INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME OF ANNEXES
TO THE WRITTEN STATEMENT OF OBSERVATIONS AND SUBMISSIONS ON THE PRELIMINARY OBJECTIONS OF THE RUSSIAN FEDERATION
SUBMITTED BY UKRAINE
3 February 2023
i
TABLE OF CONTENTS
TO THE INDEX OF ANNEXES TO THE WRITTEN STATEMENT
Page
A. UKRAINIAN GOVERNMENT DOCUMENTS .......................................................................... ii
B. RUSSIAN GOVERNMENT DOCUMENTS .............................................................................. ii
C. SCHOLARLY AUTHORITIES .............................................................................................. iii
D. PRESS REPORTS .............................................................................................................. iii
ii
INDEX OF ANNEXED DOCUMENTS
ANNEXES
A. UKRAINIAN GOVERNMENT DOCUMENTS
Page Facebook Post of Valeriy Heletey (Minister of Defense of Ukraine) (3 October 2014)
p. 1 Report on the Results of the First Round of Negotiations of the Delegation of Ukraine with the Russian Federation on the Meaning and Application of the International Convention for the Suppression of the Financing of Terrorism (28 February 2015)
p. 5 MFA Statement on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its Unlawful Military Aggression, Facebook Post of the Ministry of Foreign Affairs of Ukraine/ MFA of Ukraine (26 February 2022)
p. 11 MFA Statement on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its Unlawful Military Aggression, Twitter Post of the Ministry of Foreign Affairs of Ukraine (@MFA_Ukraine) (26 February 2022)
p. 15
B. RUSSIAN GOVERNMENT DOCUMENTS
Page President of Russia Vladimir Putin, Address by the President of the Russian Federation (21 September 2022)
p. 19 The Kremlin, Signing of Treaties on Accession of Donetsk and Lugansk People’s Republics and Zaporozhye and Kherson Regions to Russia (30 September 2022)
p. 27 The State Duma, The State Duma Ratified Treaties and Adopted Laws on Accession of DPR, LPR, Zaporozhye and Kherson Regions to Russia (3 October 2022)
p. 31 The Kremlin, Vladimir Putin Spoke at an Expanded Meeting of the Board of the Defence Ministry, Which Was Held at the National Defence Control Center (21 December 2022)
p. 37
iii
C. SCHOLARLY AUTHORITIES
Page Hugh Thirlway, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS OF JURISPRUDENCE, Vol. I (Oxford University Press 2013)
p. 51 Paolo Palchetti, Responsibility for Breach of Provisional Measures of the ICJ: Between Protection of the Rights of the Parties and Respect for the Judicial Function, RIVISTA DI DIRITTO INTERNAZIONALE (2017)
p. 69 Karin Oellers-Frahm & Andreas Zimmermann, Article 41, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (Zimmermann et al., eds., Oxford University Press 2019)
p. 91 Sienho Yee, Article 40, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (Zimmermann et al., eds., Oxford University Press 2019)
p. 113 Pierre d’Argent, Preliminary Objections and Breaches of Provisional Measures, RIVISTA DI DIRITTO INTERNAZIONALE (2021)
p. 125
D. PRESS REPORTS
Page UNIAN, Russian-Speaking Ukrainians Suffered the Most from the Actions of Russia – Poroshenko (11 October 2014)
p. 151 VGOLOS, It Was Russia Who Dealt a Blow to the Russian-Speaking Population – Poroshenko (11 October 2014)
p. 155 Korrespondent.net, Poroshenko’s Officials Accused the Russian Federation of Preparing Provocations (12 November 2015)
p. 159 Tatiana Tkachenko, Russia is Going to Accuse Ukraine of “Genocide” of the Russian-Speaking Population in The Hague – Presidential Administration’s Speaker, ZU.UA (12 November 2015)
p. 163
iv
Annex 1 Facebook Post of Valeriy Heletey (Minister of Defense of Ukraine) (3 October 2014) This document has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. 1
2
Facebook
Valeriy Heletey
3 October 2014
“Regarding the criminal case against me and my colleagues in Russia for ‘genocide of the Russianspeaking
population’:
This whole thing is a complete delusion. The Armed Forces of Ukraine do not fire at the civilian
population. It is enough to go to Slovyansk, Kramatorsk, Artemivsk and other liberated cities and see
that there is almost no significant destruction. Groznyi after its capture by Russian troops looked
completely different.
Only crazy Kremlin propagandists can accuse the Ukrainian army, which is 40% Russian-speaking,
of hating other Russian-speakers. No adequate person will believe this. We are liberating Ukrainian
citizens from terrorists and occupiers, we are liberating our land, not conquering it.
Nevertheless, I am positive about the initiation of this case. Few people can objectively evaluate the
results of our work in the flow of information garbage. The Kremlin can appreciate. And if it wants
to see us behind bars, that's the highest possible score.”
0 ~127281~7913046067770
3
4
Annex 2 Report on the Results of the First Round of Negotiations of the Delegation of Ukraine with the Russian Federation on the Meaning and Application of the International Convention for the Suppression of the Financing of Terrorism (28 February 2015) This excerpt has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. A copy of the whole document has been deposited with the Registry. 5
6
“APPROVED”
Minister of Foreign Affairs
of Ukraine
______[Signed]______
P.A. Klimkin
“28” February, 2015
Report
on the results of the first round of negotiations of the delegation of Ukraine
with the Russian Federation on the meaning and application of the International
Convention for the Suppression of the Financing of Terrorism of 1999
(the city of Minsk, the Republic of Belarus, 22 January 2015)
On 22 January 2015 in the city of Minsk, the Republic of Belarus, a bilateral negotiation
between Ukraine and the Russian Federation on the issues of the meaning and application of the
International Convention for the Suppression of the Financing of Terrorism of 1999 (thereafter -
the Convention) took place.
At the negotiations the delegation of Ukraine, according to the Order of the President of
Ukraine “On the delegation of Ukraine for participation in the negotiations with the Russian
Federation regarding violation of its obligations based on the international agreements of
Ukraine” No. 970/2014 of 31 December 2014, was introduced in the following composition:
1. Zerkal Olena Volodymyrivna - Deputy Minister of Foreign Affairs of Ukraine
for the issues of European integration, head of the delegation;
2. Yanchuk Anton Volodymyrovych – Deputy Minister of Justice of Ukraine for
the issues of European integration, deputy head of the delegation;
3. Herasko Larysa Anatoliivna – Director of the Department of International Law
of the Ministry of Foreign Affairs of Ukraine, member of the delegation;
4. Zalisko Oleh Ihorovych – First Deputy Prosecutor General of Ukraine, Head of
the Main Investigative Department, member of the delegation;
5. Lopatyuk Serhiy Mykolayovych – Head of the Unit of International Law,
Adaptation and Systematization of Law of the Legal Support Department of the Border Guard of
Ukraine, member of the delegation;
6. Tsyupryk Ihor Volodymyrovych – Deputy Head of the Main Investigative
Department of the Ministry of Internal Affairs of Ukraine, member of the delegation;
Annex
To No. 180t
of 03.03.2015
db.29
7
2
7. Shkilevych Volodymyr Oleksandrovych – Deputy Director of the Department
of International Law of the Ministry of Foreign Affairs of Ukraine, member of the delegation;
8. Yahun Viktor Mykhailovych – Deputy Head of the Security Service of Ukraine,
member of the delegation;
9. Pelyukhovskyi Oleksandr Viktorovych – Assistant Deputy Head of the Security
Service of Ukraine, member of the delegation;
10. Kovalenko Oleksandr Viktorovych – First Deputy Head of the Main
Department for International Legal Cooperation of the Prosecutor’s General Office of Ukraine,
expert of the delegation.;
11. Haevskyi Ihor Mykolayovych – Head of the Legal Department of
Statefinmonioring, expert of the delegation.
.
The delegation of the Russian Federation was introduced in the following composition:
1. Rogachev Illia Igorevich – Director of the Department of New Challenges and
Threats of the of the Ministry of Foreign Affairs of the Russian Federation, head of the
delegation;
2. Drimanov Oleksandr Oleksandrovych – Head of Department of the
Investigative Committee of the Russian Federation, member of the delegation;
3. Velichko Oleksandr Yuriyovych – Deputy Head of Department of
Rosfinmonitoring, member of the delegation;
4. Gorlenko Serhiy Volodymyrovych – Deputy Head of Department of the General
Prosecutor’s Office of the Russian Federation, member of the delegation;
5. Zhafyarov Oleksiy Gayarovich – Deputy Head of Department of the General
Prosecutor’s Office of the Russian Federation, member of the delegation;
6. Litvishko Petr Andreevich - Head of Unit of the Investigative Committee of the
Russian Federation, member of the delegation;
7. Zabolotska Mariya Volodymyrivna – acting Head of Unit of the Legal
Department of the Ministry of Foreign Affairs of the Russian Federation, member of the
delegation;
8. Lysenko Volodymyr Stanislavovich – Chief Advisor of the Second Department
for the CIS Countries of the Ministry of Foreign Affairs of the Russian Federation, member of
the delegation;
9. Kosorukov Konstantyn Oleksandrovych – First Secretary of the Legal
Department of the Ministry of Foreign Affairs of the Russian Federation, member of the
delegation;
10. Svirin Petro Oleksandrovych - First Secretary of the Department of New
Challenges and Threats of the Ministry of Foreign Affairs of the Russian Federation, member of
the delegation;
11. Krisanov Dmytro Viktorovych – Lead Advisor of Department of the Ministry of
Internal Affairs of the Russian Federation, member of the delegation.
[…]
8
[…]
Deputy Minister of Foreign Affairs of Ukraine
for the issues of European integration,
Head of the delegation [Signed] O.V. Zerkal
9
10
Annex 3 MFA Statement on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its Unlawful Military Aggression, Facebook Post of the Ministry of Foreign Affairs of Ukraine/ MFA of Ukraine (26 February 2022) This document has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. 11
12
MFA
UA
The Ministry of Foreign Affairs of Ukraine / MFA of Ukraine
26 February 2022
Already over the past few days, the world continues to see unprecedented and brutal aggression
of the Russian Federation against Ukraine. Looking for justification of its groundless and unfair
invasion into Ukraine, Russia has cynically distorted to perversion of the international
community’s most solemn human rights commitments.
Top military and political leadership of the Russian Federation have publicly tried to justify its
own aggression against Ukraine as a means of preventing and punishing the genocide that is
purportedly taking place in our country.
This brazen manipulation has no real basis, as the whole world knows. Ukraine strongly denies
Russia’s allegations of genocide and denies any attempt to use such manipulative allegations as
an excuse for unlawful aggression.
Russia's lie is all the more offensive, and ironic, because it appears that it is Russia planning acts
of genocide in Ukraine. Russia is intentionally killing and inflicting serious injury on members
of Ukrainian nationality. These acts must be viewed together with President Putin’s rhetoric
denying the very existence of the Ukrainian people, which is suggestive of Russia’s intentional
killings bearing genocidal intent.
Full text of the statement: https://cutt.ly/bP3xiMA
[Symbol of Ukraine]
MFA STATEMENT
on Russia’s False and Offensive
Allegations of Genocide As a Pretext
For Its Unlawful Military Aggression
#StopRussianAggression
#RussiaInvadedUkraine
#UkraineUnderAttack
439 20 comments 128 shares
Share
13
14
Annex 4 MFA Statement on Russia’s False and Offensive Allegations of Genocide As a Pretext For Its Unlawful Military Aggression, Twitter Post of the Ministry of Foreign Affairs of Ukraine (@MFA_Ukraine) (26 February 2022) 15
16
17
18
Annex 5President of Russia Vladimir Putin, Address by the President of the Russian Federation (21 September 2022) 19
20
Address by the President of the Russian Federation • President of Russia
Address by the President of the Russian Federation
September 21, 2022 09:00
President of Russia Vladimir Putin: Friends,
The subject of this address is the situation in Don bass and the course of the special
military operation to liberate it from the neo-Nazi regime, which seized power in Ukraine
in 2014 as the result of an armed state coup.
Today I am addressing you - all citizens of our country, people of different generations,
ages and ethnicities, the people of our great Motherland, all who are united by the great
historical Russia, soldiers, officers and volunteers who are fighting on the frontline
and doing their combat duty, our brothers and sisters in the Donetsk and Lugansk
people's republics, Kherson and Zaporozhye regions and other areas that have been
liberated from the neo-Nazi regime.
The issue concerns the necessary, imperative measures to protect the sovereignty,
security and territorial integrity of Russia and support the desire and will of our
compatriots to choose their future independently, and the aggressive policy of some
Western elites, who are doing their utmost to preserve their domination and with this aim
in view are trying to block and suppress any sovereign and independent development
centres in order to continue to aggressively force their will and pseudo-values on other
countries and nations.
The goal of that part of the West is to weaken, divide and ultimately destroy our country.
They are saying openly now that in 1991 they managed to split up the Soviet Union
and now is the time to do the same to Russia, which must be divided into numerous
regions that would be at deadly feud with each other.
en.kremlin.ru/events/president/news/69390 1/6
21
Address by the President of the Russian Federation • President of Russia
They devised these plans long ago. They encouraged groups of international terrorists
in the Caucasus and moved NATO's offensive infrastructure close to our borders. They
used indiscriminate Russophobia as a weapon, including by nurturing the hatred of Russia
for decades, primarily in Ukraine, which was designed to become an anti-Russia
bridgehead. They turned the Ukrainian people into cannon fodder and pushed them into
a war with Russia, which they unleashed back in 2014. They used the army against
civilians and organised a genocide, blockade and terror against those who refused
to recognise the government that was created in Ukraine as the result of a state coup.
After the Kiev regime publicly refused to settle the issue of Don bass peacefully and went
as far as to announce its ambition to possess nuclear weapons, it became clear that
a new offensive in Don bass - there were two of them before - was inevitable, and that it
would be inevitably followed by an attack on Russia's Crimea, that is, on Russia.
In this connection, the decision to start a pre-emptive military operation was necessary
and the only option. The main goal of this operation, which is to liberate the whole
of Donbass, remains unaltered.
The Lugansk People's Republic has been liberated from the neo-Nazis almost completely.
Fighting in the Donetsk People's Republic continues. Over the previous eight years,
the Kiev occupation regime created a deeply echeloned line of permanent defences.
A head-on attack against them would have led to heavy losses, which is why our units,
as well as the forces of the Don bass republics, are acting competently and systematically,
using military equipment and saving lives, moving step by step to liberate Don bass, purge
cities and towns of the neo-Nazis, and help the people whom the Kiev regime turned into
hostages and human shields.
As you know, professional military personnel serving under contract are taking part
in the special military operation. Fighting side by side with them are volunteer units -
people of different ethnicities, professions and ages who are real patriots. They answered
the call of their hearts to rise up in defence of Russia and Don bass.
In this connection, I have already issued instructions for the Government and the Defence
Ministry to determine the legal status of volunteers and personnel of the military units
of the Donetsk and Lugansk people's republics. It must be the same as the status
en.kremlin.ru/events/president/news/69390 2/6
22
Address by the President of the Russian Federation • President of Russia
of military professionals of the Russian army, including material, medical and social
benefits. Special attention must be given to organising the supply of military and other
equipment for volunteer units and Don bass people's militia.
While acting to attain the main goals of defending Don bass in accordance with the plans
and decisions of the Defence Ministry and the General Staff, our troops have liberated
considerable areas in the Kherson and Zaporozhye regions and a number of other areas.
This has created a protracted line of contact that is over 1,000 kilometres long.
This is what I would like to make public for the first time today. After the start of the special
military operation, in particular after the Istanbul talks, Kiev representatives voiced quite
a positive response to our proposals. These proposals concerned above all ensuring
Russia's security and interests. But a peaceful settlement obviously did not suit the West,
which is why, after certain compromises were coordinated, Kiev was actually ordered
to wreck all these agreements.
More weapons were pumped into Ukraine. The Kiev regime brought into play new groups
of foreign mercenaries and nationalists, military units trained according to NATO
standards and receiving orders from Western advisers.
At the same time, the regime of reprisals throughout Ukraine against their own citizens,
established immediately after the armed coup in 2014, was harshly intensified. The policy
of intimidation, terror and violence is taking on increasingly mass-scale, horrific
and barbaric forms.
I want to stress the following. We know that the majority of people living in the territories
liberated from the neo-Nazis, and these are primarily the historical lands of Novorossiya,
do not want to live under the yoke of the neo-Nazi regime. People in the Zaporozhye
and Kherson regions, in Lugansk and Donetsk saw and are seeing now the atrocities
perpetrated by the neo-Nazis in the [Ukrainian-] occupied areas of the Kharkov region.
The descendants of Banderites and members of Nazi punitive expeditions are killing,
torturing and imprisoning people; they are settling scores, beating up, and committing
outrages on peaceful civilians.
en.kremlin.ru/events/president/news/69390 3/6
23
Address by the President of the Russian Federation • President of Russia
There were over 7.5 million people living in the Donetsk and Lugansk people's republics
and in the Zaporozhye and Kherson regions before the outbreak of hostilities. Many
of them were forced to become refugees and leave their homes. Those who have stayed -
they number about five million - are now exposed to artillery and missile attacks launched
by the neo-Nazi militants, who fire at hospitals and schools and stage terrorist attacks
against peaceful civilians.
We cannot, we have no moral right to let our kin and kith be torn to pieces by butchers; we
cannot but respond to their sincere striving to decide their destiny on their own.
The parliaments of the Don bass people's republics and the military-civilian
administrations of the Kherson and Zaporozhye regions have adopted decisions to hold
referendums on the future of their territories and have appealed to Russia to support this.
I would like to emphasise that we will do everything necessary to create safe conditions
for these referendums so that people can express their will. And we will support the choice
of future made by the majority of people in the Donetsk and Lugansk people's republics
and the Zaporozhye and Kherson regions.
Friends,
Today our armed forces, as I have mentioned, are fighting on the line of contact that is
over 1,000 kilometres long, fighting not only against neo-Nazi units but actually the entire
military machine of the collective West.
In this situation, I consider it necessary to take the following decision, which is fully
adequate to the threats we are facing. More precisely, I find it necessary to support
the proposal of the Defence Ministry and the General Staff on partial mobilisation
in the Russian Federation to defend our Motherland and its sovereignty and territorial
integrity, and to ensure the safety of our people and people in the liberated territories.
As I have said, we are talking about partial mobilisation. In other words, only military
reservists, primarily those who served in the armed forces and have specific military
occupational specialties and corresponding experience, will be called up.
en.kremlin.ru/events/president/news/69390 4/6
24
Address by the President of the Russian Federation • President of Russia
Before being sent to their units, those called up for active duty will undergo mandatory
additional military training based on the experience of the special military operation.
I have already signed Executive Order on partial mobilisation.
In accordance with legislation, the houses of the Federal Assembly - the Federation
Council and the State Duma - will be officially notified about this in writing today.
The mobilisation will begin today, September 21.1 am instructing the heads of the regions
to provide the necessary assistance to the work of military recruitment offices.
I would like to point out that the citizens of Russia called up in accordance with
the mobilisation order will have the status, payments and all social benefits of military
personnel serving under contract.
Additionally, the Executive Order on partial mobilisation also stipulates additional
measures for the fulfilment of the state defence order. The heads of defence industry
enterprises will be directly responsible for attaining the goals of increasing the production
of weapons and military equipment and using additional production facilities for this
purpose. At the same time, the Government must address without any delay all aspects
of material, resource and financial support for our defence enterprises.
Friends,
The West has gone too far in its aggressive anti-Russia policy, making endless threats
to our country and people. Some irresponsible Western politicians are doing more than
just speak about their plans to organise the delivery of long-range offensive weapons
to Ukraine, which could be used to deliver strikes at Crimea and other Russian regions.
Such terrorist attacks, including with the use of Western weapons, are being delivered
at border areas in the Belgorod and Kursk regions. NATO is conducting reconnaissance
through Russia's southern regions in real time and with the use of modern systems,
aircraft, vessels, satellites and strategic drones.
en.kremlin.ru/events/president/news/69390 5/6
25
Address by the President of the Russian Federation • President of Russia
Washington, London and Brussels are openly encouraging Kiev to move the hostilities
to our territory. They openly say that Russia must be defeated on the battlefield by any
means, and subsequently deprived of political, economic, cultural and any other
sovereignty and ransacked.
They have even resorted to the nuclear blackmail. I am referring not only to the Westernencouraged
shelling of the Zaporozhye Nuclear Power Plant, which poses a threat
of a nuclear disaster, but also to the statements made by some high-ranking
representatives of the leading NATO countries on the possibility and admissibility of using
weapons of mass destruction - nuclear weapons - against Russia.
I would like to remind those who make such statements regarding Russia that our country
has different types of weapons as well, and some of them are more modern than
the weapons NATO countries have. In the event of a threat to the territorial integrity of our
country and to defend Russia and our people, we will certainly make use of all weapon
systems available to us. This is not a bluff.
The citizens of Russia can rest assured that the territorial integrity of our Motherland, our
independence and freedom will be defended - I repeat - by all the systems available
to us. Those who are using nuclear blackmail against us should know that the wind rose
can turn around.
It is our historical tradition and the destiny of our nation to stop those who are keen
on global domination and threaten to split up and enslave our Motherland. Rest assured
that we will do it this time as well.
I believe in your support.
Publication status
en.kremlin.ru/events/president/news/69390
Published in sections: News, Transcripts
Publication date: September 21, 2022, 09:00
Direct link: en.kremlin.ru/d/69390
6/6
26
Annex 6
The Kremlin, Signing of Treaties on Accession of Donetsk and Lugansk People’s
Republics and Zaporozhye and Kherson Regions to Russia (30 September 2022)
27
28
Signing of treaties on accession of Donetsk and Lugansk people's republics and Zaporozhye and Kherson regions to Russia • Pre…
en.kremlin.ru/events/president/news/69465/photos 1/2
September 30, 2022 16:00 The Kremlin, Moscow10 photos
Signing of treaties on accession of Donetsk
and Lugansk people's republics and Zaporozhye
and Kherson regions to Russia
A ceremony for signing the treaties on the accession of the Donetsk
People's Republic, the Lugansk People's Republic, the Zaporozhye
Region and the Kherson Region to the Russian Federation took place
in of the Grand Kremlin Palace’s St George Hall.
' ' '\.: ' ~ 'I ._' ... }I r
.i "_,; _~, ~ -~ ••; • I r ... , ' .~ ¢ 't<""
,:,;!;it- 7°-4'-. • 1 .. "' ~ ..... ---~-=-.....
29
Signing of treaties on accession of Donetsk and Lugansk people's republics and Zaporozhye and Kherson regions to Russia • Pre…
en.kremlin.ru/events/president/news/69465/photos 2/2
Publication status Published in sections: News, Transcripts
Publication date: September 30, 2022, 16:00
Direct link: en.kremlin.ru/d/69465
30
Annex 7
The State Duma, The State Duma Ratified Treaties and Adopted Laws on
Accession of DPR, LPR, Zaporozhye and Kherson Regions to Russia
(3 October 2022)
31
32
The State Duma ratified treaties and adopted laws on accession of DPR, LPR, Zaporozhye and Kherson regions to Russia
duma.gov.ru/en/news/55407/
THE FEDERAL ASSEMBLY OF THE RUSSIAN FEDERATION
THE STATE DUMA
The State Duma ratified treaties and adopted laws
on accession of DPR, LPR, Zaporozhye and Kherson
regions to Russia
October 3, 2022, 16:00
Heads of the Donetsk and Lugansk People’s Republics and Zaporozhye and
Kherson regions appealed to President of the Russian Federation to consider a
possibility of accession of those territories as constituent units of the Russian
Federation after the referendums on September 27
Members of the State Duma unanimously supported adoption of the bills
on the ratification of treaties on accession of the Donetsk and Lugansk People's
33
The State Duma ratified treaties and adopted laws on accession of DPR, LPR, Zaporozhye and Kherson regions to Russia
duma.gov.ru/en/news/55407/
“The accession of the Donetsk and Lugansk People's Republics,
Zaporozhye and Kherson regions to the Russian Federation is
the only way to save millions of people's lives from the criminal
Kyiv regime. As well as to stop those attacks on civilian
population, elderly people, women and children. To protect
the right to speak their native language, to protect culture,
history and faith,” the Chairman of the State Duma
posted on his Telegram channel.
The State Duma also adopted four federal constitutional laws
on the accession of the Donetsk and Lugansk People's Republics,
Vyacheslav
Volodin
Republics and the Kherson and Zaporozhye regions to the Russian Federation. The day
before, those bills were submitted by the President of the Russian Federation.
The Chairman of the State Duma recalled that “now the Russian Federation consists
of 89 constituent units”. According to him, the residents of the new territories have
been waiting for reunification with Russia for 30 years.
“We all should understand: the current situation in Ukraine was caused by the provided
assistance to the Kyiv regime by the USA ,Washington, and due to the fact that Ukraine
has lost its sovereignty. That is the reason why we must value our sovereignty. Its loss
would lead to the same consequences. And the ideology of the current regime
in Ukraine has become Nazi,” he added at the plenary session.
Vyacheslav Volodin also stressed that “the goals and objectives of the special military
operation have been defined, and they will certainly be achieved.”
Representatives of the DPR and LPR, Kherson and Zaporozhye regions attended
the plenary session of the State Duma and witnessed the prosses of ratification.
Members of the State Duma welcomed them.
The documents on ratification were presented by the Minister of Foreign Affairs
of the Russian Federation Sergey Lavrov. “The process is a logical continuation
of the reunification of Russian lands, which began with the accession of the Republic
of Crimea and the city of Sevastopol to Russia in 2014,” he said.
34
The State Duma ratified treaties and adopted laws on accession of DPR, LPR, Zaporozhye and Kherson regions to Russia
duma.gov.ru/en/news/55407/
Zaporozhye and Kherson regions to the Russian Federation.
According to the provisions of the federal constitutional draft laws, there will be
an interim period starting from the day when the regions became the parts of Russia
till January 1, 2026.
Residents of the DPR, LPR, Zaporozhye or Kherson regions will be provided with
guarantees of protection labor activities rights. Diplomas, civil registration documents,
work experience, the right to receive pensions, social and medical assistance, etc.,
issued in the DPR, LPR, as well as in Ukraine, will be recognized.
Property rights will be also guaranteed. Until January 1, 2028, the residents of those
territories will be able to register their property just by providing the documents issued
by state authorities of the People’s Republics or Ukraine.
Residents of the new Russian territories, as well as those people who lived there, but
had already moved to Russia, will acquire the citizenship of the Russian Federation,
they should submit an application and take an Oath of a citizen of the Russian
Federation. After that, they will be recognized as citizens of the Russian Federation.
Until June 1, 2023, federal executive bodies will open the representative offices
in the new republics and regions. During the interim period, there also will be
established prosecutorial bodies and will be implemented Russian judicial system.
Within six months it is necessary to form city and municipal districts in the regions,
to define the boundaries of municipalities.
The ruble will be the currency of the territories of the new entities. The Ukrainian
hryvnia will be used there until December 31, 2022. The Bank of Russia will be
empowered to establish the specifics of the activities of credit and non-credit financial
institutions.
The budget legislation will be applied in the constituent entities from January 1, 2023.
The Government of Russia will establish the specifics of the budgets of new entities
for 2023 (for the republics, and for the planning period of 2024 and 2025), as well
as the specifics of budget execution and budget reporting. Budgets will be approved
by December 15, 2022.
There will be a special regime for regulating town planning activities till January 1,
2028. Then such activities will be brought into full compliance with the Town Planning
Code of the Russian Federation.
35
The State Duma ratified treaties and adopted laws on accession of DPR, LPR, Zaporozhye and Kherson regions to Russia
duma.gov.ru/en/news/55407/
Mainnews
Overview of the Legislative Process in the Russian Federation
October 4, 2018, 10:56
Vyacheslav Volodin met with President of Türkiye Recep Tayyip Erdoğan
December 13, 2022, 15:41
The Armed Forces, military formations and specialized bodies formed in the new
subjects will be included in the Armed Forces of the Russian Federation, other troops,
military formations and bodies.
The law includes provisions aimed at ensuring the safe use of atomic energy
in the Zaporozhye region. Along with the current legislation, the President
and the Government of the Russian Federation may establish specifics in certain areas
of the use of atomic energy.
The heads of the People’s Republics, Zaporozhye and Kherson regions appealed to the President
of the Russian Federation to consider a possibility of accession of those territories as constituent
units of the Russian Federation after the referendums on September 27. An absolute majority
voted for the accession of those territories to the Russian Federation. On September 30, there
were signed treaties between Russia and the DPR, LPR, Zaporozhye and Kherson regions
on their accession to the Russian Federation and establishment of new Russian subjects.
The names of the new constituent units remain the same.
36
Annex 8 The Kremlin, Vladimir Putin Spoke at an Expanded Meeting of the Board of the Defence Ministry, Which Was Held at the National Defence Control Center (21 December 2022)
37
38
December 21, 2022 16:00 Moscow
Meeting of Defence Ministry Board
Vladimir Putin spoke at an expanded meeting of the Board of the Defence Ministry, which was held
at the National Defence Control Centre.
Before the meeting, the President
visited the exhibition of modern and future samples of equipment, arms,
ammunition and means
of protection for the troops in the various branches. The President was accompanied by Defence Minister and Chief
of the Armed Forces General
Staff . The exhibition was held in the atrium of the National
Defence Control Centre.
* * *
President of Russia Vladimir Putin:
Comrades,
This annual meeting of the Board of the Defence Ministry is taking place at a very important time in the country’s life.
The special military
operation continues. Today, we will discuss key army and navy development areas based on the experience gained in combat operations.
First, I would like to convey my most sincere words of gratitude to our soldiers and officers who are now on the front lines or at military
personnel training centres. All of them are fulfilling
their military duty with dignity, risking their lives, sparing no effort and providing
cover
for their fellow soldiers when necessary.
And, of course, today we must commemorate
our comrades-in-arms who gave up their lives for the Motherland.
(Moment
of silence.)
Colleagues,
It is well known that the military
potential and capabilities of almost all major NATO countries are being widely
used against Russia.
Still, our soldiers, sergeants and officers are fighting for Russia with courage and fortitude and are fulfilling
their tasks with confidence, stepby-
step. Without a doubt, these tasks will be
fulfilled in all territories of the Russian Federation, including the new
territories, and a safe life
for all our citizens will be ensured. Our Armed
Forces’ combat capability is increasing day by day, and we will certainly step
this process up.
I would like to once again thank everyone
who is fulfilling their combat duty today, including tank crews, paratroopers,
artillerymen, motor
riflemen, sappers, signalmen, pilots, special operations
forces and air defence troops, sailors, military topographers, logistics
support
specialists, National Guard personnel and other formations for the way
you are fighting. You are fighting – you know, I am not afraid to use
these
comparisons, and these are not some turgid words – like the heroes of the War of 1812, the First World War or the Great Patriotic War.
Special words of gratitude go to the military doctors who are bravely, often at risk to their own lives, saving our
soldiers, and military
and civilian construction workers who are building
fortifications and vital infrastructure in the areas covered by the operation
and for their
help in rebuilding civilian sites in the liberated territories.
Meanwhile, the hostilities have
highlighted issues that need our special attention, including issues we have discussed
more than once. I am
talking about communications, automated command and control systems for troops and weapons, counter-battery tactics, target detection,
and so on.
Sergei Shoigu
Valery Gerasimov
39
This is the combat experience that
we must and we will use in the further development and build-up of the Armed
Forces.
Today, our goal is to implement the entire scope of necessary measures to achieve a qualitative renewal and improvement of the Armed
Forces.
I would like to draw your special
attention to the following.
We are well aware of all the NATO
forces and resources that they have been using against us over the course of the special military
operation. You have all the information, and it should be
carefully analysed and used to build up our Armed Forces, as I have said, to improve
the combat capabilities of our troops, as well as our national special
services.
Our units have gained extensive combat
experience during this special operation.
The job of the Defence Ministry and the General Staff, as I mentioned, is to carefully analyse this experience,
systematise it as quickly
as possible and include it in the programmes and plans for personnel training, training troops in general and supplying the troops
with
the necessary equipment.
In addition, the experience of the special military operation, as well as what our troops gained in Syria, should,
as I have said, pave the way
for a major improvement in combat training, and should be applied in our preparations and in our exercises and training at all
levels.
In turn, officers and sergeants who have
shown exemplary achievements during the special military operation should be
promoted to higher
command positions as a matter of priority, and be the prime personnel
reserve to be admitted to military universities and academies,
including the General Staff Academy.
Second. I would like to draw the attention
of the Government, the Defence Ministry and other agencies to the need to cooperate
closely
at the Coordination Council, which is a specially created platform. You
should also cooperate with the heads of regions and representatives
of the defence
industry.
I also expect our designers and engineers to continue the practice of visiting the frontline. I would like to express my gratitude to them
for making regular trips and making the necessary
adjustments to the equipment. I hope that they will continue the practice of checking
the tactical and technical characteristics of weapons and equipment in real
combat situations and, as I have already said, of improving them.
In general,
it is necessary to conduct substantive work with related ministries and departments.
We are seeing what works really well
and what needs additional efforts.
Engineers, technicians and scientists are seeing this.
And this entire machine is working. When I said we
are improving and will continue
to improve our armaments and equipment, I had in mind this process as well. The Military-Industrial
Commission must become a headquarters for the interaction of the defence industry, science and the Armed Forces with a view to resolving
both
urgent and future tasks, primarily related to military-technical supplies for the troops. I am referring to equipment, ammunition and so
on.
The third point.
We will continue maintaining
and improving the combat readiness of the nuclear triad. It is the main
guarantee that our
sovereignty and territorial integrity, strategic parity and the general balance of forces in the world are preserved.
This year, the level of modern armaments in the strategic nuclear forces has already exceeded
91 percent. We continue rearming
the regiments of our strategic missile forces
with modern missile systems with Avangard hypersonic warheads.
In the near
future, Sarmat ICBMs will be put on combat duty for the first time. We know
there will be a certain delay in time but this does not
change our plans –
everything will be done. Our troops continue receiving Yars missiles. We will continue developing hypersonic missile
systems
with unique characteristics, unmatched in the world. In early January of next year,
the Admiral of the Soviet Fleet Gorshkov frigate
will start combat duty.
I will repeat, it will carry cutting-edge Zircon sea-based hypersonic
missiles without equal in the world.
We will continue
equipping our strategic forces with the latest weapon systems. Let me repeat that
we will carry out all of our plans.
40
Next. It is
important to enhance the combat capabilities of the Aerospace Forces, including
the numbers of fighters and bombers operating
in the zone covered by modern air
defence systems.
A pressing task
is upgrading drones, including strategic and reconnaissance ones, as well as methods
of using them. The experience
of the special military operation has shown that
the use of drones has become practically ubiquitous. They should be a must-have
for combat units, platoons, companies and battalions. Targets must be
identified as quickly as possible and information needed to strike
must be
transferred in real time.
Unmanned vehicles
should be interconnected, integrated into a single intelligence network, and should have secure communication
channels with headquarters and commanders. In the near future, every fighter should be able to receive information
transmitted from
drones. We must work towards this; we must strive for this.
Technically, this can be implemented in the very near future, almost now. I ask
you to focus on this when finalising the entire range of equipment and tactical
gear for personnel.
We know that
there are no small things on the battlefield, so you need to pay special
attention – I know that the Ministry of Defense is
working on this, but I want
to emphasise it once again: medical kits, food, dry rations, uniforms, footwear,
protective helmets, body armour –
everything should be at the most up-to-date
and highest level. The troops need to have enough night vision devices,
high-quality sights,
and new generation sniper rifles. I will not list everything
now, but I will mention
what is most important:
everything that a fighter uses should
be cutting-edge, convenient and reliable,
and the supply should correspond to their actual needs. If some ministry
standards are outdated,
they need to be changed – and quickly.
I would like to draw the attention of the Defence Minister, the Chief of the General Staff and all the commanders here: we have no funding
restrictions. The country, the Government will provide whatever the Army asks for, anything. I hope that the answer will be properly
formulated and the appropriate results will be
achieved.
Returning to the topic of drones, I must note that we have good experience in developing unique unmanned
underwater systems. I know that
the industry has every capability it needs to create a wide range of unmanned aerial and ground vehicles with the best and highest
tactical
and technical characteristics, including elements of artificial
intelligence. In addition, we generally need to consider ways to expand
the arsenals of the latest strike weapons.
Fifth, it is
necessary to improve the management and communication system in order to ensure
the stability and efficiency of command
and control of the troops in any conditions.
To do this, we need to use artificial intelligence more widely at all levels of decision-making.
As experience shows, including that of recent months, the weapons
systems that operate quickly and almost automatically are the most
effective
ones.
