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World Court Digest

III. The International Court of Justice
3.10. Provisional Measures
3.10.4. Binding Effect / Compliance

¤ 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.

1See 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.
2Footnote omitted.
3Footnote omitted.