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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
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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
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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
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Constitutive Instruments and Procedural Rules
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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
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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
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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
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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
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Purpose of Provisional Measures
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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
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Prejudice and Urgency
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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
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contents (a) General Considerations of Urgency 266 (b) Risk of Materialization and Axiomatic Urgency 2 UNCITRAL Arbitration 269 VI Conclusions 272
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Content and Enforcement
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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
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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
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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
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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
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Litigation Strategy and Provisional Measures
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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
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Conclusions
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Appendix 477 Bibliography 488 Index 509
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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.
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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
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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
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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.
preface
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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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preface
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
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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
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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
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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)
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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
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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
lxii
treaties and documents
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
documents of courts, tribunals and organizations
lxiii
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.
4
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
7
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.
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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
9
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
11
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
16
origins of provisional measures
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,
municipal law origins
17
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.
18
origins of provisional measures
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.
municipal law origins
19
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.
municipal law origins
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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.
22
origins of provisional measures
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.
municipal law origins
23
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.
municipal law origins
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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.
26
origins of provisional measures
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.
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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.
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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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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.
36
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.
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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.
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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
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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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(4) (5)
(6)
(7) (8)
(9)
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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
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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
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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
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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
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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
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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
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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
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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,
101
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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.
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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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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
164
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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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
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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
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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.
other international courts and tribunals
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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.
other international courts and tribunals
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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
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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
58
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
75 76
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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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
129
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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
139 140 141 142
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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
150 151
152
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
160 161
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.
admissibility of the application proper
169
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
165 166
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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measures for the preservation of rights pendente lite 175
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.
measures for the preservation of rights pendente lite 177
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.
64 65
66 67
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
81
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
86
87
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
94
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
105 106
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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
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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
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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
212
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
250
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
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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
25
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
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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
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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
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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
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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
18
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.
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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
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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
65
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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
77
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
130
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
169
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
171
172 173
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
180
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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
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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
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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 transfe