Furthermore,
the partial mobilisation has revealed certain problems – this is common
knowledge – that must be promptly resolved. I know
that the necessary measures
are being taken but we should still pay attention to this issue and build this
system in a modern way. First, it is
necessary to upgrade the system of military commissariat offices. I am referring to the digitisation of databases
and interaction with the local
and regional authorities. It is necessary to upgrade
the organisation of civil and territorial defence and interaction with
industry. In particular,
we need to improve the system of stockpiling and storing arms, combat equipment and material resources for the deployment of units
and formations during mobilisation.
As you know,
300,000 people have been drafted into the Armed Forces. Some of them are already
in the zone of hostilities. As the Defence
Minister and the Chief of the General Staff report, 150,000 people are undergoing training at military
grounds and this reserve is adequate
for conducting the operation. It is basically
a strategic reserve that is not being used in combat operations currently, but
people undergo
the required training there.
Colleagues,
I would like
to sincerely thank our people who are helping our Armed Forces out of the kindness
of their hearts, sending autos, additional
equipment, gear and warm clothes to the frontline and letters and presents to the wounded in hospitals. Even if the Defence Ministry
provides our troops with all they need in some segment, we
should still humbly thank people for it.
41
I would like
to ask the Defence Ministry to pay attention to all civil initiatives, which
includes considering criticism and offering an adequate
and timely response. Obviously,
the reaction of people who see problems – and problems are inevitable in such a big and difficult
undertaking – their reaction may be emotional as well. There is
no doubt that it is necessary to listen to those who are not hushing up
existing problems but are trying to contribute to their resolution.
I am confident
the Defence Ministry’s dialogue with the public will remain ongoing. As we know,
our strength has always been in the unity
of the army and the people, and that
has not changed.
Now for the reports.
The Defence
Minister has the floor.
Thank you
for your attention.
Defence Minister Sergei Shoigu: Comrade Supreme Commander-in-Chief,
I will begin my report with the special
military operation.
Today in Ukraine, Russia is fighting
against the collective forces of the West. The United States and its allies have
been sending weapons
to Ukraine, training Kiev’s military personnel, providing them
with intelligence, sending advisers and mercenaries, and waging an information
and sanctions war on Russia.
The Ukrainian leaders are resorting
to prohibited warfare, including terrorist attacks, contract killings, and the use of heavy weapons against
civilians. The Western countries are trying to ignore
this, as well as instances of nuclear blackmail, including provocations against
the Zaporizhzhia Nuclear Power Plant and plans to use a so-called dirty nuclear
bomb.
It is clear that the current
situation primarily benefits the United States, which seeks to take advantage
of it to maintain global dominance
and weaken other countries, including its
allies in Europe.
Of particular concern is the build-up of NATO's advance presence near the borders of the Russian Federation
and the Republic of Belarus,
as well as the West's interest in prolonging the hostilities in Ukraine as much as possible to further weaken our country.
After the confessions made by Ms Merkel,
Poroshenko and other politicians about the true purposes of the Minsk
agreements, it became
obvious to everyone that Russia was not the source of the conflict in Ukraine; the reason was the Western-sponsored coup in Kiev in 2014,
which brought anti-Russian forces to power and divided the two fraternal
peoples. This provoked an armed confrontation in Donbass.
We are taking action to save the population
from genocide and terrorism.
Russia is always open to constructive
and peaceful negotiations.
Russian troops continue to destroy
military targets, to deliver massive high-precision strikes on the military
control system, defence industry
enterprises and related facilities, including
energy facilities. They are destroying the foreign weapons supply chain and crushing Ukraine’s
military potential. At the same time, every measure is being
taken to rule out civilian deaths.
As a result, the armed forces of Ukraine have suffered significant losses; a significant part of the weapons and equipment they had available
at the beginning of the operation has been destroyed.
To compensate for these losses, the United States and other NATO countries have
significantly increased their military assistance to the Kiev regime. The 27
countries have already spent $97 billion on arms supplies
to Ukraine, which is
much more than the cost of the weapons they abandoned in Afghanistan. Some of the weapons the US army left behind
in Afghanistan have fallen into the hands
of terrorists and are spreading all over the world. No one knows where the weapons
in Ukraine will
end up.
42
It is necessary to mention that NATO staff officers,
artillerymen and other specialists are in the zone of hostilities. Over 500 US and NATO
space vehicles,
including over 70 military and the rest being of dual purpose, are working in the interests of the Ukrainian Armed Forces.
The United States
and its allies are spending considerable funds on exerting information and psychological
influence on Russia and our
allies. We have realised in full what the allegedly
free Western press is all about. Thousands of fakes about events in Ukraine are
published
daily according to the same templates on Washington’s orders.
Hundreds of TV agencies, tens of thousands of print publications and media
resources on social media and messengers are working to this end.
The silence
of the Western media about the war crimes of the Ukrainian military represents the height of cynicism. All the while, the criminal
neo-Nazi regime in Kiev is being
glorified. The terrorist methods of the Ukrainian Armed Forces are presented as lawful self defence or acts
of Russian units. Armed Ukrainian nationalists are
in the rear to make sure no one retreats. We receive daily reports of shootings
of Ukrainian army personnel for refusing to follow orders.
We had to increase
the combat and numerical strength of our troops to stabilise the situation,
protect the new territories and conduct further
offensive actions. We conducted
a partial mobilisation for this purpose. It is a mark of the maturity of Russian
society and a serious trial
for the country and its Armed Forces.
Mobilisation
plans had not been put into action since the Great Patriotic War. The basic system
of mobilisation preparations was not even
fully adapted to the new economic
system. This is why with the beginning of the partial mobilisation we faced
difficulties in notifying
and calling up citizens in the reserve.
We had to fix
all problems on the go. We changed the organisational and staffing structures of military administrative bodies in units
and formations as fast as we could and took
urgent measures to improve all types of support.
Partial
mobilisation measures were fully carried out on time. Some 300,000 reservists
were drafted for military service. The concerted efforts
of federal and regional government bodies played an important role in this respect.
I would like
to make special mention of the active engagement of Russian citizens – over
20,000 people volunteered for service without
waiting for a draft notice.
To support the national economy, over 830,000 people have been exempted from the draft. They are
employed in companies of the defence
industry and other socially important areas
that are vital for the activity of the state.
Owing to the decisions by the Supreme Commander-in-Chief, mobilised citizens are entitled to the same benefits and guarantees as contract
service personnel.
Mobilised military
personnel will be trained for combat operations from practicing individual
skills to unit cohesion.
Military-political
bodies have to shoulder an enormous burden. This confirmed the correctness of the 2018 decision to establish them.
At the same time, much still has to be
done to make the personnel fully ready for combat operations.
In general,
the partial mobilisation made it possible to enhance the combat potential of troops
and intensify the fighting. The troops liberated
an area five times bigger than
what the Luhansk and Donetsk people’s republics occupied before February 24. In late May, Russian troops
fully liberated from the Nazis the large industrial
centre of Mariupol. The Kiev regime had turned the city into a powerful
fortified area
centered around the Azovstal Plant industrial zone.
Following successful actions by the Armed Forces of Russia and the Donetsk militia
forces, over 4,000 militants were eliminated and 2,500 Azov nationalists and servicemen of the Ukrainian Armed Forces laid down their
arms and surrendered.
Peaceful
life is being restored. The ports in Berdyansk and Mariupol are fully operational.
We play to deploy ship bases, emergency-andrescue
services and ship repair
units of the Navy there. The Sea of Azov has again become Russia’s internal sea
as it was during 300 years
of our national history.
43
Land connection
with Crimea by road and rail has been restored. Rail service with Donbass will
soon be returned to normal. Cargoes have
been delivered to Mariupol, Berdyansk
and other liberated residential areas for several months now.
Control of the North Crimean Canal made it possible to restore water supply to the Crimean
Peninsula, which did not exist for eight years due
to the water and energy
blockade.
During the special
military operation, members of the Russian military are displaying courage, stamina
and dedication. Over 100,000 people
have received state awards, including 120 titles
of Hero of the Russian Federation. Over 250,000 regular military personnel have
received
combat experience during the special military operation.
Today, the Russian
Armed Forces are taking an active part in establishing peaceful life on the liberated
territories. They have cleared mines
from more than 27,000 hectares of land. In Mariupol, military builders have built 12 residential blocks and continue building
another six,
as well as a kindergarten and a school. In Lugansk and Mariupol,
the construction of two multi-purpose medical centres with the latest
equipment
and 260 beds has been completed in record time.
Much is being
done to restore water supply in the Donetsk and Luhansk people’s republics. The construction of waterways with a total length
of over 200 km has provided water
for more than 1.5 million people. A 194-kilometre-long waterway from the Don River,
which is now being
built, will guarantee water supply for Donetsk.
In general,
the special military operation has demonstrated the high professional skills of commanders, chiefs of staff at all control levels,
and the readiness of the military
to fulfil even the most complicated combat assignments. Our weapon and military
equipment samples have
confirmed their exceptional reliability and efficiency.
The special
military operation is creating a unique opportunity to analyse modern methods of conducting combined operations,
and the forces and means used in them for the purposes of refining plans for improving the Armed Forces.
Russian citizens
have provided unprecedented support for the national leadership and the Armed Forces
of the Russian Federation. This is
graphically illustrated by the unity of the army and society.
This year, the Defence Ministry has been resolving and continues to resolve a number of other
important tasks. In the beginning of this year,
it conducted an operation
jointly with the CSTO countries to stabilize the situation in Kazakhstan and prevent a “colour revolution” in that
country.
Russian military
units remain the main guarantor of preserving peace in Syria and Nagorno-Karabakh.
During this year, they conducted
humanitarian activities, removed mines and rendered medical aid to the population.
We maintain
our nuclear triad at the level of guaranteed strategic deterrence. The combat
readiness of the strategic nuclear forces stands
at an unprecedented 91.3
percent.
The re-equipment
of two missile regiments with the Yars mobile ground-based missile
systems has been completed in the Strategic Missile
Forces. One more regiment equipped
with the Avangard missile with a hypersonic glide vehicle has been put
on combat duty. Successful
launches of the new Sarmat heavy missile complex
during state tests made it possible to start its deployment.
Strategic
aviation nuclear forces have received a Tu-160M strategic missile carrier and a Tu-95M aircraft. This year, 73 air patrols have been
conducted, including two jointly
with the People’s Liberation Army of China. Nuclear-powered missile submarines are
conducting planned
military service in designated areas of the world’s oceans.
The Navy has adopted the Generalissimus
Suvorov Borei-A class nuclear-powered
submarine equipped with Bulava ballistic missiles.
The efforts to enhance the combat capabilities of the branches and types
of troops
of the Armed Forces have been continued.
The Aerospace
Forces further developed the uniform space system and launched the sixth Kupol
space vehicle that makes it possible
to continuously monitor missile-hazardous
areas in the Northern Hemisphere. Training aviation is being steadily
developed. Owing
44
to the arrival of new models of training aircraft, the flight
hours of cadets have been increased by more than one third. This year saw the first
graduating class of female military pilots. More than half of them
graduated with distinction.
The Navy has
received a cutting-edge submarine, six surface ships, three gunboats, 11
support vessels and boats and two coastal missile
complexes.
Serial deliveries
of the Zircon sea-based hypersonic missile have gotten underway. The preparations of the Admiral of the Fleet of the Soviet
Union Gorshkov
frigate with hypersonic missiles on board for combat service in an unplanned
area of the world’s oceans have entered
the final phase.
A vital element of the implementation of the state defence order in 2022
was the delivery of weapons and equipment to the armed forces
involved in the special military operation. To build up their combat capability, the delivery
of staple systems has been expedited from 2024
and 2025 to 2023. A 10-day
schedule has been formed to streamline the deliveries. Its implementation is
being monitored by a joint task
group of the Defence Ministry, the Military
Industrial Commission, the Industry and Trade Ministry and defence enterprises.
The approved 2022 allocations, which include the supply of additional
weapons and equipment, allowed us to increase the delivery of staple
weapons to the armed forces by 30 percent and the supply of ammunition for artillery and missile systems and aircraft by between 69
and 109 percent. At the same time,
the implementation of the state defence order with regard to staple weapons has
reached 91 percent.
In 2022, all the planned events of operational and combat training have
been carried out, including 14 international exercises held
at different
levels. At the beginning of the year, we conducted a series of large-scale
naval exercises in training to repel sea and ocean
military threats to Russia.
The final combat training event was the Vostok 2022 command post
exercise, which involved over 51,000 miliary personnel from 14 foreign
states.
A specific element of the exercise was the establishment of an international
group of forces for addressing common tasks.
The exercise demonstrated the ability of international groups of forces to effectively fulfil regional
security tasks.
During a special exercise, the strategic nuclear forces successfully
trained in delivering a large-scale nuclear strike in response to the use
of weapons of mass destruction by the enemy.
An Arctic expedition has been held in the eastern sector of the Arctic
and on the Chukotka Peninsula, with a series of combat training
and research
elements and experiments. This confirmed the technical characteristics of all
the types of weapons used in Arctic conditions.
Despite the attempts by the collective West to isolate Russia, we continue to expand the geography
of international military and technical
cooperation.
The Defence
Ministry develops relations with the armed forces of 109 countries in Asia, Africa,
the Middle East and Latin America. This year,
we have held 350 significant international
events.
The International
Army Games have become one of the major joint training events with armies of foreign
countries. More than 5,300 troops
from 34 countries took part in the games. Held
across 12 countries, the games were attended by more than 3 million people. Over
the eight
years since the first games, 80 training grounds have been modernised.
Their training and resource capacity is extensively used for combat
training of the military personnel.
The Army
annual forum has contributed to strengthening international military cooperation.
It was attended by delegations from 85 countries
and almost 2 million visitors.
Thirty-six state contracts with defence industry companies, worth over 525 billion
rubles, were signed during
the forum. This event is a successful and dynamically
developing project that is substantially more productive than similar fairs
around
the world.
In August, we
hosted the 9th Moscow International Security Conference, attended by more than 700 delegates from 70 countries. It is
the most representative military
and political event in the world.
45
This year, we
held the first International Anti-Fascist Congress. It was attended by state
officials and public activists, Great Patriotic War
veterans, nine foreign
delegations and military attaches from 26 countries. Forum participants unequivocally
condemned any manifestation
of fascism, neo-Nazism and chauvinism in the modern
world. It is expected that the congress will be held every year.
The Russian
higher military school is one of the best in the world. Students from 55 countries
study at the Defence Ministry higher
educational institutions, which is more than
during the Soviet times. Starting September 1, 2023, the Donetsk Higher Military
Command
School of the General Forces will be included in the group of Defence
Ministry education facilities.
We continue working to improve the system of Defence Ministry pre-university
education. By September 1, 2023, a new Suvorov military
school will open in Irkutsk.
We are working with the authorities to create a Federal Agency for Veterans’ Affairs. It will help us to centralise the military veterans’ social
protection system and make it more effective. Mr President, thank you for supporting this initiative.
Housing conditions have been improved for 49,000 military families, and 100,000 people receive subsidies for renting apartments.
We are paying considerable attention to the development of military
medicine. Thanks to prevention care measures taken in the armed
forces, the incidence
of medical conditions has decreased by more than 30 percent over the past 10
years. The number of military medical
facilities that provide high-quality
medical assistance has tripled and the range of services they offer has
doubled. Over 28,000 patients
have received this type of medical assistance.
Our combat medics have proved their worth during the special military
operation. First aid is provided within 10 minutes. The wounded are
delivered
to medical units within an hour and to military hospitals within 24 hours.
They have decreased the fatality rate during evacuation stages. The fatality rate in hospitals has gone down to less than 0.5 percent, which is
the lowest figure in the history of military medicine.
As per your instructions, we have launched a programme to modernise the military healthcare system until 2027. A modern military hospital
with 150 beds
has opened in Kazan. Nine military hospitals are under construction in Ryazan,
Yuzhno-Sakhalinsk, Bryansk, Kursk, Belgorod,
Kaspiysk, Sevastopol, Mirny and Vladikavkaz.
The construction of a health rehabilitation centre has been completed at a unique spa resort
in Kamchatka.
The Defence Ministry is waging a systematic battle against COVID-19. We
have prevented the disease rate from peaking during the sixth
wave.
We have fulfilled all plans regarding the military construction complex by erecting over 3,000 buildings and structures,
while paying special
attention to infrastructure development for the strategic
nuclear forces. This year, we built 650 high-technology units, including
for the Avangard, Yars and Sarmat missile systems.
We launched coastal energy and social
infrastructure facilities for the Northern Fleet in Gadzhiyevo. A 1,154-metre
berth has been
commissioned at the Caspian Fleet base, and the construction of another berth has been completed. We rebuilt infrastructure at 15 military
airfields to enable them to serve all of the latest aircraft as part of the effort to expand the air force deployment system. Efforts to improve
permanent
military townships proceeded according to plan. We completed 625 buildings in the park and barrack accommodation zones.
In keeping with your instructions, the railway
troops continue rebuilding the 339-kilometre section of the Baikal-Amur
Mainline between Ulak
and Fevralsk, and have already completed some 3 million
cubic metres of earthwork, which is about half of the planned work scope.
The Defence Ministry has implemented major
patriotic education and cultural projects. Twenty-eight cities hosted military
parades,
and the traditional Main Naval Parade has been held too. In execution
of your instructions, Saur-Mogila, a memorial that is a major symbol
for the entire nation, has been restored in just 90 days. The Eternal Flame is once
again ablaze at the top of this mount.
46
We carried on with our system-wide efforts to promote military and patriotic education for young people, focused on the Young
Army
movement, which has already gained a foothold in all the regions of Russia, bringing together over 1.25 million children and teenagers.
We have been working together with the regions
of the Russian Federation to expand the Avangard Education and Methodology Centres
for Military Patriotic Youth Awareness. In 2022, this
included opening 20 regional centres and 25 centres in cities of over 100,000
residents.
More than 150,000 high-school students took courses at 88 Avangard
centres over the past year. We believe that setting up centres of this
kind
must serve as a foundation for basic military training and patriotic education
for young people around the country.
Comrade Supreme Commander-in-Chief,
Overall, the Armed Forces have fulfilled the objectives they had for 2022, increasing their combat capability by more than
13 percent
and ensuring the country’s defence capabilities at the required
level.
Measures to bolster Russia’s security:
Considering NATO’s aspirations to build up its
military capabilities close to the Russian border, as well as expand the Alliance
by accepting
Finland and Sweden as new members, we need to respond by creating
a corresponding group of forces in Russia’s northwest.
Regarding the staffing of the Armed Forces, the conscription age must be gradually increased from 18 to 21 years, while raising
the ceiling
conscription age to 30 years. We must enable citizens starting
their military service to serve under contract from day one.
We must create the Moscow and Leningrad
military districts as two joint-force strategic territorial units within the Armed Forces.
We must continue improving branches of the Armed Forces in terms of their composition and structure, increase
responsibility
of the headquarters for training and deploying units and formations. We need to create two new motorised infantry divisions, including
within
integrated combined armed forces, in the Kherson and Zaporizhzhia
regions, as well as an army corps in Karelia.
We need to transform seven motorised infantry
brigades into motorised infantry divisions in the Western, Central and Eastern
military
districts, and in the Northern Fleet. The Airborne Forces must get two
additional air assault divisions.
Each combined arms (tank) army must have a composite aviation division within it and an army aviation brigade with 80 to 100 combat
helicopters. In addition to this, we need to add three more air
division commands, eight bomber aviation regiments, one fighter aviation
regiment, and six army aviation brigades.
We need to create five district artillery
divisions, as well as super-heavy artillery brigades for building artillery
reserves along the strategic
axis.
We must create five naval infantry brigades for the Navy’s coastal troops based on the existing naval infantry brigades.
In order to guarantee that the military can
ensure Russia’s security, we need to increase the size of the Armed Forces to 1.5 million service
personnel, including up to 695,000 people serving under
contract.
The transition to outsourcing practices in 2008–2012 decimated the army maintenance units, which had a negative effect
on the operational status of weapons and machinery. Efforts to revive these
structures were taken in 2012. The special military operation
demonstrated that
we need to further develop maintenance and repair units within our forces. Next
year, we will create three repair factories
and reinforce maintenance units
within the troops.
Staff at conscription offices will receive
federal state civil service status with an increased number of military posts.
We must complete
the transition of these conscription offices to digital technology.
Comrade Supreme Commander-in-Chief,
47
With your consent, the above approaches will be included in the plans
for developing the Armed Forces according to the established
procedure.
Our 2023 priorities are as follows:
To continue the special military operation until its goals are achieved
in full. The Russian groups of forces are to ensure peace and stability
in Nagorno-Karabakh and Syria.
To fully implement a set of operational and combat training measures
with an emphasis on the threats stemming from further eastward
NATO expansion.
To prepare and conduct the Zapad-2023 exercises.
To put 22 launchers with intercontinental ballistic missiles Yars,
Avangard and Sarmat on combat duty in the Strategic Missile
Forces.
To put three Tu-160 strategic missile carriers into service of the aviation strategic nuclear forces. To put the Borei-A Project Imperator
Alexander III nuclear submarine, four submarines and 12 surface ships into service
of the Navy.
To increase the supply of Kinzhal and Tsirkon high-precision
hypersonic missile systems. To continue to develop other advanced weapons.
To increase to 521,000 the number of military personnel serving under
contract by the end of the year, taking into account the replacement
of mobilised
citizens in the groups of forces and the recruitment of new formations.
Comrade Supreme Commander-in-Chief,
In accordance with your instructions, will continue to develop the Armed
Forces and enhance their combat capabilities next year.
We will discuss our performance in detail during the closed part of the board
meeting.
Thank you.
That concludes my report.
Vladimir Putin: Comrades,
In accordance with tradition, I will say a few words in conclusion of our meeting. I will speak in broad terms, but I believe that it is a matter
of interest to us. At least, I think that the matter I will speak about is always of interest but especially so in the current situation.
I have pointed out many times and have written in my articles that the goal of our strategic adversaries is to weaken and divide our nation.
This has
been so for centuries, and there is nothing new in this now. They believe that
our country is too large and poses a threat, which is
why it must be diminished
and divided. Wherever you look, this has been their goal over the past
centuries. I will not provide any examples
now; you can find them in the relevant materials. They have always nurtured this idea and such plans, hoping
that they will be able
to implement them, one way or another.
For our part, we have aways or nearly always pursued a completely
different approach and had different goals: we have always wanted to be
part of the so-called civilised world. After the Soviet Union’s dissolution, which we
ourselves allowed to take place, we thought for some
reason that we would
become part of that so-called civilised world any day. But it turned out that
nobody wanted this to happen, despite our
efforts and attempts, and this
concerns my efforts as well, because I made these attempts too. We tried to become
closer, to become part
of that world. But to no avail.
On the contrary, they undertook, including with the use of international
terrorists in the Caucasus, to finish off Russia and to split the Russian
Federation. There is no need to prove this to many of you in this room, because
you know what took place in the mid-1990s and the early
48
Publication status
2000s. They claimed to condemn al-Qaeda and other criminals, yet they considered using them on the territory of Russia as acceptable
and provided all kinds of assistance to them,
including material, information, political and any other support, notably
military support,
to encourage them to continue fighting against Russia. We
overcame that complicated period in our history thanks to the people
of the Caucasus, thanks to the Chechen people, and thanks to the heroism of our
military personnel. We have survived those trials, growing
stronger in the process.
To be continued.
Published in sections: News, Transcripts
Publication date: December 21, 2022, 16:00
Direct link: en.kremlin.ru/d/70159
49
50
Annex 9 Hugh Thirlway, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS OF JURISPRUDENCE, Vol. I (Oxford University Press 2013) Pursuant to Rules of the Court Article 50(2), this annex is comprised of such extracts of the whole document as are necessary for the purpose of the pleading. A copy of the whole document has been deposited with the Registry. 51
52
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 21 February 2013
ISBN: 9780199673377
I General Principles and Sources of Law, Division A:
General principles, Ch.I: Good Faith and Related
Principles
From: The Law and Procedure of the International Court of Justice: Fifty
Years of Jurisprudence Volume I
Hugh Thirlway
Subject(s):
International courts and tribunals, decisions — Equity — General principles of international law — Good
faith
Oxford Public International Law
53
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
(p. 9) Chapter I: Good Faith and Related Principles
1. The Principle of Good Faith*
During the period under review, the concept of good faith, which had previously only been
referred to by individual judges and not employed by the Court in its decisions,3
developed
into a notable element in the judicial armoury. The Court’s statements on the subject are,
however, at first sight somewhat contradictory. The period may be said to be framed, not
merely chronologically but jurisprudentially, by the following two quotations:
Just as the very rule of pacta sunt servanda in the law of treaties is based on good
faith, so also is the binding character of an international obligation assumed by
unilateral declaration.4
(1973)
The principle of good faith is, as the Court has observed, ‘one of the basic principles
governing the creation and performance of legal obligations’ …; it is not in itself a source of
obligation where none would otherwise exist.5
(1988)
The explanation for the apparent contradiction is, it is suggested, that the Court has used
the expression ‘good faith’ to convey two different ideas; for clarity, these will be treated
separately.
(1) Good faith lato sensu: creation of a ‘servandum’
(a) The Nuclear Tests cases
The most far-reaching effects yet attributed to the concept of good faith were those
declared by the Court in the Nuclear Tests cases. These cases, as the Court found,6
had
been brought with the sole intention of putting an end to the nuclear tests in the
atmosphere being conducted by France in the Pacific; and while the proceedings before the
Court were in progress, the French Government made it known, by various unilateral
announcements, that no more atmospheric tests would be held. The proceedings brought
could therefore be regarded as having achieved their object,7
provided France (p. 10) was
legally bound to conform to the line of conduct announced, and was not free to change its
mind and resume atmospheric testing. The relations between France and the two applicant
parties were such that no element of synallagmatic contract could be identified; was France
to be held bound by purely unilateral declarations?
The Court responded on this point in terms which show that it was consciously making a
broad statement of principle:
It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the
intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even though not made within the context of
international negotiations, is binding. In these circumstances, nothing in the nature
of a quid pro quo nor any subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to take effect,
54
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
since such a requirement would be inconsistent with the strictly unilateral nature of
the juridical act by which the pronouncement by the State was made …
Of course, not all unilateral acts imply obligation; but a State may choose to take up
a certain position in relation to a particular matter with the intention of being
bound—the intention is to be ascertained by interpretation of the act. When States
make statements by which their freedom of action is to be limited, a restrictive
interpretation is called for.8
After explaining that international law laid down no requirements of form for such
declarations, the Court continued:
One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international co-operation, in particular in an age when
this cooperation in many fields is becoming increasingly essential. Just as the very
rule of pacta sunt servanda in the law of treaties is based on good faith, so also is
the binding character of an international obligation assumed by unilateral
declaration. Thus interested States may take cognizance of unilateral declarations
and place confidence in them, and are entitled to require that the obligation thus
created be respected.9
This finding of the Court has been much criticized;10
and one of its features which may
inspire doubt is the creative role given to good faith. To some extent, however, the matter
may be no more than one of terminology. What the Court is talking about here is something
which would not normally be referred to as ‘good faith’. The rule of pacta sunt servanda is
based on a very fundamental idea or principle, and it may be that that fundamental idea can
justify attaching legally binding effect to something which, lacking two-sidedness, is not a
pactum; but ‘good faith’ is perhaps not the best name for it. It is instructive to consider
Fitzmaurice’s discussion of the basis of the pacta sunt servanda rule:
Consent may indeed be the foundation of the rules of customary international law.
But the obligation to conform to these rules requires something more, namely the
existence (p. 11) of a principle to the effect that the giving of consent, whether
express or implied, creates obligation. This principle is the principle pacta sunt
servanda. But strictly this is not a rule or principle of international law. It is, for
international law, a postulate lying outside the actual field of international law. The
system of international law cannot be clothed with force by a principle that is part
of the system itself; for unless the system already had force that principle itself
would have no validity, and there would be a circulus inextricabilis or viciosus. A
principle exterior to the system must be sought. Such a principle is the rule pacta
sunt servanda—, and if the principle is to do what is required of it, it must, in
relation to international law, be regarded not as a principle but as a postulate—an
assumption that has to be made before the system can work or have any meaning.
In this sense, the principle pacta servanda becomes the postulate on which the
whole system is founded, and becomes the theoretical foundation of international
law and its binding force.11
It is the principle ‘to the effect that the giving of consent’—consent to be bound—‘creates
obligation’ which the Court appears to have had in mind in 1973, and to which it gave the
inappropriate designation of ‘good faith’. Avoiding the misleading implications of this term,
55
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
what is the contribution so made by the Court to the development, or to the clarification, of
international law?
Despite the assertion by the Court that ‘It is well recognized that declarations made by way
of unilateral acts … may have the effect of creating legal obligations’,12
this cannot be said
to have been clearly established as a legal rule prior to the Court’s pronouncement.13
At all
events, the conditions enunciated for a unilateral declaration to have a binding character
have not previously been stated systematically. Let us take them one by one, as stated in the
Nuclear Tests judgments.
(i) The intention of the declarant State
When it is the intention of the State making the declarations that it should become
bound according to its terms, that intention confers on the declaration the
character of a legal undertaking …
Speaking very generally, when for the purposes of any system of law it is necessary to
determine whether a statement (apparently of the nature of a promise, undertaking or
commitment—but to use any of these terms would beg the question) is to be regarded as
placing its maker under an obligation for the future to conform its conduct to that
statement, the enquiry may be regarded as one into the nature of the intentions of the
maker of the statement; but at a more direct and concrete level, it is necessary to apply a
number of criteria to see whether the statement fits one or other of them. Thus: was the
statement made in exchange, retrospectively or prospectively, for some statement (promise,
undertaking) made in favour of, or benefit conferred on, the maker of the statement
(contract situation)? Was the statement made in a form defined by the legal system as
sufficient in itself to prove intention, or deemed intention, to create obligation (e.g.,
promise under seal: see below)?
The enquiry may, however, range wider than the actual intention of the maker of the
statement: it may be asked whether the circumstances are such that the addressee of the
statement could properly have supposed that the statement was intended to create a
commitment (acquiescence). The passage quoted from the Nuclear Tests judgment shows
that it justifies the enforceability of a unilateral declaration, in terms of the underlying (p.
12) principle of intention: this differentiates the legal situation from such hypotheses as
estoppel, where the emphasis is on the reaction and expectations of the addressee of the
declaration rather than the intentions of its maker.14
(ii) The context of the statement
An undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding.
The reference to international negotiations is presumably to emphasize that the Court is
here consciously laying down a broader ruling than that of the Permanent Court with
regard to the Ihlen declaration in the Eastern Greenland case, which was specifically found
to be a ‘response to a request by the diplomatic representative of a foreign Power’.15
It is unclear whether it is, in the Court’s thinking, an essential condition that the
undertaking be ‘given publicly’. The statements made on behalf of the French Government
in the Nuclear Tests cases were of course made publicly rather than being addressed to the
applicant governments directly; but one would have thought that it would be sufficient, as a
general rule, for the declaration to have been made in such a way that it in fact became
known to the State seeking to rely on it. To require that it should have been addressed to a
particular State or States would, in the circumstances of the Nuclear Tests cases, have been
asking more than France could give, and thus made it impossible to give effect to the
56
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
declaration; but in general it is difficult to see why the legally binding effect of a declaration
should depend on, inter alia, the fact of its having been made publicly.
A later paragraph of the judgment refers to the unilateral statements of the French
authorities as having been made ‘publicly and erga omnes’,16
which appears to add an
additional element.17
One cannot but recall the Court’s dictum in the Barcelona Traction
case, four years earlier:
… an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis another
State in the field of diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights involved, all States can
be held to have a legal interest in their protection; they are obligations erga
omnes.18
Does a unilateral declaration made erga omnes necessarily give rise to an international
legal obligation erga omnes? If so, it would appear to follow that if France had
recommenced atmospheric nuclear tests, proceedings could have been brought against it
by (p. 13) any other State which could assert a title of jurisdiction, whether or not it was
affected by the fall-out from the tests.19
Furthermore, if this is an essential aspect of the law
of unilateral declarations, it must apply whatever the degree of international importance of
the subject-matter of the declaration. An obligation not to carry out atmospheric nuclear
tests might rank in the scale of gravity not far short of the obligations erga omnes which the
Court in 1970 presented as examples:
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination.20
It is not difficult, however, to think of examples of subjects to which a declaration— made
publicly, and with intent to be bound—might relate, which would be of limited interest and
minor significance, so that commitment erga omnes would be disproportionate.
(iii) and (iv) No quid pro quo or acceptance needed
In these circumstances, nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from other States, is
required for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.21
(iii) The Court here excludes anything corresponding to the requirement in English law of
‘consideration’ for an otherwise unilateral commitment to be legally enforceable.22
It does
more, however: the unqualified statement that ‘nothing in the nature of a quid pro quo … is
required’ appears also to exclude anything corresponding to what French law refers to as
‘la cause d’une obligation’. This concept to some extent parallels the English requirement of
consideration: in a synallagmatic contract, the obligation of each party may be, and
normally will be, the cause of the other; in the case of donations, wills, etc., the cause is the
intention of conferring a benefit. A unilateral act of a contractual nature which is without a
cause is invalid. Except in the special case of negotiable instruments, and similar
commercial paper, an abstract promise, i.e., a promise unsupported by a cause, does not
create an obligation.
57
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
It is not necessary to seek in comparative law the essence of a ‘general principle’ to
appreciate that a confrontation of the International Court’s conception of a unilateral act as
productive of legal obligation with domestic law rules of legal commitment shows that the
Court’s conception is, to say the least, by no means a necessary deduction from the basic
principle which underlies pacta sunt servanda. If English law has developed the doctrine of
consideration, and French law the concept of the cause, it is because in (p. 14) neither
system was it found appropriate that the mere assertion in vacuo of an intent to be bound
should in all circumstances give rise to a binding obligation.23
In the terminology of the Nuclear Tests decision, ‘good faith’ alone does not, in municipal
systems, necessarily require that an ‘obligation assumed by unilateral declaration’ should
be legally enforceable.
(iv) An ‘acceptance’ of a unilateral declaration, if it were required for the enforceability of
the obligation assumed, would impart a synallagmatic character into the legal relationship,
and adulterate the purity of the concept of unilateral commitment.
(v) The question of form
With regard to the question of form, it should be observed that this is not a domain
in which international law imposes any special or strict requirements.24
In particular, the Court observes, ‘Whether a statement is made orally or in writing makes
no essential difference … ’.25
In view of the general tolerance of international law in the
matter of forms,26
this is in itself neither surprising nor controversial; but it prompts further
reflection. The English rule whereby a promise made under seal is valid and binding
without proof of consideration may appear no more than an historical anomaly, but its
significance in modern law is surely that the need for the specific form (the seal) draws the
attention of the maker of the promise to the fact that he is entering into a binding
commitment. When the Court lays down that, at the international level,
When it is the intention of the State making the [unilateral] declaration that it
should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking …27
a gloss that should, it is suggested, be added is that it must have been the intention of the
State concerned not merely to ‘become bound according to its terms’, but to become bound
unilaterally according to its terms. A unilateral declaration which was intended to produce
a response—in the Nuclear Tests cases, perhaps the discontinuance of the proceedings—
may well entail an intention to become bound on the assumption, or indeed on the
condition, that the response is forthcoming. This hypothesis is excluded from the Court’s
definition of the modalities of binding unilateral commitment.
The seal in English internal law further affords the necessary evidence of the nature of the
intention of the author of the instrument; the question of proof is clearly more delicate, and
more difficult, in the international sphere.
(vi) Ascertainment of intention
… the intention [of being bound] is to be ascertained by interpretation of the act.
