order to obtain an unexpected advantage in proceedings. In order for the relevant application to be abusive, however, the advantage so obtained must be illegitimate, a term that – notwithstanding the looseness with which it is used when discussing alternate uses for provisional measures – carries with it a particular overtone of malfeasance. Given the severity of such an accusation, international law requires that the abuse be rigourously proved.128 Situations in which abuse of process has been held to occur include situations of naked treaty shopping in the investment arbitration context,129 the bringing of vexatious or frivolous claims,130 the bringing of a claim with knowledge that it was manifestly ill-founded,131 the late invocation of a basis of competence so as to disadvantage another party,132 the presentation of deliberately false or forged evidence133 and attempting to reopen proceedings before a different court or tribunal notwithstanding an extant decision that is res judicata between the parties.134 126 127 128 129 130 131

132

133 134

Kolb, ‘General Principles’, 904. Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens and Sons, 1958) 164. Kolb, ‘General Principles’, 904. Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/5 (Award, 15 April 2009) §§142–4. Bock v Germany, ECtHR App No 22051/07 (Decision on Admissibility, 28 December 2007) 4–5. Europe Cement Investment and Trade SA v Turkey, ICSID Case No ARB(AF)/07/2 (Award, 13 August 2009) §175; Cementownia ‘Nowa Huta’ SA v Turkey, ICSID Case No ARB(AF)/06/2 (Award, 17 September 2009) §§157–9. Legality of Use of Force (Yugoslavia v Belgium), Provisional Measures, ICJ Reports 1999 p 124, 138–9; in passim (Yugoslavia v Netherlands), Provisional Measures, ICJ Reports 1999 p 542, 556–7. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), ICJ Reports 2001 p 40, 46–7. RSM v Grenada, ICSID Case No ARB/05/14, §7.3.7.

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B Provisional Measures as an Abuse of Process Scholarly criticism notwithstanding, it cannot be said that an application for provisional measures motivated by an alternative purpose is the equal of any of the scenarios mentioned previously. In the first place, one might ask how such a procedural gambit might be considered sufficiently abusive, especially where the purpose requires that provisional measures be ordered, e.g. in order to inflict a reputational cost on the respondent or preserve the status quo for a short period of time. This will only occur where the court or tribunal is satisfied that there exists an interest pendente lite that requires urgent protection such that, from the point of view of the court or tribunal, the ‘abusive’ application is identical to a ‘legitimate’ one.135 Put another way, whatever the principal motivation of the application, in order for it to be granted, the court or tribunal must perceive the application to be genuine and thus, not abusive. In cases where the applicant does not require the measures requested to be granted in order for the alternative purpose to be achieved, e.g. where the applicant is attempting to gauge the thinking of the court or tribunal or elicit a direction that the respondent proceeds at its own risk, one may ask what the detriment to the respondent would be. In the former case, the respondent will also get the benefit of an insight into the mindset of the court or tribunal such that it will not be disadvantaged. It might also be added that the applicant’s interests in that case will on the whole be better served if it wins the application, placing it in the analytical category previously described. In the latter the court or tribunal will not be telling the respondent anything it does not already know, i.e. that restitutio in integrum may be ordered as a final remedy. Again, given the cost in reputation and negotiating capital that a loss in such proceedings can impose, the applicant would probably prefer that the measures be granted. This analysis reflects the fact that the parties’ motivations are often multifarious. Provisional measures may be requested for a variety of reasons – some recognized as legitimate, others less so. In the vast majority of cases, if a party does wish to pursue an alternative purpose, such a purpose will very often be ancillary to a desire to actually obtain the measures, and, even if the reverse is true, the presence of a legitimate motivation to some degree will prevent the application from being considered abusive. Given this motivational complexity, it seems extremely far-fetched 135

Rosenne, Provisional Measures, 221.

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that an application for interim relief could be animated entirely by an alternative purpose and that, furthermore, such a purpose could be considered abusive. Even if this were the case, it might be added, the burden of proof attaching to such an allegation is extremely high. One may, as Treves does,136 suspect an alternative motivation, but proving it is another matter – and it is hard to see how anything short of a brazen admission of guilt could suffice to prove the charge.137 This is not to say, however, that individual aspects of a provisional measures application might not be considered abusive. The application forms part of the wider proceedings, and is subject to the same standards of procedural legitimacy. A party could not, for example, proffer false evidence in support of a claimed urgency or prejudice. This point is demonstrated neatly by the Legality of Use of Force cases in their Dutch and Belgian manifestations. There, Yugoslavia indicated the possible bases of the ICJ’s jurisdiction in its application for interim relief. During the second round of oral arguments, however, it purported to submit (without explanation) a ‘supplement’ to its application invoking a new basis of jurisdiction, viz. two dispute settlement treaties signed between Yugoslavia and the Netherlands and Belgium.138 Both counterparties protested, with the Court declaring: Whereas the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court’s practice: whereas such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and whereas in consequence the Court cannot, for the purpose of deciding whether it may or may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke [ . . . ]139 136 137

Treves, ‘Political Use’, 466. Cf. Phosphate Lands, ICJ Reports 1992 p 240, 255: The Court considers that the Application by Nauru has been properly submitted in the framework of the remedies open to it. At the present stage, the Court is not called upon to weigh the possible consequences of the conduct of Nauru with respect to the merits of the case. It need merely note that such conduct does not amount to an abuse of process.

138

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Belgium – Yugoslavia, Convention of Conciliation, Judicial Settlement and Arbitration between Belgium and the Kingdom of Yugoslavia, 25 March 1930, 106 LNTS 343; Netherlands – Yugoslavia, Treaty of Judicial Settlement, Conciliation and Arbitration, 11 March 1931, 129 LNTS 39. Legality of Use of Force (Yugoslavia v Belgium), ICJ Reports 1999 p 124, 138–9; in passim (Yugoslavia v Netherlands), ICJ Reports 1999 p 542, 556–7.

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In such a light, Yugoslavia’s overall application for interim relief remained legitimate – even as individual elements of that application were found to be abusive.

