Vol. 15 No.6 (June 2005), pp.485-490
PROVISIONAL MEASURES IN INTERNATIONAL LAW: THE INTERNATIONAL COURT OF JUSTICE AND THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, by Shabtai Rosenne. Oxford: Oxford University Press, 2005. 262pp. Hardcover. $125.00/£60.00. ISBN: 0-19-926806-1.
Reviewed by Christopher C. Joyner, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. Email: firstname.lastname@example.org .
While the demise of the Cold War brought about an end to world communism and lessened bipolar nuclear tensions and superpower rivalries, it also ushered in new hopes that an increasingly complicated globalizing society might be more adequately governed by international institutions and legal rules. Although much still needs to be accomplished in the way of fixing legal remedies for world problems, an encouraging trend since 1990 can be seen in the upsurge of new international tribunals in operation for attaining criminal justice and resolving international disputes. International criminal law for adjudicating the behavior of individuals has become firmly rooted in the creation of the International Tribunal for the Former Yugoslavia (1993), the International Tribunal for Rwanda (1994), and the International Criminal Court (1998), all of which remain active. No less important is the realization that governments have sought to create legal institutions to resolve disputes with other governments. The International Tribunal for the Law of the Sea (ITLOS) became active in 1996 to deal with matters affecting ocean space, and the sixty-year old International Court of Justice (ICJ) has taken on renewed import. In May 2005 two cases are being heard, and there are more cases than ever before (twelve) on the ICJ docket.
In this atmosphere of proliferating international legal rules and jurisprudence, Shabtai Rosenne, the former ambassador of Israel to the United Nations, undertakes a critical examination of one apparently small facet of the international legal nexus—the role of provisional measures of protection in international law. These measures, which are tantamount to a court’s interim injunction, are designed to protect the rights of parties pending settlement of a dispute. Yet, since these measures were first introduced as facets of international law in arbitration agreements at the turn of the century, the binding quality of such orders has been uncertain. Requests for provisional measures—that is, interim measures for protection—hinge on a central question that Rosenne poses at the outset: Do these orders convey any legally binding obligations for compliance by parties to whom they are addressed? The bulk of this slim volume focuses on that question, as Rosenne examines the law, practice and procedures of the International Court of Justice and the International Tribunal for the Law of the Sea.
To introduce the study, Rosenne examines the concept of provisional measures as protective instruments within the context of contemporary international jurisprudence. Special [*486] attention is given to provisional measures as instruments contributing to the settlement of international disputes. As Rosenne is quick to point out, the need for provisional measures becomes greatest in the areas of prevention of use of force taken in violation of UN Charter principles or aggravating disputes that present threats to human life. Regrettably, it is in these same areas that provisional measures are most difficult to apply and enforce.
The volume is divided into two main sections. The first part covers the origins of provisional measures as contained in the texts of various international instruments. Rosenne recounts the early modern history of governments’ resort to arbitration procedures and how these efforts directly influenced the evolution of provisional measures as international legal instruments. The author carefully recounts this history, as focus falls on the Hague Conferences of 1899 and 1907, the experience of the Central American Court of Justice (1907-1917), as well as efforts by US Secretary of State William Jennings Bryan to negotiate treaties containing commissions of inquiry (1913-1915), and the jurisprudence of the Permanent Court of International Justice (PCIJ) (1920-1940). Most appropriately, Rosenne pays closest attention to the binding force of provisional measures under various decisions rendered by the International Court of Justice (1947-2004), as well as the newest multilateral court, the International Tribunal for the Law of the Sea (1998-2004).
Rosenne critically reviews relevant “rules” for and subsequent amendments to the Statutes authorizing both the PCIJ and the ICJ. As Rosenne reminds us, these rules not only set out the functions of these tribunals, they also frame the experience for ordering provisional measures. Particularly for the ICJ, the law and practice affecting provisional measures is left to the juridical experience of the court.
