Monitoring provisional measures at the International Court of Justice: the recent amendment to the Internal Judicial Practice

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On 21 December 2020, the International Court of Justice (ICJ) announced the adoption of a new Article 11 of its Internal Judicial Practice. The new text provides for the creation of an ad hoc committee where the Court orders provisional measures, with three judges, to assist the monitoring of their implementation. The ad hoc committee is meant to examine the information submitted by the parties, report to the Court, make recommendations, and the Court shall decide on the subsequent actions. This post explores potential implications of such modification in current and future cases, especially in The Gambia v. Myanmar, and on the understanding of the Court’s function.

Monitoring compliance before the amendment

Article 41 of the ICJ Statute allows the Court to indicate provisional measures and should notify them to the Parties and the Security Council. The Court may order such provisional measures at the request of a State (ICJ Rules, art. 76), or propio motu (ICJ Rules, art. 75.1). In LaGrand (merits), the Court confirmed that provisional measures have a mandatory nature and create legal obligations.

The Court may request information to the parties related to the implementation of provisional measures (ICJ Rules, art. 78). Since Diplomatic and Consular Staff in Tehran, the Court held that it would keep under review the matters covered by the provisional measures order, as it did in Jadhav. However, the information that the Court could request under Article 78 did not appear as a monitoring proceeding.

The Court assessed compliance with provisional measures while deciding claims that there was a breach of an obligation derived from such orders. In the judgment in LaGrand, the Court found, at Germany’s request, that the United States failed to take all the steps that it could have taken to give effect to the order, and took note of a commitment to implement the relevant provisions of the Vienna Convention on Consular Relations. In Bosnian Genocide (provisional measures II), upon Bosnia’s request for additional provisional measures, the Court noted that since the initial order, not all that might have been done was done to prevent genocide or the aggravation of the dispute. It concluded that the situation did not require additional measures, and reaffirmed the measures ordered which should have been “immediately and effectively implemented.” In the judgment on the merits, the Court declared that Serbia had failed to comply with the order to take all measures to prevent genocide.

Thus, a gap remained between the mandatory character of the orders and a finding of State responsibility for their breach at the judgment. The ICJ Statute only requires a notification to the Security Council and the Court could eventually find State responsibility for non-compliance. But until now it was not clear if and how the Court could take further measures to monitor or give effect to its provisional measures while the proceedings were ongoing.

Is monitoring compliance with decisions an inherent power of the Court?

The implementation of this mechanism brings back the questions of who can monitor ICJ decisions, and whether the Court has an inherent power to monitor compliance with them. In the preliminary objections in Alleged Violations (Nicaragua v. Colombia) the parties debated whether post-adjudicative enforcement is reserved to the Security Council. Nicaragua argued that the Court had inherent jurisdiction to pronounce on the alleged non-compliance with its judgment and that such jurisdiction was compatible with the Security Council’s enforcement competence. Colombia opposed that view claiming that the Court had no jurisdiction over compliance with a prior judgment, and that an inherent jurisdiction might undermine certain conditions States could attach to their consent. The Court founded its jurisdiction over the dispute on another ground and did not take a position on its inherent powers or its post-adjudicative function.

The debate in Alleged Violations concerned the Court’s post-adjudicative function in assessing compliance with a judgment, here it concerns a monitoring function with a provisional order while the proceedings are ongoing. Article 94 of the UN Charter creates an obligation for member States to comply with ICJ ‘decisions,’ but gives the Security Council the power to make recommendations or take measures to give effect to ‘judgments’. Who can monitor compliance with ‘decisions’ which are not ‘judgments’? How is that function and power allocated between the Court and the Security Council?

The practice of the Court and the Security Council suggests that the Court’s powers concern an adjudicative task. This is, verifying compliance in the merits phase with an obligation derived from a ‘decision’ on provisional measures. However, in Avena (request for interpretation) the Court held that its competence to interpret judgments “necessarily entails incidental jurisdiction” to deal with alleged breaches of orders for provisional measures. The Court did not exercise jurisdiction over the request for interpretation but found responsibility for the breach of the provisional measures ordered before the judgment. Meanwhile, the Security Council has taken note of the Court’s provisional measures in certain cases affecting international peace and security (Bosnian Genocide and Anglo-Iranian Oil). Such actions were based on grounds different than its power to “decide upon measures … to give effect to the judgment”, nor States duties to comply with court ‘decisions’ under Article 94 of the UN Charter.

Is the monitoring of compliance with provisional measures an inherent power of the Court to make sure the orders are adequately followed? The recent changes might suggest that the Court’s powers encompass not only “incidental jurisdiction” to find international state responsibility for not complying with provisional measures, but an inherent power to monitor compliance with them. Could that monitoring function extend to the compliance with other ‘decisions’?