IV Conclusions International litigation is adversarial, and carries with it the expectation that parties will undertake to further their own interests at their opponent’s expense. This expectation, furthermore, entails the possibility that parties will be creative in their use of procedural rules so as to obtain advantages that were not contemplated when those rules were first conceived. So long as these advantages do not wholly disregard the proper functioning of procedure so as to amount to an abuse of process, they are to be considered legitimate. Several aspects of provisional measures lend themselves to this characterization. In the first place, they may be used to glean an indication of how an international court or tribunal views the case as a whole such a party may refine its argument or pursue an alternative means of dispute resolution as required. Depending on the body in question, insight may be gained into questions of jurisdiction, admissibility, the merits and potential remedies. At the same time, however, such an advantage can only be gained if the applicant reveals its own case on the relevant points to the respondent, a reality that must be balanced against the applicant’s desire for information. Also to be balanced is the fact that the court or tribunal may pronounce negatively on these issues, weakening the position of the applicant both in the proceedings and in any parallel negotiations. Where the relationship between the parties is such that the applicant cannot rely on the respondent to comply with any provisional measures ordered despite their binding character, an application for interim relief may nevertheless be used to apply pressure to respondent. International law is a horizontally organized system in which a state’s reputation as lawabiding reflects to a certain extent its standing within the community. By placing the respondent in a position where it is forced to breach a directive of the court or tribunal, the applicant inflicts a reputational cost on the respondent that may affect underlying negotiations. Finally, provisional measures on their own may be sufficient to justify the initiation of international proceedings, depending on the strategic interests of the claimant. Where protection of the status quo is only required for a short time, or where the matter concerns custody of persons or moveable property, interim relief may aid in the immediate attainment of a party’s wider objective – though it should be added that the

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applicant should make every effort to ensure that the matter proceeds to final judgment on the merits and, in the latter case, be prepared to reverse the court or tribunal’s interim orders (or alternatively be willing to sacrifice appropriate collateral). Despite the misgivings of some commentators, the use of provisional measures in creative ways should not be considered abusive. In nearly all circumstances, the desire to secure provisional measures to protect rights pendente lite will be a material factor in the applicant’s decision to seek interim relief such that the original purpose of the remedy may be upheld. In this connection, courts and tribunals should acknowledge that a party’s motivations are usually multifarious, and extend to it the benefit of the doubt. Put another way, where a door is provided for a particular purpose, one presumes that a party’s entry is not for some other reason.

10 Conclusions

This book has examined whether it is possible to speak of a unified approach to provisional measures by reference to the judicial and arbitral practice of selected international courts and tribunals. It has approached this task by first looking to the historical origins of the field and then proceeding to address the modern practice by reference to certain key elements. In this light, it is submitted that the courts and tribunals examined are aware of a jurisprudence constante of sorts concerning provisional measures, and seek to align their practice with that body of law. The result is the concept of an inherent power of international courts and tribunals to award interim relief. This may be said to be a general principle of law within the meaning of Article 38(1)(c) of the ICJ Statute the application of which by certain international courts and tribunals exhibits common traits. This, it is submitted, has been driven largely by the ICJ – though indigenous developments have occurred in other systems, most notably investor-state arbitration. The elements of this common approach begin with the character of provisional measures as a feature of incidental jurisdiction that relies on the existence of other proceedings in order to be awarded. Accordingly, the first key question in most provisional measures proceedings is whether a court or tribunal has the capacity to award interim relief in circumstances where the jurisdiction of the court or tribunal with respect to the main proceedings has yet to be decided. In the circumstances examined, courts and tribunals have followed the approach of the ICJ in requiring that the applicant (if the claimant in the proceedings) establish jurisdiction with respect to the main proceedings on a prima facie basis – an approach that entails the examination of the various jurisdictional positions in toto. With the increasing acknowledgement of admissibility as a preliminary objection, courts and tribunals have begun to direct similar attention to the question of whether a claim is admissible when determining whether to award provisional measures. 473

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Courts and tribunals have also begun to direct greater attention to the purpose for which provisional measures can be awarded. Whilst the traditional categories of measures to protect rights pendente lite and measures for the non-aggravation of a dispute have been preserved, greater attention is now paid to the extent to which a request for interim relief relates to the main claim. Courts and tribunals now uniformly insist that measures of protection bear a close relationship to rights that fall to be adjudicated in the final balance. Some bodies take this further still, and have held that general measures for non-aggravation cannot be awarded in the absence of specific measures for the protection of rights pendente lite. A further development has been the extent to which these bodies require oversight of the merits prior to the award of interim relief. Whilst the threshold of review remains to be settled – ranging from the ‘plausibility’ test to prima facie review of the merits – agreement has been reached on the need for at least some investigation of a question previously taboo. Proof of urgency and ‘irreparable’ prejudice remain the cornerstone of a provisional measures application. These too have increased in complexity. Given the increased willingness of respondents to offer undertakings so as to avoid the imposition of provisional measures, courts and tribunals now examine closely the scope of such undertakings to determine if they are effective. The concept of prejudice has also shifted. Whereas some previous analyses considered that sufficient prejudice would not occur if any hypothesized damage could be compensated via monetary means, courts and tribunals have now moved away from that threshold, even if they have not entirely abandoned the language of ‘irreparability’. Another development has been the acknowledgement that despite the precatory language of most constitutive instruments and procedural rules when discussing interim relief provisional measures as awarded by courts or tribunals are considered binding on the parties. It is this conclusion that has driven the recent increase in the complexity of provisional measures jurisprudence in a bid to increase the legitimacy of such awards and has further prompted consideration of the consequences of breach and of the need for effective enforcement. Allied to this is an increased concern with concepts of proportionality in provisional measures, with courts and tribunals recognizing that in order to be considered fair, interim relief must balance the interests of the parties to ensure the burden of compliance does not fall unnecessarily on the respondent. The above elaborations have increased the role that provisional measures might play in litigation strategy. Given the increased oversight of courts and tribunals – particularly in relation to the merits – with respect

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to provisional measures, applications for interim relief can reveal valuable information about the future conduct of proceedings. Furthermore, the determination that such measures are binding has given rise to a range of options for creative applicants. Provisional measures may now be used to impose reputational costs on non-compliant parties and to attain short-term strategic objectives. In certain cases, the availability of binding interim relief might even justify the initiation of the main proceedings, e.g. where the applicant need only preserve the status quo for a short time or where the subject matter of the dispute concerns custody of persons or moveable property. Furthermore, so long as these considerations are combined on some level with a desire to actually obtain interim relief and to continue the proceedings once such relief has been awarded, an application for an alternative purpose will not be considered an abuse of process. The convergence of approaches described notwithstanding, it must be said that from the point of view of international law there is no uniform checklist for the ordering of provisional measures. The inherent power to order such measures is relatively minimalist and with rare exceptions does not require normative coherence. If these factors exhibit commonality it is because their underlying logic is persuasive – and even then they are painted in such broad strokes that there remains room for individual idiosyncrasy. Some tribunals may seek to adopt them by reference to international judicial practice, but such practice knows no binding force within the meaning of Article 38(1) of the ICJ Statute. This does not mean, however, that they can be departed from without consequence. One of the virtues of a common approach to interim relief is that it increases the predictability of international judicial process and is acknowledged by prospective parties as being capable of producing a balanced outcome. Given the consensual nature of international jurisdiction, this entails a benefit that ought not be casually surrendered. The period of growth in the procedure of provisional measures that was ushered in by the ICJ’s decision in LaGrand1 has now subsided somewhat such that it is now possible to speak of a comparative calm in the field. In terms of future developments to the common approach, it might be thought that now is the time for consolidation. This book has attempted to provide an assessment of how that consolidation might occur, and how international courts and tribunals should approach interim relief from this point onwards. It is suggested that a commonality of approach will 1

LaGrand (Germany v US), ICJ Reports 2001 p 466, 501–2.