When States make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.28
The meaning of the last sentence is presumably that unilateral statements by States should
be interpreted restrictively in the sense that there should be a presumption against (p. 15)
an intention to create a binding obligation, which would restrict the State’s freedom of
action. Whether there was such an intention is ‘to be ascertained by interpretation of the
act’; but the Court gives no guide as to how this might be done. In particular it is not clear
58
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
whether the intention must appear on the face of the act, or whether the circumstances of its making are to be taken into account. Normally in interpreting a legal act, one guide as to the intention of the party or parties to it will be the presumed reason why the act was performed—in terms of treaty-interpretation, the treaty’s object and purpose. In the case of a unilateral declaration, as envisaged in the Nuclear Tests judgment, the exclusion of any need for a quid pro quo, or indeed any reaction, makes this approach difficult, to say the least. However, when examining the actual statements made by the French Government, the Court did in fact find that ‘they must be held to constitute an engagement of the State having regard to their intention and to the circumstances in which they were made’.29 Further the Court considered that it was ‘entitled to presume … that these statements were not made in vacuo, but in relation to the tests which constitute the very object of the present proceedings’.30It was perhaps not to be expected that the Court would spell out in any detail the requirements by reference to which a unilateral act might be interpreted as constituting a binding obligation. Some guidance might however be expected from the way in which the Court approached the specific instance before it: from what was it able to deduce that the declaration of cessation of atmospheric nuclear tests was intended to bind France internationally not to carry out any further such tests? This is perhaps the most obscure and least satisfactory aspect of the judgment.31One of the relevant circumstances would appear to be the identity of the person making or issuing the statement on behalf of the State concerned. Thus the Court said:Of the statements by the French Government now before the Court, the most essential are clearly those made by the President of the Republic. There can be no doubt, in view of his functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State. His statements, and those of members of the French Government acting under his authority, up to the last statement made by the Minister of Defence (of 11 October 1974), constitute a whole. Thus in whatever form these statements were expressed, they must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made.32The emphasis here seems to be less on the question of who was entitled to commit the French Government at the international level than on the essential credibility of statements made at this level.Two paragraphs further on, the Court gives the essence of its thinking on the point:In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and (p. 16) their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. It is true that the French Government has consistently maintained … that it ‘has the conviction that its nuclear experiments have not violated any rule of 303132
59
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
international law’, nor did France recognize that it was bound by any rule of
international law to terminate its tests, but this does not affect the legal
consequences of the statements examined above. The Court finds that the unilateral
undertaking resulting from these statements cannot be interpreted as having been
made in implicit reliance on an arbitrary power of reconsideration. The Court finds
further that the French Government has undertaken an obligation the precise
nature and limits of which must be understood in accordance with the actual terms
in which they have been publicly expressed.33
The approach underlying this finding betrays, it is suggested, a shift between the two
concepts of good faith discussed above. The Court took it as unquestionable that when the
French Head of State announced the cessation of atmospheric tests, he was speaking in
good faith, in the sense that he was correctly and honestly stating what was at the time the
firm policy of the French Government. But was he at the same time guaranteeing that
policy was immutable? The Court’s reference to an ‘arbitrary power of reconsideration’
suggests that the reservation of such a power would be unusual and would have to be
spelled out; but it is surely the irreversible unilateral commitment which is exceptional. In
the sense first mentioned, the President’s statement was fully entitled to ‘confidence and
trust’; and he was both entitled and bound to believe that it would be so received. But the
more fundamental aspect of good faith, the principle whereby a unilateral commitment may
rank as a ‘servandum’ to be respected, requires the good faith intention to enter into such a
commitment.
One element in the situation which was capable of importing this latter kind of good faith
was one which the Court had ruled out of consideration, as a matter of principle, though its
presence was detectable later in the reasoning. However ‘erga omnes’ the statements were,
they were obviously aimed at Australia and New Zealand in particular; and they were
obviously related to the proceedings before the Court. If the parties had been in direct
negotiation, the applicants would have been unlikely to agree to discontinue the
proceedings in exchange for a cessation of atmospheric tests unless the respondent
committed itself by way of legal obligation to make no more such tests.34
Therefore, if the
unilateral declaration was to achieve anything, it would have to be, and be intended to be,
equally creative of obligations.
In conclusion, the Nuclear Tests judgments may be said to have contributed to the corpus of
international law the development of the idea of a unilateral servandum, a (p. 17) legally
enforceable obligation assumed purely unilaterally. The use of the concept of ‘good faith’ as
a peg on which to hang this development is perhaps unfortunate, since what is operative
here is a more fundamental principle, allied to the philosophical basis of pacta sunt
servanda. Furthermore, in order to apply the principle of the unilateral obligation to the
particularly recalcitrant facts of the case, the Court had to state the principle in a
dangerously wide formulation—excluding any need for any acceptance of the unilateral
undertaking, or indeed any sort of two-way relationship, or any cause in the sense of
Continental law. In any future development of the law of the unilateral act as source of
obligation, it may however be expected that some of the characteristics stated in Nuclear
Tests will be tempered or modified.
(b) The WHO advisory opinion
In its advisory opinion on the Interpretation of the Agreement of 25 March 1951 between
the WHO and Egypt, the Court had occasion to consider Article 56 of the Vienna Convention
on the Law of Treaties and the corresponding provision of the ILC draft articles on treaties
60
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
between States and international organizations, or between international organizations; it
commented:
These provisions … specifically provide that, when a right of denunciation is implied
in a treaty by reason of its nature, the exercise of that right is conditional upon
notice, and that of not less than twelve months. Clearly, these provisions also are
based on an obligation to act in good faith and have reasonable regard to the
interests of the other party to the treaty.35
This dictum however prompts some doubts. The nature of the treaty postulated is such that
a right of denunciation is to be implied: that is to say that if the treaty is interpreted in good
faith, it will be recognized that a right of denunciation must have been intended. A right of
instant denunciation without previous warning, and effective immediately, would not, save
perhaps in exceptional cases, have been intended; the parties would have assumed a
reasonable period of notice, and the Vienna Convention lays down, as a practical solution,
12 months. But the basis for this is not ‘an obligation to act in good faith’, it is an
interpretation in good faith of the terms of the treaty ‘in the light of its object and
purpose’.36
Thus the WHO advisory opinion is not an authority for the proposition that good faith in
itself can be a source of obligation.
(c) The Nicaragua v. United States of America case
In the case concerning Military and Paramilitary Activities in and against Nicaragua, the
Court underlined the close relationship between a unilateral act, giving rise to binding
obligations, and a pactum, both of which are therefore servanda. The United States had
suggested that its policies and activities toward the Government of Nicaragua might be
justified by alleged breaches by that Government of ‘solemn commitments to the
Nicaraguan people, the United States, and the Organization of American States’.37
These
commitments were supposed to have been undertaken through unilateral declarations in
1979 by the Nicaraguan Junta of National Reconstruction. After observing that (p. 18) the
matters claimed to be covered by the commitment were questions of domestic policy, the
Court observed that
the assertion of a commitment raises the question of the possibility of a State
binding itself by agreement in relation to a question of domestic policy, such as that
relating to the holding of free elections on its territory. The Court cannot discover,
within the range of subjects open to international agreement, any obstacle or
provision to hinder a State from making a commitment of this kind.38
No specific reference was made, in the Court’s discussion of the matter, to ‘good faith’ as
the justifying principle whereby a unilateral statement could give rise to obligation; but the
passage quoted shows that the Court was, as in the Nuclear Tests cases, concerned to
enquire whether there was an intention to undertake a commitment which would render
any subsequent reneging an act contrary to good faith. Similarly, in the question of a
commitment to hold free elections, the Court concluded:
But the Court cannot find an instrument with legal force, whether unilateral or
synallagmatic, whereby Nicaragua has committed itself in respect of the principle
or methods of holding elections.39
It should not be overlooked that the United States was not in fact claiming40 that there
existed an obligation erga omnes; the specific beneficiaries of the obligation were, as noted
above, stated to be the Nicaraguan people, the OAS and the United States. This
differentiates the legal situation sharply from that contemplated in the Nuclear Tests cases
where, it will be recalled, the Court avoided any suggestion that the French statements
40
61
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
were addressed to the applicant States by referring to a simple requirement that the
undertaking should have been ‘given publicly’.41
(d) The Frontier Dispute case
In the Frontier Dispute between Mali and Burkina Faso the question of the legal effects of a
unilateral statement again arose, and in this case the statement was found to have been
made erga omnes, or at least to have been ‘not directed to any particular recipient’.42
The
Chamber took the opportunity to clarify the meaning of the Nuclear Tests dicta43 on a
number of points.
The unilateral statement relied on by Burkina Faso was a statement by the President of Mali
whereby, in Burkina Faso’s interpretation, Mali ‘proclaimed itself already bound’ by a report
to be made by a Mediation Commission concerning the position of the frontier. The
statement in question had been made at a press interview, and was to the effect that even if
the commission decided that the frontier line passed through the Malian capital, the
Government of Mali would comply with the decision.44
(p. 19) The Chamber based its rejection of the Burkina Faso contention essentially on the
point that this was hardly a normal way of undertaking a legal commitment to accept a
decision as binding, and it could therefore not be interpreted as having been intended as
creating such a commitment.
The Chamber first indicated why each case had to be considered on its own facts:
the Court … made clear in those cases that it is only ‘when it is the intention of the
State making the declaration that it should become bound according to its terms’
that ‘that intention confers on the declaration the character of a legal undertaking’
… Thus it all depends on the intention of the State in question, and the Court
emphasized that it is for the Court to ‘form its own view of the meaning and scope
intended by the author of a unilateral declaration which may create a legal
obligation’.45
It then indicated why the French statements in the Nuclear Tests cases could, in the special
circumstances of those cases, be regarded as a normal, indeed the only possible, way of
creating a legal obligation:
In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
Nuclear Tests cases, the Court took the view that since the applicant States were
not the only ones concerned at the possible continuance of atmospheric testing by
the French Government, that Government’s unilateral declarations had ‘conveyed to
the world at large, including the Applicant, its intention effectively to terminate
these tests’ (ICJ Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an
intention to be bound otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution with each of the
applicants without thereby jeopardizing its contention that its conduct was lawful.46
After thus explaining the special nature of the Nuclear Tests cases, the Chamber continued:
The circumstances of the present case are radically different. Here, there was
nothing to hinder the Parties from manifesting an intention to accept the binding
character of the conclusions of the Organization of African Unity Mediation
Commission by the normal method: a formal agreement on the basis of reciprocity.
Since no agreement of this kind was concluded between the Parties, the Chamber
finds that there are no grounds to interpret the declaration made by Mali’s head of
43
62
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
State on 11 April 1975 as a unilateral act with legal implications in regard to the
present case.47
(e) The Border and Transborder Armed Actions case
The most recent attempt to build a legal obligation out of good faith and nothing more was
made in the case of Border and Transborder Armed Actions, brought by Nicaragua against
Honduras. Honduras had argued that under the provisions of the Pact of Bogotá, the
jurisdictional title asserted by Nicaragua, and upheld by the Court, Nicaragua was debarred
from having recourse to the Court so long as the ‘pacific procedure’ constituted, in the view
of Honduras, by the Contadora Process, had not been concluded. The Court, without ruling
on whether the Contadora Process was or was not a ‘pacific procedure’ as contemplated by
the Pact of Bogotá, held that it had in any event been concluded by the time the case was
brought to the Court.
(p. 20) The further argument of Honduras, and the Court’s finding on it, was as follows:
The Court has also to deal with the contention of Honduras that Nicaragua is
precluded not only by Article IV of the Pact of Bogota but also ‘by elementary
considerations of good faith’ from commencing any other procedure for pacific
settlement until such time as the Contadora process has been concluded. The
principle of good faith is, as the Court has observed, ‘one of the basic principles
governing the creation and performance of legal obligations’ (Nuclear Tests, ICJ
Reports 1974, p. 268, para. 46; p. 473, para. 49); it is not in itself a source of
obligation where none would otherwise exist. In this case however the contention of
Honduras is that, on the basis of successive acts by Nicaragua culminating in the
Esquipulas Declaration of 25 May 1986 …, Nicaragua has entered into a
‘commitment to the Contadora process’; it argues that by virtue of that Declaration,
‘Nicaragua entered into a commitment with which its present unilateral Application
to the Court is plainly incompatible’. The Court considers that whether or not the
conduct of Nicaragua or the Esquipulas Declaration created any such commitment,
the events of June/July 1986 constituted a ‘conclusion’ of the initial procedure both
for purposes of Article IV of the Pact and in relation to any other obligation to
exhaust that procedure which might have existed independently of the Pact.48
The Esquipulas Declaration here referred to was one made by the Presidents of the five
Central American countries indicating willingness to sign the Act of Contadora, and to
comply with it. Vis-à-vis any other Government, this might be considered to be a unilateral
act; but as between the five signatory Governments, it would seem, despite its form, to be
essentially synallagmatic. Whether or not the Declaration is to be so regarded, the
argument of Honduras was not so much that good faith had created an obligation on
Nicaragua’s part, as that the admitted commitment to the Contadora Process entered into
by Nicaragua entailed an undertaking not to resort to judicial settlement procedures, such
recourse being inconsistent with performance in good faith of the admitted obligation.
Hence the question raised in this case—but not examined by the Court, for the reasons
stated—was one of good faith execution of an obligation, good faith stricto sensu, to which
we may now turn.
(2) Good faith stricto sensu
In its more traditional and established form, the principle of good faith is, as the Court
pointed out in 1988, not creative of obligations, but rather governs the way in which
existing obligations are carried out or existing rights exercised.
63
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
Fitzmaurice’s own definition is as follows:
The essence of the doctrine is that although a State may have a strict right to act in
a particular way, it must not exercise this right in such a manner as to constitute an
abuse of it; it must exercise its rights in good faith and with a sense of
responsibility; it must have bona fide reasons for what it does, and not act
arbitrarily or capriciously.49
Good faith has of course a role to play in the interpretation of treaties and other
instruments, as indicated in Article 31 of the Vienna Convention on the Law of Treaties; but
consideration of this aspect of the matter will be reserved for a later article, in the context
of treaty interpretation and treaty law.
A field in which recourse to the term ‘good faith’ has been frequent in the period under
review has been in the context of the conduct of negotiations directed to settling a dispute
or establishing the extent of the rights of the parties. The source of the obligation (p. 21) to
negotiate, found in a number of recent decisions of the Court, will be examined elsewhere
in these articles; for the present, attention will be addressed to what the Court has had to
say concerning the way in which such negotiations are conducted.
(a) Negotiations and good faith
In the first of the series of modern cases in which the Court has had to grapple with
problems of maritime delimitation, the North Sea Continental Shelf cases of 1969, it
discerned ‘certain basic legal notions which … have from the beginning reflected the opinio
juris in the matter of delimitation’ of the continental shelf. These were:
that delimitation must be the object of agreement between the States concerned,
and that such agreement must be arrived at in accordance with equitable
principles.50
The court continued with an explanatory sentence which began with the following words:
On a foundation of very general precepts of justice and good faith, actual rules of
law are here involved which govern the delimitation of adjacent continental shelves
…51
The sentence, which is of phenomenal length, contained (inter alia) the following
prescription:
(a) the parties are under an obligation to enter into negotiations with a view to
arriving at an agreement, and not merely to go through a formal process of
negotiation as a sort of prior condition for the automatic application of a certain
method of delimitation in the absence of agreement; they are under an obligation so
to conduct themselves that the negotiations are meaningful, which will not be the
case when either of them insists upon its own position without contemplating any
modification of it;
(b) …52
Taking this passage as a whole, it appears that the prescription last quoted is in fact a
definition—though probably not a limitative one—of what the Court considered to be the
content of an obligation to negotiate in good faith.53
Such an obligation had in fact been
defined in not dissimilar terms in 1957 in the Lake Lanoux arbitration.54
64
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
effect doing was relying on that declaration in order to assert a right to sue the United
States.
The Court did not accept the United States contention; it based its reasoning essentially on
a finding that Nicaragua’s situation had been ‘wholly unique’. It referred to Nicaragua’s
absence of protest ‘against the legal situation ascribed to it by the publications of the Court,
the Secretary-General of the United Nations and major States’:
Hence, if the Court were to object that Nicaragua ought to have made a declaration
under Article 36, paragraph 2, it would be penalizing Nicaragua for having attached
undue weight to the information given on that point by the Court and the Secretary-
General of the United Nations and, in sum, having (on account of the authority of
[its] sponsors) regarded [it] as more reliable than [it] really [was].265
The United States argument brings out the fact that the principle now under discussion can
be given two interpretations: constitutional or volitional. Where there is a recognized means
of achieving a particular end, it may be said that no other method is permitted by law; or it
may be said that it will be presumed that States who wish to achieve that end will use the
means provided, and there is a presumption against the conclusion that a State which acted
in some other way was intending nevertheless to achieve the same end. The Court’s finding
in the North Sea Continental Shelf cases appears to be based at least primarily on the
second interpretation, though the language used suggests that both ideas were in the
Court’s mind. In particular, the reductio ad absurdum mentioned above seems to be based
on the idea that, no matter what the intentions of the State concerned had been, it would
not be allowed to claim rights by the back door, as it were.
The United States argument in the Nicaragua case leans much more heavily on the
constitutional conception, that what Nicaragua claimed to do was forbidden, or at least not
permitted, by the Statute. The Court, however, answered it, in effect, on the consent basis,
by saying that what would otherwise have been odd behaviour, from which consent or
intention to be bound could not properly be deduced, was not so odd in view of the unique
situation in which Nicaragua found itself.
Footnotes:
* The subject of this section is re-examined, in the light of later case-law, at p.1111 below.
3
See Fitzmaurice, this Year Book, 27 (1950), p. 12; 30 (1953), p. 52; 35 (1959), pp. 206–7;
Collected Edition, I, pp. 12, 183; II, pp. 609–10,
4
Nuclear Tests, ICJ Reports, 1973, p. 268, para. 46.
5
Border and Transborder Armed Actions (Nicaragua v. Honduras), ICJ Reports, 1988, p.
105, para. 94.
6
There was strong dissent on this and other issues, but for purposes of discussion it may
be assumed that the Court was correct in this view.
7
Whether, even so, the Court was entitled to put an end to the proceedings ex officio is a
point to be discussed in a later article.
8
ICJ Reports, 1974, p. 267, paras. 43–4.
9
ICJ Reports, 1974, p. 268, para. 46.
10
See Zoller, La Bonne Foi en droit international public, pp. 340 ff.; Macdonald and Hough,
‘The Nuclear Tests Case Revisited’, German Yearbook of International Law, 20 (1977), p.
65
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
337; Rubin, ‘The International Legal Effects of Unilateral Declarations’, American Journal of
International Law, 71 (1977), p. 1.
11
This Year Book, 35 (1959), pp. 195–6; Collected Edition, II, p. 597.
12
ICJ Reports, 1974, p. 267, para. 43.
13
See Rubin, loc. cit. above (n. 10), at p. 24.
14
Zoller, op. cit. above (n. 10), pp. 341–3, draws attention to the Court’s references to
‘trust and confidence’ in this context, and suggests that the ‘good faith’ involved may be
that of the addressee, which must not be abused. A similar view is expressed by Carbone,
‘Promise in International Law: a Confirmation of its Binding Force’, Italian Yearbook of
International Law, 1 (1975), p. 169. In view of the emphasis on the intentions of the maker
of the declaration, however, it seems that these references are intended only to buttress the
moral or ethical attractiveness of the principle propounded.
15
Legal Status of Eastern Greenland, PCIJ, Series A/B, No. 53, p. 53.
16
ICJ Reports, 1974, p. 269, para. 50.
17
A curious fact is that ‘publicly’ in the earlier paragraph is translated by ‘publiquement’
in the French text of the judgment, but here the expression used is ‘en dehors de la Cour et
erga omnes’. The idea seems to be not so much the publicity given to the statements as that
they were made outside the framework nf the proceedings before the Court: cf. Polish
Upper Silesia, PCIJ, Series A No 7 p 12; Free Zones, PCIJ, Series A/B, No. 46, p. 170.
18
ICJ Reports, 1970, p. 32, para. 33. To be discussed below, pp. 93–4.
19
This reading of the Nuclear Tests judgments seems to be adopted by Weil, ‘Towards
Relative Normativity in International Law?’, American Journal of International Law, 77
(1983), p. 432.
20
ICJ Reports, 1970, p. 32, para. 34.
21
ICJ Reports, 1974, p. 267, para. 43.
22
This may be regarded as already established as far as treaties are concerned; ‘it appears
that the doctrine of consideration finds no room in international law’: Mann, ‘Reflections on
a Commercial Law of Nations’, this Year Book, 33 (1957), p. 30; cf. Lauterpacht, Private
Law Sources and Analogies of International Law, pp. 177, 178.
23
Carbonnier (Droit civil, vol. 2 (1964)) quotes the Italian writer Gorla (Il contratto (1955),
vol. 1, section 4 ff., section 22) as advancing the view that the essential purpose of the
cause is to limit the principle that consent alone can give rise to obligation.
24
ICJ Reports, 1974, p. 267, para. 45.
25
Ibid.
26
Cf. the well-known dictum in the Mavrommatis case, PCIJ, Series A, No. 2, p. 34.
27
ICJ Reports, 1974, p. 267, para. 43.
28
Ibid., para. 44.
29
ICJ Reports, 1974, p. 269, para. 49 (emphasis added).
30
Ibid., para. 50.
31
Judge de Castro dissented on this point; he interpreted the statements made as showing
only ‘that the French Government has made up its mind to cease atmospheric nuclear
testing from now on and has informed the public of its intention to do so. But I do not feel
that it is possible to go farther. I see no indication warranting a presumption that France
66
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 04 January 2023
wished to bring into being an international obligation possessing the same binding force as
a treaty … ’ (ICJ Reports, 1974, P- 375).
32
ICJ Reports, 1974, p. 269, para. 49.
33
ICJ Reports, 1974, pp. 269–70, para. 51.
34
Cf. the very realistic discussion of the Belgian/Spanish negotiations for a discontinuance
in the Barcelona Traction case, ICJ Reports, 1964, pp. 22–4. It should not be overlooked
that if Australia and New Zealand had discontinued proceedings, they could not have
brought a fresh case, since the jurisdictional titles had been withdrawn in the meantime—a
point that throws some doubt on the Court’s finding that the unilaterally created obligation
to cease tests gave the applicants full satisfaction.
35
ICJReports, 1980, p. 95, para. 47.
36
Cf. Waldock in Yearbook of the ILC, 1963, vol. 2, p. 67.
37
ICJ Reports, 1986, p. 130, para. 257.
38
Ibid., p. 131, para. 259.
39
Ibid., p. 132, para. 261 (emphasis added).
40
The Court also stated, curiously enough after examining the US contentions on the legal
merits, that ‘these justifications, advanced solely in a political context …, were not
advanced as legal arguments’ (ibid., p. 134, para. 266).
41
In respect of alleged human rights violations, the question of obligations erga omnes did
arise in the case; but these obligations were not alleged to rest on good faith observance of
unilateral acts, and are therefore dealt with elsewhere in this article (pp. 99–102, below).
42
ICJ Reports, 1986, p. 574, para. 39. The authentic French text is perhaps clearer: ‘une
déclaration unilatérale privée de tout destinataire précis’.
43
The Chamber included two Members of the Court who had taken part in, and voted in
favour of, the Nuclear Tests decisions.
44
ICJ Reports, 1986, p. 571, para. 36.
45
Ibid., 1986, p. 573, para. 39.
46
Ibid., p. 574, para. 40.
47
Ibid., p. 574, para. 40.
48
ICJ Reports, 1988, pp. 105–6, para. 94.
49
This Year Book, 27 (1950), pp. 12–13; Collected Edition, I, pp. 12–13.
50
ICJ Reports, 1969, p. 46, para. 85.
51
Ibid., pp. 46–7.
52
Ibid., p. 47, para. 85.
53
In this sense, Zoller, op. cit. above (n. 10), pp. 62–3.
54
24 ILR 101.
55
This approach was criticized by some Members of the Court, and its justification will be
examined in a later article.
56
ICJ Reports, 1974, p. 31, para. 73.
57
Ibid., p. 33, para. 78.
58
Ibid.
67
68
Annex 10 Paolo Palchetti, Responsibility for Breach of Provisional Measures of the ICJ: Between Protection of the Rights of the Parties and Respect for the Judicial Function, RIVISTA DI DIRITTO INTERNAZIONALE (2017) 69
70
Milano3•3Giuffrè3Editore
RIVISTA DI DIRITTO INTERNAZIONALE
Anno3C3Fasc.313-32017
ISSN30035-6158
Paolo3Palchetti
RESPONSIBILITY FOR BREACH OF
PROVISIONAL MEASURES OF THE
ICJ: BETWEEN PROTECTION OF
THE RIGHTS OF THE PARTIES AND
RESPECT FOR THE JUDICIAL
FUNCTION
Estratto
MV LTA
PAVCIS
AG
71
RESPONSIBILITY FORBREACHOFPROVISIONAL
MEASURES OFTHEICJ:BETWEENPROTECTION
OF THERIGHTSOFTHEPARTIES
AND RESPECTFORTHEJUDICIALFUNCTION
SUMMARY: 1.Introduction.—2.TheCourt’spowertodeterminenon-complianceon
its ownmotion.—3.TheCourt’spowertodeterminenon-complianceinthe
absence ofjurisdictiononthemerits.—4.Theresponsibilityofanon-complying
party towardstheotherparty.—5.TheCourt’spowertoimposesanctions
against anon-complyingparty.—6.Concludingremarks.
1. WhenaStatepartytoadisputebeforetheInternationalCourt
of Justicebreachesprovisionalmeasures,itsconductamountstoan
internationally wrongfulact.Theconsequencesthatarisebyvirtueof
this wrongfulconductinvolveinthefirstplacetherelationsbetween
the StatepartyresponsibleforthebreachandtheotherStateparty—
or Statesparty—tothecase.Asprovisionalmeasuresaretaken“to
preserve therespectiverightsofeitherparty”(1), abreachofsuch
measures byonepartymayberegardedasaffectingtherightsofthe
other party(2). Theinjuredpartywouldthereforebeentitledtoinvoke
responsibility forsuchconduct.
However, itseemsreductivetoregardlackofcompliancewith
provisional measuresasamatterexclusivelyaffectingtherightsand
interests ofthecontendingparties.TheCourtitselfhasaninterestin
ensuring respectforprovisionalmeasures.Inordertojustifyitscon-
clusion thatprovisionalmeasureshavebindingforce,theCourtnoted
that “[t]hecontextinwhichArticle41hastobeseenwithintheStatute
is topreventtheCourt from beinghamperedintheexerciseofits
functions because therespectiverightsofthepartiestoadisputebefore
(1) AccordingtoArticle41oftheStatute,“[t]heCourtshallhavethepowerto
indicate, ifitconsidersthatcircumstancessorequire,anyprovisionalmeasureswhich
ought tobetakentopreservetherespectiverightsofeitherparty”.
(2) AssuggestedbyGUGGENHEIM, Les mesuresconservatoiresdanslaprocédure
arbitrale etjudiciaire, Recueil descours, vol.40(1932-II),p.115,apartyhasa“droit
d’exiger l’exécutiondesmesuresconservatoires”.
Rivista didirittointernazionale-1/2017
72
the Courtarenotpreserved”(3). Failuretocomplywithobligations
laid downinprovisionalmeasuresnotonlyoffendsagainsttheauthor-
ity oftheCourt;itunderminestheeffectiveadministrationofjusticein
a particularcase.ToborrowfromtheCourt’slanguagein United States
Diplomatic andConsularStaffinTehran, suchconduct“isofakind
calculated tounderminerespectforthejudicialprocessininternational
relations” (4).
It mightbearguedthatinthejudicialprocessbeforetheCourtthe
“institutional dimension”canhardlybedisentangledfromthe“inter-
state dimension”andthatthefactthattheinjuredpartyisofferedthe
possibility ofinvokingtheresponsibilityoftheotherpartyisinitselfan
adequate andsufficientmeansforvindicatingtheCourt’sinstitutional
interest inensuringrespectforthejudicialprocess(5). Nodoubt,there
is meritinthisview.Theapplicationofthegeneralregimeofrespon-
sibility totherelationsbetweenthepartiesmayberegardedasbotha
sanction andadeterrent.Inthisrespect,bycontributingtothe
effectiveness oftheCourt’spowertoindicateprovisionalmeasures,it
performs awiderfunctionthanthatofsimplyrestoringthelegal
relations betweentheparties.Yet,itmaybeaskedwhether,inaddition
to theinterstatedynamicsbasedonthegeneralregimeofresponsibility,
there isalsoscopeforamoreproactiveroleoftheCourtitselfin
responding tobreachesofprovisionalmeasures.Twoissuesappearto
be particularlysignificantinthisrespect.ThefirstconcernstheCourt’s
power todeterminelackofcompliancewithprovisionalmeasures
irrespective oftheclaimsoftheparties.WhilethegeneralrulesonState
responsibility leavetotheinjuredpartytherighttoinvokeresponsi-
bility, thequestioniswhethertheCourtmaydeterminebyitsown
initiative whetherprovisionalmeasureshavebeencompliedwith,
possibly alsointheabsenceofjurisdictiononthemeritsofthedispute.
The otherissuerelatestotheconsequencesofabreachofprovisional
measures. Inparticular,onemayaskwhetherthelegalconsequences
(3) I.C.J. Reports, 2001,p.503,para.102(italicsadded).
(4) I.C.J. Reports, 1980,p.43,para.93.Interestingly,incensuringtheUnited
States’ conduct,theCourtalsonotedthatsuchconductamountedtoabreachofthe
provisional measuresindicatedintheorderof15December1979.
(5) Onthisdualdimensioninherentintheregimeofresponsibilityforbreachof
provisional measures,seeMENDELSON, State ResponsibilityforBreachofInterimProtec-
tion OrdersoftheInternationalCourtofJustice, in: Issues ofStateResponsibilitybefore
International JudicialInstitutions (Fitzmaurice andSarooshi,eds),Oxford,2004,p.42,
and MAROTTI, “Plausibilità” deidirittieautonomiadelregimediresponsabilitànella
recente giurisprudenzadellaCorteinternazionaledigiustiziaintemadimisurecautelari,
Rivista, vol.97(2014),pp.777-778.
RESPONSIBILITY FORBREACH 6
73
provided underthegeneralrulesonStateresponsibilityexhaustthe
range oflegalconsequencesavailableagainsttheresponsibleparty.
It isonthesetwoissues—theCourt’spowertodetermine
non-compliance withprovisionalmeasuresandthelegalconsequences
stemming fromnon-compliance—thatthenextparagraphswillfocus.
By takingstockoftheCourt’scaselawafterthe LaGrand judgment, the
purpose is,morecomprehensively,toidentifythemainfeaturesofthe
legal regimeofresponsibilityforbreachesofprovisionalmeasures.
2. Thequestionofnon-compliancewithprovisionalmeasuresis
generally broughttotheCourt’sattentionattherequestofoneofthe
parties. Inparticular,inallcasessincethe LaGrand judgment inwhich
the Courthasaddressednon-compliance,thisissuewasraisedbya
party throughaspecificclaimincludedinitssubmissions.Thispractice
should notbetakenasimplyingthatanindependentjudicialaction
would notbeadmissible.Thefactthatthepartieshavenotincludedthe
issue ofnon-complianceintheirsubmissionswouldnotpreventthe
Court fromaddressingitonitsownmotion.Whilethejurisdictionof
the Courtonthemeritsofthedisputeislimitedbythe ne ultrapetita
rule, thisruledoesnotapplyinrelationtoprovisionalmeasures(6). In
this area,considerationsbasedontheneedtoprotecttheeffectiveness
and integrityofthejudicialfunctionpleadinfavourofagreaterroleof
the Court.Significantly,thepoweroftheCourttoindicateprovisional
measures underArticle41oftheStatuteisnotdependentupona
request fromoneoftheparties.Moreover,Article75,para.1,ofthe
Rules providesthattheCourt“mayatanytimedecidetoexamine
proprio motu whether thecircumstancesofthecaserequiretheindi-
cation ofprovisionalmeasures”;Article75,para.2,addsthat“the
Court mayindicatemeasuresthatareinwholeorinpartotherthan
those requested”.Itissubmittedthatthesameconsiderationsof
effectiveness andintegrityofthejudicialfunctioncomeintoplayin
relation totheCourt’spowertodetermineaparty’sbreachofprovi-
sional measures(7). Thisthemoresoifoneconsidersthatprovisional
(6) AsobservedbyD’ARGENT, Juge oupolicier:lesmesuresconservatoiresdans
l’affaire du Temple dePréahVihear, Annuaire françaisdedroitint., vol.57(2011),p.
161, “ainsiquelerappellel’article75durèglement,lecontentieuxdel’urgencen’est
pas régiparleprincipedispositifquidominelecontentieuxsurlefondencasde
différend ausensdel’article36dustatut”.SeealsoKOLB, General Principlesof
Procedural Law, in: The StatuteoftheInternationalCourtofJustice:ACommentary
(Zimmermann, TomuschatandOellers-Frahm,eds),2nded.,Oxford,2012,p.899.
(7) ThisviewhasbeendefendedbysomeJudges.AccordingtoJudgeCançado
Trindade “contemporaryinternationaltribunalshave,inmyunderstanding,aninher-
OF PROVISIONALMEASURESOFTHEICJ 7
74
measures areindicatedwhilethecaseispendingbeforetheCourt:it
seems quitereasonablethattheCourt,whenitisseizedofacase,isalso
empowered todeterminewhetherthepartiesarecomplyingwith
binding ordersindicatingprovisionalmeasures(8).
So far,theCourthasnottakenapositiononthepossibilityof
raising proprio motu the issueofnon-compliancewithprovisional
measures. Initsjudgmentin LaGrand, theCourtemphasizedthe
importance ofaparty’sclaimforindemnificationasaconditionforthe
Court toruleuponsuchissue.Inparticular,itrefrainedfromconsid-
ering whetherGermanyhadtherighttobeindemnifiedbynotingthat,
while GermanyhadaskedtheCourttoascertainthebreachofprovi-
sional measures,ithadnotincludedaclaimforindemnificationinits
submissions (9). TheCourt’srefusaltoaddresstheissueofindemnifi-
cation canhardlybetakenasadenialofitspowertodetermine proprio
motu a party’slackofcompliancewithprovisionalmeasures.Adis-
tinction istobedrawnbetweentheCourt’spowertodeterminea
party’s righttoobtainredressanditspowertodeterminenon-
compliance withprovisionalmeasures.Itisforthepartyseeking
redress toincludeaclaimforreparationinitssubmissions(10). Inthe
ent poweror faculté to orderprovisionalmeasuresofprotection,wheneverneeded,and
to determine, ex officio, theoccurrenceofabreachofprovisionalmeasures,withits
legal consequences”.SeehisseparateopinionattachedtotheCourt’sjudgmentinthe
joined casesof Certain ActivitiesCarriedoutbyNicaraguaintheBorderArea and
Construction ofaRoadinCostaRicaalongtheSanJuanRiver, para.36.Accordingto
Judge ad hoc Verhoeven, sincenon-compliancewithprovisionalmeasures“isineffect
a challengetotheauthorityoftheCourt”,itis“understandablethattheCourtshould
condemn, even proprio motu where appropriate,violationsoforderedmeasures
evidenced byactswithinitscognizance”. I.C.J. Reports, 2005,p.358.SeealsoKOLB,
The InternationalCourtofJustice, 2012,p.649.Foracontraryview,seeROSENNE, The
Law andPracticeoftheInternationalCourt,1920-2005, TheHague,p.206(“non-
compliance withadecisionindicatingprovisionalmeasuresofprotection,although
itself aninternationallywrongfulactoccasioningtheinternationalresponsibilityofthe
recalcitrant State,doesnotenabletheCourttoimposesanctions proprio motu”).
(8) Itmightbeobjectedthat,sinceArticle76oftheRulesprovidesthatthe
Court mayrevokeormodifyprovisionalmeasures“attherequestofaparty”,thesame
restriction wouldapplytotheCourt’spowertodeterminenon-compliancewith
provisional measures.However,itseemsexcessivetoinferfromthisprovisionamore
general limitation.Moreover,asnotedbyGAJA, Requesting theICJtoRevokeorModify
Provisional Measures, The LawandPracticeofInternationalCourtsandTribunals, vol.
14 (2015),pp.2-3,despitetheletterofArticle76,“theCourtmustbeconsideredto
be entitledalsotomodifyorrevokeonitsownmotionthemeasuresithasindicated”.
(9) I.C.J. Reports, 2001,p.508,para.116.
(10) Withregardtothepossibilitythatarequestofindemnificationissubmitted
by therespondentparty,theCourthasclarifiedthat“thequestionofcomplianceby
both Partieswiththeprovisionalmeasuresindicatedinthiscasemaybeconsideredby
the Courtintheprincipalproceedings,irrespectiveofwhetherornottherespondent
State raisedthatissuebywayofacounter-claim”.Seetheorderof18April2013in
RESPONSIBILITY FORBREACH 8
75
absence ofsuchclaim,the ne ultrapetita rule seemstopreventthe
Court fromrulingupontheparty’srighttobeindemnified(11). By
contrast, suchruledoesnotlimittheCourt’scompetencetodetermine
proprio motu a party’snon-compliancewithprovisionalmeasures.