Possible effects on existing provisional measures

The new monitoring proceeding also raises questions on its effects on pending cases. On January 2020, in The Gambia v. Myanmar the Court ordered Myanmar to take actions pursuant to the Genocide Convention and report periodically to the Court (the application and the order were addressed here and here, respectively). The provisional measures, instead of preserving a right or the status quo, seek to prevent the perpetration of international crimes and the disappearance of relevant evidence. That case raises two questions (and possibilities) related to the new mechanism.

The first issue is whether the monitoring procedure will be applied to existing provisional measures. The new Article 11 provides that “where the Court indicates provisional measures, it shall elect three judges to form an ad hoc committee (…),” leaving open whether the appointment of the committee could only take place when indicating future provisional measures. While by now some reports should have been filed by Myanmar, it remains to be seen whether the Court will apply this new procedure to address them and monitor compliance with its 2020 order.

The second issue is whether the creation of such ad hoc committees will introduce an element of publicity to the Court’s monitoring function. While States’ reports in compliance with provisional measures have been ordered, they are not public. Under the ICJ Rules the Court “may, after ascertaining the views of the parties” make pleadings (memorial, counter-memorial, reply and rejoinder) accessible to the public. However, the Rules are silent on the public accessibility of the information the Court may require the parties as to the implementation of provisional measures.

The new text of Article 11 is also silent as to the publicity of States’ reports and the recommendations of the ad hoc committee. If the Court takes action based on States’ reports and the committee’s recommendations, it is likely that such periodic compliance reports be at least briefly summarized in the Court’s new decision. In the The Gambia v. Myanmar, the interest in transparency and public access is enhanced by the erga omnes partes nature of the obligations under the Genocide Convention invoked by The Gambia. Allowing access to the reports, or further orders based on them, might be a first step towards greater transparency and could open a door for the involvement of other international actors interested in compliance with the measures ordered.

What type of recommendations may the ad hoc committee present to the Court?

While the ICJ Rules allow provisional measures propio motu, the Court has never used that power. Such powers have been invoked only in LaGrand, where Germany requested provisional measures and the proceeding was ‘expedited’ given the urgency of the matter, no hearing was held before the order was issued.

In October 2019, the ICJ amended article 76 of the ICJ Rules “to clarify that the Court has the power to revoke or modify procedural measures on its own initiative.” Before, the provision only referred to changes at the request of a party and required “some change in the situation” to justify the revocation or modification. Thus, new Article 11 of the Internal Judicial Practice establishes a mechanism by which the Court may become aware of a change that could justify a recommendation from the ad hoc committee, and a decision of the Court, modifying or revoking the measures ordered.

The question then becomes, what could amount to a “change in the situation” to justify the modification of the Court’s order? In the event that the reports evidence partial or full compliance, a case by case analysis of the facts will guide the specific adjustments to the orders, or evidence that the measures ordered became moot. But could no action taken justify a modification of existing provisional measures?

Conclusion

More questions than answers arise concerning the ICJ’s new mechanism to monitor compliance with provisional measures. Since the 1980s the Court held it would keep under review matters related to provisional measures. However, it is only now that a procedure is created to address States’ reports required by the Court. While the monitoring proceeding is now in place, and the Court has the power to modify the decisions at the request of a party or propio motu, it remains to be seen how these changes will be applied.

Practical questions are to be answered, on whether existing provisional measures will be monitored with the new mechanism, what actions will be recommended and/or taken upon non-compliance. The implementation of such mechanism could bring back, and perhaps answer, some institutional questions on the allocation of the functions to enforce and supervise compliance with ICJ ‘decisions.’

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Comments

Brian McGarry says

January 22, 2021

Thanks for covering this. Agree that the thrust of the amendment is to (efficiently) assist the Court's application of the "change in the situation" criterion when modifying PMs. Somewhat novel given that the Rules didn't codify proprio motu modification til the 2019 amendment you've noted.

You query if the ICJ has an inherent power to monitor compliance with its PM decisions. One could make that argument based on the need to maintain the integrity of proceedings. But regardless, the Court has long asserted this power in both Judgments (Nuclear Tests) and PM Orders (Nicaragua).

Isn't the crux of the concern here whether the new practice infringes party rights? Perhaps not, since this fact-finding measure doesn’t seem to limit the right to be heard. But given the sway the Committee will likely hold within the Court (and the prospect of UNSC enforcement of PM modifications), a party might protest that the Resolution creates a non-consensual 'shadow chamber’.