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improve not only the extent to which provisional measures are accepted by parties before international courts and tribunals, but improve the prospects for the development of a harmonious system of international dispute settlement – to the benefit of international society as a whole. In any event, it should be remembered that provisional measures represent an exceptional remedy in international law. As was remarked by the dissenters in Anglo-Iranian Oil, they ‘may easily be considered a scarcely tolerable interference in the affairs of a sovereign state’.2 Whilst this perception may have declined as international adjudication has become a more common technique of dispute settlement, the underlying theme – that provisional measures should only be ordered where necessary – remains valid. 2

Anglo-Iranian Oil (Iran v UK), Interim Relief, ICJ Reports 1951 p 89, 97 (Judges Winiarski and Badawi Pasha, diss).

APPENDIX

The purpose of this Appendix is to set out relevant excerpts of treaties and procedural rules that are referred to throughout the book.

I Permanent Court of International Justice A PCIJ Statute, Article 41 The Court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either party. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Council.

B PCIJ Rules 1931, Article 57 An application made to the Court by one or both of the Parties, for the indication of interim measures of protection, shall have priority over all other cases. The decision thereon shall be treated as a matter of urgency, and if the Court is not sitting it shall be convened without delay by the President for the purpose. If no application is made, and if the Court is not sitting, the President may convene the Court to submit to it the question whether such measures are expedient. In all cases, the Court shall only indicate measures of protection after giving the parties an opportunity of presenting their observations on the subject.

C PCIJ Rules 1936, Article 61 (1) A request for the indication of interim measures of protection may be filed at any time during the proceedings in the case in connection with which it is made. The request shall specify the case to which it relates and the interim measures of which the indication is proposed. 477

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(2) A request for the indication of provisional measures shall have priority over all other cases. The decision thereon shall be treated as a matter of urgency. (3) If the Court is not sitting, the members shall be convened by the President forthwith. Pending the meeting of the Court and a decision by it, the President shall, if need be, take such measures as may appear to him necessary in order to enable the Court to give an effective decision. (4) The Court may indicate interim measures of protection other than those proposed in the request. (5) The rejection of a request for the indication of interim measures of protection shall not prevent the party which has made it from making a fresh request in the same case based on new facts. (6) The Court may indicate interim measures of protection proprio motu. If the Court is not sitting, the President may convene its members in order to submit to the Court the question whether it is expedient to indicate such measures. (7) The Court may at any time by reason of a change in the situation revoke or modify its decision indicating interim measures of protection. (8) The Court shall only indicate interim measures of protection after giving the parties an opportunity of presenting their observations on the subject. The same rule applies when the Court revokes or modifies a decision indicating interim measures of protection. (9) When the President has occasion to convene the members of the Court, [judges ad hoc] shall be convened if their presence can be assured by the date fixed by the President for hearing of the parties.

II International Court of Justice A ICJ Statute, Article 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 of either party. (2) Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

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B ICJ Rules 1978, Articles 73–78 Article 73 (1) A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made. (2) A request shall specify the reasons therefor, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.

(1) (2)

(3)

(4)

Article 74 A request for the indication of provisional measures shall have priority over all other cases. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the close of oral proceedings. Pending a meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effect.

Article 75 (1) The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties. (2) When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested or that ought to be taken or complied with by the party which has itself made the request. (3) The rejection of a request for the indication of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts.

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Article 76 (1) At the request of a party the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification. (2) An application by a party proposing such a revocation or modification shall specify the change in circumstances considered to be relevant. (3) Before taking any decision under paragraph 1 of this Article the Court shall afford the parties an opportunity of presenting their observations on the subject. Article 77 Any measures indicated by the Court under Articles 73 and 75 of these Rules, and any decision taken by the Court under Article 76, paragraph 1, of these Rules, shall forthwith be communicated to the SecretaryGeneral of the United Nations for transmission to the Security Council in pursuance of Article 41, paragraph 2, of the Statute. Article 78 The Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated. III UN Convention on the Law of the Sea A UNCLOS Article 290 (1) If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. (2) Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist. (3) Provisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard. (4) The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers

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appropriate, of the prescription, modification or revocation of provisional measures. (5) Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4. (6) The parties to the dispute shall comply promptly with any provisional measures prescribed under this article.

B Straddling Stocks Agreement, Article 31 (1) Pending the settlement of a dispute in accordance with this Part, the parties to the dispute shall make every effort to enter into provisional arrangements of a practical nature. (2) Without prejudice to article 290 of the Convention, the court or tribunal to which the dispute has been submitted under this Part may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent damage to the stocks in question, as well as in the circumstances referred to in article 7, paragraph 5, and article 16, paragraph 2. (3) A State Party to this Agreement which is not a Party to the Convention may declare that, notwithstanding article 290, paragraph 5, of the Convention, the International Tribunal for the Law of the Sea shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State.

C ITLOS Rules, Articles 89–95 Article 89 (1) A party may submit a request for the prescription of provisional measures under article 290, paragraph 1, of the Convention at any

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(2)

(3)

(4)

(5)

(1)

(2) (3) (4)

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time during the course of the proceedings in a dispute submitted to the Tribunal. Pending the constitution of an arbitral tribunal to which a dispute is being submitted, a party may submit a request for the prescription of provisional measures under article 290, paragraph 5, of the Convention: (a) at any time if the parties have so agreed; (b) at any time after two weeks from the notification to the other party of a request for provisional measures if the parties have not agreed that such measures may be prescribed by another court or tribunal. The request shall be in writing and specify the measures requested, the reasons therefor and the possible consequences, if it is not granted, for the preservation of the respective rights of the parties or for the prevention of serious harm to the marine environment. A request for the prescription of provisional measures under article 290, paragraph 5, of the Convention shall also indicate the legal grounds upon which the arbitral tribunal which is to be constituted would have jurisdiction and the urgency of the situation. A certified copy of the notification or of any other document instituting the proceedings before the arbitral tribunal shall be annexed to the request. When a request for provisional measures has been made, the Tribunal may prescribe measures different in whole or in part from those requested and indicate the parties which are to take or to comply with each measure.

Article 90 Subject to article 112, paragraph 1, a request for the prescription of provisional measures has priority over all other proceedings before the Tribunal. The Tribunal, or the President if the Tribunal is not sitting, shall fix the earliest possible date for a hearing. The Tribunal shall take into account any observations that may be presented to it by a party before the closure of the hearing. Pending the meeting of the Tribunal, the President of the Tribunal may call upon the parties to act in such a way as will enable any order the Tribunal may make on the request for provisional measures to have its appropriate effects.

