Third-Party “Provisional Countermeasures”: A Proposal to Give Teeth to Provisional Measures

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Compliance with the International Court of Justice’s provisional measures orders has been low and appears to be decreasing, as underscored by the recent cases of Israel and Syria. So, attention is again turning to whether the measures can be enforced. Most commentary has focused on the possibility—yet to be put into practice—of enforcement measures by the UN Security Council. What about countermeasures?

To date, most scholars (though not all) have concluded that the parties to an ICJ case may use countermeasures in response to non-compliance. But so far, commentators have rejected the idea that non-parties might deploy countermeasures. However, two recent developments call for a reexamination: the ICJ’s recognition of erga omnes (partes) standing in an increasing number of cases and the crystallizing state practice supporting third-party countermeasures. Against this backdrop, this essay revisits the possibility of third-party enforcement of provisional measures through “provisional countermeasures.”

Readers may wonder whether an entitlement to provisional countermeasures will make any practical difference. Provisional measures typically restate existing legal obligations or apply them to the circumstances of a dispute. So, states are already entitled to respond to breaches of those existing obligations. However, provisional measures often clarify the scope and applicability of those obligations, enabling states to pinpoint the relevant duties and monitor compliance. Consider the case of South Africa v. Israel. There is considerable doubt whether Israel’s actions in Gaza constitute genocide as defined by the Convention. But evidence is mounting that Israel is violating the provisional measures order to facilitate effective delivery of humanitarian aid into Gaza. Both injured and third states can have significantly more confidence in deploying provisional countermeasures in such cases.

Provisional countermeasures by the parties

It is worth starting with a review of the more straightforward case of provisional countermeasures by the parties. In its LaGrand judgment (¶110), the Court finally decided that its provisional measures are “binding in character and create a legal obligation” for the party concerned. Thus, defiance of provisional measures is an internationally wrongful act under ARSIWA Article 2, entitling the “injured state” to take countermeasures per ARSIWA Article 49. This conclusion is compelled by the text and logic of ARSIWA, and confirmed by the Commentaries.

Under ARSIWA Article 42, a state qualifies as an “injured state” entitled to invoke the responsibility of the breaching state when the obligation violated is either owed to that state individually, or to a group of states among which that state is specially affected. Even in erga omnes (partes) cases where the applicant state is not directly injured by an underlying legal violation (e.g., The Gambia and South Africa), that state would nevertheless be injured by the breach of a provisional measure, since compliance is directly owed to that state.

The ARSIWA Commentaries implicitly recognize the possibility of provisional countermeasures. They note that a provisional measures “will perform a function essentially equivalent to that of countermeasures. Provided the order is complied with it will make countermeasures unnecessary pending the decision.” This implies that a breach of provisional measures may make countermeasures necessary to preserve the requesting state’s rights pending the court’s judgment. Although the commentary refers to countermeasures in response to the original breach, its logic also applies to breaches of provisional measures, which create equally binding legal obligations.

Provisional countermeasures by third parties

The right of third states to deploy provisional countermeasures is more complex. The issue is particularly significant given the recent rise in erga omnes (partes)—hereafter just called erga omnes—cases at the Court, some involving applicant states with limited countermeasure leverage. Although the little existing commentary on this issue concludes that third states may not use countermeasures, this section seeks to challenge this view by sketching out two possible justifications for third-party enforcement.

The first possibility is that provisional measures in erga omnes cases create binding obligations owed to third states. If this is correct, the third states to whom the underlying erga omnes obligations in a case are owed could use provisional countermeasures. (This view assumes that third-party countermeasures are allowed—a plausible, but not indisputable, assumption.)

The issue is that provisional measures do not themselves create erga omnes obligations, at least not in the usual sense of the term. In Barcelona Traction (¶33), the Court described erga omnes obligations as those which are “the concern of all States” and in whose protection “all States can be held to have a legal interest.” It enumerated examples: outlawing aggression, genocide, slavery, and racial discrimination. As a category, provisional measures would not seem to fit into this group, even in erga omnes cases.  Indeed, the text of the ICJ Statute supports the exclusively inter-party nature of provisional measures. Article 41 authorizes “any provisional measures which ought to be taken to preserve the respective rights of either party,” suggesting that provisional measures merely create rights and obligations between the parties.