Admittedly, whenconfrontedwiththepossibilityofraisingthe
issue ofnon-compliance proprio motu, theCourtrefrainedfrommak-
ing suchstep.In Armed ActivitiesintheTerritoryoftheCongo(DRC
v. Uganda), whileprovisionalmeasureshadbeenaddressedtoboth
parties, onlytheDRCaskedtheCourttoascertainthatUgandahad
breached suchmeasures.InitsjudgmenttheCourt,afterfindingthat
Uganda hadnotcompliedwithsuchmeasures,tookcaretostressthat
its findingonUganda’snon-compliancewas“withoutprejudicetothe
question astowhethertheDRCdidnotalsofailtocomplywiththe
provisional measuresindicatedbytheCourt”(12). This“without
prejudice” statementisratherunfortunate.Insteadofalludingtothe
possibility thattheDRCitselfcouldhavebreachedtheprovisional
measures, theCourtshouldhaveaddresseddirectlysuchissueinits
judgment (13).
One ofdifficultiesthattheCourtmayfaceinraising proprio motu
the questionofnon-complianceisthatofprovingthatabreachhad
occurred withouttheassistanceoftheparties.Theassessmentofa
party’s compliancemayrequireanin-depthinvestigationofcomplex
factual situations.In Land andMaritimeBoundarybetweenCameroon
and Nigeria, theCourtdidnotupholdCameroon’sclaimthatNigeria
had breachedprovisionalmeasures,findingthatCameroonhadnotput
forward evidencedemonstratingNigeria’slackofcompliance.The
Court placedparticularemphasisontheparties’dutiesinthisrespect;
it observedthat“inthepresentcaseitisforCameroontoshowthat
Nigeria actedinviolationoftheprovisionalmeasuresindicatedinthe
Order of15March1996”(14). Thisstatementmustbereadincontext.
the joinedcases Certain ActivitiesCarriedOutbyNicaraguaintheBorderArea and
Construction ofaRoadinCostaRicaalongtheSanJuanRiver, I.C.J. Reports, 2013,p.
215, para.40.Onthepossibleimplicationsofthisstatement,seeMAROTTI, op. cit., p.
785.
(11) SeeOELLERS FRAHM, Article 41, in: The StatuteoftheInternationalCourtof
Justice: ACommentary (Zimmermann, TomuschatandOellers-Frahm,eds),2nded.,
Oxford, 2012,p.1068.
(12) I.C.J. Reports, 2005,p.259,para.265.
(13) Inhisdissentingopinion,Judge ad hoc Kateka maintainedthattheDRChad
committed graveviolationsofhumanrightsandinternationalhumanitarianlaw
amounting toabreachoftheprovisionalmeasuresindicatedbytheCourt. I.C.J.
Reports, 2005,p.379,para.61.
(14) I.C.J. Reports, 2002,p.453,para.321.
OF PROVISIONALMEASURESOFTHEICJ 9
76
It isclearthatthepartiesbeartheburdenofprovingtheirclaims.At
the sametime,however,theCourtisfreetorelyonfactswithinitsown
knowledge inordertoruleuponthequestionofcompliancewith
provisional measures(15). Forthedeterminationoftherelevantfacts,
the Courtmayalsoaskfortheparties’assistance,forinstanceby
addressing questionsfromthebench(16).
Should theCourtfindthatapartyfailedtocomplywithprovi-
sional measures,theproblemmayberaisedwhethersuchfindingisto
be reportedintheoperativepartofthejudgmentorinitsreasons.The
practice oftheCourtafter LaGrand has beentoincludesuchfindingin
the operativepart(17). Aswehaveseen,thispracticereferstocases
where theCourtwascalledupontogiveananswertoaspecificclaim
included inthesubmissionofoneoftheparties.Thereisnoreasonwhy
the samesolutionshouldnotbefollowedalsoincaseswheretheCourt
raises theissueofcompliancewithprovisionalmeasuresonitsown
motion. Thefactthattheissueisnotraisedbythepartiesintheir
submission shouldnotprecludethispossibility,astheCourtenjoysa
certain discretioninformulatingtheoperativepart(18). Byrecordinga
party’s non-complianceintheoperativepart,theCourtwouldput
greater emphasisonitsfinding;itwouldalsoallowindividualjudgesto
express theirviewsonthisissue(19).
3. AstheCourthasrepeatedlystated,theindicationofprovi-
sional measuresisnotconditionaluponthepriordeterminationofthe
Court’s jurisdictionoverthecase.Itissufficientthattherequesting
(15) InArmed ActivitiesintheTerritoryoftheCongo(DRCv.Uganda) the Court
noted that“theDRCputforwardnospecificevidencedemonstrating”abreachofthe
provisional measures.However,theCourt,byrelyingonotherfindingsmadeinthe
judgment, wasabletoconcludethatUgandahadnotcompliedwithitsobligations
under theprovisionalmeasures. I.C.J. Reports, 2005,pp.258-259,para.264.
(16) OntheimportanceofthispracticeincaseswheretheCourtraisesissues ex
officio, seeFORLATI, The InternationalCourtofJustice.AnArbitralTribunaloraJudicial
Body?, Heidelberg,2014,p.162.
(17) Inthecaselawpriorto LaGrand the Courthadsometimesincludeda
reference toaparty’snon-complianceinthereasons.Foranoverview,seeSTEIN,
Contempt, CrisisandtheCourt:TheWorldCourtandtheHostageRescueAttempt,
American JournalofInt.Law, vol.76(1982),p.528.
(18) SeeBROWN, Article 59, in: The StatuteoftheInternationalCourtofJustice:A
Commentary (Zimmermann, TomuschatandOellers-Frahm,eds),2nded.,Oxford,
2012, p.1431.
(19) Fortheimplicationsofaddressingacertainfindingintheoperativepart
rather thaninthereasonsseethedeclarationofJudgeGaja,annexedtotheCourt’s
order of7December2016in Immunities andcriminalproceedings(EquatorialGuinea
v. France).
RESPONSIBILITY FORBREACH 10
77
party showstheexistenceofa prima facie jurisdiction. If,afterhaving
indicated provisionalmeasures,theCourtfindsthatithasnojurisdic-
tion, thequestionarisesastowhethertheCourtwouldinanycasebe
empowered todecideuponaparty’slackofcompliancewithsuch
measures.
The Courthasnotyettakenaclearviewonthisquestion.Inits
judgment in LaGrand it observedthat“[w]heretheCourthasjuris-
diction todecideacase,italsohasjurisdictiontodealwithsubmissions
requesting ittodeterminethatanorderindicatingmeasureswhich
seeks topreservetherightsofthePartiestothisdisputehasnotbeen
complied with”(20). Thisappearstosuggestthatthebasisofthe
Court’s jurisdictiontodeterminenon-compliancewithprovisional
measures isthesamebasisuponwhichtheCourtreliesforexercising
its jurisdictionoverthemeritsofthedispute.Ifthisisthecase,itwould
follow that,iftheCourtdoesnothavejurisdictiontoadjudicateacase,
it wouldalsolackjurisdictiontodecideuponaparty’snon-compliance.
In asubsequentjudgment,however,theCourtseemstohavetakena
different view.In Request forInterpretationofthe Avena Judgment,
although ontheprincipalissueitfoundthattherewasnodispute
between theparties,itdeterminedthattheUnitedStateshadbreached
its obligationsundertheprovisionalmeasures.Byaunanimousvote,it
included itsfindingonthisissueintheoperativepartofitsjudgment.
According totheCourt,“[t]heCourt’scompetenceunderArticle60
necessarily entailsitsincidentaljurisdictiontomakefindingsabout
alleged breachesoftheOrderindicatingprovisionalmeasures”,and
“[t]hat isstillsoevenwhentheCourtdecides,uponexaminationofthe
Request forinterpretation,[...]nottoexerciseitsjurisdictionto
proceed underArticle60”(21). SinceArticle60oftheStatuteprovides
jurisdiction onlyondisputesovertheinterpretationofajudgment,itis
noteworthy thattheCourt,whiledecidingnottoexerciseitsjurisdic-
tion tointerpretthe Avena judgment, relieduponitsincidentaljuris-
diction forrulingupontheUnitedStates’non-compliancewithprovi-
sional measures.BythisdecisiontheCourtappearstorecognizethatits
incidental jurisdiction,evenifbasedonlyona prima facie assessment of
its jurisdictiononthemeritsofthedispute,issufficienttojustifyits
power todeterminenon-compliancewithprovisionalmeasures(22).
(20) I.C.J. Reports, 2001,p.484,para.45.
(21) I.C.J. Reports, 2008,p.19,para.51.
(22) AccordingtoTHIRLWAY, The InternationalCourtofJustice1989-2009:Atthe
Heart oftheDisputeSettlementSystem?, Netherlands Int.LawReview, vol.57(2010),
OF PROVISIONALMEASURESOFTHEICJ 11
78
Following theCourt’sapproachin Request forInterpretationofthe
Avena Judgment, itissubmittedthattheCourt’sjurisdictiontomake
findings aboutbreachesofprovisionalmeasuresistoberegardedas
being implicitinitsincidentaljurisdictiontoindicatesuchmeasures
under Article41oftheStatute(23). Thisviewreliesonthedistinction
between jurisdictioninrelationtoprovisionalmeasures,whichisbased
on Article41oftheStatute,andjurisdictionoverthemeritsofthe
dispute, whichisbasedontheconsentoftheparties.Article41would
not onlyjustifytheCourt’spowertoindicatebindingprovisional
measures; itwouldalsoprovideabasisfortheCourt’spowerto
determine non-compliancewithsuchmeasures.Asprovisionalmea-
sures produceeffectsuntiltheprincipaljudicialproceedingsareter-
minated, theCourtwouldbeempoweredtoincludeafindingof
non-compliance inthejudgmentestablishingitslackofjurisdictionor
the non-admissibilityoftheclaim.Itisonlywiththatjudgmentthat
provisional measuresceasetobeoperative(24).
While thisapproachisbasedonawideinterpretationofthe
Court’s powerunderArticle41,therearesoundreasonssupportingit.
The breachofabindingorderoftheCourtcausesdamagetothe
authority oftheCourtirrespectiveofwhethertheCourtcouldlater
find thatithasnojurisdictionoverthecase.IftheCourtweredenied
the possibilityofcensoringsuchconductbyincludingafindingof
non-compliance initsjudgment,therewouldbenoresponseagainst
the non-complyingState.Itwouldbetantamounttoconsideringthat
provisional measuresceasetoproduceeffectretroactively,fromthe
moment theywereindicated,and,asaconsequence,thatnowrongful
act hadbeencommitted.Suchasolutionriskstounderminetheeffec-
p. 385,theindicationthatoneshoulddrawfromthisprecedentisthatprovisional
measures “mustbecompliedwith,atleastduringthecurrencyoftheproceedings,even
if theclaimonthemeritsturnsouttobeunsubstantiated,andevenifitprovesthatthe
Court hasinfactnojurisdictionoverthemerits”.ThisviewissharedbyLEE-IWAMOTO,
The Repercussionsofthe LaGrand Judgment: RecentICJJurisprudenceonProvisional
Measures, Japanese YearbookofInt.Law, vol.55(2012),p.258,andbyTRANCHANT,
L’arrêt renduparlaCourinternationaledeJusticesurlaDemandeeninterprétationde
l’arrêt Avena (Mexique c.États-Unisd’Amérique), Annuaire françaisdedroitint., vol.55
(2009), p.216.
(23) Forthisview,seeMENDELSON, op. cit., p.45,andTRANCHANT, op. cit., p.217.
Contra THIRLWAY, The LawandProcedureoftheInternationalCourtofJustice
1960-1989 (PartTwelve), British YearbookofInt.Law, vol.72(2001),p.124.
(24) See Anglo-Iranian OilCompanyCase, I.C.J. Reports, 1952,p.114.
RESPONSIBILITY FORBREACH 12
79
tiveness ofprovisionalmeasurespendingtheCourt’sjudgmenton
jurisdiction andadmissibility(25).
While theCourt’sjurisdictiontomakefindingsofnon-compliance
with provisionalmeasuresmaybebasedonArticle41,itismore
doubtful whetherthepowergrantedbyArticle41alsoprovides
jurisdiction toruleoverclaimsforreparationfornon-complianceput
forward byaparty(26). Whenapartyinvokestheresponsibilityofthe
other partyforbreachesofprovisionalmeasures,itsclaimsarean
integral partofthedisputethattheCourtiscalledupontoadjudicate.
Lack ofjurisdictionoverthemeritsofthedisputeseemstopreventthe
Court fromrulingupontheseclaims.Thislimitationwouldalso
alleviate theconcernabouttheriskofunderminingtheprincipleof
consensual jurisdiction.ThisprinciplepreventstheCourtfromruling
upon adispute,andassessingtherespectiveclaimsoftheparties,inthe
absence ofspecificconsent.ItdoesnotpreventtheCourtfrom
assessing theparties’conductinthejudicialprocess.
4. Theprimaryconsequenceofabreachofprovisionalmeasures
is thepossibilityfortheinjuredpartytoclaimtheresponsibilityofthe
non-complying party.Suchresponsibilityentailsinthefirstplacethat
the injuredpartymayasktheCourttoascertainitsrighttoobtain
reparation fortheinjurysuffered.Itismoredoubtfulwhetheritalso
entails theentitlementtotakecountermeasuresagainsttheresponsible
party.
Resort tocountermeasuresappearstobescarcelycompatiblewith
the principle—frequentlyreassertedbytheCourtalsothroughthe
indication ofprovisionalmeasures—accordingtowhich“theparties
to acasemust[...]notallowanystepofanykindtobetakenwhich
might aggravateorextendthedispute”(27). Moreover,Article52,
(25) Onthisrisk,seeLEONHARDSEN, Trials ofOrdealintheInternationalCourtof
Justice: WhyStatesSeekProvisionalMeasureswhennon-ComplianceIstoBeExpected,
Journal ofInt.DisputeSettlement, vol.5(2014),p.322.
(26) SeealsoD’ARGENT, op. cit., p.160,note74,andTRANCHANT, op. cit., p.217.
(27) Electricity CompanyofSofiaandBulgaria, SeriesA/B,No.79,p.199.
According toOELLERS FRAHM, op. cit., p.1068,itis“questionablewhetherStatesmay
take reprisalsalthoughadmissibleundergeneralinternationallaw,becausethismay
contravene thedutiesofaparty pendente lite”. SeealsoFROWEIN, Provisional Measures
by theInternationalCourtofJustice-The LaGrand Case, Zeitschrift fürausländisches
öffentliches RechtundVölkerrecht, vol.62(2002),p.60.Foranexaminationofthe
Court’s practicewithregardtotheindicationofnon-aggravationmeasures,see
PALCHETTI, The PoweroftheInternationalCourtofJusticetoIndicateProvisional
Measures toPreventtheAggravationofaDispute, Leiden JournalofInt.Law, 2008,pp.
623-642.
OF PROVISIONALMEASURESOFTHEICJ 13
80
paragraph 3,oftheArticlesonStateresponsibilityprovidesthat
countermeasures maynotbetakenif“thedisputeispendingbeforea
court ortribunalwhichhastheauthoritytomakedecisionsbindingon
the parties”.Itistobenoted,however,thattheArticlesdonotruleout
entirely thepossibilityofresortingtocountermeasureinthiskindof
situation. Article52,paragraph4,specifiesthat“[p]aragraph3does
not applyiftheresponsibleStatefailstoimplementthedispute
settlement proceduresingoodfaith”.Initscommentary,theInterna-
tional LawCommissionrefersto“non-compliancewithaprovisional
measures order”asagroundjustifyingthenon-applicationofthis
limitation tothetakingofcountermeasures(28). Ifonefollowsthis
view, itcannotbeexcludedthat,undercertaincircumstances,the
injured partyisentitledtoresorttocountermeasures(29). Therealissue
then becomesthatofdeterminingtheconditionsunderwhichresortto
countermeasures mayberegardedasbeingjustified.Inthisrespect,
two remarksareinorder.First,failuretocomplywithprovisional
measures doesnot,assuch,giverisetotheentitlementtotake
countermeasures; whatmattersisthelackofgoodfaithofapartyin
complying withthedisputesettlementprocedure,anelementwhich
must beassessedbytakingintoaccountmorecomprehensivelythe
conduct oftheresponsiblepartyduringtheproceedings.Moreover,the
determination ofthebreachofprovisionalmeasurescannotbeleft
entirely tothesubjectiveassessmentofaparty;beforereactingunilat-
erally, theinjuredpartyshouldatleastbringtheissueofnon-
compliance totheCourt,forinstancethroughanewrequestfor
provisional measures.
As regardsreparationfortheinjurycausedbythebreachof
provisional measures,theonlyformofreparationsofargrantedisa
declaration ofnon-complianceincludedintheoperativepartofthe
judgment. TheCourttreatedthisdeclarationasaformofsatisfaction
for thenon-materialinjurysufferedonthisaccount(30). Whenthe
(28) Yearbook oftheInternationalLawCommission, 2001,vol.II(PartTwo),p.
137.
(29) STEIN, op. cit., p.517,arguedthat“aprohibitiononcountermeasureseven
in thefaceofdisregardofaninterimmeasuresorderwouldimposesogrosslyunfaira
burden onanapplicantstatethatresorttojudicialremedieswoulditselfbediscour-
aged”.
(30) See,forinstance, Application oftheConventiononthePreventionand
Punishment oftheCrimeofGenocide(BosniaandHerzegovinav.SerbiaandMontene-
gro), I.C.J. Reports, 2007,p.236,para.469:“TheCourtwillhoweverincludeinthe
operative clauseofthepresentJudgment,bywayofsatisfaction,adeclarationthatthe
Respondent hasfailedtocomplywiththeCourt’sOrdersindicatingprovisional
measures”. Seealsothejudgmentinthejoinedcases Certain activitiescarriedoutby
RESPONSIBILITY FORBREACH 14
81
breach ofprovisionalmeasurescausesmaterialharm,theinjuredparty
has therighttorestitutionorcompensation(31). Inafewcases,requests
for compensationhadalsobeenadvanced.Whileinprinciplerecog-
nizing thepossibilityofawardingsuchformofreparation,theCourt,
for differentreasons,invariablyrejectedtheserequests.
In casesofmaterialharm,itmayattimesbedifficulttoseparatethe
damages ensuingfromthebreachofprovisionalmeasuresandthose
ensuing fromthebreachofthesubstantiveobligationsonthemerits.
This isso,inparticular,when,asitfrequentlyhappens(32), the
obligations undertheprovisionalmeasureshavesubstantiallythesame
content astheobligationstobeexaminedinthejudgmentonthe
merits. Initsjudgmentin Bosnian genocide, theCourtwasconfronted
with asituationofthiskind.Inaddressingarequestforcompensation
relating toSerbia’sbreachofprovisionalmeasures,itapproachedthe
matter byconsideringthat,“forpurposesofreparation,theRespon-
dent’s non-compliancewiththeprovisionalmeasuresorderedisan
aspect of,ormergeswith,itsbreachesofthesubstantiveobligationsof
prevention andpunishmentlaiduponitbytheConvention”(33). This
approach appearstobejustified.Inthissituation,iftheinjuredparty
receives compensationforthematerialharmcausedbythebreachof
the substantiveobligation,itwouldbeinappropriatetoawardcom-
pensation alsoforthebreachofprovisionalmeasures.Theinjured
party wouldotherwiseobtaindoublerecovery.
It hasbeennotedthatthis“merging”approachreducesthe
significance tobeattachedtothebindingeffectofprovisionalmea-
sures: ifdamagesareawardedonlyinrespecttothebreachofthe
substantive obligationsconsideredonthemerits,itwouldmakelittle
Nicaragua intheborderarea and Construction ofaroadinCostaRicaalongtheSanJuan
river, para.139:“ThedeclarationbytheCourtthatNicaraguabreachedtheterritorial
sovereignty ofCostaRicabyexcavatingthree caños and establishingamilitarypresence
in thedisputedterritoryprovidesadequatesatisfactionforthenon-materialinjury
suffered onthisaccount.Thesameappliestothedeclarationofthebreachofthe
obligations undertheCourt’sOrderof8March2011onprovisionalmeasures”.
(31) AsnotedbyMAROTTI, op. cit., p.778,thepossibilityofawardingrestitution
appears highlyunlikely.
(32) Foranoverview,seeEISEMANN, Quelques observationssurlesmesures
conservatoires indiquéesparlaCourdeLaHaye, in: International Courtsandthe
Development ofInternationalLaw.EssaysinHonourofTullioTreves (Boschiero et al.,
eds), TheHague,2013,p.121ss.
(33) I.C.J. Reports, 2007,p.236,para.469.TheCourtalsoobservedthat“the
question ofcompensationfortheinjurycausedtotheApplicantbytheRespondent’s
breach ofaspectsoftheOrdersindicatingprovisionalmeasuresmergeswiththe
question ofcompensationfortheinjurysufferedfromtheviolationofthecorrespond-
ing obligationsundertheGenocideConvention”. Ibid., p.231,para.458.
OF PROVISIONALMEASURESOFTHEICJ 15
82
difference thatprovisionalmeasureshadbeendisregarded(34). Admit-
tedly, ifoneattachesimportanceexclusivelytothepossibilityof
obtaining compensation,theconsequencesflowingfromthebreachof
provisional measuresappeartobelimitedinthiskindofcases.
However, theremaybeotherconsequences.Inparticular,itcannotbe
excluded thatsuchbreachmayindirectlyhaveanimpactonthe
amount ofcompensationtobeawardedforthebreachofthesubstan-
tive obligationsonthemerit.Abreachofprovisionalmeasuresmay
reveal wilfulintentorgrossnegligence,whichtheCourtmaytakeinto
account whenassessingtheextentofthereparationtobedueforthe
breach ofthesubstantiveobligations(35). Indeed,asobservedbythe
International LawCommission,thequantificationoftheamountof
compensation depends, inter alia, on“anevaluationoftherespective
behaviour oftheparties”(36). TheCourtitselfappearstotakeinto
account theconductofthepartiesduringthejudicialproceedingsfor
the purposesofassessingtheamountofcompensation.Initsjudge-
ment in LaGrand, whenconsideringtheconsequencesstemmingfrom
the UnitedStates’breachoftheprovisionalmeasures,theCourt
recognized that“theUnitedStateswasundergreattimepressureinthis
case, duetothecircumstancesinwhichGermanyhadinstitutedthe
proceedings”, findingthatitwouldhavetakenthisfactorintoconsid-
eration “hadGermany’ssubmissionincludedaclaimforindemnifica-
tion” (37). Apartfromitsimpactontheamountofcompensationtobe
awarded, non-compliancewithprovisionalmeasuresmayalsoberel-
evant forassessingwhetherotherconsequencesareappropriate,such
as, forinstance,theofferingofassurancesandguaranteesofnon-
repetition (38).
(34) MENDELSON, op. cit., p.52;LEE-IWAMOTO, op. cit., p.256.
(35) Thispossibleimplicationofthebreachofprovisionalmeasureswashigh-
lighted byBARILE, Osservazioni sullaindicazionedimisurecautelarineiprocedimenti
davanti allaCorteinternazionaledigiustizia, Comunicazioni estudi, vol.4(1952),p.
154, andbyVILLANI, In temadiindicazionedimisurecautelaridapartedellaCorte
internazionale digiustizia, Rivista, vol.57(1974),pp.676-677.Similarly,LAUTERPACHT,
The DevelopmentofInternationalLawbytheInternationalCourt, Cambridge,1957,p.
254, observedthat“apartydisregardinganOrderindicatingprovisionalmeasuresacts
at itsperilandthattheOrdermustberegardedatleastasawarningestoppingaparty
from denyingknowledgeofanyprobableconsequencesofitsaction”.
(36) Yearbook oftheInternationalLawCommission, 2001,vol.II(PartTwo),p.
100.
(37) I.C.J. Reports, 2001,p.508,para.116.
(38) Seethejudgmentinthejoinedcases Certain activitiescarriedoutby
Nicaragua intheborderarea and Construction ofaroadinCostaRicaalongtheSanJuan
river, para.141.
RESPONSIBILITY FORBREACH 16
83
In caseofnon-compliancewithprovisionalmeasures,thenon-
complying partyremainsunderadutytoprovidereparationevenifit
ultimately prevailsonthemerits.However,itmaybeexpectedthatthe
Court willtakethiscircumstanceintoaccountwhenconsideringthe
form andextentofreparation.Thisthemoresowhentherightsthat
the provisionalmeasuresaimedatprotectingwerelaterdiscoveredto
be non-existent.Whenthenon-complyingpartyisawardedcompen-
sation fortheinjurycausedbythebreachofthesubstantiveobligations
on themerits,theCourtmayconsiderto“merge”theopposingclaims
of theparties.Inparticular,itmayassesswhether,bynotcomplying
with theprovisionalmeasures,thepartymayhavemateriallycontrib-
uted tothedamageitsuffered(39).
5. Thepartywhichbreachesprovisionalmeasuresmightface
adverse consequencesoutsidethesphereofStateresponsibility.In
particular, beingtheguardianofitsjudicialintegrity,theCourtitself
may haveaninterestinsanctioningtheconductofthenon-complying
party, irrespectiveoftheclaimforreparationoftheinjuredparty.
The StatuteofferslittleintermsofmeasuresavailabletotheCourt
to protectthejudicialprocessagainsttheharmfulconductofthe
contending States.IntheabsenceofanexplicitbasisintheStatute,the
possibility oflevyingpenaltiesorawardingpunitivedamagesistobe
ruled out(40). Ithasbeensuggestedthatincaseofgravebreachesof
provisional measuresbytheapplicantState,withholdingthejudgment
could beanappropriateremedy(41). Inprinciple,aresponseofthis
kind wouldnotbeprecludedtotheCourt.Particularlywhenthe
breach ofprovisionalmeasuresseriouslyunderminestheorderlyad-
ministration ofjusticeinthecase,theCourtmightfindthatjudicial
propriety requiresittorefrainfromexercisingitsjurisdictionoverthe
claims oftheapplicant.Asitobservedinitsjudgmentin Northern
Cameroons, “[i]ftheCourtissatisfied,whateverthenatureoftherelief
(39) Article39oftheArticlesonStateresponsibilityprovidesthat“[i]nthe
determination ofreparation,accountshallbetakenofthecontributiontotheinjuryby
wilful ornegligentactionoromissionoftheinjuredStateorofanypersonorentityin
relation towhomreparationissought”.
(40) SeeMENDELSON, op. cit., p.42.However,accordingtoSCHACHTER, International
lawintheoryandpractice:generalcourseinpublicinternationallaw, Recueil des
cours, vol.178(1982),p.223,theCourthastheauthoritytolevydamagesagainstthe
non-complying State.SeealsoSTEIN, op. cit., p.527.AccordingtoKOLB, op. cit., p.649,
“[f]rom thelegalpointofview,it[theCourt]wouldevenhavetherighttorequire
reparation tobemadetotheCourtitself”.
(41) SCHACHTER, op. cit., p.223.
OF PROVISIONALMEASURESOFTHEICJ 17
84
claimed, thattoadjudicateonthemeritsofanApplicationwouldbe
inconsistent withitsjudicialfunction,itshouldrefusetodoso”(42).
However, whileitcannotbeexcludedthatthebreachofprovisional
measures maygiverisetoanissueofpropriety,thiscouldberegarded
as apossibleremedyonlyinveryexceptionalcircumstances.Inprin-
ciple, theneedtosanctionthenon-complyingpartyshouldnotdivert
the Courtfromitsprimaryfunction,namelytodecidethedisputein
accordance withinternationallaw.Moreover,evenifadmissible,this
form ofsanctionappearsoflittlepracticalutility,ifoneconsidersthat
normally itistherespondentpartywhobreachesprovisionalmeasures:
in thiscase,itwouldmakenosensefortheCourtnottoexerciseits
jurisdiction asthiswouldonlyaffecttheapplicantparty.
As ithasalreadybeenmentioned,initscaselawafter LaGrand the
ordinary remedyforbreachesofprovisionalmeasureshastakenthe
form ofafindingofnon-compliancerecordedintheoperativepartof
the judgment.Thisremedyseemstohaveadualfunction.Ontheone
hand, itamountstoaformofreparation,bywayofsatisfaction,forthe
non-material injurycausedtotheotherparty.Ontheotherhand,italso
expresses theCourt’scensureofthenon-complyingconductandmay
therefore beregardedasaformofsanctionfortheharmcausedtothe
judicial process.ThisalsojustifiesthattheCourtmaymakesuch
finding irrespectiveofanyspecificrequesttothateffectbytheinjured
party.
A findingofnon-compliancerecordedintheoperativepartofthe
judgment mayappearasarathermildresponsetoabreachofprovi-
sional measures.Toacertainextent,thisreflectstheparticularenvi-
ronment inwhichtheCourtoperates.ForaCourtwhosejurisdiction
is basedontheconsentofthepartiesandwhosejudgmentsarenot
backed byeffectivemechanismsofenforcement,inmostcasesitwould
be difficulttogobeyondexpressingitscensureofthenon-complying
conduct. Moreover,theeffectivenessofthissanctionshouldnotbe
underestimated, asitinflictssignificantreputationalcostsonthere-
sponsible party(43).
(42) I.C.J. Reports, 1963,p.37.
(43) SeeSTEIN, op. cit., p.524,whomaintainedthat“[i]nacontextwhere
rectitude istheprimaryvalueatstake,censurebytheCourtisasignificantsanction”.
See alsoLEONHARDSEN, op. cit., p.325ff. Contra ZYBERY, Provisional Measuresofthe
International CourtofJusticeinArmedConflictSituations, Leiden JournalofInt.Law,
vol. 23(2010),p.581,whomaintainedthatafindingofnon-compliance“doesnotseem
to addressproperlythedamagecausedtotheCourt’sownstandingbyalackof
compliance withitsprovisionalmeasuresorders”.However,thisauthordoesnot
indicate whatremedytheCourtshouldordertoaddressthedamagetoitsauthority,
RESPONSIBILITY FORBREACH 18
85
In itsjudgmentinthejoinedcases Certain activitiescarriedoutby
Nicaragua intheborderarea and Construction ofaroadinCostaRica
along theSanJuanriver, theCourtobservedthat“[t]hejudgmenton
the meritsistheappropriateplacefortheCourttoassesscompliance
with theprovisionalmeasures”(44). Whenabreachofprovisional
measures occursatanearlystageoftheproceedings,asignificant
length oftimemaypassbetweenthebreachandthefinaldetermination
of theCourt.Pendingtheprincipalproceedings,theCourtcould
address asituationofnon-compliancebymeansofaneworderon
provisional measures(45). ThisiswhattheCourtdidin Certain
activities carriedoutbyNicaraguaintheborderarea. In itsorderon
provisional measuresof22November2013,theCourt,whilenot
stating itexpressly,recognizedthatNicaragua’sconductwasnotin
compliance withtheprovisionalmeasuresindicatedinitsorderof8
March 2011.Afindingofnon-compliancemadeattheprovisional
measures stage,whileinprinciple“onlyinstrumentalinensuringthe
protection oftherightsofthePartiesduringthejudicialproceed-
ings” (46), mayservethepurposeofwarningtheresponsiblepartyof
the legalconsequencesstemmingfromitsconduct.Itmayalsojustify
the adoptionofamoreseveresanctionatthestageofthemeritsshould
the partypersistinitsconduct.
Among thesemoreseveresanctions,theimpositionofcosts,or
part ofcosts,relatingtotheproceedingsshouldbetakenintoconsid-
eration (47). TheStatutedoesnotruleoutthepossibilityofusingthe
award ofcostsasaformofsanctionagainstthenon-complyingparty.
Article 64providesthatthegeneralrule,accordingtowhicheachparty
shall bearitsowncosts,istobeapplied“[u]nlessotherwisedecidedby
limiting himselftoindicatemeasuresthattheCourtshouldindicatetorepairtheharm
caused bythenon-complyingpartytotheotherparty.
(44) Para.126ofthejudgment.
(45) FortheviewthattheCourt,pendingtheprincipaljudicialproceedings,
should proceedpromptly,andeven proprio motu to assesscompliancewithprovisional
measures bymeansofanotherorderofprovisionalmeasures,seeJudgeCançado
Trindade, separateopinionattachedtotheCourt’sjudgmentinthejoinedcasesof
Certain ActivitiesCarriedoutbyNicaraguaintheBorderArea and ofthe Construction
of aRoadinCostaRicaalongtheSanJuanRiver, paras34-46.AccordingtoLANDO,
Compliance withProvisionalMeasuresIndicatedbytheInternationalCourtofJustice,
Journal ofInt.DisputeSettlement, vol.8(2017)(forthcoming),theCourtshould
consider tocreateanexpediteprocedurethroughwhichitcouldestablishnon-
compliance withprovisionalmeasuresbywayofadecisionhavingtheformofa
judgment.
(46) Para.126ofthejudgment.
(47) Inthepast,thispossibilitywasadvocatedbysomecommentators.Seefor
instance BARILE, op. cit., p.154.
OF PROVISIONALMEASURESOFTHEICJ 19
86
the Court”.IntheabovementionedjoinedcasesbetweenCostaRica
and Nicaragua,CostaRicaincludedinitssubmissionarequestaimed
at imposingonNicaraguaallcostsandexpensesincurredbyCostaRica
in requestingandobtainingtheorderonprovisionalmeasuresof22
November 2013.Significantly,CostaRicajustifieditsrequestbyrelying
on theexistenceofacausallinkbetweenNicaragua’sfailuretocomply
with theprovisionalmeasuresindicatedin2011andtheincidental
proceedings whichledtothe2013order.“[T]akingintoaccountthe
overall circumstancesofthecase”,theCourtfoundthat“anawardof
costs [...]wouldnotbeappropriate”(48). Inajointdeclaration,four
judges heldtheviewthatthe“exceptionalcircumstances”ofthecase
warranted theexercisebytheCourtofitspowerunderArticle64ofthe
Statute. Inparticular,theyemphasizedthatthecostsincurredbyCosta
Rica “wereadirectconsequenceofNicaragua’sbreachoftheobliga-
tions imposedbythe2011Order”(49).
In thecontextofaninterstatedispute,theawardofthecostsofthe
proceedings mayhaveadverseimplications,asitmayhinderthe
acceptance ofthefinaljudgment,aswellasitsimplementation,bythe
affected party.Forthisreason,itseemsjustifiedtoconfinethismeasure
only toseriouscasesofnon-compliancewithprovisionalmeasures.
This doesnotmeanthatitshouldberesortedtoonlywhennon-
compliance hasledtheinjuredpartytorequestnewprovisional
measures. Morebroadly,thereseemtobenoreasonsforrequiringa
causal linkbetweenthenon-complyingconductofonepartyandthe
costs incurredbytheotherparty(50). Theimpositionofcostsrelating
to theproceedingsshouldnotberegardedasaformofcompensation
for theadditionalcostsincurredbytheinjuredparty.Itshouldrather
be usedasameansforsanctioninggravecasesofnon-compliance.The
fact thatlevyingcostsagainstthenon-complyingpartybenefitsthe
other partydoesnotdeprivethismeasureofitspreeminentlypunitive
character anddeterrentpurpose.Moreover,sinceitisintendedto
sanction thenon-complyingparty,theCourtistoberegardedasbeing
empowered totakeitirrespectiveofarequesttothateffectbythe
injured party.
(48) Para.144ofthejudgment.
(49) JointdeclarationofJudgesTomka,Greenwood,SebutindeandJudge ad
hoc Dugard, para.7.
(50) SeeLANDO, The RoadalongtheSanJuanRiverispavedwithGood
Intentions: ProvisionalMeasuresandtheQuestforComplianceinthe Costa
Rica/Nicaragua Joined Cases, Rivista, vol.99(2016),p.182.
RESPONSIBILITY FORBREACH 20
87
6. Initsjudgmentin LaGrand the Court,whiledevotingample
attention tothequestionofthebindingeffectofprovisionalmeasures,
said littleabouttheprinciplesgoverningtheresponsibilityincaseof
non-compliance. Itscaselawafterthatjudgmentdoesnotprovide
greater clarityaboutthisissue.Whenconfrontedwiththequestionof
non-compliance, theCourt’sapproachhasbeencharacterizedbya
narrow focusonthespecificproblemsraisedineachcase.Giventhe
limited andfragmentedindicationscomingfromtheCourt,itishardto
define theprinciplesatworkinthisareabyelaboratingacoherent
system whichiscapabletoshedlightonsomeunresolvedquestions.
In anattempttosystematizetheregimeofresponsibilityforbreaches
of provisionalmeasures,thedistinctionbetweenthe“institutionaldi-
mension” andthe“interstatedimension”mayprovideausefulanalytical
tool forassessingthecontentandscopeoftheCourt’spowerinthisfield.
On theonehand,therearethepowersconferredupontheCourtbyits
Statute.Ontheother,thereistheCourt’spowerbasedonthejurisdiction
conferred uponitbytheparties.RelyingonitsStatute,theCourtcan
determine non-compliancewithprovisionalmeasures,possiblyalso proprio
motu or intheabsenceofjurisdictionoverthemerits;itcanalso
impose certainformsofsanctiononthenon-complyingparty.Basing
itself onthejurisdictionconferredbytheparties,itcanassesstheclaims
of responsibilityadvancedbytheinjuredparty,aswellasawardingrepa-
ration fortheinjurieseventuallycausedtothatparty.