The rules and their subsequent revisions determine the changing authority and scope of jurisdiction of these courts. This reader remains intrigued to learn what events or internal conditions throughout the juridical life of these tribunals prompted the decision that rule changes were necessary. What precisely prompted the PCIJ to revise its rules in 1926, 1927, 1931, and 1936? The ICJ adopted its rules in 1946, but later amended them in 1972, with further revisions coming in 1978. Why? Unfortunately, as Rosenne points out, no records of either court’s deliberations on these matters are publicly available. Finally, the ITLOS amended its rules in 1997. In this regard, the analysis by Rosenne of the rules of the ICJ focus on Articles 73-78, revised in 1978, which concern application of provisional measures. He presents a detailed examination of each proviso as it affects cases relevant to provisional measures. The purpose is to demonstrate the use of provisional measures by the ICJ and the LOS tribunal in case deliberations. Interestingly enough, the ICJ first imposed provisional measures in 1951 in the case between Iran and the Anglo-Iranian Oil Company; for the ITLOS, in its first and second cases—which concerned the vessel M.V. Saiga and involved St Vincent and the Grenadines and Guinea—resort to provisional measures was taken.
The second part of Rosenne’s study [*487] deals with jurisdictional implications and procedural ramifications stemming from application of provisional measures. With regard to the ICJ, two general propositions suggest that court’s competence to apply a provisional measure. The first arises in a situation where a question exists over whether a preliminary objection can be raised, e.g., in the 1957 Inerhandel (Interim Measures of Protection) case involving the United States and Switzerland; the second occurs when the court withholds a grant of provisional measures when it considers that damage respective to the claims made is not irreparable, such as in the 1976 Aegean Sea Continental Shelf (Interim Protection) case involving Greece and Turkey.
Respective to the Law of the Sea Tribunal, the heart of Rosenne’s analysis falls on Article 290 of the 1982 UN Convention on the Law of the Sea, which pertains to compulsory settlement of international disputes. Key here is consideration given to freedom of choice among procedures, namely resort to the ICJ, the ITLOS, or a special arbitral tribunal. Rosenne traces the legislative history of Article 290, drawing heavily upon the Commentary on the Convention prepared by the University of Virginia’s Center for the Law of the Sea. Article 290 empowers the court to prescribe provisional measures, and it deservedly receives close scrutiny.
For both the ICJ and the ITLOS, the scope of jurisdiction to indicate provisional measures rests on the court’s jurisdiction to determine a case brought before it. When an application is made, a fundamental question must be unequivocally answered: Does jurisdiction properly attach to an “unwilling respondent”? If so, jurisdiction applies. Likewise, the legal possibility is raised of ordering provisional measures as facets of a deliberative case solution. If jurisdiction does not apply, then the question of provisional measures is rendered moot.
A welcome inclusion to the textual analysis is an appendix listing those international court cases relevant to provisional measures. While it is interesting to note that six cases occurred under the PCIJ (out of a total of sixty-six cases decided between 1920 and 1942), the ICJ took twenty-nine similar decisions (out of eighty-nine judgments and twenty-five Advisory Opinions taken between 1946 and 2004). Since being activated in 1996, the ITLOS decided four cases involving provisional measures (out of a total of thirteen cases submitted).
There is a certain strength that permeates Rosenne’s analysis. His examination is earmarked more by pragmatic renderings than theoretical conjecture. His intent is to assess the role of international courts in proffering provisional measures, the jurisdictional implications, and how they impact upon case outcomes. To this end, an important consideration becomes whether the ICJ retains jurisdiction over the merits of a claim, sufficiently so that it can establish a basis for action under the ICJ Statute. Accordingly, much of the analysis involves intricate assessment of these courts’ rulings.