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Article 91 (1) If the President of the Tribunal ascertains that at the date fixed for the hearing referred to in article 90, paragraph 2, a sufficient number of Members will not be available to constitute a quorum, the Chamber of Summary Procedure shall be convened to carry out the functions of the Tribunal with respect to the prescription of provisional measures. (2) The Tribunal shall review or revise provisional measures prescribed by the Chamber of Summary Procedure at the written request of a party within 15 days of the prescription of the measures. The Tribunal may also at any time decide proprio motu to review or revise the measures. Article 92 The rejection of a request for the prescription of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts. Article 93 A party may request the modification or revocation of provisional measures. The request shall be submitted in writing and shall specify the change in, or disappearance of, the circumstances considered to be relevant. Before taking any decision on the request, the Tribunal shall afford the parties an opportunity of presenting their observations on the subject. Article 94 Any provisional measures prescribed by the Tribunal or any modification or revocation thereof shall forthwith be notified to the parties and to such other States Parties as the Tribunal considers appropriate in each case. Article 95 (1) Each party shall inform the Tribunal as soon as possible as to its compliance with any provisional measures the Tribunal has prescribed. In particular, each party shall submit an initial report upon the steps it has taken or proposes to take in order to ensure prompt compliance with the measures prescribed. (2) The Tribunal may request further information from the parties on any matter connected with the implementation of any provisional measures it has prescribed.

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IV ICSID Convention and the Additional Facility A ICSID Convention, Article 47 Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.

B NAFTA Article 1137 A Tribunal may order an interim measure of protection to preserve the right of a disputing party, or to ensure that the Tribunal’s jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party and to protect the Tribunal’s jurisdiction. A Tribunal may not order attachment or enjoin the application of the measures alleged to constitute a breach referred to in Article 1116 or 1117. For the purposes of this paragraph, an order includes a recommendation.

C ICSID Rules, Rule 39 (1) At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its right be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures. (2) The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1). (3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations. (4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party the opportunity of presenting its observations. (5) If a party makes a request pursuant to paragraph (1) before the constitution of the Tribunal, the Secretary-General shall, on the application of either party fix time limits for the parties to present observations on the request, so that the request and observations may be considered by the Tribunal promptly on its constitution. (6) Nothing in this rule shall prevent the parties, provided they have so stipulated in the agreement recording their consent, from requesting

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any judicial or other authority to order provisional measures, prior to or after the institution of the proceeding, for the preservation of their respective rights and interests.

D ICSID (AF) Rules, Article 46 (1) Unless the arbitration agreement otherwise provides, either party may at any time during the proceeding request that provisional measures for the preservation of its rights be ordered by the Tribunal. The Tribunal shall give priority to the consideration of such a request. (2) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations. (3) The Tribunal shall order or recommend provisional measures, or any modification or revocation thereof, only after giving each party an opportunity of presenting its observations. (4) The parties may apply to any competent judicial authority for interim or conservatory measures. By doing so, they shall not be held to infringe the agreement to arbitrate or to affect the powers of the Tribunal.

V UNCITRAL Arbitration Rules A 1976 UNCITRAL Rules, Article 26 (1) Unless the arbitration agreement otherwise provides, either party may at any time during the proceeding request that provisional measures for the preservation of its rights be ordered by the Tribunal. The Tribunal shall give priority to the consideration of such a request. (2) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations. (3) The Tribunal shall order or recommend provisional measures, or any modification or revocation thereof, only after giving each party an opportunity of presenting its observations. (4) The parties may apply to any competent judicial authority for interim or conservatory measures. By doing so, they shall not be held to infringe the agreement to arbitrate or to affect the powers of the Tribunal.

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B 2010 UNCITRAL Arbitration Rules, Article 26 (1) The arbitral tribunal may, at the request of a party, grant interim measures. (2) An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute. (3) The party requesting an interim measure under paragraphs 2(a) to (c) shall satisfy the arbitral tribunal that: (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination. (4) With regard to a request for an interim measure under paragraph 2 (d), the requirements in paragraphs 3 (a) and (b) shall apply only to the extent the arbitral tribunal considers appropriate. (5) The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative. (6) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure. (7) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the interim measure was requested or granted.

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(8) The party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings. (9) A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

VI Indus Waters Treaty A Annexure G, Paragraph 28 Either Party may request the Court at its first meeting to lay down, pending its Award, such interim measures as, in the opinion of that Party, are necessary to safeguard its interests under the Treaty with respect to the matter in dispute, or to avoid prejudice to the final solution or aggravation or extension of the dispute. The Court shall, thereupon, after having afforded an adequate hearing to each Party, decide by a majority consisting of at least four members of the Court, whether any interim measures are necessary for the reasons hereinbefore stated and, if so, shall specify such measures: Provided that (a) the Court shall lay down such interim measures only for such specified period as, in its opinion, will be necessary to render the Award: this period may, if necessary, be extended unless the delay in rendering the Award is due to any delay on the part of the Party which requested the interim measures in supplying such information as may be required by the other Party or by the Court in connection with the dispute; and (b) the specification of such interim measures shall not be construed as an indication of any view of the Court on the merits of the dispute.

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INDEX

Abraham, Ronny, 195–196 abuse of process, definition of, 467 in international law, 466–468 provisional measures as, 469–471 abuse of rights, 466–468 Adachi, Mineichiro, 70, 92 admissibility, of application for provisional measures, 169–171 jurisdiction, compared with, 162–164 Advisory Committee of Jurists, 51–53, 55 Anderson, Luis, 33 Anzilotti, Dionisio, 58, 72–73 arbitration, ICSD, 187–191 international, 106–116 international commercial, 129–130 international dispute settlement and, 116–118 international investment, 106–116 inter-state, 45–47, 158–159, 186–187, 218 inter-war, 45–50 investor-state, 106–110, 159–162 non-ICSID, 118 UNCITRAL, 191–193 Asser, T.M.C., 32 Associated Powers, 47 Badawi Pashi, Abdel, 77, 87–88, 149 bargaining costs, 453–458 provisional measures benefits of, 455–457

non-compliance, risks of, 455–457 risks of, 457–458 reputation and international dispute settlement, 453–454 Basdevant, Jules, 92 bilateral investment treaties, 106–108 Bryan, William Jennings, 39, 42 Buergenthal, Thomas, 211–212, 293 Bundesgericht, 30, 64 canon law, 19–20 Cassese, Antonio, 327 cautio iudicatum solvi, 18 Central American Court of Justice, 34–38, 42, 54, 80, 208 Bryan-Chamorro Treaty cases, 38–42, 43 Central American Peace Conference, 34 civil law, 24–31 Code civil des franc¸ais of 1804, 25 common law, 21–24 compensation bodies, 117–118 Connally Reservation, 152 Corpus iuris canonici, 19 Council of the League of Nations, 51 Court of Arbitration (Indus Waters Treaty), 146–147, 186, 318 Court of Chancery, 21 Court of Common Pleas, 22, 23 custody of persons or movable property, 309–316, 461–463 de restitutio spoliatorum, 19 Declaration of Deep Seabed Principles (1970), 94 diplomatic protection cases, 353–356

