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World Court Digest

III. The International Court of Justice
3.10. Provisional Measures
3.10.2. Questions of Procedure

¤ LaGrand (Germany v. United States of America)
Provisional Measures, Order of 3 March 1999,
I.C.J. Reports 1999, p. 9

[pp. 14-15] 19. Whereas, the sound administration of justice requires that a request for the indication of provisional measures founded on Article 73 of the Rules of Court be submitted in good time;

20. Whereas, Germany emphasizes that it did not become fully aware of the facts of the case until 24 February 1999 and that since then it has pursued its action at diplomatic level;

21. Whereas, under Article 75, paragraph 1, of the Rules of Court, the latter "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"; whereas a provision of this kind has substantially featured in the Rules of Court since 1936, and whereas, if the Court has not, to date, made use of the power conferred upon it by this provision, the latter appears nonetheless to be clearly established; whereas the Court may make use of this power, irrespective of whether or not it has been seised by the parties of a request for the indication of provisional measures; whereas in such a case it may, in the event of extreme urgency, proceed without holding oral hearings; and whereas it is for the Court to decide in each case if, in the light of the particular circumstances of the case, it should make use of the said power;

22. Whereas the power of the Court to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings; 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 either to the Applicant, or to the Respondent; and whereas such measures are only justified if there is urgency;

23. Whereas the Court will not order interim measures in the absence of "irreparable prejudice . . . to rights which are the subject of dispute . . ." (Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 103; United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 19, para. 36; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34); Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, p. 257, para. 36);

24. Whereas the execution of Walter LaGrand is ordered for 3 March 1999; and whereas such an execution would cause irreparable harm to the rights claimed by Germany in this particular case;

[p. 21 S.O. Schwebel] Under Article 75, paragraph 1, the Court may issue an order of provisional measures without giving the parties the opportunity to be heard. That is an extraordinary power, to be exercised with the utmost caution. There may be room to question whether sovereign States should be subjected to the Court's restraints pendente lite without giving them the opportunity to be heard. But if in extreme circumstances they are to be so subject, then the Court should act in meticulous conformity with its Rules. Its Rules do not contemplate it so acting where a party has - as Germany here - made a request for the indication of provisional measures.