Rosenne is clearly cognizant of the fact that words are critical in explaining juridical findings. Indeed, to underscore this point and to substantiate his findings, Rosenne reviews each case that eventuates in orders for provisional [*488] measures heard by the PCIJ, the ICJ, and the ITLOS. The result is a highly articulate analytical assessment, bolstered by more than 120 relevant quotations of authoritative paragraphs extracted from the provisions of these tribunals’ statutes and their decisions over the past eighty-five years. What makes this analysis even more valuable is Rosenne’s discussion of these courts’ use of various terms and phrases, the bases for this usage, and the legal implications arising from how the findings are expressed. This point is simply this: Rosenne makes plain that words are critical in judicial proceedings, perhaps no more so than in the determination of how and why certain decisions are arrived at. In these cases, the object of analysis is the nature of provisional measures orders by a tribunal and the legal and political implications that they carry. The phraseology of paragraphs in a decision provides implicit as well as explicit clues to factors motivating a court’s findings. In this regard, Rosenne unveils the obvious, though often overlooked, important consideration of how and why a tribunal articulates its orders.
The taxonomy of analysis mirrors the chronology of these tribunals’ changes in their rules. One particularly interesting chapter deals with “urgency,” which clearly suggests the need for immediate action. In the ICJ and the ITLOS, “urgency” may take the form of a procedural matter, such as calling the tribunal into session. “Urgency” may also suggest a matter of substance, therefore justifying the need for procedural measures to be adopted by a party to the dispute. Judicial examples of this situation for the ICJ would include the 1973 Nuclear Test Cases (Interim Protection) involving Australia, New Zealand and France; the 1973 Trials of Pakistani POWs (Interim Protection) case involving Pakistan and India; the 1984 case on Military and Paramilitary Activities in and against Nicaragua, involving Nicaragua and the United States; the 2000 case on Armed Activities on the Territory of the Congo between Congo and Uganda; the 1991 Passage though the Green Belt case between Finland and Denmark; and the 2003 Certain Criminal Proceedings Case in France, which involved Congo and France. For the ITLOS, “urgency” is mentioned only specifically in Article 290 of the LOS Convention, and in rules 89-95 of the ITLOS’ Rules of the Tribunal. Two “urgency” cases stand out in the ocean tribunal’s experience: the 1999 Southern Blue Fin Tuna Cases (Provisional Measures) involving Australia, New Zealand and Japan; and the 2003 case on Land Reclamation by Singapore in and around the Straits of Johor, involving Malaysia and Singapore. Rosenne critically examines the case decisions by these tribunals and the international legal implications imposed on them by the factor of “urgency.”
Also interesting was the treatment of the proceedings of tribunals with insights into the how they operate. The respective roles of judges, the president of the court, and the requirement of reporting on compliance are particularly intriguing, as is the occasion when the ICJ issues provisional measures and then transmits its order to the Security Council, albeit not necessarily for any designated Council action (such as in the 1979 case involving US Diplomatic and Consular Staff in Teheran between the United States and Iran). Finally, near the [*489] end of the volume, a brief chapter discusses the duration, entry into force, timing and termination of provisional measures.
There is little question that this discussion is interesting and thought-provoking. Even so, a word of caution is in order. This volume is not intended for the casual reader of international legal materials or the neophyte law student. Rather, it presents a sophisticated examination of concepts and cases, supported by heavily documented scholarship relying on primary sources. At times the text is tediously researched, which requires a careful, deliberate read. The result is a thoughtful legal analysis of relevant case law and juridical decisions relevant to the use of provisional measures by international courts and tribunals. The text contains numerous examples drawn from the case law of these courts that illustrate noteworthy points of jurisprudence. Much is drawn from the ICJ’s experience over the past fifty years, but considerable emphasis is attributed also to the PCIJ (especially the 1932 Status of Eastern Greenland case between Denmark and Norway) and the ITLOS. Indeed, the work will be most appreciated by scholars or specialists researching these international tribunals.
All this brings us back to the initial poser that Rosenne sets up for evaluation: Are provisional measures legally binding? In 2001 the ICJ settled this controversy by ruling that such orders were indeed binding obligations (p.42). Moreover, that court held that non-compliance by a party could amount to a breach of state responsibility and provoke cause for action by the court. Rosenne’s analysis suggests that these measures not only substantially benefit international legal order, but also that they may be counted among the ICJ most successful contributions towards the settlement of international disputes. In this regard, Rosenne’s study provides a genuine contribution to the international law literature as it reveals insights into the functions and thinking of these tribunals in reaching decisions of lasting international legal import.