However, the dynamics of erga omnes cases challenge the idea that provisional measures create merely bilateral obligations. Where a specially-affected state is not a party to the case, that state surely also has a legal interest in compliance with provisional measures. Consider South Africa v. Israel and the position of Palestine. Despite Palestine’s non-party status, the Court considered and accepted as plausible (¶54), both the rights of “the Palestinians in Gaza to be protected from acts of genocide . . . and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.” Setting aside issues of statehood and the difference between the rights of a state and a group, the Court’s consideration of the rights of a non-party is significant. It opens the door for provisional measures to create obligations to non-party, injured states. And, if those states, then why not other states to which the erga omnes obligation is owed? Recognizing obligations to third states in erga omnes cases would be consistent with the Court’s standing jurisprudence and acknowledge the essentially multilateral nature of such disputes.

A major obstacle to this approach is Article 59 of the ICJ Statute, which holds that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.” One possible way around this hurdle would be the theory that, in erga omnes cases, the Court’s decisions—both provisional measures and judgments—have binding force between all the states that share the common interest being litigated. Scholars have recognized some exceptions to Article 59’s limitations, such as decisions with objective results (for example, boundary delimitations).  Perhaps erga omnes cases might be another exception. This would be an appealing way to interpret Article 59, but so far lacks support from the Court’s jurisprudence or state practice.

These concerns would probably be moot when a state successfully intervenes as a party under Article 62 of the ICJ Statute. The implications for provisional measures of intervention “as a party” in erga omnes cases have yet to be studied (or observed). But, it would seem that the intervening party would have the same rights and obligations as the applicant with respect to provisional measures. Thus, it would be equally entitled to respond to non-compliance with countermeasures.

A second justification for third-party provisional countermeasures is the right to enforce judicial decisions. Under this rationale, the non-party need not be directly owed a legal obligation by the breaching state, so the justification is not limited to erga omnes cases. Although ARSIWA is silent on the issue, scholars have long proposed that states have a right to aid in the enforcement of international judgments. Over sixty years ago, Oscar Schachter argued that states are “entitled under international law (and possibly may be considered under a duty) to assist in the execution of a decision of the International Court, if that decision has not been complied with and the successful party requests such assistance.” Michael Reisman proposed that such a “duty to aid in enforcing community decisions” is a general rule of international law per Article 38(1)(c) of the ICJ Statute. More recently, Mary Ellen O’Connell identified growing state practice supporting a right to assist in enforcing international judgments.

To be sure, these scholars referred to final judgments, not provisional measures. But, since LaGrand, there seems to be little reason to distinguish between the enforceability of the two types of decisions. And, although these publications preceded ARSIWA, nothing in the Articles precludes a right to aid in enforcement.

The scope of third-party provisional countermeasures 

Even if third parties are entitled to deploy provisional countermeasures, these measures will need to comply with the customary rules governing their use enumerated in ARSIWA Chapter II. Some requirements will be more important than others. The procedural requirement of notification (Article 52) will not apply in cases where an “urgent” response is required to safeguard a right, as will often be the case when provisional measures are breached. But the breach and proportionality requirements will be critical in all cases.

According to ARSIWA Article 49, “[a]n injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations.” The key parameters of interest for third states considering countermeasures are the obligations of the target state and its compliance with those obligations. The third state will need to pay close attention to each specific measure, and the Court’s reasoning underpinning it, to accurately assess both obligations and compliance.

As to obligations, provisional measures largely exist along a spectrum from simple restatements of existing obligations to applications of duties to the specific context of a dispute. (In some cases, provisional measures may create new obligations, as Tamada has recently pointed out, although the extent of this phenomenon remains controversial.) Recently, the Court has been in the habit of issuing measures that reproduce the key treaty obligations of the target state (e.g., four of the six measures in South Africa v. Israel essentially direct Israel to follow its Genocide Convention obligations). Such measures will give the third-party state little new information as to the target state’s obligations. But, other measures apply legal obligations to the factual circumstances. Examples include Israel’s obligation to ensure effective humanitarian access to Gaza, Russia’s obligation to end its invasion of Ukraine, and Azerbaijan’s obligation to allow the safe movement of Armenians to and from Nagorno-Karabakh. While the applicability of these obligations will sometimes be obvious, these measures will give third states confidence that they are entitled to seek the target’s states compliance.