Admittedly, inpracticethe“interstatedimension”appearstobe
largely prevailing.TheCourthasbeenverycautiousaboutexercising
the powersthatappeartobeimplicitinArticle41orinother
provisions oftheStatute,thesoleexceptionbeingperhapsitsbold
affirmation ofjurisdictionin Request forInterpretationofthe Avena
Judgment. Its findingsincasesofnon-compliancehavebeengenerally
prompted bythespecificrequestofaparty.Itmightwellbethatthe
Court’s cautiousattitudeispartlydictatedbytheneedtoattenuatethe
impact oftheveryinnovativestancetakenin2001,andthatinthe
future theCourtmightbemorewillingtotakeaproactiveroleinthis
area (51). Moreprobably,however,theprevalenceofthe“interstate
dimension” isdestinedtoremainadistinctivefeatureofthisregimeof
responsibility, beingmoreinkeepingwiththeCourt’sfunctionasan
instrument forsecuringthesettlementofdisputesbetweentheparties.
PAOLO PALCHETTI
(51) ForthisobservationseeMENDELSON, op. cit., p.47.
OF PROVISIONALMEASURESOFTHEICJ 21
88
Abstract. — Afteritsjudgmentin LaGrand, theCourthashadseveraloccasions
to dealwithcaseswhereoneofthepartieshadbreachedprovisionalmeasures
indicated onthebasisofArticle41oftheStatute.Whilerecognizingthatthisconduct
entails theresponsibilityofthenon-complyingparty,sofartheCourthassaidlittle
about theprinciplesgoverningsuchresponsibility.Themainpurposeofthisarticleis
to attempttosystematizetheregimeofresponsibilityforbreachesofprovisional
measures. Thepointofdepartureistheconsiderationthatnon-compliancewith
provisional measuresisnotamatterexclusivelyaffectingtherightsandinterestsofthe
contending partiesandthattheCourtitselfhasadistinctandautonomousinterestin
ensuring respectforprovisionalmeasures.Thisdistinctionbetweenan“institutional
dimension” —involvingtherelationsbetweenthenon-complyingpartyandtheCourt
—andan“interstatedimension”—involvingtherelationsbetweenthenon-complying
party andtheotherparty—isthenusedasananalyticaltoolforassessingthecontent
and scopeoftheCourt’spowerinthisfield.Inparticular,itisusedtoassesstwomain
issues. ThefirstiswhethertheCourtmaydeterminebyitsowninitiativewhether
provisional measureshavebeencompliedwith,possiblyalsointheabsenceof
jurisdiction onthemeritsofthedispute.Theotheriswhetherthelegalconsequences
provided underthegeneralrulesonStateresponsibilityexhausttherangeoflegal
consequences availableagainsttheresponsibleparty.Thearticle’smainconclusionsare
that: (a) RelyingonitsStatute,theCourtcandeterminenon-compliancewithprovi-
sional measures,possiblyalso proprio motu or intheabsenceofjurisdictionoverthe
merits; (b) theCourtcanalsoimposecertainformsofsanctiononthenon-complying
party, evenif,inpractice,theonlysanctionavailabletotheCourtseemstobethatof
expressing itscensureofthenon-complyingconduct;(c) basingitselfonthejurisdic-
tion conferredbytheparties,theCourtcanassesstheclaimsofresponsibilityadvanced
by theinjuredparty,aswellasawardreparationfortheinjurieseventuallycausedto
that party.
BREACH OFPROVISIONALMEASURES 22
89
90
Annex 11 Karin Oellers-Frahm & Andreas Zimmermann, Article 41, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (Zimmermann et al., eds., Oxford University Press 2019) Pursuant to Rules of the Court Article 50(2), this annex is comprised of such extracts of the whole document as are necessary for the purpose of the pleading. A copy of the whole document has been deposited with the Registry. 91
92
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Commentaries on International Law
Published in print: 20 March 2019
ISBN: 9780198814894
Part Three Statute of the International Court of
Justice, Ch.III Procedure, Article 41
Karin Oellers-Frahm, Andreas Zimmermann
From: The Statute of the International Court of Justice: A Commentary
(3rd Edition)
Edited By: Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm,
Christian Tomuschat
Subject(s):
Protective measures — Interim and provisional measures
93
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
(p. 1135) Article 41
1. The Court shall have the power to indicate, if it
considers that circumstances so require, any
provisional measures which ought to be taken to
preserve the respective rights of either party.
1. La Cour a le pouvoir d’indiquer, si elle
estime que les circonstances l’exigent, quelles
mesures conservatoires du droit de chacun
doivent être prises à titre provisoire.
2. Pending the final decision, notice of the
measures suggested shall forthwith be given to
the parties and to the Security Council.
2. En attendant l’arrêt définitif, l’indication
de ces mesures est immédiatement notifiée
aux parties et au Conseil de sécurité.
MN
A. Historical Development 1–17
I. Drafting of Article 41 of the PCIJ Statute 4–6
II. Establishment of the ICJ 7
III. The Rules of Court Concerning Provisional Measures 8–15
IV. Similar Provisions in Other International Treaties 16–17
B. Substantive Aspects of Article 41 18–26
I. General Remarks 18–19
II. Preservation of Rights 20–26
1. Non-Aggravation of the Dispute 22–24
2. Non-Anticipation of the Judgment 25–26
C. Conditions for the Indication of Provisional Measures 27–61
I. Jurisdiction 28–37
1. General Remarks 28–29
2. Extent of Certainty as to Substantive Jurisdiction 30
3. Case Law 31–35
4. Possible Interference with State Sovereignty 36–37
II. Existence of a Prima Facie Case/Plausibility of the Case 38–46
III. Relationship/Link between the Measures Requested and the Main
Claim 47–48
IV. Irreparable Prejudice 49–52
V. Urgency 53–61
1. Substantive Aspects 54–58
2. Procedural Aspects 59–61
D. Procedure 62–89
I. General Remarks 62
94
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
II. Filing a Request 63–66
III. Action of the Court proprio motu 67–69
IV. Powers of the President 70–72
V. Participation of a Judge ad hoc 73–74
VI. Proceedings 75–89
1. General Questions 75
2. Proceedings in Cases of Default 76–77
3. Provisional Measures and Intervention 78–79
4. Provisional Measures and Interpretation Cases 80–81
(p. 1136) 5. Decision of the Court 82–89
a) Form of the Decision 82
b) Contents of the Decision 83–84
c) Modification and Revocation of Provisional Measures 85–88
d) Termination of Provisional Measures 89
E. Provisional Measures and Advisory Opinions 90–92
F. Binding Effect of Provisional Measures 93–115
I. Introductory Remarks 93–94
II. Relevant Provisions and Preparatory Work 95–98
III. The Jurisprudence of the Court 99
IV. Doctrine 100–101
V. State Practice 102
VI. The Judgment in the LaGrand Case 103–107
VII. The Consequences of Non-Compliance with Provisional Measures 108–
115
1. Inter-State level 109–111
2. Institutional level 112
3. Autonomy of the Legal Regime on Non-Compliance with
Provisional Measures 113
4. The Security Council and Non-Compliance with Provisional
Measures 114–115
G. The Role of the Security Council 116–123
I. Parallel Seisin of the Security Council and the ICJ 116–119
II. The Security Council and Provisional Measures 120–123
H. Evaluation 124–125
I. Annex: Requests for Provisional Measures 1926–2018
95
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
not provisional measures may be indicated in proceedings on a request for advisory
opinion’.289
92 The question thus remains unresolved. It seems, however, that provisional measures
have no place in the advisory procedure for three reasons: first, Article 41 refers to the
preservation of the rights ‘of either party’, and there are no ‘parties’ in the strict sense of
this term in the advisory procedure; second, advisory opinions do not provide for a final
settlement of the underlying dispute, and thus, third, advisory opinions do not have binding
force. The final settlement lies with the requesting organ and therefore it would be for that
organ290 to require some conservatory action within the limits of its powers.291
F. Binding Effect of Provisional Measures
I. Introductory Remarks
93 Perhaps the most controversial question concerning provisional measures had for a
very long time been whether an order indicating provisional measures had binding effect
upon the parties. As interim protection requires urgent action and as, therefore, the Court
need not satisfy itself that it has jurisdiction to decide the case but may indicate such
measures if there is a prima facie basis for its jurisdiction, it may be possible that it later
finds that jurisdiction is lacking.292
If provisional measures were binding, this would—it was
argued—mean that States may be bound by an order without having consented to the
Court’s jurisdiction, which would constitute an interference with State sovereignty. If
interim orders were, however, not binding, the effectiveness—so the argument of the
supporters of the binding character—of the final decision might be jeopardized.
94 Until the LaGrand case, neither the PCIJ nor the ICJ ever touched upon this intricate
question. The clearest statements until that time, which, however, did not support the
binding effect of provisional measures, are to be found in the Nicaragua case, where the
Court stated that when it is of the opinion that the situation requires that provisional (p.
1183) measures should be taken, ‘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’.293
The Court was somewhat more explicit in its Order indicating
provisional measures in the LaGrand case, where it underlined in the reasoning that the
Governor of Arizona ‘is under the obligation to act in conformity with the international
undertakings of the United States’.294
This statement, however, concerned only the general
international responsibility of a State and its territorial entities, but not the legal effect of
provisional measures.295
The question was finally decided in the LaGrand case in the
judgment on the merits so that, with regard to the development of the issue, it will be
sufficient to retrace briefly the preparatory work on Article 41, the jurisprudence of the
Court and the arguments for and against the binding character of provisional measures
advanced in legal literature before considering the reasoning of the Court in the LaGrand
case.296
II. Relevant Provisions and Preparatory Work
95 The main argument against the binding force of provisional measures referred to the
terms of Article 41, where the French version reads ‘pouvoir d’indiquer … quelles mesures
conservatoires … doivent être prises à titre provisoire’, while the English version uses the
words ‘power to indicate … provisional measures which ought to be taken’.297
The preparatory work, which was done in French, underlines the non-binding effect of
provisional measures since the proposal to use the term ‘ordonner’ instead of ‘indiquer’ was
deliberately dismissed.298
The explanation for this was twofold: on the one hand, it was
argued that ‘great care must be exercised in any matter entailing the limitation of sovereign
powers’299
and on the other, it was underlined that the Court did not have the means to
assure execution, equating thus binding character and execution. The significance of the
290 96
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
following terms, namely measures which ‘doivent être prises’/’ought to be taken’ was not
given particular weight as the term ‘indiquer’/’indicate’ was considered decisive.300
Thus,
the preparatory work rather supports the view that provisional measures were not intended
to be binding upon the parties.
96 The Rules were also strictly kept in the frame set by Article 41. Although proposals had
been made again in the context of the revision of the Rules in 1931 to replace the term
‘indicate’ by ‘prescribe’ or ‘order’, the Court was of the opinion that this would transgress
the powers accorded to it under Article 4l.301
97 In a similar manner, reference to Article 94, para. 1 of the Charter, which contains the
obligation ‘to comply with the decision of the International Court of Justice’302
was (p.
1184) considered as an argument against the binding effect of provisional measures
because the term ‘the decision’ in para. 1 was understood as synonymous with the term
‘judgment’ in para. 2.303 This view is, however, not altogether convincing, since ‘orders’ are,
in fact, ‘decisions’ of the ICJ, although they are not judgments, which alone may be the
object of recourse to the Security Council in order to reach performance of the obligations
resulting therefrom.304
The term ‘decision’, used in Article 94, para. 1 of the Charter, was
said simply to repeat the language of Article 59 of the Statute, which also has generally
been understood as referring only to final decisions, namely judgments. But also Article 59
need not necessarily be seen in this way, although the surrounding Articles 56–61 are a
strong argument in this sense.305
However, there are decisions other than judgments which
have binding force, as, e.g., procedural orders of the Court under Article 48, as otherwise
the Court could not work efficiently.306
98 Article 78 of the Rules, which was introduced by the 1978 amendment, providing that
the Court ‘may request information from the parties on any matter connected with the
implementation of any provisional measures it has indicated’, suggested rather that
provisional measures have to be complied with and are, thus, binding, although it remains
questionable whether non-compliance with a request under Article 78 of the Rules may lead
to any consequences at all.307
III. The Jurisprudence of the Court
99 The jurisprudence of the Court up to the LaGrand case lead no further than the drafting
history of the relevant provisions.308
The Court never made a clear statement concerning
the legal effect of provisional measures,309
but it took positive note of the implementation of
its orders in the Fisheries Jurisdiction (UK v. Iceland; Federal Republic of Germany v.
Iceland) cases,310
and explicitly cited the letter addressed by Australia to the Court in the
Nuclear Tests cases reproaching a breach of the provisional measures by France.311
The
statements of the Court in the Tehran Hostages case are inconclusive as well, since the
Court only expressed its disapproval of the parties’ conduct, in particular the rescue action
by the United States, without touching on the question of the legal effect of provisional
measures.312
The most explicit statement was the one made in the Nicaragua case cited
earlier,313
according to which ‘it is incumbent on each party to take the Court’s indication
seriously into account’.314
Dissenting judges did, however, plead emphatically (p. 1185) for
the binding effect of provisional measures, the most impressive and comprehensive opinion
being the dissenting opinion of Judge Weeramantry in the Bosnian Genocide case.315
IV. Doctrine
100 Legal writers have always been divided on the question of the binding effect of
provisional measures. The different lines of opinion are summarized very roughly in the
following remarks.316
Those who denied that provisional measures are binding relied
strongly on the texts of the drafting history and were rather reluctant to restrict the
sovereignty of States in the absence of specific consent.317
Furthermore, these writers
referred to the fact that Article 41 is part of Chapter III of the Statute dealing with the
303
97
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
procedure before the Court.318
However, this argument seems rather weak because
Chapter III contains not only provisions for procedural orders of the Court—which, by the
way, are binding upon the parties319—but also the central provision on binding decisions,
namely Article 59.
101 Those writers who argued that provisional measures are binding started from a
functional approach. They argued on the one hand with the prestige of the Court stating
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.320
On the other hand, these authors referred in particular to a general principle of law,
according to which interim protection is inherent in the judicial function321 and to the
theory of institutional effectiveness.322
The latter view in particular has gained increasing
support.
V. State Practice
102 Even if provisional measures are binding this would not imply that States would
always act accordingly and therefore State practice may only be taken into account as an
(p. 1186) additional, however not as the decisive, element.323
Since the Anglo-Iranian Oil
Co. case, compliance with provisional measures has been rather unsatisfactory.324
Only
where both parties to a case favoured the judicial settlement of their dispute was
compliance with provisional measures probable; however, interim protection is only rarely
requested in such cases and in exceptional circumstances.325
In cases brought by unilateral
application and mostly against an unwilling State, the record of compliance is poor, what
might rather support the non-binding effect of provisional measures, although noncompliance
and binding effect are two completely different aspects of international
jurisdiction. In particular in cases involving armed activities326 and the imminent execution
of persons,327
non-compliance with provisional measures can undermine the effectivity of
the Court’s decision on the merits, which might be seen as one of the reasons for the Court
to take the opportunity in the LaGrand case to decide the question, although it could have
rejected a decision on that request with good reason. Although compliance with provisional
measures would not be guaranteed by reason of the binding character of the measures, this
would at least entail state responsibility in case of non-compliance.328
VI. The Judgment in the LaGrand Case
103 In its application in the LaGrand case Germany had explicitly requested the Court to
adjudge and declare that ‘the United States … violated its international legal obligation to
comply with the Order … of 3 March 1999’.329
The United States countered by stating that
‘it would be anomalous—to say the least—for the Court to construe this Order as a source of
binding legal obligations’.330
In deciding this question, the Court had to interpret Article 41
according to ‘customary international law, reflected in Article 31 of the 1969 Vienna
Convention on the Law of Treaties’.331
With a view to the differing terms of Article 41 in the
French version (‘quelles mesures doivent être prises’) and in the English one (‘measures
which ought to be taken’)332
the Court applied Article 33, para. 4 of the Vienna Convention
on the Law of Treaties. The Court stated that the object and purpose of Article 41 is to
preserve the Court’s ability to fulfil its function of judicial settlement of international
disputes. This implied that provisional measures:
319
321
326
98
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
should be binding, inasmuch as the power in question is based on the necessity,
when the 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.333
(p. 1187) 104 The Court found that this decision was also confirmed by the preparatory
work of Article 41 which did not preclude the conclusion that provisional measures are
binding, because the term ‘indiquer’ instead of ‘ordonner’ had been chosen with regard to
the fact ‘that the Court did not have the means to assure the execution of its decisions.
However, the lack of means of execution and the lack of binding force are two different
matters.’334
105 Finally, the Court tested its findings with regard to Article 94 of the Charter, finding
that, whether the term ‘decision’ in para. 1 included orders indicating provisional measures
or not, it would in any case not preclude the binding effect of provisional measures.
106 This decision of the Court335 which terminated the long-lasting discussion on the
binding effect of provisional measures was, however, surprising in its unambiguous clarity,
as it plainly stated that provisional measures are binding without even mentioning at all the
question of jurisdiction. Whether this meant that provisional measures are binding in any
case irrespective of whether the jurisdiction on the merits was contested or not, was not
clear. According to Article 59, the judgment in the LaGrand case, as any judgment, has
binding force only between the parties and in respect of that particular case, and in that
case the jurisdiction of the Court on the merits was not in question. However, this seems to
be a weak argument because in practice the interpretation of a treaty provision given by
the Court in a particular case has de facto, although not de jure, erga omnes effect,
although it could, of course, be overruled in a later decision.336
Therefore, concern has
been advanced that the statement on the binding effect of provisional measures could lead
States to withdraw their acceptance of the Court’s jurisdiction.337
But it cannot be
supposed that the Court was not aware of the problem concerning jurisdiction, all the more
because Germany in its Memorial pleading for the binding effect of provisional measures
argued on the basis of established jurisdiction on the merits.338
The findings on the binding
character of provisional measures do not, in any case, prevent the Court from
recommending provisional measures in a concrete case with contested jurisdiction,
following the example of the ITLOS in the M/V ‘Saiga’ case.339
107 The task of the Court in indicating provisional measures has not become easier
following the statement of their binding effect, because the question of jurisdiction
remained and with it the danger of imposing binding provisional measures in cases where,
eventually, a lack of jurisdiction has to be stated. In contrast to other international courts
and tribunals which have the power to indicate provisional measures with binding effect,
e.g., in particular (p. 1188) the ITLOS or the CJEU, but also, after the decision in
Mamatkulov and Abdurasulovic v. Turkey,340
the ECtHR, the question of jurisdiction is more
complicated for the ICJ.
The reason is that these other courts or tribunals, in contrast to the ICJ, have compulsory
jurisdiction (ECtHR, CJEU) or provide, like the UNCLOS, for mandatory judicial settlement
of disputes even if not necessarily by the ITLOS itself.341
It may, therefore, be supposed that
the fact that newly created international courts and tribunals, and in particular the ITLOS,
have the power to prescribe provisional measures, but not the principal judicial organ of the
United Nations, was a reason for the ICJ to decide as it did in the LaGrand case.342
335
99
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
In practice, the jurisprudence of the ICJ ever since the LaGrand case confirms that the
Court considers that any provisional measures ordered by it are binding independent of
whether the jurisdiction was contested or not. This view is completely in line with the
distinction between jurisdiction in relation to provisional measures which is based on
Article 41 of the Statute, and jurisdiction over the merits of the dispute, which is based on
the consent of the parties, namely Article 36, para. 1 or para. 2 of the Statute. Although the
Court did not make an explicit statement in this context, its position can inter alia be
deduced from its arguments made with regard to the non-compliance with provisional
measures in the Avena (Request for Interpretation) case343 which supports the view that the
phase of provisional measures is governed by an autonomous legal regime.
VII. Consequences of Non-Compliance with Provisional Measures
108 In assessing the legal consequences of non-compliance with provisional measures a
distinction has to be drawn between the power conferred upon the Court by the parties, i.e.,
the inter-State level, on the one hand, and the institutional power conferred upon the Court
by its Statute, i.e., the institutional level, on the other.
1. Inter-State level
109 On the inter State level the fact that provisional measures possess binding character
signifies that any instance of non-compliance with such measures constitutes a breach of (p.
1189) an international obligation entailing the international responsibility of the State not
abiding by such order. It is, however, not clear what are the concrete consequences
following therefrom. A first issue is whether States may take countermeasures, while a case
is pending before the Court, since this may contravene the duties of a party pendente lite.
Such duties were defined by the PCIJ in the Electricity Company of Sofia and Bulgaria case,
where it found that Article 41:
applies the principle universally accepted by international tribunals and likewise
laid down in many conventions … to the effect that the 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.344
According to this statement, the taking of countermeasures could be problematic and a
State, party to a case might have to leave a decision on the consequences of noncompliance
with provisional measures to the Court, which may take such non-compliance
into account in the judgment on the merits as indicated in the LaGrand case.345
Such
attitude would be in line with Article 52, para. 2 of the ILC ASR which provides that
countermeasures may not be taken if ‘the dispute is pending before a court or tribunal
which has the authority to make decisions binding on the parties’. Nevertheless,
countermeasures in case of non-compliance with provisional measures would be justified if
the prerequisites set out in Article 52, para. 4 of the ILC ASR are met, namely if the
responsible State fails to implement the dispute settlement procedures in good faith.346
This raises the issue whether such an assessment of a lack of good faith of the party in
complying with the order on provisional measures should or could be made by the Court
itself. In any case, countermeasures have so far not played any practical role.347
110 As the Court had emphasized in the LaGrand case, however, the injured party may ask
for redress by bringing a claim for indemnification. That is not to say that the Court may not
proprio motu react to non-compliance;348
yet reparation can only be granted if a claim to
this effect is made, since otherwise the Court would be in breach of the non ultra petita
rule.349
This raises the question whether material compensation or only symbolic
reparation, i.e., satisfaction, can be imposed by the ICJ, given that restoration of the status
quo ante is not possible with regard to irreparable damage inherent in the very concept of
provisional measures at the first place. As regards material compensation the Court stated
343
100
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
that ‘the question of compensation for the injury caused to the Applicant by the
Respondent’s breach of aspects of the Orders indicating provisional measures merges with
the question of compensation for the injury suffered from the violation of the corresponding
obligations’.350
This approach seems to constitute the only viable (p. 1190) attitude,
because it will be difficult to identify what difference it makes that, apart from the violation
of the underlying substantive obligation, interim measures have also been disregarded.351
So far, findings by the Court as to non-compliance with provisional measures orders were
always included in the operative part of the respective judgment putting greater emphasis
on such findings of non-compliance and furthermore allowing judges to express their
personal view in separate or dissenting opinions.352
111 The question whether non-compliance with provisional measures may also be
sanctioned in form of a decision on the costs of the proceedings was raised in the joined
cases concerning Certain Activities Carried Out by Nicaragua in the Border Area and
Construction of a Road in Costa Rica along the San Juan River. There, Costa Rica had asked
the Court to impose on Nicaragua all costs and expenses incurred by Costa Rica in
requesting and obtaining an order on provisional measures of 22 November 2013 which
Nicaragua had disregarded. The Court, however, dismissed this request finding that ‘an
award of costs … would not be appropriate’,353
while several judges underlined that the
exceptional circumstances of the case should have warranted a decision by the Court under
Article 64.354
2. Institutional Level
112 Although since the LaGrand case the issue of non-compliance of provisional measures
was always raised by a party through a specific claim included in its submissions, the Court
is not prevented from addressing the matter proprio motu thereby sanctioning the
disregard of its judicial function by the non-complying party.355
The Court seems to have
confirmed this inherent power when stating that ‘the question of compliance by both Parties
with the provisional measures indicated in this case may be considered by the Court in the
principal proceedings’.356
While the Court may thus proprio motu raise the issue of noncompliance,
it is disputed whether the Court may only determine the occurrence of a
breach of provisional measures as such, or whether it may even proprio motu impose
sanctions.357
Yet, in line with the principle of ne ultra petita, if the party is seeking redress
it has to include a formal claim for reparation in its submissions. In any case, until now the
Court did not raise the issue of non-compliance proprio motu and it may be supposed that it
would be reluctant to make use of this power because it (p. 1191) might be difficult for the
Court to prove non-compliance without the assistance of the parties.358
3. Autonomy of the Legal Regime on Non-Compliance with Provisional
Measures
113 The Court may make a finding on non-compliance with an order on provisional
measures regardless of the outcome of the main case.
Thus, for example, in the Bosnian Genocide case the Court despite the dismissal of the main
requests of the party nevertheless included in the operative part of its judgment a
declaration on non-compliance with its provisional measures.359
This confirms the
autonomous character of responsibility for non-compliance with provisional measures.
Shortly afterwards, in the Avena (Request for Interpretation) case, the Court even censured
non-compliance with provisional measures although it by the same token dismissed the
claim on the merits for lack of jurisdiction.360
This position stands in line with the Court’s
inherent jurisdiction under Article 41 which implies the possibility of a finding on noncompliance
even in a judgment establishing the lack of jurisdiction, and the Court’s
jurisdiction over the merits of the case under Article 36. Accordingly, as provisional
measures are binding upon the parties until the judgment has been delivered, non-
354
101
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
compliance with such measures entails the responsibility of the non-complying party even if
ex post facto the Court finds that it lacks subject-matter jurisdiction.361
4. Security Council and Non-Compliance with Provisional Measures
114 The fact that provisional measures are binding, but not delivered in the form of a
judgment, makes it clear that the State concerned has to comply with them (Article 94,
para. 1 UN Charter), but that recourse to the Security Council in case of failure to perform
the obligations resulting from the decision according to Article 94, para. 2 UN Charter is
not possible as such recourse is limited to non-compliance with judgments only.362
Redress
under Article 94, para. 2 was, however, sought in two cases of non-compliance with
provisional measures even at a time when the Court had not yet confirmed that provisional
measures are binding. In the Anglo-Iranian Oil Co. case,363
the United Kingdom referred
the issue of non-compliance with the provisional measures to the Security Council which
did, however, not take a position on the question.364
In the Bosnian Genocide case Bosnia
had sent a letter to the Security Council requesting it to take measures under Chapter VII
of the Charter inter alia in order to enforce the provisional measures order of the Court.365
The Security Council then passed a resolution relying in particular on the Chapter VII
aspects of the situation, mentioning the provisional measures issue only in the preamble (p.
1192) of Res. 819 (1993). This practice confirms that Article 94, para. 2 UN Charter cannot
be invoked in case of non-compliance with provisional measures.366
As a matter of fact,
provisional measures are indicated in the form of an order, not a judgment to which Article
94, para. 2 UN Charter explicitly refers. The term ‘judgment’ implies that the Security
Council should be involved only if final decisions are not complied with. Thus, the Security
Council can play a role with regard to the implementation of an order on provisional
measures provided non-compliance with such an order were to constitute a threat to
international peace and security. Yet, any such action by the Security Council would then
not constitute action under Article 94, para. 2 UN Charter.
115 Another consequence flowing from the binding character of provisional measures is
that the effect of provisional measures in cases of armed conflict ordering the immediate
end to any armed action would be the same—at least for the parties to the case—as that of a
Security Council Resolution under Chapter VII of the Charter,367
although with a different
underlying motivation: political in the Security Council and legal in the ICJ. This aspect was
highly relevant in the Preah Vihear (Request for Interpretation) case where the request for
interpretation combined with a request for provisional measures might be considered to
have aimed rather at reaching the stopping of armed activities than an interpretation of the
1962 Judgment.368
G. The Role of the Security Council
I. Parallel Seisin of the Security Council and the ICJ
116 There is, in principle, no obstacle to the simultaneous seisin of the Security Council
and the ICJ, because dispute settlement through political and legal bodies are
complementary, not exclusive processes, unless special rules provide otherwise.369
Thus, a
State is entitled not only to bring a case to the Court but also to ask for interim protection,
at the same time as other means of dispute settlement are explored; this is demonstrated by
a number of precedents of the ICJ.370
In the phase of interim protection, the parallel (p.
1193) activity of a political organ of the United Nations, the Security Council, and its
judicial organ, the ICJ, may, however, become relevant with regard to the ‘circumstances’ in
relation to Article 41, in that the action of the Security Council may affect the urgency or
the ‘irreparable damage’ required for granting interim relief. However, the ICJ has never to
date dismissed a request for provisional measures for reasons relating to the simultaneous
102
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
seisin of the Security Council or another political body, such as regional organizations, but
has rather confirmed the necessity of its action under Article 41.371
117 Where the Security Council is acting under Chapter VI of the Charter, the parties are
bound only by the Court’s order on provisional measures. If the Security Council has taken
a resolution under Chapter VII of the Charter, that is a binding resolution, the parties are
facing two parallel binding obligations under Article 103 UN Charter given that the Statute
forms an integral part of the Charter. So far, both the Court and the Security Council have
attempted to avoid any friction between orders under Article 41 and action taken by the
Security Council. On the one hand, the Court has so far always refrained from indicating
provisional measures with regard to the action taken by the Security Council,372
In the
context of the Bosnian Genocide case the Security Council vice-versa took note in the
preamble of its Resolution 819 (1993) of the action of the ICJ while adding some more
specific measures. In the Preah Vihear (Request for Interpretation) case the Security
Council in its resolution only ‘called upon the two sides to display maximum restraint and
avoid action that may aggravate the situation’.373
118 A particular situation regarding the practice just outlined was, however, present in the
Lockerbie case, where the parallel seisin of the ICJ and the Security Council led to
‘competing’ action of both organs. In this matter, a resolution under Chapter VI was taken
by the Security Council before the case was brought before the Court,374
which was not
complied with by Libya, so that it became probable that the Security Council would take
action under Chapter VII. In order to prevent such further action of the Security Council,
Libya instituted proceedings in the ICJ against the United States and the United Kingdom in
separate applications and, on the same day, 3 March 1992, requested the indication of
provisional measures, asking the Court to enjoin the United States and the United Kingdom
from taking any action against Libya in order to compel or coerce it to surrender the
accused individuals to any jurisdiction outside Libya. After the hearing on the request for
provisional measures was closed and while the Court was deliberating, the Security Council
adopted Res. 748 (1992) under Chapter VII of the Charter, imposing a series of sanctions
against Libya including the surrender for trial of those accused of having committed the
terrorist attack on the aircraft. As Security Council resolutions under Chapter VII prevail
over obligations of Member States under any other international agreement,375
the Court
only stated in its orders on provisional measures that ‘the rights claimed by Libya under the
Montreal Convention cannot now be regarded (p. 1194) as appropriate for protection by the
indication of provisional measures’.376
The highly controversial question whether the Court,
in its final judgment, would comment on the action of the Security Council with regard to its
compatibility with Article 36, para. 3 of the Charter according to which the Security Council
‘should also take into consideration that legal disputes should as a general rule be referred
by the parties to the International Court of Justice’ as well as on the aspect of the legality of
Resolution 748 had become moot, since on 9 September 2003 all parties notified the Court
that they had agreed ‘to discontinue with prejudice the proceedings’.377
119 These examples show that an enhanced cooperation between the Security Council and
the ICJ might be helpful, as was proposed by the President of the ICJ in the Preah Vihear
(Request for Interpretation) case,378
in particular as far as the increasing number of cases
involving questions of peace and security are concerned. Whether such cooperation would
then take the form of an inter-organic agreement or arrangement or whether the Rules of
Court should be amended in order to give the Security Council an opportunity to request
reconsideration of those aspects of an Order that relate to the maintenance of peace and
security remains an open question. There is, however, a need to enhance the cooperation
371
103
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
between these two organs as the Court is increasingly seized with cases involving questions
of international peace and security.
II. The Security Council and Provisional Measures
120 According to Article 41, para. 2, notice of the provisional measures indicated has to be
given to the Security Council. Article 77 of the Rules, which is a new provision adopted in
1978, further specifies this obligation according to the established practice. What is striking
is that according to Article 77 of the Rules, provisional measures indicated by the Court
proprio motu under Article 75, para. 1 of the Rules are not mentioned. However, since
Article 41, para. 2 speaks of provisional measures in general without differentiating
whether they had been requested or made proprio motu by the Court, transmission to the
Security Council via the Secretary-General is always required.379
(p. 1195) 121 The transmission to the Security Council does not automatically imply any
action of the Security Council. The Security Council will take action according to its Rules
of Procedure, namely if it considers that international peace or security is threatened or if a
State brings a dispute to the attention of the Security Council. It did so in connection with
the provisional measures indicated in the Anglo-Iranian Oil Co. case, where it was seised by
a complaint, not under Article 94, para. 2 of the Charter, but under Articles 34 and 35 of the
Charter, and where its action was rather reluctant.380
In the Bosnian Genocide case the
Security Council was also addressed, and acted not on the basis of Article 94, para. 2, but
on the basis of Chapter VII, although Bosnia had also relied on the non-compliance with the
provisional measures.381
122 In the case that provisional measures are indicated in a dispute relating to a matter
already on the agenda of the Security Council, the Council may adopt a resolution urging,
inter alia, compliance with the order of the Court, which occurred in several cases382 and
which constitutes an important example of the cooperation between the Security Council
and the ICJ.
123 Furthermore, it is undisputed that the Security Council may act in case of noncompliance
with provisional measures whenever a threat to the peace or the security
results therefrom. In such situations, the Security Council may be called upon or may act
proprio motu under Chapter VI or Chapter VII of the Charter, but not under Article 94,
para. 2 of the Charter.383
H. Evaluation
124 The institution of provisional measures has undergone a significant development in
the two World Courts during their nearly 100 years of existence. The provision in Article 41
of the Statute which needed precision with regard to several fundamental aspects, e.g., the
question of jurisdiction on the merits, the irreparability of the damage and the effect of the
decision, has been fleshed out so that States are now better able to assess requests for
provisional measures. This state of affairs is certainly a reason for the increasing use of
provisional protection. However, the fact that compliance with the measures indicated by
the Court is still not the rule gives rise to the question as to why States more frequently
than ever before have recourse to provisional protection. There are certainly several
reasons, one of the most important of which seems to be what has been called ‘litigation
strategy’.384
There is little doubt that States make use or sometimes rather abuse of the
interim protection procedure for tactical reasons: be it in order to have a kind of
psychological advantage in the litigation, be it to reach some first stage in the procedure
which can take a long time, or be it, and this seems clearly to be an abuse of interim
protection, to instrumentalize the Court as a forum to advance a State’s opinions on a
disputed situation even if it is evident that the Court is not competent to decide the case (p.
1196) on the merits for lack of jurisdiction.385
However, misuse or even abuse of
international procedures—and these are not restricted to provisional measures—should not
382
104
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
lead one to call into question the whole instrument or the advantages it implies. It is for the
Court to react to such abuses as it has done, e.g., in striking off the list cases already in its
order dismissing provisional measures or in applying the limits set by the Statute and the
Rules with utmost strictness, and as it has done with regard to very strict time limits for the
oral arguments on provisional measures.386
Possibly, the Court could be even more strict in
reacting to misuses,387
but in general, the increase in the use of interim protection and the
development of this instrument by the Court can be evaluated in a more positive manner,
namely as reflecting the development of international law in general and the status and
acceptance of international jurisdiction in particular.
125 There is, however, a further aspect to be considered in evaluating interim protection,
which refers to the fact of using interim protection as a factor in maintaining or restoring
international peace. In cases such as the Tehran Hostages case,388 the Nicaragua case,389
the Bosnian Genocide case,390 the Legality of Use of Force cases,391
the Armed Activities
case (DRC v. Uganda),392
the Armed Activities (New Application: 2002) (DRC v. Rwanda)
case,393 and the Georgia v. Russia case,394
and, to a certain extent, also the Preah Vihear
(Request for Interpretation) case,395
the subject-matter of interim protection did not merely
concern the preservation of a right claimed by a party to the case, but related to the
maintenance or restoration of international peace. In these cases, the Court was invoked to
act in parallel to the Security Council, which is, in principle, not problematic,396
but
requires the Court to be careful not to trespass on the authority of the Security Council and
to keep within the limits of Article 41 of the Statute. As the Court is one of the principal
organs of the United Nations, it is also called upon to contribute to the maintenance and
restoration of international peace and security. In this respect, the indication of interim
measures of protection has become an important instrument since States increasingly
submit to the Court cases involving questions of peace and security. As the Court only has
to be satisfied that there is a prima facie basis for its jurisdiction and as orders indicating
provisional measures have binding force, it is by the indication of provisional measures that
the Court is able essentially to contribute to the maintenance of international peace and
security,397
perhaps (p. 1197) sometimes even more effectively than the Security Council,
namely in situations where the Security Council would be prevented from acting by the
exercise of the veto power. Thus, by indicating interim measures of protection in such
borderline cases—and by using its broad discretion with regard to the assessment of the
‘circumstances’ requiring the indication of provisional measures—the ICJ is able not only to
contribute to the peaceful settlement of international disputes but also to the maintenance
of international peace and security, thus strengthening its position as a principal organ of
the United Nations as well as the United Nation’s prime objective, which is the maintenance
of international peace and security.