Permanent Court of International Justice:
Legal Status of South-Eastern Territory of Greenland (DENMARK v. NORWAY), A/B, 277. Application filed on 18 July 1932, Norway’s application including request, hearings on 28 July 1932, Order made on 3 August 1932.
International Court of Justice:
Anglo-Iranian Oil Co. (U.K. v. IRAN), ICJ Rep. 1951, 89. Application filed on 26 May 1951, request filed on 22 June 1951. hearings on 30 June 1951, Order made on 5 July 1951.
Interhanndel (SWITZERLAND v. U.S.A.), ICJ Rep. 1957, 105. Application filed on 2 October 1957, request filed on 3 October 1957, hearings on 12-14 October 1957, Order made 24 October 1957.
Nuclear Tests (AUSTRALIA v. FRANCE), ICJ Rep. 1973; Nuclear Tests (New Zealand v. France), ICJ Rep. 1973. Paired cases. Applications and requests filed on 9 May 1973, hearings on 21-25 May 1973, Orders made on 22 June 1973. [*490]
Trial of Pakistani Prisoners of War (PAKISTAN v. INDIA), ICJ Rep. 1973, 328. Application and request filed on 11 May 1973, hearings on 4, 5, and 26 June 1973, Order made on 13 July 1973.
Aegean Sea Continental Shelf (GREECE v. TURKEY), ICJ Rep. 1976, 3. Application and request filed on 10 August 1976, hearings on 25-27 August 1976, Order made on 11 September 1976.
U.S. Diplomatic and Consular Staff in Tehran (U.S.A. v. IRAN), ICJ Rep. 1979, 7. Application and request filed on 29 November 1979, hearings on 10 December 1979, Order made on 15 December 1979.
Military and Paramilitary Activities in and against Nicaragua (NICARAGUA v. U.S.A.), ICJ Rep. 1984, 169. Application and request filed on 9 April 1984, hearings on 25-27 April 1984, Order made on 10 May 1984.
Passage through the Green Belt (FINLAND v. DENMARK), ICJ Rep. 1991, 12. Application filed on 17 May 1991, request filed on 23 May 1991, hearings on 1-5 July 1991, Order made on 29 July 1991.
Armed Activities on the Territory of the Congo (CONGO v. UGANDA), ICJ Rep. 2000, 111. Application and request filed on 23 June 2000, hearings on 26-28 June 2000, Order made on 1 July 2000.
Certain Criminal Proceedings in France (CONGO v. FRANCE), ICJ Rep. 2003, 102. Application and request filed on 9 December 2002, case entered on General List on 11 April 2003, hearings on 28-29 April 2003, Order made on 17 June 2003.
International Tribunal for the Law of the Sea:
The M.V. Saiga No. 2 Case (ST VINCENT AND THE GRENADINES v. GUINEA), ITLOS Rep. 1998, 24. Notification under Annex VII made on 22 December 1997, request to ITLOS filed on 13 January 1998, case transferred to ITLOS on 20 February 1998, hearings on 23-24 February 1998, Order made on 11 March 1998.
Southern Bluefin Tuna Case (AUSTRALIA and NEW ZEALAND v. JAPAN), ITLOS Rep.1999, 280. Joined case. Notifications under Annex VII made on 15 July 1999, requests to ITLOS filed on 30 June 1999, hearings on 18-20 August 1999, Order made on 27 August 1999.
Land Reclamation by Singapore in and around the Strait of Johor (MALAYSIA v. SINGAPORE), 8 October 2003. Notification under Annex VII made on 4 July 2003, request to ITLOS filed on 5 September 2003, hearings on 25-27 September 2003, Order made on 8 October 2003.
© Copyright 2005 by the author, Christopher C. Joyner.