509

510

index

dispute settlement international, 384–387 bargaining costs and, 453–454 provisional measures and, 387–397 reputation and, 453–454 under UNCLOS, 155–158, 239–255 dispute settlement architecture, 96–98 dispute settlement under, 155–158 litigation strategies, 449–450 non-aggravation of disputes, 216–218 prima facie admissibility, 166–167 domestic civil proceedings, 372–377 identity of parties in, 373–374 identity of subject matter in, 374–376 limitations to restraint of, 376 domestic criminal proceedings, 377–382 Dumbarton Oaks Proposals, 83–86 Dumbauld, Edward, 41–42, 43, 196 Eritrea–Ethiopia Claims Commission, 117, 137 estrepment, 22 European Court of Justice (ECJ), 127–128 Exchequer, 22 Fernandes, Raoul, 52 Fitzmaurice, Gerald, 139, 163, 281 frivolous claims, 468 Gilmore, James III, 290 Goldschmidt, Levin, 31 Greenwood, Christopher, 199 Guardabarranco Environmental Movement, 439 Guerrero, Jose Gustavo, 82, 86 Guillaume, Gilbert, 220, 293 ˚ Hammarskj¨old, Ake, 80, 277, 278–279 Holy Roman Empire, 57 Huber, Max, 15, 61, 64, 347, 437 Hudson, Manley, 80, 279

Hull, Jane Dee, 289 human rights law, 346–364 humanitarian law, 346–364 Humidal Caribe Noreste, 393, 394, 395 ICSID. See International Convention on the Settlement of Investment Disputes (ICSID) injunction, 18 Institut de droit international, 31 Inter-Allied Committee, 83 Inter-American Commission on Human Rights, 129 Inter-American Court of Human Rights, 128, 140 Inter-American Juridical Committee, 83 interdict, 17–18, 21 interim relief, 299–301, 303, 369, 447 interlocutory junction, 23–24 International Bank for Reconstruction and Development. See World Bank International Centre for Settlement of Investment Disputes, 47, 108–109 Additional Facility, 109–110 annulment proceedings, 423–433 mechanism of, 423–425 provisional measures and, 425–433 arbitration, 187–191 binding character of provisional measures and, 285–287 prejudice in, 257–263 provisional measures: enforcement of, 336–338 urgency in, 266–269: general considerations, 266–267; materialization risk and axiomatic urgency, 267–269 Convention, 108–109 International Chamber of Commerce (ICC), 118 international commercial arbitration, 129–130 International Court of Justice, 31, 82–93, 149–154

index history, 82–86 litigation strategies in, 445–453 merits review in separate and dissenting opinions of, 194–197 non-aggravation of disputes, 209–216 preconditions for award of measures in, 213 scope and effect of measures in, 214–216 separation of power in, 209–213 Order of 11 September 1976, 366 prejudice irreparable, standard of, 226–231 urgency and, 232–239: materialization risk prior to judgment date, 232–234; respondent representations in, 234–239 prima facie admissibility and, 164–166 provisional measures duration of, 316–317 effectiveness of, 456 enforcement of, 329–336 rights pendente lite and, 180–184 Security Council and, 364–369 conflict between, 368–369 interaction between, 364–368 settled practice of, 151–154 third party regulation of parties’ behaviour and, 392–397 international courts and tribunals, 127–130 international dispute settlement, 384–387 bargaining costs and, 453–454 provisional measures and, 387–397 reputation and, 453–454 international investment arbitration, 106–116, 128–129 treaty-based investor-state arbitration, 106–110 bilateral investment treaties, 106–108 multilateral investment treaties, 106–108

511

International Tribunal for the Law of the Sea (ITLOS), 97, 101, 186, 240–243, 246–248, 254–255, 399, 403, 428, 434, 481–482, 483 Seabed Disputes Chamber, 398, 399, 403 interpretation proceedings, 414–423 for judgments and awards, 414–417 provisional measures and, 417–423 inter-state arbitration, 158–159 litigation strategies in, 450–451 non-aggravation of disputes, 218 plausibility of the rights claimed, 203–204 prejudice in, 255–257 prima facie admissibility in, 168 provisional measures duration of, 318 rights pendente lite and, 186–187 treaties, 45–47 urgency in, 255–257 inter-war arbitration, 45–50 investor-state arbitration, 106–110, 159–162 ICSID arbitration merits proper in, 187–191 non-aggravation of disputes in, 218–221 litigation strategies in, 451–453 naked treaty shopping in, 468 for non-aggravation of disputes in investor-state arbitration, 218–223 non-aggravation of disputes in, 218–223 prejudice in, 257–266 ICSID arbitration, 257–263 UNCITRAL arbitration, 263–266 prima facie admissibility in, 168–169 proportionality in, 305–306 provisional measures duration of, 318 enforcement of, 336–341: ICSID arbitration, 336–338; UNCITRAL arbitration, 339–341 rights pendente lite and, 187–193

512

index

investor-state arbitration (cont.) UNCITRAL arbitration merits proper in, 191–193 non-aggravation of disputes in, 222–223 Iran-US Claims Tribunal, 47, 111, 112, 118, 120, 161–162, 191, 222, 264, 269, 270, 288, 370, 418 Jimenez de Ar´echaga, E., 448 jurisdiction admissibility, compared with, 162–164 prima facie, 147–162 rationae materiae, 160 rationae personae, 160 Kiss, Alexandre, 467 Kolb, Robert, 467 Koroma, Abdul, 198–199 Kozhevnikov, F.I., 140 Kulyk, Markiyan, 248 Lago Agrio, 192, 340–341 LaGrand (Germany v. United States of America) (2001), 288–294 background, 288–290 diplomatic protection in, 355, 356 influence, 334 interim relief in, 91, 92 plausibility requirement and, 446 prejudice in, 229 proceedings in, 291–294 dissenting opinions, 293–294 judgment, 292–293 pleadings, 291–292 provisional measures in, 295–298, 444, 475–476 binding character of, 111, 174, 195–196, 212–213 enforcement of, 329 right to consular assistance in, 183 state responsibility in, 323 urgency in, 233 Laing, Elizabeth, 253 Lauterpacht, Elihu, 109 Lauterpacht, Hersch, 87–88, 151, 278–279, 468