Finally, it is also worth mentioning that not only the text of the Statute, but also the very
institution and procedure of provisional measures, as developed by the PCIJ, and in
particular by the ICJ, have been successfully transposed to almost all other international
courts, tribunals and dispute settlement organs, so that interim protection may by now be
considered as an example of uniformity of international law which otherwise is often
criticized—rightly or wrongly—as suffering from fragmentation.398
KARIN OELLERS-FRAHM ANDREAS ZIMMERMANN
105
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
285 Ibid., p. 40.
286 Cf. Goodrich, ‘The Nature of the Advisory Opinions of the Permanent Court of
International Justice’, AJIL 32 (1938), pp. 738–58, who found that seventeen out of twentyone
advisory opinions rendered by the PCIJ related to pending disputes. Cf. also Kaufmann,
Die Gutachten des Ständigen Internationalen Gerichtshofs als Mittel zwischenstaatlicher
Streitschlichtung (1939).
287 Obligation to Arbitrate, Order of 9 March 1988, ICJ Reports (1988), pp. 3 et seq.
288 This resolution indicated in its preambular paragraphs that ‘the constraints of time
require the immediate implementation of the dispute settlement procedure in accordance
with section 21 of the Agreement’ and that account should be taken of ‘the provisions of the
Statute of the International Court of Justice, in particular Articles 41 and 68 thereof’, ibid.,
p. 4.
289 Ibid.
290 In connection with the Question concerning the Acquisition of Polish Nationality, the
Council of the League adopted, prior to its request for advisory opinion, a resolution with
the nature of provisional measures, cf. PCIJ, Series B, No. 7, pp. 5, 10.
291 Cf. in this context Sztucki (1983), pp. 136 et seq.; Hudson, PCIJ, p. 453; Jenks, The
Prospects of International Adjudication (1964), p. 215.
292 Cf. supra, MN 36.
293 Nicaragua, Merits, ICJ Reports (1986), pp. 14, 144, para. 289.
294 LaGrand, Provisional Measures, ICJ Reports (1999), pp. 9, 16, para. 28.
295 Cf. also Tams on Art. 94 UN Charter MN 19.
296 In this context, the Memorial of Germany, Part four, paras. 4.121–4.176, as well as the
oral argument presented by Dupuy are worth reading.
297 Emphasis added.
298 The preparatory work on Art. 41 was done in French; Procès-Verbaux of the
Proceedings of the Advisory Committee of Jurists (1920), p. 609; cf. Sztucki (1983), pp. 263
et seq.
299 Procès-Verbaux of the Proceedings of the Advisory Committee of Jurists (1920), p. 735;
cf. also Hudson, PCIJ, p. 423.
300 Cf. Manouvel, RGDIP (2002), pp. 114 et seq.
301 von Stauffenberg, pp. 313–4; for the drafting history cf. also Sztucki (1983), pp. 267 et
seq.
302 Emphasis added.
303 Sztucki (1983), pp. 285 et seq., in particular p. 289.
304 Cf. Tams on Art. 94 UN Charter MN 14–15, 52; Shaw, Rosenne’s Law and Practice, vol.
I, p. 204.
305 Cf. Brown on Art. 59 MN 35–40 and Tams on Art. 94 UN Charter MN 2.
306 Cf. Torres Bernárdez/Mbengue on Art. 48 MN 6–7, and also Brown on Art. 59 MN 36.
307 Cf. supra, MN 84.
106
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
308 For an overview cf. Sztucki (1983), pp. 270 et seq., and Szabó, ‘Provisional Measures
in the World Court: Binding or Bound to be Ineffective?’, Leiden JIL 10 (1997), pp. 475–89,
pp. 481 et seq.
309 LaGrand, Judgment, ICJ Reports (2001), pp. 466, 501, para. 98.
310 Fisheries Jurisdiction (UK v. Iceland; Federal Republic of Germany v. Iceland), Merits,
ICJ Reports (1974), pp. 3, 17–8, para. 33 and pp. 175, 188, para. 32, respectively.
311 Nuclear Tests (Australia v. France; New Zealand v. France), Judgment, ICJ Reports
(1974), pp. 253, 258–9, para. 19 and pp. 457, 462, para. 19, respectively.
312 Tehran Hostages, Judgment, ICJ Reports (1980), pp. 3, 34, para. 75, and 42, para. 93.
313 Supra, MN 94; Nicaragua, Merits, ICJ Reports (1986), pp. 14, 144, para. 289, cited in
the Bosnian Genocide case, Provisional Measures, ICJ Reports (1993), pp. 325, 349, para.
58.
314 This statement was repeated in later cases, cf. e.g., Bosnian Genocide, Provisional
Measures, ICJ Reports (1993), pp. 325, 349, para. 58.
315 Ibid., Sep. Op. Weeramantry, ICJ Reports (1993), pp. 370, 373 et seq. with an overview
of the Court’s jurisprudence and doctrinal opinions; cf. also Sztucki (1983), pp. 272 et seq.
316 For a more detailed analysis cf. Oellers-Frahm (1975), pp. 107 et seq.; Sztucki (1983),
pp. 272 et seq.; Elkind (1981), pp. 153 et seq.
317 Cf. as an example Hammarskjöld, ‘Quelques aspects de la question des mesures
conservatoires en droit international positif’, ZaöRV 5 (1935), pp. 5–33; Hudson, The
Permanent Court of International Justice: A Treatise (1934), p. 415, who changed his view,
however, in the 1943 edition of his Treatise (Hudson, PCIJ, pp. 425–6); Lauterpacht, The
Function of Law in the International Community (1966), p. 208; Mendelson, ‘Interim
Measures of Protection and the Use of Force by States’, in The Current Legal Regulation of
the Use of Force (Cassese, ed., 1986), pp. 337–60, 343; Gross, supra, fn. 57, passim;
Goldsworthy, ‘Interim Measures of Protection’, AJIL 68 (1974), pp. 258–77, 274.
318 E.g., Hammarskjöld, supra, fn. 317, pp. 25–7.
319 Cf. LaGrand, German Memorial, para. 4.126.
320 Lauterpacht, The Development of International Law by the International Court (1958),
p. 254; Niemeyer (1932), p. 41; Hambro, ‘The Binding Character of the Provisional
Measures of Protection Indicated by the International Court of Justice’, in Rechtsfragen der
Internationalen Organisation, Festschrift für Hans Wehberg zu seinem 70. Geburtstag
(Schätzel/Schlochauer, eds., 1956), pp. 152–71, 165.
321 Collier/Lowe, Settlement of Disputes, p. 175; Elkind (1981), p. 162; Oxman,
‘Jurisdiction and the Power to Indicate Provisional Measures’, in Damrosch, ICJ at a
Crossroads, pp. 323–54, 332; Mani, ‘Interim Measures of Protection; Article 41 of the ICJ
Statute and Article 94 of the UN Charter’, IJIL 10 (1970), pp. 359–72, 367.
322 Fitzmaurice (1958), p. 122; Oellers-Frahm (1975), p. 110; Dubisson, CIJ, pp. 228–9.
323 Cf. also Elkind (1981), p. 164.
324 Cf. Manouvel, RGDIP (2002), pp. 127 et seq.
325 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, ICJ Reports (1986), pp.
554 et seq.
326 Tehran Hostages, Provisional Measures, ICJ Reports (1979), pp. 7 et seq.; Nicaragua,
Provisional Measures, ICJ Reports (1984), pp. 169 et seq.; Bosnian Genocide, Orders of 8
107
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
April 1993 and 13 September 1993 (Provisional Measures), ICJ Reports (1993), pp. 3, 24 et
seq., and 325 et seq.
327 Breard, Provisional Measures, ICJ Reports (1998), pp. 248 et seq.; LaGrand,
Provisional Measures, ICJ Reports (1999), pp. 9 et seq.; Avena, Provisional Measures, ICJ
Reports (2003), pp. 77 et seq. Cf. also Szabó, supra, fn. 304, pp. 475, 485–6.
328 Cf. infra, MN 108 et seq.
329 LaGrand, Judgment, ICJ Reports (2001), pp. 466, 473–4, para. 12.
330 Ibid., p. 501. para. 97.
331 Ibid., para. 99.
332 Emphasis added.
333 LaGrand, Judgment, ICJ Reports (2001), pp. 466, p. 503, para. 102.
334 Ibid., p. 505. para. 107.
335 For comments on the decision cf. Kammerhofer, ‘The Binding Nature of Provisional
Measures of the International Court of Justice: the “Settlement” of the Issue in the LaGrand
Case’, Leiden JIL 16 (2003), pp. 67–83; Manouvel, RGDIP (2002), passim; Spiermann, ‘The
LaGrand Case and the Individual as a Subject of International Law’, Zeitschrift für
Öffentliches Recht 58 (2003), pp. 197–221; Frowein, ‘Provisional Measures by the
International Court of Justice—The LaGrand Case’, ZaöRV 62 (2002), pp. 55–60; Tams/
Mennecke, ‘The LaGrand Case (Germany v United States of America)’, ICLQ 51 (2002), pp.
449–55; Oellers-Frahm, ‘Die Entscheidung des IGH im Fall LaGrand—Eine Stärkung der
internationalen Gerichtsbarkeit und der Rolle des Individuums im Völkerrecht’, EuGRZ 28
(2001), pp. 265–72; Rosenne, ‘The International Court of Justice: The New Form of the
Operative Clause of an Order Indicating Provisional Measures’, LPICT 2 (2003), pp. 201–3;
Ben Hammadi, ‘La question du caractère obligatoire des mesures conservatoires devant la
Cour Internationale de Justice, L’arrêt LaGrand (Allemagne c. Etats-Unis d’ Amérique) du 27
Juin 2001’, Revue québécoise de droit international 114 (2001), pp. 53–81.
336 Cf. Brown on Art. 59 MN 71, 81–87; Miron/Chinkin on Art. 63 MN 4.
337 Manouvel, RGDIP (2002), p. 135.
338 LaGrand, German Memorial, para. 4.129.
339 M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea), ITLOS Reports
(1998), pp. 24 et seq.; cf. on this issue in particular Oellers-Frahm, GLJ (2011), passim.
340 Appl. Nos. 46827/99 and 46951/99, Judgment of the First Section of 6 February 2003,
affirmed by the Grand Chamber on 4 February 2005 sub nom. Mamatkulov and Askarov v.
Turkey (it appears that the First Section had misunderstood the second applicant’s last
name), ECtHR 2005-I; cf. Tams, ‘Interim Orders by the European Court of Human Rights—
Comments on Mamatkulov and Abdurasulovic v. Turkey’, ZaöRV 63 (2003), pp. 681–92. As
the ECtHR had missed the opportunity to prescribe the binding force of provisional
measures in the context of Protocol 11, it must be welcomed that it followed the findings of
the ICJ in the LaGrand case. That the provision on interim measures was not amended when
the new Rules were adopted is all the more astonishing because problems of contested
jurisdiction cannot arise after the entry into force of Protocol No. 11. Cf. also Oellers-
Frahm, ‘Verbindlichkeit einstweiliger Maßnahmen: Der EGMR vollzieht—endlich—die
erforderliche Wende in seiner Rechtsprechung’, EuGRZ 30 (2003), pp. 689–92 and Oellers-
Frahm, ‘Verbindlichkeit einstweiliger Andordnungen des EGMR—Epilog’, EuGRZ 32 (2005),
pp. 347–50, with reference to the statements of the UN Human Rights Committee, which
cannot even take binding final decisions, in the case of Dante Piandiong et al. v. the
Philippines, UN Doc. CCPR/C/70/D/869/1999 (2000), paras. 5.1 et seq. Cf. furthermore in
favour of the binding character of provisional measures the—non-binding—decision of the
108
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
UN Committee against Torture in the case of Mafhoud Brada v. France, UN Doc. CAT/C/34/
D/195/2002 (2005), para. 13.4.
341 Cf. Part XV UNCLOS. In particular, the fact that the ICJ, which is one of the dispute
settlement organs to be chosen under Part XV UNCLOS, could not give binding provisional
measures while ITLOS could, was certainly felt to be unacceptable.
342 Cf. Frowein, supra, fn. 335, p. 60; cf. also Orrego Vicuña, in Ballesteros/Arias (2010),
passim.
343 Judgment, ICJ Reports (2009), pp. 3, 18, para. 51
344 Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, PCIJ, Series A/
B, No. 79, pp. 194, 199.
345 Judgment, ICJ Reports (2001), pp. 466, 508, para. 116.
346 Cf. ILC Yearbook (2001-II), Part Two, p. 137, where the ILC explicitly referred to noncompliance
with provisional measures.
347 Cf. Lando, JIDS (2017), pp. 22 et seq., 28–9.
348 Cf. infra, MN 113.
349 Cf. also Al-Qahtani, ‘The Role of the International Court of Justice in the Enforcement
of its Judicial Decisions’, Leiden JIL 15 (2002), pp. 781–804, 788.
350 Cf. Bosnian Genocide, Judgment, ICJ Reports (2007), pp. 43, 231, para. 458.
351 Mendelson, in Fitzmaurice/Sarooshi (2004), p. 52; Lee-Iwamoto, Japanese YIL (2013),
pp. 251 et seq.
352 Cf. in this context Immunities and Criminal Proceedings, Provisional Measures, Decl.
Gaja, ICJ Reports (2016), pp. 1175 et seq.
353 Certain Activities Carried Out by Nicaragua in the Border Area and Construction of a
Road in Costa Rica along the San Juan River, Judgment, ICJ Reports (2015), pp. 665, 718,
para. 144.
354 Ibid., Joint Decl. Tomka, Greenwood, Sebutinde, and Dugard.
355 Palchetti, Riv. di Diritto Internaz. (2017), p. 17.
356 Cf. Certain Activities Carried Out by Nicaragua in the Border Area and Construction of
a Road in Costa Rica along the San Juan River, Provisional Measures, Order of 22
November 2013, ICJ Reports (2013), pp. 354, 368–9, para. 57.
357 Cf. on the one hand Judge Cançado Trindade, who seems to support that the Court
may also determine the legal consequences of non-compliance with provisional measures
(ibid., Judgment, Sep. Op. Cançado Trindade, ICJ Reports (2015), pp. 665 et seq., para. 36),
while Judge ad hoc Verhoeven only confirmed the Court’s power to ‘condemn, even proprio
motu where appropriate, violations of ordered measures’ (Armed Activities (DRC v.
Uganda), Judgment, Decl. Verhoeven, ICJ Reports (2005), pp. 355, 358 (emphasis added)).
Cf. also Shaw, Rosenne’s Law and Practice, vol. I, p. 204, denying such possibility, as well as
Mendelson, in Fitzmaurice/Sarooshi (2004), p. 42.
358 Palchetti, Riv. di Diritto Internaz. (2017), p. 9, referring to the Land and Maritime
Boundary case, Judgment, ICJ Reports (2002), pp. 303, 453, para. 321.
359 Judgment, ICJ Reports (2007), pp. 43, 238, para. 471 (7), operative part.
360 Cf. Avena (Request for Interpretation), Judgment, ICJ Reports (2009), pp. 3, 21, para.
61 (2); cf. also Marotti, Riv. di Diritto Internaz. (2014), p. 780.
109
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
361 Cf. Leonhardsen, JIDS (2014), p. 322; d’Argent, AFDI (2011), p. 160 and Tranchant,
AFDI (2009), pp. 216, 217.
362 Cf. Oellers-Frahm, in Simma, UN Charter, Art. 94 MN 20; cf. also Lando, JIDS (2017),
p. 29.
363 ICJ Reports (1951), pp. 81, 93.
364 Cf. Schachter, ‘The Enforcement of International Judicial and Arbitral Decisions’, AJIL
54 (1960), pp. 1–24, 23; cf. also Shaw, Rosenne’s Law and Practice, vol. I, pp. 252 et seq.;
Oellers-Frahm, in Simma, UN Charter, Art. 94 MN 17 et seq.
365 Cf. UN Doc. S/25616 (1993).
366 Cf. Mani, supra, fn. 321, pp. 359, 367 et seq.; Oellers-Frahm, ‘Souveräne Gleichheit
der Staaten in der internationalen gerichtlichen Streitbeilegung? Überlegungen zu Art. 94
Abs. 2 und Art. 27 UN-Charta’, in Verhandeln für den Frieden—Negotiating for Peace, Liber
Amicorum Tono Eitel (Frowein et al., eds., 2003), pp. 169–91 with further bibliographical
indications.
367 Cf. Frowein, supra, fn. 335, p. 59.
368 Cf. supra, MN 22.
369 Klein, ‘Paralleles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof bei
friedensbedrohenden Streitigkeiten’, in Völkerrecht als Rechtsordnung Internationale
Gerichtsbarkeit Menschenrechte: Festschrift für Hermann Mosler (Bernhardt et al., eds.,
1983), pp. 467–91; Eisen, Litispendence between the International Court of Justice and the
Security Council (1988); Gowlland-Debbas, ‘The Relationship between the International
Court of Justice and the Security Council in the Light of the Lockerbie Case’, AJIL 88
(1994), pp. 643–77; Ciobanu, ‘Litispendence between the I.C.J. and the Political Organs of
the U.N.’, in Gross, The Future of the ICJ, vol. I, pp. 209–75; Rosenne (2005), pp. 196–201;
Kaikobad, Australian YIL (1996). pp. 152 et seq.; Papa, I rapporti tra la Corte Internazionale
di Giustizia e il Consiglio di Sicurezza (2006); cf. also Gowlland-Debbas/Forteau on Art. 7
UN Charter MN 51–56; Gaja, in Gaja/Grote Stoutenburg (2014), passim.
370 Anglo-Iranian Oil Co., Provisional Measures, ICJ Reports (1951), pp. 89 et seq.;
Aegean Sea Continental Shelf, Provisional Measures, ICJ Reports (1976), pp. 3, 11–2, paras.
36–41; Tehran Hostages, Provisional Measures, ICJ Reports (1979), pp. 7 et seq.;
Nicaragua, Provisional Measures, ICJ Reports (1984), pp. 169 et seq.; Lockerbie (Libya v.
UK; Libya v. USA), Provisional Measures, ICJ Reports (1992), pp. 3 et seq. and pp. 114 et
seq.; Bosnian Genocide, Provisional Measures, ICJ Reports (1993), pp. 3 et seq. and pp. 325
et seq.; and Armed Activities (DRC v. Uganda), Provisional Measures, ICJ Reports (2000),
pp. 111 et seq.; Certain Activities Carried Out by Nicaragua in the Border Area, Provisional
Measures, ICJ Reports (2011), pp. 6 et seq.
371 Cf. Armed Activities (DRC v. Uganda), Provisional Measures, ICJ Reports (2000), pp.
111, 127–8, paras. 39 et seq.; cf. also Savadogo, ‘Case Concerning Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda): The Court’s
Provisional Measures Order of 1 July 2000’, BYIL 72 (2002), pp. 357–412, 365 et seq.;
Merrills, ICLQ (1995), pp. 90, 125 et seq.
372 Aegean Sea Continental Shelf, Provisional Measures, ICJ Reports (1976), pp. 3, 11–2;
Armed Activity (DRC v. Uganda), Provisional Measures, ICJ Reports (2000), pp. 111 et seq.;
cf. Gaja, in Gaja/Grote Stoutenburg (2014), p. 89 et seq.
373 Cf. UN Doc. SC/10174 (2011).
374 SC Res. 731 (1992).
110
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
375 Art. 103 UN Charter.
376 Lockerbie (Libya v. UK; Libya v. USA), Provisional Measures, ICJ Reports (1992), pp. 3,
15, para. 40 and pp. 114, 126–7, para. 43, respectively; cf. also Gowlland-Debbas, supra, fn.
369, passim; Doehring, ‘Unlawful Resolutions of the Security Council and their Legal
Consequences’, Max Planck UNYB 1 (1997), pp. 91–109; Franck, ‘The “Power of
Appreciation”: Who is the Ultimate Guardian of UN Legality?’, AJIL 86 (1992), pp. 519–23;
Watson, ‘Constitutionalism, Judicial Review and the World Court’, Harv. ILJ 34 (1995), pp.
1–45; Greenwood, ‘The Impact of Decisions and Resolutions of the Security Council on the
International Court of Justice’, in International Law and The Hague’s 750th Anniversary
(Heere, ed., 1999), pp. 81–6; cf. also the literature cited by Chesterman/Oellers-Frahm on
Art. 92 UN Charter MN 21, fn. 14. The five dissenting judges in the Lockerbie (Libya v. UK;
Libya v. USA) cases, considered that the Court could have used its power to indicate
provisional measures proprio motu to prevent an aggravation or extension of the dispute;
Diss. Op. Bedjaoui, ICJ Reports (1992), pp. 33, 48, para. 31, Diss. Op. Weeramantry, ICJ
Reports (1992), pp. 50, 65–66, Diss. Op. Ranjeva, ICJ Reports (1992), pp. 72, 73, para. 7,
Diss. Op. Ajibola, ICJ Reports (1992), pp. 78, 87–8, Diss. Op. El-Kosheri, pp. 94, 97–100,
paras. 10 et seq.; cf. also Merrills, ICLQ (1995), pp. 90, 130.
377 Lockerbie (Libya v. UK; Libya v. USA), Orders of 10 September 2003, ICJ Reports
(2003), pp. 149, 150 and pp. 152, 153, respectively; cf., however, in this context Diss. Op.
Weeramantry to the order dismissing the request for provisional measures, ICJ Reports
(1992), pp. 160, 163 et seq. and Kaikobad, Australian YIL (1996), pp. 93 et seq.
378 Cf. Statement by Judge Owada, President of the International Court of Justice, to the
Security Council of 25 October 2011; further details in Gaja, Gaja/Grote Stoutenburg
(2014), p. 92.
379 In the only case where the Court based its order on Art. 75, para. 1 of the Rules, the
LaGrand case, Provisional Measures, ICJ Reports (1999), pp. 9 et seq., the procedure of
transmission was followed as usual.
380 Cf. in more detail Shaw, Rosenne’s Law and Practice, vol. I, pp. 252 et seq.; cf. supra,
MN 114.
381 Cf. supra, MN 114.
382 Tehran Hostages, SC Res. 461 (1979); Bosnian Genocide, SC Res. 819 (1993); Land
and Maritime Boundary, UN Doc. S/1996/391 (1996).
383 Cf. supra, MN 114.
384 Cf. Gill, Litigation Strategy at the International Court: A Case Study of the Nicaragua
v. United States Dispute (1989).
385 E.g., in the Legality of Use of Force cases, Provisional Measures, ICJ Reports (1999),
pp. 124 et seq.; cf. in this context the critical remarks by several participants of the
discussion in Les procédures incidentes devant la Cour internationale de Justice: Exercice
ou abus de droits? (Sorel/Poirat, eds., 2000), pp. 38–44 and pp. 63–84 (‘mesures
conservatoires’), and Oellers-Frahm, in Hestermeyer (2011), point B; cf. also Leonhardsen,
JIDS (2014), passim.
386 In this context reference has to be made to Practice Direction XI which reminds the
parties to limit their oral pleadings to what is strictly necessary for the indication of
provisional measures; cf. Shaw, Rosenne’s Law and Practice, vol. III, p. 1463.
387 Remark by Pellet, in Sorel/Poirat, supra, fn. 385, pp. 70–1.
388 Provisional Measures, ICJ Reports (1979), pp. 7 et seq.
111
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 27 January 2023
389 Provisional Measures, ICJ Reports (1984), pp. 169 et seq.
390 Provisional Measures, ICJ Reports (1993), pp. 3 et seq., 325 et seq.
391 Legality of Use of Force, Provisional Measures, ICJ Reports (1999), pp. 124 et seq.
392 Provisional Measures, ICJ Reports (2000), pp. 111 et seq.
393 Provisional Measures, ICJ Reports (2002), pp. 219 et seq.
394 Provisional Measures, ICJ Reports (2008), pp. 353 et seq.
395 Provisional Measures, ICJ Reports (2011), pp. 537 et seq.
396 Supra, MN 116–119.
397 Rosenne (2005), pp. 224–5; Oellers-Frahm, in Hestermeyer (2011), point B; Oellers-
Frahm, in Jalloh/Elias (2015); Lee-Iwamotu, in Byrnes et al. (2013), pp. 89 et seq.
398 Cf. Miles, in Adenas/Bjorge (2015), passim.
112
Annex 12 Sienho Yee, Article 40, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (Zimmermann et al., eds., Oxford University Press 2019) Pursuant to Rules of the Court Article 50(2), this annex is comprised of such extracts of the whole document as are necessary for the purpose of the pleading. A copy of the whole document has been deposited with the Registry. 113
114
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
Content type: Book content
Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Commentaries on International Law
Published in print: 20 March 2019
ISBN: 9780198814894
Part Three Statute of the International Court of
Justice, Ch.III Procedure, Article 40
Sienho Yee
From: The Statute of the International Court of Justice: A Commentary
(3rd Edition)
Edited By: Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm,
Christian Tomuschat
Subject(s):
UN Charter — Conduct of proceedings
Oxford Public International Law
115
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
‘I personally wonder, in the light of the increasing number of unilateral applications,
whether the offhand or casual unilateral referral of cases by some States (which
would simply appear to be instigated by ambitious private lawyers in certain
developed countries), without the Government of the State concerned first
exhausting diplomatic channels, is really consistent with the purpose of the
International Court of Justice as the principal judicial organ of the United Nations. I
see what may be termed an abuse of the right to institute proceedings before the
Court. Past experience appears to indicate that irregular procedures of this nature
will not produce any meaningful results in the judiciary.’316
On the other hand, a private person may be able to devote more attention to the
proceedings than a busy official, and thus may be in a better position to receive
communications from the Court and to coordinate preparations of the case. Perhaps in such
a situation, it is advisable to appoint a private person as a co-agent.317
100 As has been pointed out elsewhere,318
the Court’s treatment of an agent as the final
decision-maker for a State during the course of proceedings before the Court is in tension
with the principle codified in Article 46 VCLT, although States do not appear to have
complained about this yet.
6. Further Complications in the Proceedings: Modification of Claims, New
Claims, ‘Subject of the Dispute’, or ‘Subject of the Application’?
a) Current Treatment of the Court as Exemplified in Nauru and its Progeny: A Critique
101 The preliminary and tentative exposition of the subject of the dispute and the nature
of the claim and the succinct statements of facts and legal grounds in the application or
special agreement are provided for in such a manner under Article 40 and the provisions of
the Rules with the expectation that they will be supplemented and elaborated in the further
proceedings.319
The claims can be reformulated in the process and the submissions can be
amended up to the end of the oral proceedings.
(p. 1078) However, according to the current case law of the Court, amendments to the
submissions must not go beyond the limits of the ‘dispute’ as set out in the special
agreement or the application so as to transform the existing dispute into a new one. The
same concerns may arise when counter-claims are presented, according to the rules, in the
memorials.320
Normally no controversy in this regard arises in a special agreement case.
More problematic are cases instituted by application. Potentially similar concerns may also
arise in the application of forum prorogatum to expand the scope of the Court’s
jurisdiction.321
102 The PCIJ first discussed these concerns in several cases. The ICJ subsequently dealt
with them in Nicaragua,322 Nauru,323 and Oil Platforms.324
The most comprehensive
treatment is found in Nauru, which subsequently has been applied in several cases. For this
reason, Nauru can be taken as representative of the Court’s jurisprudence.
In that case, Nauru filed an application against Australia for violation of various obligations
under international law regarding the administration of Nauru under a Trusteeship
Agreement. Australia, New Zealand, and the United Kingdom were administrators who set
up a board of British Phosphate Commissioners in whom title to the Nauruan phosphate
deposits was vested. The Commissioners held assets in Nauru as well as overseas. Without
specifically mentioning in its application the overseas assets of the Commissioners, Nauru
asked in its memorial for Australia’s share of those overseas assets. Australia argued that
this claim was inadmissible because it was a new claim and would transform ‘the dispute
brought before the Court into a dispute that would be of a different nature’.325
Nauru
argued that it was not new, and even if it was new, it should still be entertained, because
‘the claim is closely related to the matrix of fact and law concerning the management of the
phosphate industry during the period from 1919 until independence; and that the claim is
116
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
“implicit” in the claims relating to the violations of the Trusteeship Agreement and
“consequential on” them’.326
The Court first found that the claim was ‘formally’ a new one. The Court then recalled its
traditional policy of not giving the same weight to form as does a national court, and
proceeded to consider whether the overseas assets claim could be considered ‘as included
in the original claim in substance’.327
Acknowledging that it would be difficult to deny that
links may exist between the overseas assets claim and the ‘general context of the
Application’,328 the Court proceeded to say:329
67. The Court, however, is of the view that, for the claim relating to the overseas
assets of the British Phosphate Commissioners to be held to have been, as a matter
of substance, included in the original claim, it is not sufficient that there should be
links between them of a general nature. An additional claim must have been implicit
in the application (Temple of Preah Vihear, Merits, I.C.J. Reports 1962, p. 36) or
must arise ‘directly out of the question which is the subject-matter of that (p. 1079)
Application’ (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
I.C.J. Reports 1974, p. 203, para. 72). The Court considers that these criteria are not
satisfied in the present case.
68. Moreover, while not seeking in any way to prejudge the question whether there
existed, on the date of the filing of the Application, a dispute of a legal nature
between the Parties as to the disposal of the overseas assets of the British
Phosphate Commissioners, the Court is convinced that, if it had to entertain such a
dispute on the merits, the subject of the dispute on which it would ultimately have
to pass would be necessarily distinct from the subject of the dispute originally
submitted to it in the Application. To settle the dispute on the overseas assets of the
British Phosphate Commissioners the Court would have to consider a number of
questions that appear to it to be extraneous to the original claim, such as the
precise make-up and origin of the whole of these overseas assets; and the resolution
of an issue of this kind would lead it to consider the activities conducted by the
Commissioners not only, ratione temporis, after 1 July 1967, but also, ratione loci,
outside Nauru (on Ocean Island (Banaba) and Christmas Island) and, ratione
materiae, in fields other than the exploitation of the phosphate (for example,
shipping).
69. Article 40, paragraph 1, of the Statute of the Court provides that the ‘subject of
the dispute’ must be indicated in the Application; and Article 38, paragraph 2, of the
Rules of Court requires ‘the precise nature of the claim’ to be specified in the
Application. These provisions are so essential from the point of view of legal
security and the good administration of justice that they were already, in substance,
part of the text of the Statute of the Permanent Court of International Justice,
adopted in 1920 (Article 40, first paragraph), and of the text of the first Rules of
that Court, adopted in 1922 (Article 35, second paragraph), respectively. On several
occasions the Permanent Court had to indicate the precise significance of these
texts. Thus, in its Order of 4 February 1933 in the case concerning the Prince von
Pless Administration (Preliminary Objection), it stated that:
‘under Article 40 of the Statute, it is the Application which sets out the subject of
the dispute, and the Case, though it may elucidate the terms of the Application,
must not go beyond the limits of the claim as set out therein … ’(P.C.I.J., Series A/B,
No. 52, p. 14).
117
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
In the case concerning the Société commerciale de Belgique, the Permanent Court
stated:
It is to be observed that the liberty accorded to the parties to amend their
submissions up to the end of the oral proceedings must be construed reasonably
and without infringing the terms of Article 40 of the Statute and Article 32,
paragraph 2, of the Rules which provide that the Application must indicate the
subject of the dispute … it is clear that the Court cannot, in principle, allow a
dispute brought before it by application to be transformed by amendments in the
submissions into another dispute which is different in character. A practice of this
kind would be calculated to prejudice the interests of third States to which, under
Article 40, paragraph 2, of the Statute, all applications must be communicated in
order that they may be in a position to avail themselves of the right of intervention
provided for in Articles 62 and 63 of the Statute.’ (P.C.I.J., Series A/B, No. 78, p. 173.
…)
70. In the light of the foregoing, the Court concludes that the Nauruan claim
relating to the overseas assets of the British Phosphate Commissioners is
inadmissible inasmuch as it constitutes, both in form and in substance, a new claim,
and the subject of the dispute originally submitted to the Court would be
transformed if it entertained that claim.
103 Thus the Court’s judgment, especially para. 67, made clear that the decisive factors
for deciding whether a new claim is admissible are the links between the new and the
original claim, while links of a general nature are not sufficient; it further developed two
alternative tests for admissibility: in order to be admissible, a new claim must either be
implicit in the application or arise directly out of the question which is the subject-matter of
the application. These points subsequently exerted great influence.
(p. 1080) Several points can be made about these tests and their application in the Nauru
case by the Court. First, the Court seemed to be concerned with the lack of notice of the
‘new claim’ to the outside world. One may argue that such a problem can be solved by
ordering the Registrar to provide the same kind of notification as required under Article 40
of the Statute. The Court did just that when it decided to admit the counter-claims in
several cases already.330
This is no reason not to extend this approach from the counterclaim
context to the ‘new’ claim context. This cure will be effective only if there is sufficient
time for the interested parties to attempt to intervene.
104 Second, to the extent that this concern with notice is not coterminous with, or can be
considered only part of, the Court’s reference to ‘legal security and the good
administration’, other aspects of the latter may also militate against perpetual amendments
and expansions. These aspects may only affect the parties themselves, such as whether one
should tolerate a case being amended all the time so that there would be no end to it.
However, to the extent that Article 40 grants the parties the latitude to amend and
supplement their pleadings, such latitude must be restricted to some extent. Otherwise the
judicial process would be unseemly. Accordingly, the ultimate decision would depend on the
proper interpretation of Article 40 of the Statute and Article 38, para. 2 of the Rules, which
implements Article 40.
105 As alluded to earlier, the treatment of the terms ‘dispute’, ‘subject of the dispute’, and
‘claim’ in the Statute, the Rules of Court and the case law seem to have in mind everything
in the singular.331
The relationship between them is made clear in Nauru. According to the
Court, for an ‘additional’ claim to be considered included in the original claim so as to be
admissible, it must be implicit in or consequential on the original claim, or, put slightly
differently, it must arise directly out of the question which is the subject-matter of the
Application. Such a relationship can be characterized as some sort of specific vertical linear
relationship. As a result, some general connection between the ‘additional’ claim and the
118
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
original claim would not be sufficient. Obviously, these tests are tools for implementing the
central mission, mentioned several times, of not allowing a dispute brought before the
Court by application to be transformed by amendments in the submissions into another
dispute which is different in character.
106 Furthermore, the Court seemed to have adopted a kitchen sink approach by citing all
its relevant cases together, without discrimination. The Preah Vihear case appeared to
support the Court’s view, but that case was one about sovereignty, and the additional claim
presented by Cambodia addressed the restitution of certain sculptures and other items, a
right incident to sovereignty.332
Extended to all types of cases, this holding would unduly
restrict the scope of other types of cases. In addition, the Fisheries Jurisdiction (UK v.
Iceland; Federal Republic of Germany v. Iceland) cases as quoted by the Court, used
‘subject-matter of the application’ rather than ‘subject of the dispute’, and some of the
cases do not treat the case as having ‘one original claim’. The Court did not explain why the
cases would support its analysis, beyond the isolated phrases. One (p. 1081) would say that
the subject-matter of the application may be broader than the original claim.333
107 The Court’s approach in the context of the Nauru case is really blind to the realities of
life. As a matter of normal business realities, good businessmen would have sent assets
overseas for security and greater profit, which all resulted from the violations of
international obligations back home in Nauru, obligations already dealt with in the
application. Shielding overseas assets from Nauru’s reach would be to shield the fruits of all
violations from their vindication, leading to unjust enrichment.
108 One wonders then whether other approaches to interpreting Article 40 of the Statute
and Article 38, para. 2 of the Rules may be possible. First, it would seem that, all else
remaining the same, at least the term ‘claim’ could be considered to include the plural as
long as they are all within the same ‘dispute’. As a result, whether a claim is ‘new’ or not is
immaterial; the important point is whether the new claim would ‘transform’ the existing
dispute into a new one. The relationship between the original claim and a new claim can be
horizontal and the connection need not be specific but should be a close one between the
new claim and the dispute or the subject of the dispute. On this view, the Court’s use of
terms in Nauru is incorrect, or inconsistent with its own use of terms in the Fisheries
Jurisdiction (UK v. Iceland; Federal Republic of Germany v. Iceland) cases, or at least
confusing. Although several paragraphs of the Court’s judgment were not necessary on this
view, para. 68 dealt with this point, even if one may disagree with its requirement of a close
or specific connection or with its ultimate decision.
