| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.4. | Binding Effect / Compliance |
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Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 13 September 1993,
I.C.J. Reports 1993, p. 325
[p. 349] 58. Whereas, as the Court has previously found,
"When the Court finds that the situation requires that measures of this
kind should be taken, it is incumbent on each party to take the Court's
indication seriously into account ..." (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgment, I.C.J. Reports 1986, p. 144, para. 289);
whereas this is particularly so in such a situation as now exists in
Bosnia-Herzegovina where no reparation could efface the results of conduct which
the Court may rule to have been contrary to international law;
59. Whereas the present perilous situation demands, not an indication of
provisional measures additional to those indicated by the Court's Order of 8
April 1993, set out in paragraph 37 above, but immediate and effective
implementation of those measures;
[p. 374 S.O. Weeramantry] As the lack of mechanisms for
enforceability sometimes clouds discussions of the binding nature of the orders
of this Court, a consideration of the binding nature of provisional measures
must start with the clear distinction that exists between the question of the
legal obligation to comply with an order and the question of its
enforcement 1. The fact that an order cannot be enforced does not in any
manner affect its binding nature, for the binding nature of an order is inherent
in itself. It imposes a positive obligation recognized by international law.
Whether such an order is complied with or not, whether it can be enforced or
not, what other sanctions lie behind it - all these are external questions, not
affecting the internal question of inherent validity.
[p. 375 S.O. Weeramantry] Indeed, it scarcely needs mention that in
international law the Austinian view that a sanction is necessary to the
existence of a rule of law, or of a legal prescription, has always been
particularly inappropriate. The treatment of provisional measures as not
imposing legal obligations because the Court has no power of enforcement is thus
untenable. Viewed in this light, a provisional measure, no differently from a
final order, if pronounced by a court according to due forms and processes and
within its jurisdiction, is inherently valid and as such carries with it a duty
of compliance.
When this Court, duly acting within its authority and jurisdiction,
indicates provisional measures, it is in the expectation that those measures
will be complied with, in accordance with international law. Their violation
must therefore be viewed with great concern. The question of the obligation to
comply must at all times be sharply distinguished from the question of
enforceability.
[p. 376 S.O. Weeramantry] The function of a judicial tribunal, once
an issue has been brought to it, is to take the necessary steps according to law
towards reaching a decision in accordance with the principle of the equality of
parties. This presupposes that the issue brought to it, once committed to the
court, must as far as possible be preserved in that form, free of interference
by unilateral action of a party, until the determination made by the court. It
means also that the principle of equality cannot be disturbed by the superior
force available to one party, wherewith to impair or interfere with the
subject-matter until determination. It is thus inherent in the authority of that
tribunal that, ancillary to the power of judgment, it must have power to issue
incidental orders to ensure that the subject-matter of the suit is preserved
intact until judgment.
Such a power would of course be completely negatived if a party were under
no legal obligation to obey such an order and were therefore free to disregard
it. In certain cases, as one writer puts it, this could "make a mockery of
the jurisdiction on the merits"2. The anomaly is even greater where the
unilateral action of a party is of such an order as to destroy the
subject-matter which is in litigation before the court. Even stronger is the
case where such action threatens to destroy or undermine the very existence of a
party.
To take the view that a court seised of a matter has no power to act in the
face of a unilateral threat to the subject-matter by one of the parties before
it would appear then to result in the contradictory situation of the court on
the one hand having jurisdiction to hear a case and on the other being denied
the effective and necessary authority to discharge the task which has thus been
validly entrusted to it. To view procedural measures as not binding on the
parties is to enable the ground to be cut under the feet not only of the
opposite party but also of the court itself. A reasonable construction, in total
context, of the judicial powers entrusted to the court does not seem capable of
sustaining such a meaning. The rule under discussion has been described as a "principle
of institutional effectiveness"3.
[p. 379 S.O. Weeramantry] The view that provisional orders are part
of the inherent authority of a judicial tribunal is thus one which is
sustainable on general principle, on practical necessity, and on the basis of a
not inconsiderable body of authority. Principles that may be invoked in support
of such a view include the principle of equality of parties, the principle of
effectiveness, the principle of non-anticipation by unilateral action of the
decision of the Court, and also the wide and universal recognition of the
enjoining powers of courts as an inherent part of their jurisdiction.
[p. 389 S.O. Weeramantry] For the reasons set out, the provisional
measures ordered by the Court on 8 April 1993 imposed a binding legal obligation
on the Respondent. Non-compliance with that Order endangers the very subject of
the dispute before the Court and can cause irreparable harm to the Applicant.