League of Nations, 46, 279 Lee-Iwamoto, Yoshiyuki, 353, 355, 361 lex specialis, 418, 432 litigation strategies, 443–472 bargaining costs and, 453–458 provisional measures, seeking: benefits of, 455–457; non-compliance, risks of, 455–457; risks of, 455–457 reputation and international dispute settlement, 453–454 in dispute settlement under UNCLOS, 449–450 future conduct, 445 in International Court of Justice, 445–453 in inter-state arbitration, 450–451 in investor-state arbitration, 451–453 ‘proceed at own risk’ principle, 463–466 provisional measures use and abuse of, 466–471: abuse of process in international law, 466–468; provisional measures as abuse of process, 469–471 provisions measure as objective of contested proceedings, 458–463 custody of persons or movable property, 461–463 in time-sensitive situations, 459–461 purposes of provisional measures and, 444–466 McNair, Arnold, 143 Mercier, Andr´e, 48 M´erignac, A., 32 mixed arbitral tribunals, 47–50 Mosler, Hermann, 149 multilateral investment treaties, 106–108 Nagaoka Committee on Polish expropriation, 73 Ndombasi, Yerodia, 233–234 Negulesco, Demetre, 58 Nestor, Ion, 119

index Niemeyer, H.G., 280 non-aggravation of disputes, 208–216, 218, 223 dispute settlement under UNCLOS, 216–218 International Court of Justice, 209–216 preconditions for award of measures in, 213 protection of objective interest, 208–209 separation of power in, 209–213 non-appearing parties, 405–414 practice of non-appearance, 405–408 provisional measures and, 409, 414 errors of Arctic Sunrise, 409–414 non-compliance corporate liability in, 326–328 individual liability in, 326–328 law of state responsibility, application of, 319–326 attribution, 320 breach and defences, 321–323 invocation of responsibility, 323–326 legal consequences of, 319–328 Oda, Shigeru, 294, 355 Oellers-Frahm, Karin, 199 Offizialverfahren, 57 Organtreue, 365–366, 367 Paik, Jin-Hyun, 167 Pardo, Arvid, 94 Peace Treaties advisory opinion, 87 pendente lite, 16, 20 Permanent Court of Arbitration, 32, 116–117 Permanent Court of International Justice, 15–16, 51–76 Advisory Committee of Jurists, 51–53 jurisprudence of, 60–76 procedural rules of, 55–60, 68, 70, 77, 88, 114, 477–478 Statute of, 51–54, 56, 66, 68, 275–280, 477

513

plausibility requirement, 193–204, 208, 446, 449 Pless Administration, 70 praetor, 17 prejudice International Court of Justice, 226–239 in inter-state arbitration, 255–257 in investor-state arbitration, 257–266 ICSID arbitration, 257–263 irreparable, 474 emergence of, 239–243 standard of, 226–231 overview, 225–226 rights pendente lite, 226–227 under UNCLOS Article 290, 239–245 irreparable prejudice, 239–243 serious harm to marine environment, 243–245 prima facie admissibility, 162–169 in dispute settlement under UNCLOS, 166–167 International Court of Justice and, 164–166 in international courts and tribunals, 166–169 in inter-state arbitration, 168 in investor-state arbitration, 168–169 jurisdiction, compared with, 162–164 prima facie jurisdiction, 40, 79, 129–130, 147–162, 165–166, 167, 177, 184, 201, 202–203, 204, 213, 433–442, 450, 452–453, 474 in dispute settlement under UNCLOS, 155–158 International Court of Justice, 149–154 in inter-state arbitration, 158–159 in investor-state arbitration, 158–159 ‘proceed at own risk’ principle, 463–466

514

index

provisional measures admissibility of application for, 169–171 binding character of, 284 Article 41 of the PCIJ and ICJ Statute, arguments concerning, 275–280 binding character of provisional measures and: new status quo, 295–298 dispute settlement under UNCLOS, 284, 285 as general principle of law, 280–282 ICJ practice, 282–285 in investor-state arbitration, 284–288: ICSID arbitration, 285–287; UNCITRAL arbitration, 287–288 LaGrand (Germany v United States of America), 288–294 character of, 1–3 content of, 298–319 final resolution of the dispute, 298, 302–304 interim judgments, 298, 302–304 measures of protection of substantive or procedural rights, 298–302 definition of, 1–3 duration of, 316–319 in dispute settlement under UNCLOS, 316–317 ICJ, 316–317 in inter-state arbitration, 318 in investor-state arbitration, 318 in early international courts and tribunals, 31–50 American experience in 1902–1918, 33–45: Central American Court of Justice, 34–42; Treaty of Corinto, 33–34 international codification projects in 1873–1907, 31–32 enforcement of, 328–341 in dispute settlement under UNCLOS, 336

in ICJ, 329–336 in investor-state arbitration, 336–341: ICSID arbitration, 336–338; UNCITRAL arbitration, 339–341 as incidental proceedings, 134–136 international courts and, 4–5 in international law, 1–5 international tribunals and, 4–5 inter-war arbitration and, 45–50 inter-state arbitration treaties, 45–47 mixed arbitral tribunals, 47–50 as lex specialis, 143–147 constituent instruments and lex specialis, 144–147 fixed minimum features of power, 143–144 litigation strategies and, 443–472 modification or revocation of, 433–442 justifications of, 436–442 procedures of, 433–436 for non-aggravation of disputes, 208–218, 223 dispute settlement under UNCLOS, 216–218 International Court of Justice, 209–216 in inter-state arbitration, 218 protection of objective interest, 208–209 origins of, 15–81 in Antiquity and Middle Ages, 16–20: canon law, 19–20; Greco-Roman laws, 16–19 civil law, 24–31: French Code de proc´edure civile, 25–27; German Zivilprozessordnung, 27–29; Swiss code, 29–31 common law, 21–24 municipal law, 16–31 power to grant, 133–173 legal sources of, 136–147: provisional measures as an express mandate, 142–143; provisional measures as an inherent power of international

index courts and tribunals, 139–141; provisional measures as general principle of international law, 136–139; provisional measures as lex specialis, 143–147 for preservation of rights pendente lite, 175–208 prima facie admissibility, 162–169 prima facie jurisdiction, 147–162 International Court of Justice, 149–154 proportionality in, 304–316 before international courts or tribunals, 307–309 in investor-state arbitration, 305–306 purpose of, 174–224 purposes of, 444 questions of procedure and, 397–442 questions of substance and, 346–397 use and abuse of, 466–471 questions of procedure, 397–442 advisory proceedings, 397–405 provisional measures and, 400–405 scope of advisory jurisdiction, 397–400 ICSID annulment proceedings, 423–433 mechanism of, 423–425 provisional measures and, 425–433 interpretation proceedings, 414–423 for judgments and awards, 414–417 provisional measures and, 417–423 modification or revocation of provisional measures, 433–442 justifications of, 436–442 procedures of, 433–436 non-appearing parties, 405–414 practice of non-appearance, 405–408

515

provisional measures and, 409–414: errors of Arctic Sunrise, 409–414; general practice, 409 questions of substance, 346–397 dispute management, 384–397 international dispute settlement, 384–387 international dispute settlement, integrated, 387–397: ICJ and third-party regulation of parties’ behaviour, 392–397; UNCLOS Article 290, 388–392 human rights and humanitarian law, 346–364 cases with attenuated or broken links, 356–362 diplomatic protection cases, 353–356 practice, understanding, 362–364 as subject of main claim, 347–353 parallel seisin of ICJ and Security Council, 364–369 proceedings before courts and tribunals, 369–384 domestic civil proceedings, 372–377: identity of parties in, 373–374; identity of subject matter in, 374–376; limitations to restraint of, 376–377 domestic criminal proceedings, 377–382 international proceedings, 382–384 rationae materiae, 422 Reichskammergericht, 57 res judicata doctrine, 391, 414, 432 Restatement (Third) of the Foreign Relations Law of the United States, 290 rights pendente lite, 474 defining, 176–179 interim relief and, 447 prejudice and, 226–227 provisional measures for preserving, 175–208 forms of, 175–176