Another approach, which seems to be better, is to read both ‘subject’ and ‘dispute’ in Article
40 of the Statute as including the plural—a normal reading because written provisions often
allow this—so that ‘disputes’ can be added after the application has been filed, but the
‘subject’ of the disputes, which can be better described as ‘subject of the application’,
cannot be changed. Under this approach, not only new claims would be admissible, but also
new disputes too, if all are within the subject of the disputes or the application. Whether a
dispute is new or not is immaterial; what is important is whether it is within the subjectmatter
of the original application. The relationship between the original dispute and the
new dispute can be horizontal. Usually the subject-matter of the application may be broader
than the original claim and therefore may be considered capable of including more than the
original claim or one that is clearly labelled as such.334
109 Such an approach follows from the ‘micro’ approach to defining the concept of
‘dispute’ often adopted by the Court, as discussed earlier, and also by Sir Robert
Jennings,335
leaving the ‘subject’ of the disputes or the application as the overarching factor
encompassing all relevant issues. It is also consistent with Rosenne’s view of the
relationship between ‘case’ and ‘dispute’;336
if the term ‘case’ is used to denote the entire
set of proceedings. More importantly, this approach is also more faithful to the Court’s
119
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
decision in the Fisheries Jurisdiction (UK v. Iceland; Federal Republic of Germany v. Iceland) cases. There, in addition to the validity of certain law of Iceland, (p. 1082) Germany made a new submission raising questions of compensation for alleged acts of harassment of its fishing vessels by Iceland. The Court held that it was within the jurisdiction of the Court:337The Court cannot accept the view that it would lack jurisdiction to deal with this submission.The matter raised therein is part of the controversy between the Parties, and constitutes a dispute relating to Iceland’s extension of its fisheries jurisdiction. The submission is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject-matter of that Application. As such it falls within the scope of the Court’s jurisdiction defined in the compromissory clause of the Exchange of Notes of 19 July 1961.It is notable that the Court used here ‘dispute’ instead of ‘claim’; ‘the subject-matter of that Application’ instead of ‘the subject of the dispute’. This latter use of phrases may have resulted from the language of Article 40, somewhat awkward for the Court in this case. However, such a use of terms is consistent with the Statute if the term ‘dispute’ is read to include ‘disputes’. To some extent, para. 68 of the Nauru judgment seems to have this in mind, but the analysis is confused.Finally, either of the two approaches proposed here is more consistent with the spirit of Article 40 of providing an easy and simple mechanism for instituting proceedings and with the admonition of the drafters of the PCIJ Statute that: ‘The demands, however are not yet set out in their final form; a general indication is all that is required, sufficient to define the case and to allow the proceedings to be commenced.’ The Court’s ‘rigorous’ approach narrows the scope of Article 40 and is inconsistent with the tenor of the statement of the drafters.Under either of these two approaches, it would seem that the overseas assets claim by Nauru would be admissible, but judged from the Court’s decision, neither seems to have been pressed meaningfully, and therefore not passed upon by the Court. It remains to be seen whether either may hold any attraction in the future.110 Whatever force these concerns might have, the Court has continued to stick to its Nauru tests338 consistently and rigorously in evaluating ‘new’ claims in subsequent cases, accepting as well as rejecting them. During this process, the alternative tests have been quoted many times and have taken on a formulaic dimension: in order to be admissible, a new claim must either be implicit in the application or arise directly out of the question which is the subject-matter of the Application. In Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea,339 Nicaragua at first asked, in its application as well as its memorial, the Court to draw a single maritime boundary in a disputed maritime area. At the end of the oral hearings, Nicaragua also asked the Court to decide sovereignty over some islands in the disputed area. The Court recapped the criteria stated in Nauru and other cases and noted the inherent relationship between land and maritime entitlements (the land dominates the sea) and proceeded to say, essentially, that sovereignty over disputed maritime features would have an impact (p. 1083) on the delimitation line and must be decided first. It then held that the new claim was admissible ‘as it is inherent in the original claim relating to the maritime delimitation between Nicaragua and Honduras in the Caribbean Sea’.340 The Court then also noted that 337338339340
120
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
Honduras did not object to either the Court’s jurisdiction over or the admissibility of the new claim.In the Diallo case,341 although Guinea’s application stated that Mr Diallo had been ‘unjustly imprisoned … despoiled … and then expelled’, neither the application nor the memorial had made any reference to the arrest and detention of Mr Diallo in 1988–1989; rather, Guinea presented claims in respect of violations of Mr Diallo’s rights resulting from events in 1995– 1996 only. While these events were mentioned for the first time in Guinea’s written observations on the Democratic Republic of the Congo’s preliminary objections, in the context of incidental proceedings, the Court considered the mention made could not be interpreted as presenting a claim based on the 1988–1989 events. Guinea first presented its claim in respect of violations of his rights resulting from the events in 1988–1989 in its reply, filed on 19 November 2008, after the Court had handed down its judgment on the preliminary objections. Recalling its jurisprudence and applying the Nauru tests, the Court held:43. The Court finds itself unable to consider this claim as being ‘implicit’ in the original claim as set forth in the Application. … [T]he initial claim concerned violations of Mr. Diallo’s individual rights alleged by Guinea to have resulted from the arrest, detention and expulsion measures taken against him in 1995–1996. It is hard to see how allegations concerning other arrest and detention measures, taken at a different time and in different circumstances, could be regarded as ‘implicit’ in the Application concerned with the events in 1995–1996.…46. For similar reasons, the Court sees no possibility of finding that the new claim ‘arises directly out of the question which is the subject-matter of the Application’. Obviously, the mere fact that two questions are closely related in subject-matter, in that they concern more or less comparable facts and similar rights, does not mean that one arises out of the other. Moreover, as already observed, the facts involved in Mr. Diallo’s detentions in 1988–1989 and in 1995–1996 are dissimilar in nature, the domestic legal framework is different in each case and the rights guaranteed by international law are far from perfectly coincident. It would be particularly odd to regard the claim concerning the events in 1988–1989 as ‘arising directly’ out of the issue forming the subject-matter of the Application in that the claim concerns facts, perfectly well known to Guinea on the date the Application was filed, which long pre-date those in respect of which the Application (in that part of it concerning the alleged violation of Mr. Diallo’s individual rights) was presented.342The joint declaration of Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, and Yusuf criticized the Court’s analysis as being ‘formalistic’.343 These Judges argued that: ‘In terms of substance, however, the arbitrary arrests which Mr Diallo suffered in 1988–1989 and 1995–1996 reflect the continuity of the action taken against him by the Democratic Republic of the Congo whenever he brought more pressure to bear on the authorities in order to recover the debts owed by that State and Congolese companies to (p. 1084) his two companies (of which he had become the sole associé).’344 One may have sympathy for this view; indeed both sets of events were all connected or even resulted from Mr Diallo’s debt- collection efforts and can be considered to form part of the ‘dispute complex’, falling within the subject-matter of the application. One may even see some asymmetry between this ruling and the Court’s adoption of a macro view of the dispute in Legality of Use of Force, as discussed previously.345341342343344345
121
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
However, the Nauru tests may not have the same force in cases based on forum
prorogatum. In such cases, their application is impacted by the specific limitations that the
respondent may place on its ad hoc acceptance of the Court’s jurisdiction as well as the
Court’s apparent recent extra care in ascertaining consent. In the Certain Questions of
Mutual Assistance in Criminal Matters case,346
these limitations were ‘intended to prevent
Djibouti from presenting claims at a later stage of the proceedings which might have fallen
within the subject of the dispute but which would have been new claims’.347
The analysis
called for in such a situation is a combination of interpreting the consent of the parties on a
holistic approach and isolating and identifying the real subject of the dispute and the
justiciable claims. The two components may influence each other, but the Court in Certain
Questions of Mutual Assistance in Criminal Matters placed greater emphasis on the former,
leading to the non-application of the Nauru tests. Such an approach may have a lot to
commend it in the context of forum prorogatum and the particular circumstances of the
case.348
Subsequently in its 2012 judgment in the Territorial and Maritime Dispute, the Court
applied the same test, and recognized the inter-relatedness of the various issues in a
delimitation claim and did not consider a change in the legal basis for the claim and the
solution being sought as detrimental to the admissibility of a ‘new’ claim in formal terms:
The Court notes that the original claim concerned the delimitation of the exclusive
economic zone and of the continental shelf between the Parties. In particular, the
Application defined the dispute as ‘a group of related legal issues subsisting
between the Republic of Nicaragua and the Republic of Colombia concerning title to
territory and maritime delimitation’. In the Court’s view, the claim to an extended
continental shelf falls within the dispute between the Parties relating to maritime
delimitation and cannot be said to transform the subject-matter of that dispute.
Moreover, it arises directly out of that dispute. What has changed is the legal basis
being advanced for the claim (natural prolongation rather than distance as the basis
for a continental shelf claim) and the solution being sought (a continental shelf
delimitation as opposed to a single maritime boundary), rather than the subjectmatter
of the dispute. The new submission thus still concerns the delimitation of the
continental shelf, although on different legal grounds.349
b) LaGrand: A Problematic Lack of Notice of the Claim Based on the Order Indicating
Provisional Measures
111 Regarding modification of claims and notice, the LaGrand case presents an interesting
special case. Germany filed on 2 March 1999 an application against the United States
originally making claims based on the alleged violations of the Vienna Convention on (p.
1085) Consular Relations with respect to Mr LaGrand, and requested provisional measures
on the same day. The Court indicated provisional measures on 3 March 1999. The United
States did not carry out the provisional measures and Mr Walter LaGrand was executed as
scheduled earlier. Germany then in its memorial presented a new claim that the United
States incurred State responsibility for its non-compliance with the order for provisional
measures made under Article 41, which Germany claimed was binding. The Court held for
Germany. The judgment did not disclose any attempt by the Registrar to provide separate
notice of the new claim to the world at large or specially to the parties to the Statute of the
Court, thus potentially bringing into play the concerns expressed in Socobel, and addressed
in the several orders on counter-claims, as well as the requirements under Article 63.
112 Is the lack of notice of the new claim in LaGrand a serious defect? If analysed as
whether an impermissible expansion of the proceedings was effected, the question would be
whether the provisional measures claim was a new claim, or a new dispute so as to
transform the case beyond the subject-matter of the disputes or the application. One may
argue that issues relating to the interpretation of the Statute as a rule need not be notified
122
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
informed those States of the filing of the Application and of its subject-matter, and of the
filing of the request for the indication of provisional measures.’)
312 Cf. supra, MN 29–31, 84, and infra, MN 115–133.
313 See, e.g., ICJ Press Release No. 2006/1 of 10 January 2006 (‘The Republic of Djibouti
seises the International Court of Justice of a dispute with France’), on such a naked
attempt; ICJ Press Release No. 2014/18 of 24 April 2014, The Republic of the Marshall
Islands files Applications against nine States for their alleged failure to fulfil their
obligations with respect to the cessation of the nuclear arms race at an early date and to
nuclear disarmament, at p. 2 (‘With respect to the six [ … ] States (China, the Democratic
People’s Republic of Korea, France, Israel, the Russian Federation and the United States of
America), the Republic of the Marshall Islands seeks to found the Court’s jurisdiction,
pursuant to Article 38, paragraph 5, of the Rules of Court, on the consent of those States’).
314 Cf. Guyomar, Commentaire, p. 256.
315 Cf. von Mangoldt/Zimmermann on Art. 53 MN 1–2.
316 Armed Activities (DRC v. Uganda), Provisional Measures, Decl. Oda, ICJ Reports
(2000), pp. 131, 132–3, para. 8, quoting Oda, ‘The Compulsory Jurisdiction of the
International Court of Justice: A Myth?—A Statistical Analysis of Contentious Cases’, ICLQ
49 (2000), pp. 251–77, 265. But note also that Liechtenstein’s agent in the Certain Property
case was Mr Goepfert of Freshfields Bruckhaus Deringer Düsseldorf.
317 See infra, MN 124. For further discussion on agents and representation, cf. Berman/
Hernández on Art. 42 MN 6–11.
318 Yee, GYIL (1999), pp. 184–8.
319 Cf. Kawano, ‘The Role of Judicial Procedures in the Process of the Pacific Settlement of
International Disputes’, Rec. des Cours 346 (2009), pp. 89–98.
320 Oil Platforms, Merits, ICJ Reports (2003), pp. 161, 213–4, paras. 117–8. For fuller
discussion, cf. infra, MN 137 and Murphy, Counter-Claims, passim.
321 Cf. The Mavrommatis Palestine Concessions, Jurisdiction, PCIJ, Series A, No. 2, pp. 6,
27–8. Yee, GYIL (1999), pp. 153–4. Cf. infra, MN 116.
322 Nicaragua, Jurisdiction and Admissibility, ICJ Reports (1984), pp. 392, 426–7, para. 80.
323 Nauru, Preliminary Objections, ICJ Reports (1992), pp. 240, 266–7, paras. 67–70.
324 Oil Platforms, Merits, ICJ Reports (2003), pp. 161, 213–4, paras. 117–8.
325 Nauru, Preliminary Objections, ICJ Reports (1992), pp. 240, 264, para. 62.
326 Ibid.
327 Ibid., pp. 265–6, para. 65.
328 Ibid., p. 266, para. 66.
329 Ibid., pp. 266–7, paras. 67–70.
330 Bosnian Genocide, Order of 17 December 1997, ICJ Reports (1997), pp. 243, 259,
para. 39; Oil Platforms, Order of 10 March 1998, ICJ Reports (1998), pp. 190, 205, para. 42,
stating: ‘[I]n order to protect the rights which third States entitled to appear before the
Court derive from the Statute, the Court instructs the Registrar to transmit a copy of this
Order to them’.
331 Cf. supra, MN 61.
332 Preah Vihear, Merits, ICJ Reports (1962), pp. 6, 10–11, 36.
123
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Covington & Burling Library; date: 21 October 2022
333 The problem with this confusion also manifested itself in the Certain Questions of
Mutual Assistance in Criminal Matters, Judgment, ICJ Reports (2008), pp. 177 et seq.
334 Ibid., pp. 206–13.
335 Cf. supra, MN 40.
336 Rosenne, ICJ Procedure, p. 12.
337 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, ICJ Reports
(1974), pp. 175, 203, para. 72.
338 These alternative tests have also found their way into the jurisprudence of the
International Tribunal for the Law of the Sea, see M/V “Louisa” (Saint Vincent and the
Grenadines v. Spain), Judgment, ITLOS Reports (2013), pp. 4, 44–6, paras. 142–55.
339 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea, Judgment, ICJ Reports (2007), pp. 659 et seq.
340 Ibid., p. 697.
341 Diallo, Merits, ICJ Reports (2010), pp. 639 et seq.
342 The Court also noted that such late presentation of a new claim would violate the
fundamental procedural right of the respondent to present preliminary objections. Ibid., pp.
658–9, para. 46.
343 Ibid., Joint Decl. Al-Khasawneh, Simma, Bennouna, Cançado Trindade, and Yusuf, ICJ
Reports (2010), pp. 695, 698, para. 12.
344 Ibid., p. 697, para. 7.
345 Cf. supra, MN 43–44.
346 Certain Questions of Mutual Assistance in Criminal Matters, Judgment, ICJ Reports
(2008), pp. 177 et seq.
347 Ibid., p. 210, para. 83.
348 See infra, MN 124.
349 Territorial and Maritime Dispute, Judgment, ICJ Reports (2012), pp. 624, 665, para.
111.
350 On the first impression nature of the issue, cf. LaGrand, Judgment, ICJ Reports (2001),
pp. 466, 501, para. 98. Cf., e.g., Rosenne, Provisional Measures in International Law: The
International Court of Justice and the International Tribunal for the Law of the Sea (2005),
pp. vii, 34–40. He reported, however, that diplomatic practice showed some impatience with
the idea that orders indicating provisional measures could not be binding on the parties and
some treaties provided otherwise. Ibid., p. vii.
351 Cf. supra, MN 89.
352 This section draws significantly upon Yee, Leiden JIL (2003), pp. 701–13; and Yee,
GYIL (1999), pp. 147–91. See also Shaw, Rosenne’s Law and Practice, vol. II, pp. 697–724;
Quintana, ICJ Litigation, pp. 109–25; Kolb, ICJ, pp. 280–4; Rosenne, Law and Practice, 2006,
vol. II, pp. 672–99.
353 In the Certain Questions of Mutual Assistance in Criminal Matters, Judgment, ICJ
Reports (2008), pp. 177, 203–6, paras. 60–4, the Court gives a rather detailed account of
the doctrine. For the Court’s practice, see ICJ Yearbook (2015–2016), Annex 8, pp. 132–4.
354 The PCIJ Statute did not contain paragraph numbers, but for the sake of convenience,
they will be used herein.
124
Annex 13 Pierre d’Argent, Preliminary Objections and Breaches of Provisional Measures, RIVISTA DI DIRITTO INTERNAZIONALE (2021) 125
126
RIVISTA DI DIRITTO INTERNAZIONALE
Anno CIVFasc.1-2021
ISSN 0035-6158
Pierre d'Argent
PRELIMINARY OBJECTIONS AND
BREACHES OF PROVISIONAL
MEASURES
Estratto
G GIUFFRE FRANCIS LEFEBVRE
127
PIERRE D’ARGENT
PRELIMINARY OBJECTIONS AND BREACHES
OF PROVISIONAL MEASURES
Abstract. — This paper explores the interplay between preliminary objections and
provisional measures. It argues that assessing compliance with obligations created by
provisional measures is not a merits issue and that it can be addressed by the Court pursuant
to its inherent power under Article 41 of the Statute, even in the judgment upholding
preliminary objections.
SUMMARY: 1. Introduction. — 2. Unpacking provisional measures obligations. — 3. Some basic
tenets of preliminary objections. — 4. The power to assess compliance with provisional
measures. — 5. Procedural issues. — 6. Conclusion.
1. Introduction. — Many current proceedings before the Interna-
tional Court of Justice (ICJ) are characterized by the accumulation of
two incidental proceedings: provisional measures and preliminary objec-
tions. More often than not, the request of the former by claimant is
followed by the raising of the latter by respondent. If both parties are
consecutively successful in their respective use of incidental proceedings,
the case does not proceed to the merits. However, before reaching that
end, the legal relations between the parties would have been transformed
by the provisional measures indicated by the Court. Such measures being
binding, claims concerning their violations may arise between the order
indicating them and the judgment upholding preliminary objections. So
This article has been submitted to peer-review.
115
128
far, the Court has not yet addressed a situation where the case does not
proceed to the merits while allegations of breaches of provisional mea-
sures exist. On the contrary, the Court has affirmed that “[t]he judgment
on the merits is the appropriate place for the Court to assess compliance
with the provisional measures” 1.
May allegations of provisional measures’ breaches be presented to
the Court by claimant at the preliminary objections stage, in the alternative
that such objections are not rejected nor joined to the merits? May
the Court address claims concerning the violation of provisional mea-
sures at that stage if the case does not proceed to the merits 2?
This paper addresses those issues by unpacking the obligations under
provisional measures (para. 2) and by recalling some basic tenets con-
cerning preliminary objections (para. 3). It then argues that the power of
the Court under Article 41 of the Statute is not limited to the indication
and supervision of provisional measures but entails the inherent power to
adjudicate upon their alleged breaches, i.e. to sanction those breaches;
that power can eventually be exercised in the judgment upholding
preliminary objections (para. 4). The paper ends by making some pro-
cedural suggestions aiming at safeguarding the adversarial principle
(para. 5) and concludes by briefly reflecting on the nature of the
preliminary objection stage (para. 6).
2. Unpacking provisional measures obligations. — The cumulative
conditions that must be fulfilled for the Court to exercise its power under
Article 41 of the Statute are well-known and need not be rehearsed
here 3. However, it is important to recall that, while the finding of prima
facie jurisdiction to entertain the merits of the case is a condition for the
1 International Court of Justice, Judgment of 16 December 2015 in the joined cases
concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v.
Costa Rica), I.C.J. Reports, 2015 (II), p. 713, para. 126; International Court of Justice, Order
of 14 June 2019 in the case concerning the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional
Measures, I.C.J. Reports, 2019, p. 370, para. 26.
2 The question is not new and has been identified as a conundrum resulting from the
LaGrand case and as one of the reasons why the Court would have erred in that judgment:
THIRLWAY, The Law and Procedure of the International Court of Justice 1960-1989: Part Twelve,
British Yearbook of Int. Law, 2002, p. 123 f. and footnote 309 at p. 120.
3 See e.g. International Court of Justice, Order of 3 October 2018 in the case concerning
Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Provisional Measures, I.C.J. Reports,
ARTICOLI
PIERRE D ’ARGENT
116
129
indication of provisional measures, the power of the Court to examine a
request for the indication of such measures stems directly from Article 41
of the Statute which constitutes an independent title of jurisdiction from
the one(s) asserted on the merits, as Judge Abraham recently underscored
4.
It is also undisputed that an order indicating provisional measures
“create[s]” new binding legal obligations, which are distinct and autono-
mous from the obligations challenged between the parties in the case 5.
In fact, the issue addressed in this paper would not arise if the measures
indicated provisionally by the Court were mere recommendations 6. The
new obligations created by an order indicating provisional measures can
be best ascertained ratione materiae, ratione personae and ratione tem-
poris.
2018, p. 623 ff.: prima facie jurisdiction; plausible rights whose protection is sought; link with
the measures requested; risk of irreparable prejudice and urgency.
4 See International Court of Justice, Order of 14 June 2019 in the case concerning the
Application of the International Convention on the Elimination of All Forms of Racial Discrimi-
nation (Qatar v. United Arab Emirates), Opinion individuelle de M. le Juge Abraham, C.I.J.
Recueil, 2019, p. 379, para. 9. In French, Judge Abraham characterizes the basis of provisional
jurisdiction as “autonome” (rather than “independent” as translated in the English version of
his opinion) from the basis relied upon in the principal proceedings. For the proposition that the
jurisdiction of the Court to indicate provisional measures derives directly from the Statute and
the consent to it, while prima facie jurisdiction over the merits is only one of the conditions for
the exercise of such power, see also THIRLWAY, The Law and Procedure of the International Court
of Justice, Fifty Years of Jurisprudence, vol. II, Oxford, 2013, p. 1643 with reference to the Legality
of the Use of Force cases; THIRLWAY, The International Court of Justice, Oxford, 2016, p. 155, with
reference also to the interpretation request in the Avena case.
5 International Court of Justice, Judgment of 27 June 2001 in the LaGrand Case
(Germany v. United States of America), I.C.J. Reports, 2001, p. 506, paras. 110 and 109
respectively; among many cases since, notably International Court of Justice, Judgment of 19
December 2005 in the Case Concerning Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), I.C.J. Reports, 2005, p. 258, para. 263, and more
recently, International Court of Justice, Order of 23 July 2018 in the case concerning the
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Provisional Measures, I.C.J. Reports, 2018, p.
433, para. 77, and International Court of Justice, Order of 3 October 2018 in the case
concerning Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular
Rights (Islamic Republic of Iran v. United States of America), cit., p. 652, para. 100, both
reaffirming that provisional measures orders create binding international legal obligations.
6 In the Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), the Court indicated on 5
July 1951 extensive provisional measures but ruled on 22 July 1952 that it had no jurisdiction
over the case, making clear that the Order “ceases to be operative upon the delivery of this
judgment and that the Provisional Measures lapse at the same time” (I.C.J. Reports, 1952,
p. 114). The Court refrained from drawing any other conclusion, which was “consistent with
the view which was commonly held at the time that the measures could never be more than a
non-binding indication” (THIRLWAY, The Law and Procedure of the International Court of
Justice, Fifty Years of Jurisprudence, vol. II, cit., p. 1809).
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
117
130
Ratione materiae, the new obligations contained in an order indicat-
ing provisional measures aim at “preserv[ing] ... the respective rights of
the parties in a case, pending [the] decision on the merits thereof” 7. The
measures provisionally indicated must therefore aim at preserving “the
rights which may subsequently be adjudged by [the Court] to belong to
either party” 8. In other words, the new obligations created provisionally
protect at the same time the rights that form the subject-matter of the
dispute and the authority of the Court in settling the dispute about those
rights 9. However, it does not follow from the very purpose of provisional
measures that the obligations so created must be identical to the obligations
that form the subject-matter of the dispute. On the contrary, orders
that simply recall those existing obligations without adding to them are
fairly innocuous and lightly protective. This being said, even when the
obligations ordered are similar or identical to those that form the
subject-matter of the dispute, they exist normatively as separate obligations
from those that are disputed on the merits — provisional measures
obligations are autonomous in terms of their source, and their source is
Article 41 of the ICJ Statute as applied by the Court in the case.
Provisional obligations are autonomous from the substantive obligations
disputed on the merits “in the sense that a State may be held responsible
for violation of a provisional measure notwithstanding that it prevails on
the merits” 10.
7 International Court of Justice, Order of 14 June 2019 in the case concerning the
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), cit., p. 367, para. 17.
8 Ibid.
9 International Court of Justice, Judgment of 27 June 2001 in the LaGrand Case
(Germany v. United States of America), cit., p. 502 f., para. 102: “The object and purpose of the
Statute is to enable the Court to fulfill the functions provided for 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
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 the
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”.
10 International Court of Justice, Order of 3 March 2014 in the case concerning Questions
relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia),
Provisional Measures, Dissenting opinion of Judge Greenwood, I.C.J. Reports, 2014, p. 196,
ARTICOLI
PIERRE D ’ARGENT
118
131
When an order indicating provisional measures incorporates as such
substantive obligations in dispute or imposes additional obligations that,
although related to those substantive obligations, are stricter than them
by going beyond what they require, the same conduct will constitute
simultaneously a violation of the substantive obligations in dispute in a
case and a violation of the order indicating provisional measures 11.
Although they stem from the same facts, those violations are nevertheless
distinct because the provisional obligations are legally distinct and
autonomous from the substantive obligations that form the subject-
matter of the dispute. If the obligations provisionally ordered are stricter
than the substantive obligations, a violation of the order indicating
provisional measures may conversely occur independently from a viola-
tion of the substantive obligations in the case. This may also be the case
when the order imposes new obligations that have no correspondence in
the substantive obligations in dispute but are necessary to protect the
rights stemming from them. The provisional obligations created in the
context of an Article 60 request can notably be very different from the
obligations under the judgment to be interpreted, as exemplified by the
Order of 18 July 2011 in the Temple of Preah Vihear case 12.
Ratione personae, the new and autonomous provisional obligations
are binding on “any party to whom the provisional measures are ad-
dressed” 13, in favour of the other party in the case. In other words, those
obligations are bilateral in character 14. Such is the case even when they
para. 6. For an illustration of such situation, International Court of Justice, Judgment of 26
February 2007 in the Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
I.C.J. Reports, 2007, p. 238, para. 471(7).
11 See International Court of Justice, Judgment of 16 December 2015 in the case
concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), cit., p. 714, para. 129.
12 See D’ARGENT, Juge ou policier? Les mesures conservatoires dans l’affaire du Temple de
Preah Vihear, Annuaire français de droit int., 2011, pp. 147-163.
13 International Court of Justice, Order of 23 July 2018 in the case concerning the
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), cit., p. 433, para. 77.
14 International Law Commission, Report to the General Assembly on the work of its
fifty-third session, Yearbook of the Int. Law Commission, 2001, vol. II, part 2, p. 118, para. 7.
See draft Article 40, paragraph 2 (b) adopted on first reading according to which “ ‘injured
State’ means ... [i]f the right infringed by the act of a State arises from a judgement or other
binding dispute settlement decision of an international court or tribunal, the other State or
States parties to the dispute and entitled to the benefit of that right” (International Law
Commission, Report to the General Assembly on the work of its forty-eighth session, Yearbook
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
119
132
are similar to erga omnes (partes) obligations they seek to protect.
Therefore, States that are not party to the case have no standing to
invoke the responsibility of the State that fails to comply with the
provisional measures addressed to it, even if third States may draw from
the same facts in order to invoke its responsibility for the violation of
identical or related substantive obligations.
Despite the bilateral character of provisional obligations, there is
unquestionably an institutional interest in seeing them duly respected:
“[t]he Court itself has an interest in ensuring respect for provisional
measures” 15. Such institutional interest in seeing the parties comply with
orders indicating provisional measures is manifested by reporting obli-
gations included in such order 16, but also by the notification of such
measures to the Security Council pursuant to Article 41, paragraph 2, of
the Statute. Whether the Court may, on its own motion, assess compli-
ance with the provisional measures it indicated is a question that goes
beyond the ambit of this short paper but to which it will briefly revert 17.
Suffice it to say here that ongoing breaches of provisional measures can
be addressed proprio motu by the Court through an additional Article 41
order if the conditions for the indication of new provisional measures are
met 18.
Ratione temporis, the new provisional obligations are immediately
binding on the parties to which they are addressed, from the issuance of
of the Int. Law Commission, 1996, vol. II, part 2, p. 62, and see the commentary of that
provision in Yearbook of the Int. Law Commission, 1985, vol. II, part 2, p. 25.
15 PALCHETTI, Responsibility for Breach of Provisional Measures of the ICJ: Between
Protection of the Rights of the Parties and Respect for the Judicial Function, Rivista, 2017, p. 6.
16 See lately International Court of Justice, Order of 23 January 2020 in the case
concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (The Gambia v. Myanmar), para. 86 (4), Rivista, 2020, p. 588.
17 See PALCHETTI, op. cit., arguing in favour of such power and also KOLB, The Interna-
tional Court of Justice, Oxford, 2013, p. 649. See also International Court of Justice, Judgment
of 19 December 2005 in the Case Concerning Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), cit., Declaration of Judge ad hoc Verhoeven,
p. 358, para. 3; International Court of Justice, Judgment of 16 December 2015 in the case
concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), cit., Separate Opinion of Judge Cançado Trindade, p. 770, par. 36; TRANCHANT,
L’arrêt rendu par la CIJ sur la demande en interprétation de l’arrêt Avena (Mexique c.
États-Unis d’Amérique), Annuaire français de droit int., 2009, pp. 212-218, who describes the
power of the Court in that regard as being properly administrative.
18 Article 75, paragraph 1, of the Rules: “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”; emphasis
added.
ARTICOLI
PIERRE D ’ARGENT
120
133
the order and according to its terms. Pursuant to the general principles
on intertemporal law 19, provisional obligations cannot serve as a basis to
impugn conduct that occurred prior to their issuance, even if they are
identical to the substantive obligations disputed on the merits. The
temporality of the breaches that form the merits of a case is thus
strikingly different since they must always concern a conduct that allegedly
violated international law (at least) prior to the application institut-
ing proceedings. However, if such conduct continues after the issuance of
the order 20, responsibility under the provisional obligations may (also)
ensue, depending on the similarity between the provisional and substan-
tive obligations.
Provisional obligations remain in effect “pending the final decision in
the case” 21, unless the Court revises them by another order prior to such
decision. As indicated earlier, and as a result of the continuing binding
character of the provisional measures until the case is resolved, the Court
considers that the merits judgment is the “appropriate place ... to assess
compliance with the provisional measures” 22. Such is the case even if
violations of the order were to cease before the judgment of the Court,
19 Permanent Court of Arbitration, Award of 4 April 1928 in the Island of Palmas Case
(Netherlands/United States of America), Reports of International Arbitral Awards, vol. II, p. 829
ff. at p. 845 (“[A] juridical fact must be appreciated in the light of the law contemporary with
it, and not of the law in force at the time when a dispute in regard to it arises or falls to be
settled.”). See also, e.g., International Court of Justice, Judgment of 12 April 1960 in the Case
Concerning Right of Passage over Indian Territory (Portugal v. India), Merits, I.C.J. Reports,
1960, p. 35; International Court of Justice, Advisory Opinion of 21 June 1971 on Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports, 1971, p. 16,
para. 53.
20 International Law Commission, Draft Articles on State Responsibility, Commentary on
Article 14, para. 12: “conduct which has commenced some time in the past, and which
constituted (or, if the relevant primary rule had been in force for the State at the time, would
have constituted) a breach at that time, can continue and give rise to a continuing wrongful act
in the present” (Yearbook of the International Law Commission, 2001, vol. II, part two, p. 61);
emphasis added.
21 International Court of Justice, Order of 23 July 2018 in the case concerning the
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), cit., p. 432, para. 75; International Court of
Justice, Judgment of 22 July 1952 in the Anglo-Iranian Oil Co. (United Kingdom v. Iran),
Preliminary Objection, I.C.J. Reports, 1952, p. 114.
22 International Court of Justice, Judgment of 16 December 2015 in the case concerning
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), cit.,
p. 713, para. 126; International Court of Justice, Order of 14 June 2019 in the case concerning
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Provisional Measures, cit., p. 370, para. 26.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
121
134
because “what may have ceased is the breach, not the responsibility
arising from the breach” 23.
The lifespan of provisional obligations may be cut short by a judg-
ment upholding preliminary objections as it would constitute the “final
decision in the case”. In such an event, the order indicating provisional
measures “ceases to be operative upon the delivery of [the] Judgment”
finding the Court without jurisdiction to entertain the application 24. In
other words, from the judgment upholding its preliminary objection(s),
the respondent State is relieved of the obligation to comply with the
order indicating provisional measures. However, the respondent is not
relieved retrospectively from the obligations created by such order.
Therefore, its conduct, that occurred between the issuance of the order
and the judgment upholding preliminary objections, can be impugned
and be the object of violation claims by the party to whom the new
obligations are owed. In that regard, it is legally irrelevant that the
measures indicated were aimed at protecting rights over which the Court
finally decided it lacked jurisdiction because the finding of a breach of
provisional measures “is independent ... [of the fact] that the same
conduct [would] also constitut[e] a violation of the [obligations disputed
on the merits]” 25.
3. Some basic tenets of preliminary objections. — Objections to the
jurisdiction of the Court or the admissibility of a case possess a “prelimi-
nary” character in so far as “the Court is required to rule on [them]
before the debate on the merits begins” 26. In other words, the effect of
raising preliminary objections is to suspend the proceedings on the
merits 27, to bifurcate the case and open an incidental procedural phase
23 International Court of Justice, Judgment of 16 December 2015 in the case concerning
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), cit.,
p. 713, para. 126.
24 International Court of Justice, Judgment of 1 April 2011 in the Case Concerning
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, I.C.J. Reports, 2011,
p. 140, para. 186. See also, supra, note 6 on the Anglo-Iranian Oil Co. case.
25 International Court of Justice, Judgment of 16 December 2015 in the case concerning
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), cit.,
p. 714, para. 129.
26 International Court of Justice, Judgment of 30 November 2010 in the Case Concerning
Ahmadou Sadio Diallo (Guinea v. Democratic Republic of the Congo), I.C.J. Reports, 2010,
p. 658, para. 44.
27 Article 79-bis, paragraph 3, of the Rules of Court (former Article 79, paragraph 5).
ARTICOLI
PIERRE D ’ARGENT
122
135
that needs to be decided first by the Court. Every respondent in a case
has a “fundamental procedural right” 28 to raise preliminary objections in
order to avoid that its impugned conduct be scrutinized by a court it
considers lacking jurisdiction or being improperly seized. As a result,
according to the formulation retained in Article 79, paragraph 9, of the
Rules before their amendment in October 2019, the judgment of the
Court on preliminary objections should only “either uphold the objec-
tion, reject it, or declare that the objection does not possess, in the
circumstances of the case, an exclusively preliminary character”.
The newly amended version of the Rules stands for the same three
possibilities, except that it adds that the Court may also “decide upon
a preliminary question” at that stage 29. This addition is the logical
consequence of the new Article 79 that now inaugurates the subsection
of the Rules relating to preliminary objections by recalling the power of
the Court to decide proprio motu that “questions concerning its juris-
diction or the admissibility of the application shall be determined
separately” 30: a preliminary “question” is raised by the Court itself, in
contrast to a preliminary “objection” which is a procedural act of a party
to the case.
The automatic suspension of the merits resulting from the filing of
preliminary objections means that the Court may not decide on any
merits issue before having decided on the objections. It is thus well
established that a judgment on preliminary objections (or preliminary
questions) is squarely limited to issues of jurisdiction or admissibility, and
that it should not prejudge in any way the merits of the case 31. If an
28 International Court of Justice, Judgment of 30 November 2010 in the Case Concerning
Ahmadou Sadio Diallo (Guinea v. Democratic Republic of the Congo), cit., p. 658, para. 44.
29 Article 79-ter, paragraph 4: “After hearing the parties, the Court shall decide upon a
preliminary question or uphold or reject a preliminary objection. The Court may however
declare that, in the circumstances of the case, a question or objection does not possess an
exclusively preliminary character”. The French version of that provision specifies that the
Court “tranche la question préliminaire” which clearly refers to the preliminary question
raised by the Court itself.