This irreparable harm is not in regard to rights and duties such as are often
the subject of litigation, for we are here dealing with matters under the
Genocide Convention, touching the very existence of a people. An interpretation
which imposes anything short of a binding legal obligation upon the Respondent
is out of tune with the letter and spirit of the Charter and the Statute.
[p. 400 S.O. Ajibola] Concluding this part of my opinion on whether
the Order of the Court is binding or not, I believe there is no reason why the
Court's Order should not be binding on the Parties; otherwise the Court would
not be empowered to make such orders in accordance with the provisions of the
Statute and Rules of Court. The Court is empowered to make rules under Article
30 of the Statute; thus by evoking that Article, such orders made under the
Rules are equally valid and binding. If the Court were to be even in the
slightest doubt as to the force behind such power as is contained in the
Statute, it is submitted that all the provisions in the Rules with regard to
requests for an indication of provisional measures together confer upon it
sufficient power to pronounce an order.
[pp. 401-402 S.O. Ajibola] At this point, it is important to state
the provision of Article 94 of the Charter, which reads:
"1. Each Member of the United Nations undertakes to comply with the
decision of the International Court of Justice in any case to which it
is a party.
2. If any party to a case fails to perform the obligations incumbent upon it
under a judgment rendered by the Court, the other party may have
recourse to the Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgment." (Emphasis added.)
The consequential effect and problem created by this Article with regard to
justiciability and enforceability of orders for an indication of provisional
measures of protection on matters pending before the Court are better perceived
from the plea of Sir Gladwyn Jebb when the United Kingdom took its complaint to
the Security Council - presumably under Article 94, paragraph 1 - in the Anglo-Iranian
Oil Co. case, which is another classic example of difficulty with the
enforcement of interim measures of protection, as indicated by the Court. In
this case, like the later case concerning the United States Diplomatic and
Consular Staff in Tehran, Iran refused to comply with the Order of the
Court. But formally and legitimately, I believe, the United Kingdom presented
its complaint to the Security Council under Articles 34 and 35 of
the Charter of the United Nations.
If I pause here for a while, it may be safe to argue that even if matters of
this nature - relating to orders of the Court - cannot be presented to the
Security Council under Article 94, there is nothing to prevent the affected
State from taking its matter to the Security Council under Articles 34 and 35 of
the Charter, so as to ensure that the order of the Court is not treated lightly,
even though, and most regrettably, that may also prove ultimately futile at
times.
[p. 406 S.O. Ajibola] My conclusion is that an order, like a
judgment (and being incidental to it) ought not to be ineffective, artificial or
illusory. It should be binding and enforceable, otherwise, ab initio, there
may be a good and reasonable ground to question its being issued at all. The
Court, it is submitted, should not be seen to act in vain - Judicium non
debet esse illusorium; suum effectum habere debet.
The Court, as I would further point out, has this power under the Statute
and Rules, so that it also forms a part of its inherent power under general
international law. Otherwise it may be impeded from functioning as a Court. This
is my reason for stating that the Court should have rejected or refused to issue
the request for another Order in this case, unless and until the first Order of
8 April 1993 had been complied with by both Parties, and I therefore agree with
the Court, when it reaffirms its first indication of provisional measures and
re-emphasizes to both Parties that they should take all necessary steps to
implement and comply with the first Order of the Court, made on 8 April 1993.
[pp. 424-425 S.O. Lauterpacht] 47. To refrain from confronting the
facts simply because the proceedings are ones for provisional measures would
suggest a degree of formalism inconsistent with one of the tasks of the
international judicial process in circumstances so unusual as those involved
here. In the present case, so public are the facts and so urgent is the need
which they occasion that, to all intents and purposes, no clear line can be
drawn between the grant of provisional measures and the grant of the remedy
sought in the main action. A denial of sufficient provisional measures now may
well, in practice, be tantamount to a negation of the rights claimed in the main
action. If, as has been said, the grant of interim measures should not
prejudice the outcome of the consideration of the merits, so equally it must be
recognized that the denial of interim measures also should not prejudice
the outcome of the consideration of the merits. It is, therefore, a matter of
necessity to examine the facts to which the measures ordered by the Court
relate.
| 1 | See ASILS International Law Journal, Vol. 9 (1985), p. 176; and
see Jerome B. Elkind, Interim Protection: A Functional Approach,
1981, p. 157, for an instance cited by the author of a blurring of these issues
even in learned discussion. |
| 2 | Footnote omitted. |
| 3 | Footnote omitted. |