516

index

rights pendente lite (cont.) merits proper and, 179–193: in dispute settlement under UNCLOS, 185–186; International Court of Justice, 180–184; in inter-state arbitration, 186–187; in investor-state arbitration, 187–193 plausibility of the rights claimed, 193–208: dispute settlement under UNCLOS, 201–203; International Court of Justice 1951–2006, 194–201; International Court of Justice, 2009 onwards, 197–201; inter-state arbitration, 203–204; investor-state arbitration, 205–208 Rolin-Jaequemyns, Baron, 72–73 Roman laws, 16–19, 52 Root, Elihu, 36 Sch¨ucking, Walther, 57, 73, 79 Schwebel, Stephen M., 165 Seabed Disputes Chamber, 398, 399, 403 Security Council, 283 ICJ and, 364–369 conflict between, 368–369 interaction between, 364–368 Resolution 395, 366 Resolution 748, 368 serious harm to marine environment, 243–245 Staatsgerictshof, 28, 64 state responsibility, in noncompliance with provisional measures, 319–326 attribution, 320 breach and defences, 321–323 invocation of responsibility, 323–326 sui generis regime of, 326 third party adjudication, 385 travaux pr´eparatoires, 286 Treves, Tullio, 253

UNCITRAL. See United Nations Commission on International Trade Law (UNCITRAL) UNCLOS. See United Nations Convention on the Law of the Sea (UNCLOS) United Nations Commission on International Trade Law (UNCITRAL), 108, 258, 371 arbitration, 191–193 binding character of provisional measures and, 287–288 prejudice in, 263–266 provisional measures: enforcement of, 339–341 urgency in, 269–272 Arbitration Rules, 118–123 2010 Amendments, 121–123 drafting and proliferation of, 118–121 provisional measures under, 123–127, 137, 161–162, 192, 207, 222, 223, 263, 269, 271, 339, 434–435, 452–453, 485, 486–487 United Nations Committee Against Torture, 128 United Nations Convention on the Law of the Sea (UNCLOS), 93–106 dispute settlement architecture, 96–98 dispute settlement under, 155–158, 239–255 binding character of provisional measures and, 284, 285 litigation strategies in, 449–450 non-aggravation of disputes in, 216–218 prejudice under Article 290, 239–245 prima facie admissibility in, 166–167 provisional measures: duration of, 317–318; enforcement of, 336 rights pendente lite and, 185–186 urgency under Article 290, 245–248, 255: Article 290(1),

index 245–246; Article 290(5), 246–248; general considerations, 245–248; marine environment protection measures, 252–255; materialization risk and undertaking effects, 248–252 UNCLOS I, 93, 95 UNCLOS II, 93 UNCLOS III, 93–96, 98 United Nations Economic Commission for Asia and the Far East (ECAFE Rules), 120, 123 United Nations Economic Commission for Europe (ECE Rules), 120, 123 United Nations Human Rights Committee, 128 United States Alien Tort Statute, 327 urgency in inter-state arbitration, 255–257 in investor-state arbitration, 266–272 ICSID arbitration, 266–269: general considerations, 266–267; materialization risk and axiomatic urgency, 267–269 UNCITRAL arbitration, 269–272

517 proof of, 474 under UNCLOS Article 290, 245–255 Article 290(1), 245–246 Article 290(5), 246–248 general considerations, 245–248 marine environment protection measures, 252–255 materialization risk and undertaking effects, 248–252

Van Eysinga, Jonkheer, 57, 73, 79, 82 Vukas, Budislav, 216–217 Waldock, Humphrey, 92 Washington Committee, 84–86 Weeramantry, Christopher, 92, 284–288 Weiss, Charles Andre, 61, 64 Winiarski, Bohdan, 77, 87–88, 149 World Bank, 108 World Trade Organization (WTO), Appellate Body, 467 Zivilprozessordnun (ZPO), 27–28, 29 Zourek, Jaroslav, 140

cambridge studies in international and comparative law Books in the series 128 Provisional Measures before International Courts and Tribunals Cameron Miles 127 Humanity at Sea: Maritime Migration and the Foundations of International Law Itamar Mann 126 Beyond Human Rights: The Legal Status of the Individual in International Law Anne Peters 125 The Doctrine of Odious Debt in International Law: A Restatement Jeff King 124 Static and Evolutive Treaty Interpretation: A Functional Reconstruction Christian Djeffal 123 Civil Liability in Europe for Terrorism-Related Risk Lucas Bergkamp, Michael Faure, Monika Hinteregger and Niels Philipsen 122 Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy Caroline Henckels 121 International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations Dani¨ella Dam-de Jong 120 Proof of Causation in Tort Law Sandy Steel 119 The Formation and Identification of Rules of Customary International Law in International Investment Law Patrick Dumberry 118 Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination Jeroen Temperman 117 Taking Economic, Social and Cultural Rights Seriously in International Criminal Law Evelyne Schmid 116 Climate Change Litigation: Regulatory Pathways to Cleaner Energy? Jacqueline Peel and Hari Osofsky 115 Mestizo International Law: A global intellectual history 1842–1933 Arnulf Becker Lorca 114 Sugar and the Making of International Trade Law Michael Fakhri

113 Strategically-created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan 112 Investment Treaty Arbitration as Public International Law: Procedural Aspects and Implications Eric De Brabandere 111 The New Entrants Problem in International Fisheries Law Andrew Serdy 110 Substantive Protection under Investment Treaties: A Legal and Economic Analysis Jonathan Bonnitcha 109 Popular Governance of Post-Conflict Reconstruction: The Role of International Law Matthew Saul 108 Evolution of International Environmental Regimes: The Case of Climate Change Simone Schiele 107 Judges, Law and War: The Judicial Development of International Humanitarian Law Shane Darcy 106 Religious Offence and Human Rights: The Implications of Defamation of Religions Lorenz Langer 105 Forum Shopping in International Adjudication: The Role of Preliminary Objections Luiz Eduardo Ribeiro Salles 104 Domestic Politics and International Human Rights Tribunals: The Problem of Compliance Courtney Hillebrecht 103 International Law and the Arctic Michael Byers 102 Cooperation in the Law of Transboundary Water Resources Christina Leb 101 Underwater Cultural Heritage and International Law Sarah Dromgoole 100 State Responsibility: The General Part James Crawford 99 The Origins of International Investment Law Kate Miles 98 The Crime of Aggression under the Rome Statute of the International Criminal Court Carrie McDougall 97 Crimes against Peace and International Law Kirsten Sellars 96 The Non-Legal in International Law