30 See previously Article 79, paragraphs 2 and 3.
31 “It may occur that a judgment on a preliminary objection touches on a point of merits,
but this it can do only in a provisional way, to the extent necessary for deciding the question
raised by the preliminary objection. Any finding on the point of merits therefore, ranks simply
as part of the motivation of the decision on the preliminary objection, and not as the object of
that decision. It cannot rank as a final decision on the point of merits involved” (International
Court of Justice, Judgment of 18 July 1966 in the South West Africa Cases (Ethiopia v. South
Africa, Liberia v. South Africa), I.C.J. Reports, 1966, p. 37, para. 59). This finding is difficult to
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
123
136
objection is upheld, and such objection is entirely dispositive of the case,
the case does not proceed any further and the merits are never addressed
by the Court 32.
Should it be inferred from the prohibition to address the merits of
the case at the preliminary objections (or questions) stage that the Court
may not assess the compliance with the provisional measures if the
objection upheld is entirely dispositive? When the Court affirmed that
the “appropriate place ... to assess compliance with the provisional
measures” is the merits judgment, it was in order to make clear that
having already ascertained the same facts in order to indicate additional
provisional measures had no bearing in that regard 33. Moreover, such
assertion reflects the fact that provisional obligations are normally bind-
ing until the case is decided on the merits — if it is decided on the merits.
However, the Court did not rule that the merits judgment was the “only”
or “exclusive” place to do so, nor that the assessment of compliance with
provisional measures was a merits issue properly understood. In fact, as
recalled above, obligations under an order indicating provisional mea-
sures are not obligations on the merits: they are distinct and autonomous
obligations, even if only created by the Court for protecting the rights
vindicated on the merits. Therefore, because provisional obligations have
an autonomous and distinct legal existence from the substantive obligations
that form the subject-matter of the dispute brought before the
Court, assessing compliance with provisional obligations is not a merits
issue as such. The fact that a judgment on preliminary objections may not
prejudge any merits issue is thus not decisive for the issue here explored.
Another matter concerns the procedural aspects of the submission, at the
preliminary objection stage, of a provisional measures’ violation claim; it
will be addressed infra in para. 5.
4. The power to assess compliance with provisional measures. —
Does the power of the Court to adjudicate on alleged breaches of
provisional obligations depend on and derive from its jurisdiction over
the merits of the case?
dispute, even if its application by the Court to its 1962 judgment rejecting preliminary
objections on the issue of the legal right or interest of the applicants in the subject-matter of
their claims raised serious criticism.
32 See D’ARGENT, Preliminary Objections: International Court of Justice (ICJ), Max
Planck Encyclopedia of Int. Procedural Law, http://opil.ouplaw.com.
33 See supra, note 1.
ARTICOLI
PIERRE D ’ARGENT
124
137
In the LaGrand case, where compliance with provisional obligations
was first discussed, the Court appeared to tie its power to adjudicate on
that issue with its jurisdiction over the merits of the case. Germany
argued that because the provisional measures were indicated by the
Court two years earlier in order to preserve the rights under the 1963
Vienna Convention pending a judgment on the merits, the dispute as to
whether the United States were obliged to comply with the order and
whether they did comply “necessarily ar[ose] out of the interpretation or
application of the Convention and thus f[e]ll within the jurisdiction of the
Court”. Germany also contended that the issue of compliance with the
order was “an integral component of the entire original dispute between
the parties” while its submission in that regard implicated “in an auxiliary
and subsidiary manner ... the inherent jurisdiction of the Court for claims
as closely interrelated with each other as the ones before the Court in the
present case” 34. To which the Court opined that the issue of compliance
with the provisional measures “ar[ose] directly out of the dispute be-
tween the Parties before the Court over which ... it has jurisdiction”.
Rejecting the inadmissibility argument put forward by the United States,
the Court affirmed that despite the fact that the German submission was
based on facts subsequent to the filing of the application, it arose directly
out of a question which was the subject-matter of the application.
Therefore, the Court concluded that, “[w]here the Court has jurisdiction
to decide a case, it also has jurisdiction to deal with submissions request-
ing it to determine that an order indicating measures which seeks to
preserve the rights of the Parties to this dispute has not been complied
with” 35.
In the Request for Interpretation of the Judgment of 31 March 2004 in
the Case concerning Avena and Other Mexican Nationals, the Court ruled
in essence that its ability to assess compliance with provisional measures
is not contingent on the actual outcome of a case in light of the
jurisdictional basis on which it was seized. Mexico seized the Court on
the basis of Article 60 of the Statute and also requested provisional
measures. The Court ordered that several identified Mexican nationals
be not executed “pending judgment on the Request for interpretation
submitted by the United Mexican States” unless and until they had
34 International Court of Justice, Judgment of 27 June 2001 in the LaGrand Case
(Germany v. United States of America), cit., para. 44, p. 483.
35 Ibid., para. 45, p. 484.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
125
138
received the review and reconsideration prescribed by the Avena 2004
merits judgment 36. The United States failed to comply with the order
and proceeded with the execution of one of the Mexican nationals. Later,
the Court concluded that Mexico’s request for interpretation was “out-
side the jurisdiction specifically conferred upon the Court by Article 60”
because the matters on which Mexico required an interpretation had not
been decided by the Court in the prior judgment 37. In other words, the
Court found that it could not exercise its interpretative power under
Article 60 of the Statute; i.e. that such jurisdictional basis was misplaced
in light of Mexico’s request. However, the Court found that it was
nevertheless competent to adjudicate upon the alleged violation of the
provisional measures order, stating that:
“There is no reason for the Court to seek any further basis of jurisdiction
than Article 60 of the Statute to deal with this alleged breach of its Order
indicating provisional measures issued in the same proceedings. The Court’s
competence under Article 60 necessarily entails its incidental jurisdiction to
make findings about alleged breaches of the Order indicating provisional mea-
sures. That is still so even when the Court decides, upon examination of the
Request for interpretation, as it has done in the present case, not to exercise its
jurisdiction to proceed under Article 60” 38.
In all other cases so far, when assessing compliance with provisional
measures at the merits stage, the Court failed to indicate any jurisdic-
tional basis for doing so: judgments simply proceed in assessing compli-
ance, assuming the Court’s power in that regard 39.
The case-law is thus conflicting. It does not provide a clear answer on
whether the power of the Court to assess compliance with provisional
36 International Court of Justice, Order of 16 July 2008 on the Request for Interpretation
of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America), Provisional Measures, I.C.J. Reports, 2008, p. 331,
para. 80.
37 International Court of Justice, Judgment of 19 January 2009 on the Request for
Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America), I.C.J. Reports, 2009, p. 18, para. 45.
38 See ibid., para. 51.
39 See e.g. International Court of Justice, Judgment of 19 December 2005 in the Case
Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v. Uganda), cit., p. 258, para. 264; International Court of Justice, Judgment of 26 February 2007
in the Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia Herzegovina v. Serbia), cit., p. 231, para. 456; International Court
of Justice, Judgment of 16 December 2015 in the case concerning Certain Activities Carried Out
by Nicaragua in the Border Area (Costa Rica v. Nicaragua), cit., pp. 712-714.
ARTICOLI
PIERRE D ’ARGENT
126
139
measures obligations depends on, and derives from, the basis of jurisdic-
tion to entertain the merits of the case. The standard view is that it does:
because, pursuant to Article 36 of the Statute, its jurisdiction over a case
rests on consent, the Court would not be entitled to assess compliance
with provisional measures if it lacks jurisdiction on the merits 40. Despite
its apparent obviousness, this claim deserves to be questioned.
First, the excerpts from the LaGrand judgment reproduced above
can be understood as essentially relating to the scope of matters that can
be adjudicated by the Court when it addresses the merits of a case, rather
than as definitive pronouncement concerning the legal basis of its power
to assess compliance with provisional measures: the Court may “deal
with submissions”, i.e. those submissions are admissible at the merits
phase. In that sense, the LaGrand obiter should not be read a contrario
for the proposition that where the Court has no jurisdiction to decide a
case on the merits, it would also lack jurisdiction to assess compliance
with provisional measures.
Second, the Avena finding reproduced above “is based on, or
implies, an interpretation of the Court’s jurisdiction under Article 41 of
the Statute as so far unrelated to, or independent of, the merits
jurisdiction (or, in this case, the incidental jurisdiction under Article 60)
that the exercise of the Court’s powers under Article 41 is not invalidated
if it is subsequently established that the merits jurisdiction, or
special incidental jurisdiction invoked, was lacking” 41. By underscoring
that its “incidental jurisdiction to make findings about alleged breaches
of the Order indicating provisional measures” was entailed by the
jurisdictional title on the basis of which it was seized, the Court clearly
differentiated between those titles. The reference to the “incidental”
character of its jurisdiction to assess compliance with provisional mea-
sures inescapably refers to incidental proceedings under Article 41. For
the rest, one shall not fail to note en passant that this case also stands
for the distinct legal existence of provisional obligations, because, while
the Court found that the United States breached them, it declined for
lack of jurisdiction to declare that they also violated the judgment on the
40 LANDO, Compliance with Provisional Measures Indicated by the International Court of
Justice, Journal of International Dispute Settlement, 2017, pp. 22-55.
41 THIRLWAY, The Law and Procedure of the International Court of Justice, cit., p. 1650.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
127
140
merits, “even though, logically, the two propositions must simultane-
ously both hold true” 42.
Third, and indeed because provisional obligations are legally distinct
from the obligations that form the subject-matter of the dispute, the
jurisdiction of the Court over the latter cannot properly serve to adjudi-
cate about the former. For instance, if the Court is seized of a dispute on
the basis of a compromissory clause conferring jurisdiction over disputes
concerning the interpretation or application of a specific treaty, such
compromissory clause is not adequate to afford jurisdiction ratione
materiae over provisional obligations, because such obligations are, as
such, distinct from the treaty obligations: they have been created by the
Court and can be very different in content from the treaty obligations
they tend to preserve. Such is the case, for instance, of the fairly usual
obligation to “refrain from any action which might aggravate or extend
the dispute before the Court or make it more difficult to resolve” 43,
which is regularly imposed on the parties 44: assessing breaches of the
obligation not to aggravate the dispute may require to look at acts that
would otherwise not necessarily fall within the Court’s ratione materiae
jurisdiction in the case, even if, admittedly, those acts must somehow
negatively impact the subject-matter of the pending dispute 45.
Fourth, as recalled at the very beginning of this paper 46, the finding
of prima facie jurisdiction to entertain the merits of the case is only a
condition for the indication of provisional measures. Indeed, the power
of the Court to examine a request for the indication of such measures and
to order them stems directly from Article 41 of the Statute, which
42 International Court of Justice, Judgment of 19 January 2009 on the Request for
Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America), cit., Declaration of Judge Abraham,
p. 28 (in the French text: “alors même que logiquement les deux propositions ne peuvent être
que simultanément vraies.”).
43 International Court of Justice, Order of 23 July 2018 in the case concerning the
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), cit., p. 434, para. 79.
44 OELLERS-FRAHM, ZIMMERMANN, Article 41, in The Statute of the International Court of
Justice3 (Zimmermann and Tams eds.), Oxford, 2019, pp. 1145-1149.
45 In that sense, there must exist a “link to the merits ... since the dispute which the
parties are required not to aggravate or extend is the dispute on which the Court is being asked
to rule at the merits phase” (International Court of Justice, Order of 3 March 2014 in the case
concerning Questions relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v. Australia), Dissenting opinion of Judge Greenwood, I.C.J. Reports, 2014,
p. 196, footnote to para. 6).
46 See supra, note 4.
ARTICOLI
PIERRE D ’ARGENT
128
141
constitutes an independent title of jurisdiction from the one(s) asserted
on the merits. It is uncontroversial that, pursuant to Article 41, the Court
may indicate provisional measures proprio motu, that it can also indicate
measures different from the ones requested, and eventually order them
to both parties.
Fifth: the power of the Court under Article 41 of the Statute is not
limited to the indication of provisional measures, but also extends to their
supervision. As recalled earlier, the Court may create provisional report-
ing obligations and it may also address, even proprio motu, non-compli-
ance with provisional measures through an additional Article 41 order if
the conditions for the indication of new provisional measures are met 47.
Arguably, this is the case when the measures needed to protect the rights
in dispute are not complied with.
In December 2020, the effectiveness of the authority of the Court to
supervise compliance with provisional measures was strengthened by the
addition of a new Article 11 in the Resolution concerning the internal
judicial practice of the Court, which reads as follows:
“(i) Where the Court indicates provisional measures, it shall elect three
judges to form an ad hoc committee which will assist the Court in monitoring the
implementation of provisional measures. This committee shall include neither a
Member of the Court of the nationality of one of the parties nor any judges ad
hoc.
(ii) The ad hoc committee shall examine the information supplied by the
parties in relation to the implementation of provisional measures. It shall report
periodically to the Court, recommending potential options for the Court.
(iii) Any decision in this respect shall be taken by the Court.” 48
It remains to be seen if monitoring ad hoc committees will be
established each time the Court indicates provisional measures, or only
when such measures include a reporting obligation. Considering the
wording of the first paragraph of the new provision, the former view is
probably the better. Moreover, the Court “may request information from
the parties on any matter connected with the implementation of any
provisional measures it has indicated” 49, even if the order indicating
provisional measures does not include a (periodical) reporting obligation.
In that sense, the second paragraph of the new Article 11 applies to
47 See supra, notes 16-18.
48 See ICJ Press release No. 2020/38 of 21 December 2020.
49 Article 78 of the Rules.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
129
142
any information supplied by the parties, be it pursuant to a provisional
reporting obligation or not. The third paragraph of the new Article 11
confirms that the Court has the power to decide about compliance with
provisional measures. Such power rests on Article 41 of the Statute, not
on the title of jurisdiction over the merits of the case. Of course, the
Court may only use its power under Article 41 if such title appears, prima
facie, to exist. However, as recalled earlier, such appearance is only a
condition for the exercise of the power that the Statute confers to the
Court.
The power of the Court under Article 41 of the Statute is thus not
limited to the issuance and supervision of the implementation of provisional
measures but extends to assessing breaches thereof 50. Indeed, the
power of the Court to assess compliance with provisional measures
complements its authority to order such measures under Article 41 and
flows from it; it is implicit but necessarily contained in that statutory
provision which not only allows for the protection of the rights in dispute
pending a decision in the case, but also of the Court’s judicial function
itself. If the conditions for the exercise of the Court’s power to indicate
provisional measures are met, the Court may indicate provisional mea-
sures; as soon as those are issued and as long as they are binding, the
Court has the inherent power to assess compliance with them, which also
entails the power to interpret them if need be 51.
Therefore, the power of the Court to assess compliance with provisional
measures does not depend on whether preliminary objections are
successfully raised or not. The circumstance that the case does or does
not proceed to the merits only affects the moment when such assessment
is best made, not whether it can be the object of a decision by the Court.
If the assessment of compliance with provisional measures could only be
made when and if the case proceeds to the merits, the binding character
of obligations under an order indicating provisional measures would
actually depend on the jurisdiction of the Court to entertain the merits of
the case. This is however not the case: the binding character of provisional
measures rests solely on the authority of the Court under Article
41 of the Statute 52. The absence of jurisdiction on the merits cannot
50 See PALCHETTI, op. cit., p. 12 and references; also KOLB, op. cit.; OELLERS-FRAHM,
ZIMMERMANN, op. cit., p. 1191.
51 D’ARGENT, Juge ou policier?, cit., p. 160.
52 See supra, note 5.
ARTICOLI
PIERRE D ’ARGENT
130
143
mean that the provisional measures would be retrospectively not binding
from the day they were indicated. Indeed, as recalled above, the absence
of jurisdiction to entertain the merits of the case only brings to an end the
binding character of the order on provisional measures for the future,
without prejudice to the past 53. Non-compliance with provisional mea-
sures entails responsibility “even if ex post facto the Court finds that it
lacks subject-matter jurisdiction” 54.
Pursuant to Article 79-bis, paragraph 3, of the Rules, the effect of
raising preliminary objections is only to suspend the proceedings on the
merits. It does not affect the nature or force of the substantive obligations
in the case, or of the obligations under the order indicating provisional
measures. The raising of preliminary objections has also no effect on the
power of the Court under Article 41 of the Statute: provisional measures
may be requested after the filing of preliminary objections while the
Court may continue monitoring compliance with existing provisional
measures pending the suspension of the proceedings on the merits and
throughout the preliminary objection phase. Therefore, preliminary ob-
jections cannot deprive the beneficiary of provisional measures from
requesting the Court to assess compliance with them. The power of the
Court under Article 41 remains unaffected and can be exercised at all
stages of the proceedings. If the case proceeds to the merits, the Court
will exercise at that procedural stage its power under Article 41 to assess
compliance with its order indicating provisional measures; if the case
does not proceed to the merits, nothing prevents the very same power
from being exercised at the preliminary objections stage.
The case-law suggests that the Court abstains from exercising its
power under Article 41 to assess compliance with provisional measures in
the absence of a party’s specific request 55: here again, the power to
adjudicate is subordinated to the existence of a dispute, or at least of a
claim. Non ultra petita is the Court’s elegant straight jacket and it is
revealing that judgments have always carefully recorded the existence or
53 See supra, note 23.
54 OELLERS-FRAHM, ZIMMERMANN, op. cit., p. 1191 with references.
55 International Court of Justice, Judgment of 19 December 2005 in the Case Concerning
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
cit., para. 265, p. 259; International Court of Justice, Judgment of 16 December 2015 in the case
concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), cit., p. 712, para. 122.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
131
144
the absence of a specific request for a finding in that regard by a party 56.
Because provisional measures aim at protecting, on the one hand, the
rights that form the subject-matter of the dispute and, on the other hand,
the authority of the Court in settling the dispute about those rights, it is
only if the latter is jeopardized or rendered moot by non-compliance with
the provisional obligations that a proprio motu determination of their
breach would be institutionally justified. However, such could never be
the case in the setting here explored, i.e. a situation where the Court
upholds preliminary objections and is thus deprived of any authority in
settling the dispute on the merits.
If the Court is seized of a request to assess compliance with provisional
measures at the preliminary objection phase, its power to do so under
Article 41 exists, so long as the measures are binding. As recalled earlier,
a finding of no jurisdiction brings to an end the binding character of pro-
visional measures 57. Therefore, nothing prevents the Court, in its reason-
ing and in the operative part of its judgment, from finding breaches of
provisional measures prior to upholding preliminary objections.
So far, the decisions of the Court on alleged violations of provisional
measures took the form of declarations to that effect in the operative part
of judgments on the merits 58. In the Bosnia v. Serbia case, the Court
declined to entertain a “symbolic compensation” request for the reason
that “the question of compensation for the injury caused to the Applicant
by the Respondent’s breach of aspects of the Orders indicating provisional
measures merges with the question of compensation for the injury
suffered from the violation of the corresponding obligations under the
Genocide Convention” 59. It goes indeed without saying that no double
56 See the difference noted by the Court between Costa Rica and Nicaragua in Interna-
tional Court of Justice, Judgment of 19 December 2005 in the Case Concerning Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), cit., p. 712,
para. 121 f.
57 See supra, note 24.
58 See International Court of Justice, Judgment of 27 June 2001 in the LaGrand Case
(Germany v. United States of America), cit., p. 516, para. 128 (5); International Court of Justice,
Judgment of 19 December 2005 in the Case Concerning Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), cit., p. 281, para. 345(7); International
Court of Justice, Judgment of 19 January 2009 on the Request for Interpretation of the
Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America), cit., p. 21, para. 61(2).
59 International Court of Justice, Judgment of 26 February 2007 in the Case Concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia Herzegovina v. Serbia), cit., p. 231, para. 458.
ARTICOLI
PIERRE D ’ARGENT
132
145
recovery should be awarded for the same injury resulting from a conduct
that simultaneously breaches the substantive obligations and the provisional
obligations. This being said, this finding appears to suggest that no
reason of principle stands in the way of awarding reparation for the
injury resulting from the violation of provisional measures, in addition to
a declaration of breach 60. A distinct claim of reparation could notably be
justified if the provisional obligations are stricter than the substantive
obligations protected. If that is the case, it seems here again unjustified
to distinguish between a situation where the case proceeds to the merits
and where preliminary objections are upheld. This is because neither the
entitlement to reparation as a result of the breach of provisional obligations,
nor the power to award reparation for such a breach, depends on
the jurisdiction of the Court to entertain the merits of the case. The
power of the Court to indicate provisional measures and to assess their
breaches being based on Article 41, consent to the Statute entails consent
to such power 61.
5. Procedural issues. — The power of the Court under Article 41 to
assess compliance with provisional obligations, while immediately there-
after upholding preliminary objections, should only be exercised with
due respect for the adversarial principle. Even if the Court were to have
the power to assess compliance proprio motu, it should not do so at any
stage of the proceedings without hearing the arguments of the parties.
However, as they stand, the Rules specifically direct the parties to confine
their pleadings with respect to preliminary questions or objections “to
60 In a previous paper, I wrote in a footnote that “la compétence de la cour pour
connaître de violations d’ordonnances en indication de mesures conservatoires au titre de
l’article 60 du statut paraît devoir être limitée à la possibilité de constater d’éventuelles
violations, sans qu’elle puisse englober un contentieux de réparation à proprement parler”
(D’ARGENT, Juge ou policier?, op. cit., p. 160, note 74). However, there seems no reason to
generalize such consideration beyond the interpretative title of jurisdiction on the basis of
which the Court was specifically seized in the Avena case that was incidentally commented in
that paper.
61 Another matter of responsibility may arise in the context of provisional measures. It
is when the party to which the measures are addressed complies with them — instead of
breaching them —, that such compliance entails significant public expenditures but that the
Court later upholds preliminary objections. As indicated by THIRLWAY, The International Court
of Justice, cit., p. 164 f., this issue nearly arose in the Passage through the Great Belt case. It is
also discussed by Judge Greenwood in its Dissenting opinion under the Order of 3 March 2014
in the case concerning Questions relating to the Seizure and Detention of Certain Documents
and Data (Timor-Leste v. Australia), cit., p. 197, para. 7.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
133
146
those matters that are relevant to [them]” 62. The Rules also confine the
judgment on preliminary objections to the three well-known possibilities
of upholding, rejecting or declaring that “in the circumstances of the
case, a question or objection does not possess an exclusively preliminary
character” 63. The Court has underscored that, because the incidental
proceedings on preliminary objections are opened by respondent’s filing
of such objections, claimant “could not present any submission other
than those concerning the merit of the objections and how the Court
should deal with them” 64.
However, it is entirely possible for the applicant to include in its
memorial a claim relating to the violation of provisional obligations. As
indicated earlier, the raising of preliminary objections cannot have the
effect of erasing any responsibility in that regard, if it exists, nor of
depriving the Court of its power under Article 41. If claimant’s memorial
alleges that the provisional measures indicated in the case are violated,
respondent should be invited to rebut such claim with its preliminary
objections. If the Rules are amended in order to provide for such
possibility, they should also make clear that, even in such a case and for
the sake of equality of arms, claimant’s written observations should only
address issues of jurisdiction or admissibility. Whether the Rules should
provide for the possibility of a second round of written pleadings limited
to the issue of compliance with provisional measures is an open
question.
If the memorial does not claim breaches of provisional measures, the
automatic suspension of the merits resulting from the filing of prelimi-
nary objections implies that “no modification of the case may be made by
either party — no amendment of the claim itself and no counter-claim at
that stage are examples” 65. However, if breaches of provisional measures
occur after the filing of preliminary objections but before claimant
responds to the preliminary objections, it should be authorized to include
such claim in its written statement filed pursuant to Article 79-bis of the
Rules. In that case, equality of arms again commands that respondent be
62 Article 79-ter, paragraph 1, Rules.
63 Article 79-ter, paragraph 4, Rules; see above.
64 International Court of Justice, Judgment of 30 November 2010 in the Case Concerning
Ahmadou Siado Diallo (Guinea v. Democratic Republic of the Congo), cit., p. 654, para. 31.
65 ROSENNE, The Law and Practice of the International Court, 1920-2005, vol. II Jurisdiction,
chapter 13, para. II.232, Leiden, 2006, p. 890, reproduced also in the 5th revised edition
by SHAW (2016).
ARTICOLI
PIERRE D ’ARGENT
134
147
authorized to rebut by filing observations specifically limited to that
issue.
If violations of provisional measures occur for the first time after the
filing of claimant’s written observations on preliminary objections, the
Rules should likewise provide for specific procedural ways allowing for
the filing of a claim and a response before the Court decides to uphold
any objection.
These procedural adjustments may seem more complex than they
actually are. In the absence of any amendment to the Rules, the Court
may nevertheless face in the future a situation where claimant’s final
submissions on preliminary objections include in the alternative a specific
claim concerning the violation of provisional measures. If the memorial
had articulated such claim, and that had been repeated in the written
observations and during the oral proceedings, it would be a very legitimate
alternative claim, even if respondent never addressed it substan-
tively 66. If the Court upholds any of the preliminary objections, it should
nevertheless address first such claim in its judgment. In the absence of a
meaningful debate between the parties about it, it should then apply
Article 53 of its Statute in that regard.
6. Conclusion. — Ever since the LaGrand case affirmed the binding
character of provisional measures, commentators have expressed the fear
that the Court would either refrain from indicating significant provisional
measures or prejudge the merits of the case by such measures. The risk
of seeing cases brought to the Court solely for the purpose of striking
early political gains through provisional measures has also been identi-
fied. Every case being different, it is difficult to conclude that any of those
pitfalls materialized. The additional requirement that the rights whose
protection is sought must be at least plausible appears to be a useful
safeguard in that regard 67, even if it somehow brings provisional mea-
sures orders closer to interim judgments 68.
66 In the case concerning the Application of the International Convention on the Elimi-
nation of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Qatar alleged in
its Memorial and Written Observations that the United Arab Emirates had failed to comply
with the Order of 23 July 2018.
67 International Court of Justice, Order of 28 May 2009 on Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, I.C.J. Reports,
2009, p. 151, para. 57; International Court of Justice, Order of 8 March 2011 on Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
135
148
As such, this slow but unaccomplished transformation would be
unproblematic if preliminary objections were not hanging over the
dispute and the Court’s authority as a Damocles sword. The “fundamen-
tal procedural right” 69 to contest the Court’s jurisdiction over the merits
of the case and so trigger its duty not to prejudge them in any way should
however not affect the Court’s inherent statutory powers.
If the Court finds that the conditions for the indication of provisional
measures are met, including prima facie jurisdiction, and exercises its
power under Article 41, it must be deemed to have also the inherent
power to adjudicate on alleged breaches of the new provisional obligations
so created, so long as the finding of prima facie jurisdiction is not
reversed by a finding upholding preliminary objections. Consent in that
regard ultimately rests on consent to the Statute. While the function of
the Court is to settle disputes, it would be paradoxical that it be deprived
of the power to adjudicate upon the violation of obligations it has itself
created — thereby adding to the dispute grievances resulting from its
own intervention — for the reason that it finally decides not to address
the merits of the case. It would also be quite paradoxical that the hope
of prevailing on preliminary objections could lead the respondent to
disregard the provisional measures it is bound to respect.
The rather exceptional procedural setting explored in this paper
investigates the nature of issues that the Court is entitled to decide upon
in a judgment, which upholds preliminary objections. The paper has
argued that those issues are not necessarily limited to matters of
jurisdiction and admissibility and that the Court may exercise its
inherent power to assess breaches of provisional obligations at the
preliminary objection stage if the case does not proceed any further and
immediately prior to deciding so. To that extent, compétence de la
compétence also means compétence des compétences, in the sense that
the Court may exercise at that stage all its inherent competences in
order to address the parties’ submissions as long as they do not concern
the merits of the case as such. Compliance with the autonomous
Measures, I.C.J. Reports, 2011, p. 18, para. 53. The plausibility of rights requirement was first
introduced by judge Abraham in his separate opinion in International Court of Justice, Order
of 13 July 2006, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures,
I.C.J. Reports, 2006, p. 137.
68 See HERNÁNDEZ, The International Court of Justice and the Judicial Function, Oxford,
2014, p. 58.
69 See supra, nota 28.
ARTICOLI
PIERRE D ’ARGENT
136
149
obligations created by an order indicating provisional measures is not a
merits issue; it rather belongs to the very administration of justice when
a litigant seeks and obtains protection from the Court. It is not because
justice cannot be done on the merits, that it should not be delivered
provisionally in full.
ARTICOLI
PRELIMINARY OBJECTIONS AND PROVISIONAL MEASURES
137
150
Annex 14 UNIAN, Russian-Speaking Ukrainians Suffered the Most from the Actions of Russia – Poroshenko (11 October 2014) This document has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. 151
152
Russian-Speaking Ukrainians Suffered the Most from the Actions of Russia
- Poroshenko
15:39, 11.10.14
Reuters
As the UNIAN correspondent reports, this was emphasized by the President of Ukraine, Petro
Poroshenko, during a meeting with the Kharkiv Oblast activist, commenting on the decision
of the investigative bodies of the Russian Federation to open a criminal case against the
military leadership of Ukraine for the alleged genocide of the Russian-speaking population of
Donbas.
“I am sure that the blow to the Russian speakers was inflicted by the northern neighbor.
That's where the war came from,” Poroshenko said.
He emphasized that after the invasion by Russia, the Russian-speaking population of Donbas
lost their jobs, some citizens of Ukraine became refugees, and industrial enterprises were
destroyed.
153
“Their ( Russian leadership - UNIAN ) opinion that the restoration of the empire requires
sacrifices even justifies their actions,” Poroshenko said and emphasized that the main task of
the Ukrainian government is to restore order and peace in Donbas.
In the east of Ukraine, a bloody conflict started by Russian-backed militants has been going
on for six months. According to the UN, 3,660 people died in Donbas during the conflict, and
8,756 were injured.
Despite the declared truce, militants continue shelling the ATO forces and residential areas.
At least 55 people died in Donbas during the last week alone.
154
Annex 15 VGOLOS, It Was Russia Who Dealt a Blow to the Russian-Speaking Population – Poroshenko (11 October 2014) This document has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. 155
156
It Was Russia Who Dealt a Blow to the Russian-Speaking Population -
Poroshenko
11 October 2014 / 17:11 / Editorial office
President of Ukraine Petro Poroshenko emphasized this during a meeting with activists of
Kharkiv region, commenting on the decision of investigative bodies of the Russian
Federation to open a criminal case against the military leadership of Ukraine for the alleged
genocide of the Russian-speaking population of Donbas, reports UNIAN.
“I am sure that the blow to the Russian-speaking people was inflicted by the northern
neighbor. That’s where the war came from,” Poroshenko said.
He emphasized that after the invasion by Russia, the Russian-speaking population of Donbas
lost their jobs, some citizens of Ukraine became refugees, and industrial enterprises were
destroyed.
“Their opinion that the restoration of the empire requires sacrifices even justifies their
actions,” Poroshenko said and emphasized that the main task of the Ukrainian authorities is to
restore order and peace in Donbas.
In the east of Ukraine, a bloody conflict started by Russian-backed militants has been going
on for six months. According to UN data, 3,660 people died in Donbas during the conflict,
and 8,756 were wounded. Despite the declared ceasefire, militants continue shelling the ATO
forces and residential areas. At least 55 people were killed in Donbas during the last week
alone.
IA “Vgolos”: NEWS
157
158
Annex 16 Korrespondent.net, Poroshenko’s Officials Accused the Russian Federation of Preparing Provocations (12 November 2015) This document has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. 159
160
Poroshenko’s Officials Accused the Russian Federation of
Preparing Provocations
Korrespondent.net, 12 November 2015, 1:16 p.m
Photo: Getty Images
The Kremlin is preparing a provocation against Ukraine in order to withdraw from the Minsk process, the
Presidential Administration said
Russia is preparing documents about the killing of 500 people by the military to
appeal to the Hague Court against Ukraine, Lysenko said.
The leadership of Russia is preparing a provocation with the aim of filing a lawsuit against
Ukraine at the Hague Court, said Andriy Lysenko, the speaker of the Presidential
Administration on the issues of anti-terrorist operations.
“In order to divert attention from the tragic events in Syria, where cases of civilian deaths
caused by the actions of the Russian army have been already recorded, the leadership of the
Russian Federation is preparing a provocation of an international scale against Ukraine. Its
purpose is to discredit the Ukrainian leadership, to obtain grounds for applying to the
International Criminal Court in The Hague with a lawsuit against Ukraine, as well as to
create grounds for Russia's withdrawal from the Minsk process,” he said.
According to him, currently pseudo-evidence of the so-called “genocide of the Russianspeaking
population of Donbas by Ukraine” is being fabricated.
In particular, documentary materials are being produced about the alleged destruction by the
Ukrainian military of about 400 houses and 500 people (including women, children and the
elderly) in the village of Sokilnyky in the Slavyanoserbskyi district of the Luhansk region,
which is currently located in the temporarily occupied territory near the demarcation line.
161
Employees of the Federal Security Service, the Main Intelligence Directorate of the General
Staff of the Armed Forces of the Russian Federation, the Investigative Committee of Russia,
as well as representatives of the LPR enforcement are involved in this work.
“The real facts of the destruction in the village of Sokilnyky and the deaths of its residents
who suffered at the hands of separatists and Russian troops during hostilities in late 2014 -
early 2015 are used,” Lysenko said.
“On the basis of these facts, information and propaganda materials for the mass media and
lawsuits are already being prepared. In order to incite an atmosphere of hysteria and hatred, it
is planned to draw historical parallels with the tragic events in Khatyna during the Second
World War and the Yugoslav wars of the 1990s,” - says the message of the speaker of the
ATO.
Psychological brainwashing of the local population is also being carried out in an effort to
persuade them to provide the “testimony” necessary for Russia.
As reported by Korespondent.net, Ukrainian military personnel were fired at from mortars in
the Luhansk region near the border village of Bolotene in the Stanychno-Luhansk district.
162
Annex 17 Tatiana Tkachenko, Russia is Going to Accuse Ukraine of “Genocide” of the Russian-Speaking Population in The Hague – Presidential Administration’s Speaker, ZU.UA (12 November 2015) This document has been translated from its original language into English, an official language of the Court, pursuant to Rules of the Court, Article 51. 163
164
Russia is Going to Accuse Ukraine of “Genocide” of the Russian-Speaking Population in The Hague – Presidential Administration’s Speaker 12 November 2015, 13:18 The law enforcement of the Russian Federation is involved in the fabrication of data on the alleged destruction by the Ukrainian military of about 400 houses and 500 people in the village of Sokilnyky. The Russian Federation is preparing a provocation in order to appeal to the Hague Court against Ukraine © Chetvertaya vlast The leadership of the Russian Federation is preparing a provocation of an international scale against Ukraine with the aim of appealing to the Hague Court, said Andriy Lysenko, the Speaker of the Presidential Administration on the issues of anti-terrorist operations. “In order to divert attention from the tragic events in Syria, where cases of civilian deaths caused by the actions of the Russian army have been already recorded, the leadership of the Russian Federation is preparing a provocation of an international scale against Ukraine. Its purpose is to discredit the Ukrainian leadership, to obtain grounds for applying to the International Criminal Court in The Hague with a lawsuit against Ukraine, as well as to create grounds for Russia's withdrawal from the Minsk process,” he said.
165
According to Lysenko, the Russian side is fabricating data about Ukraine's alleged genocide
of the Russian-speaking population in Donbas. In particular, the Russian Federation is
preparing to submit “documentary materials” to The Hague about the alleged destruction by
the Ukrainian military of about 400 houses and 500 people, in particular women, children and
the elderly in the village of Sokilnyky of Luhansk region.
At the same time, the speaker of the ATO noted that the Federal Security Service, the Main
Intelligence Directorate of the General Staff of the Armed Forces of the Russian Federation,
the Investigative Committee of Russia, and representatives of the so-called “LPR”
enforcement are involved in the fabrication of data. “Propagandists are using the real facts of
the destruction of the village of Sokilnyky and the deaths of its residents, who suffered at the
hands of militants and Russian troops during hostilities in late 2014 - early 2015. These facts
will be presented as an alleged investigation,” Lysenko added.
Lately the militants are carrying out armed provocations against Ukrainian forces more
frequently. As a result, the Ukrainian side of the Joint Center for Control and Coordination
announced about the risk of disruption of the withdrawal of weapons due to the actions of
militants.
Earlier the President of Ukraine, Petro Poroshenko, said that the Armed Forces of Ukraine
will open targeted fire in the ATO zone. The President also informed that the Ukrainian
authorities are holding consultations with European countries and transatlantic partners
regarding the continuation of pressure at the aggressor country though sanctions.
BASED ON MATERIALS OF INTERFAX-UKRAINE
Prepared by: Tatiana Tkachenko
166
Volume of Annexes