Fleur Johns 95 Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law M´elanie Jacques 94 Foreign Investment and the Environment in International Law Jorge Vi˜nuales 93 The Human Rights Treaty Obligations of Peacekeepers Kjetil Larsen 92 Cyberwarfare and the Laws of War Heather Harrison Dinniss 91 The Right to Reparation in International Law for Victims of Armed Conflict Christine Evans 90 Global Public Interest in International Investment Law Andreas Kulick 89 State Immunity in International Law Xiaodong Yang 88 Reparations and Victim Support in the International Criminal Court Conor McCarthy 87 Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime Payam Akhavan 86 Decolonizing International Law: Development, Economic Growth and the Politics of Universality Sundhya Pahuja 85 Complicity and the Law of State Responsibility Helmut Philipp Aust 84 State Control over Private Military and Security Companies in Armed Conflict Hannah Tonkin 83 ‘Fair and Equitable Treatment’ in International Investment Law Roland Kl¨ager 82 The UN and Human Rights: Who Guards the Guardians? Guglielmo Verdirame 81 Sovereign Defaults before International Courts and Tribunals Michael Waibel 80 Making the Law of the Sea: A Study in the Development of International Law James Harrison 79 Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality

Caroline E. Foster 78 Transition from Illegal Regimes in International Law Ya¨el Ronen 77 Access to Asylum: International Refugee Law and the Globalisation of Migration Control Thomas Gammeltoft-Hansen 76 Trading Fish, Saving Fish: The Interaction between Regimes in International Law Margaret Young 75 The Individual in the International Legal System: Continuity and Change in International Law Kate Parlett 74 ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice Tom Ruys 73 Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice Stephen Humphreys 72 Science and Risk Regulation in International Law Jacqueline Peel 71 The Participation of States in International Organisations: The Role of Human Rights and Democracy Alison Duxbury 70 Legal Personality in International Law Roland Portmann 69 Vicarious Liability in Tort: A Comparative Perspective Paula Giliker 68 The Public International Law Theory of Hans Kelsen: Believing in Universal Law Jochen von Bernstorff 67 Legitimacy and Legality in International Law: An Interactional Account Jutta Brunn´ee and Stephen J. Toope 66 The Concept of Non-International Armed Conflict in International Humanitarian Law Anthony Cullen 65 The Principle of Legality in International and Comparative Criminal Law Kenneth S. Gallant 64 The Challenge of Child Labour in International Law Franziska Humbert 63 Shipping Interdiction and the Law of the Sea Douglas Guilfoyle

62 International Courts and Environmental Protection Tim Stephens 61 Legal Principles in WTO Disputes Andrew D. Mitchell 60 War Crimes in Internal Armed Conflicts Eve La Haye 59 Humanitarian Occupation Gregory H. Fox 58 The International Law of Environmental Impact Assessment: Process, Substance and Integration Neil Craik 57 The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond Carsten Stahn 56 United Nations Sanctions and the Rule of Law Jeremy Farrall 55 National Law in WTO Law: Effectiveness and Good Governance in the World Trading System Sharif Bhuiyan 54 Cultural Products and the World Trade Organization Tania Voon 53 The Threat of Force in International Law Nikolas St¨urchler 52 Indigenous Rights and United Nations Standards Alexandra Xanthaki 51 International Refugee Law and Socio-Economic Rights Michelle Foster 50 The Protection of Cultural Property in Armed Conflict Roger O’Keefe 49 Interpretation and Revision of International Boundary Decisions Kaiyan Homi Kaikobad 48 Multinationals and Corporate Social Responsibility: Limitations and Opportunities in International Law Jennifer A. Zerk 47 Judiciaries within Europe: A Comparative Review John Bell 46 Law in Times of Crisis: Emergency Powers in Theory and Practice Oren Gross and Fionnuala N´ı Aol´ain

45 Vessel-Source Marine Pollution: The Law and Politics of International Regulation Alan Tan 44 Enforcing Obligations Erga Omnes in International Law Christian J. Tams 43 Non-Governmental Organisations in International Law Anna-Karin Lindblom 42 Democracy, Minorities and International Law Steven Wheatley 41 Prosecuting International Crimes: Selectivity and the International Law Regime Robert Cryer 40 Compensation for Personal Injury in English, German and Italian Law: A Comparative Outline Basil Markesinis, Michael Coester, Guido Alpa, Augustus Ullstein 39 Dispute Settlement in the UN Convention on the Law of the Sea Natalie Klein 38 The International Protection of Internally Displaced Persons Catherine Phuong 37 Imperialism, Sovereignty and the Making of International Law Antony Anghie 35 Necessity, Proportionality and the Use of Force by States Judith Gardam 34 International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary Ole Spiermann 32 Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order Gerry Simpson 31 Local Remedies in International Law, Second Edition C. F. Amerasinghe 30 Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law Anne Orford 29 Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law Joost Pauwelyn

27 Transboundary Damage in International Law Hanqin Xue 25 European Criminal Procedures Edited by Mireille Delmas-Marty and John Spencer 24 The Accountability of Armed Opposition Groups in International Law Liesbeth Zegveld 23 Sharing Transboundary Resources: International Law and Optimal Resource Use Eyal Benvenisti 22 International Human Rights and Humanitarian Law Ren´e Provost 21 Remedies Against International Organisations Karel Wellens 20 Diversity and Self-Determination in International Law Karen Knop 19 The Law of Internal Armed Conflict Lindsay Moir 18 International Commercial Arbitration and African States: Practice, Participation and Institutional Development Amazu A. Asouzu 17 The Enforceability of Promises in European Contract Law James Gordley 16 International Law in Antiquity David J. Bederman 15 Money Laundering: A New International Law Enforcement Model Guy Stessens 14 Good Faith in European Contract Law Reinhard Zimmermann and Simon Whittaker 13 On Civil Procedure J. A. Jolowicz 12 Trusts: A Comparative Study Maurizio Lupoi 11 The Right to Property in Commonwealth Constitutions Tom Allen 10 International Organizations Before National Courts August Reinisch 9 The Changing International Law of High Seas Fisheries Francisco Orrego Vicu˜na

8 Trade and the Environment: A Comparative Study of EC and US Law Damien Geradin 7 Unjust Enrichment: A Study of Private Law and Public Values Hanoch Dagan 6 Religious Liberty and International Law in Europe Malcolm D. Evans 5 Ethics and Authority in International Law Alfred P. Rubin 4 Sovereignty Over Natural Resources: Balancing Rights and Duties Nico Schrijver 3 The Polar Regions and the Development of International Law Donald R. Rothwell 2 Fragmentation and the International Relations of Micro-States: Self-determination and Statehood Jorri Duursma 1 Principles of the Institutional Law of International Organizations C. F. Amerasinghe