Meanwhile, provisional measures orders will also vary in the amount of information they convey on compliance. Much of the evidence submitted to the Court at the provisional measures stage is the same publicly available evidence that states can use to monitor compliance on their own. But one kind of provisional measure might make an informational difference: the obligation to submit compliance reports (e.g., South Africa v. Israel, The Gambia v. Myanmar). These reports—if submitted and disseminated—can provide data on compliance to guide countermeasure decisions. And public scrutiny of compliance following ICJ orders can also be informative.

Based on this information about obligations and compliance, third states can decide whether to take provisional countermeasures. If they do, they must also take care that the measures are proportional to the “gravity of the internationally wrongful act and the rights in question” (ARSIWA Article 51). This reinforces the importance of precisely identifying the provisional measures being violated and the magnitude of the non-compliance.

***

This piece has sketched out two avenues for justifying third-party provisional countermeasures in response to defiance of ICJ provisional measures. In erga omnes cases in particular, non-parties may be able to invoke both justifications when employing countermeasures—although the same limitations just discussed on the scope of those measures will apply.  For now, there is little relevant state practice. But if the current proliferation of provisional measures orders (and accompanying state defiance) continues, we are likely to see a developing body of state enforcement that will clarify this issue.

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Marc Weller says

March 20, 2024

Hi Matei, many thanks for raising this issue. I am confused, though, on one point. You do frequently refer to the ILC Articles on Responsibility, but you do not address Arts 48 and 54 and the concept of the state other than the injured state. Would these not be the relevant provisions for the issue you are addressing? Kind wishes, Marc

Milosz Gapsa says

March 20, 2024

Thank you for the thought-provoking contribution.
However, I have some doubts. Personally, I disagree with the proposition that in the case of provisional measures the order creditor can employ countermeasures.
The PCIJ was clear in the Electricity Company of Sofia and Bulgaria case that

Whereas [Article 41 ICJ Statute] applies the principle universally accepted by international tribunals and likewise laid down in many conventions to which Bulgaria has been a party – 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 ; (p. 199)

I find it hard to imagine that countermeasures would not aggravate the dispute. If that is true, the party to the case cannot use countermeasures. So, does the non-party have greater rights?

Additionally, I find Miles’ words particularly telling:

enforcement is not the primary purpose of provisional measures. They are preventative, not punitive” (CUP 2017, p. 329)

We should also acknowledge (albeit with some disappointment) that the Court is still reluctant to ensure compliance with its orders. The disagreement of Judges Tomka, Brant and Judge ad hoc Tuzmukhamedov regarding the Court's declaration that Russia violated provisional measures concerning the Mejlis, despite the ICJ ruling that banning that organisation did not violate CERD, is telling (the ICSFT/CERD case).

Are we not proposing solutions that even the most progressive ICJ judges would not agree with?

Nicolas Boeglin says

March 20, 2024

Dear Professor Alexianu

Many thanks for this extremely interesting post.

In relation with Israel´s defiance concerning an ICJ decision, and the exact scope of obligations erga omnes for tird States when they are violated, may I refer you to paragraph 159 of ICJ Advisory Opinion of 2004 on the Wall in OPT ("Wall" being translated in Israel official position papers as a simple "fence") in which we read that:

"159. Given the character and the importance of the rights and obligations involved, the Court is of the view that al1 States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in imaintaining the situation created by such construction. It is also for al1 States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, al1 the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by lsrael with international humanitarian law as embodied in that Convention".

Source: https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-BI.pdf

In your view, isn´it a paragraph in which ICJ invites third States to take actions in case of defiance of an ICJ decision that has to do with obligations erga omnes?

Taking into consideration ICJ provisional measures order of Jan 26, 2024, in your view, is it possible to consider the ban of military equipment to Israel, the ban of fuel for its military engines, and many others measures that can be undertaken to limit the military actions of Israel in Gaza, as measures that all third State have the obligation to take to force Israel to comply with this ICJ order?

Yours sincerely

Nicolas Boeglin

Matei Alexianu says

March 21, 2024

Hello Professor Weller: That is a great point. I did not include ARSIWA Articles 48 and 54 in the discussion because, as I mention, provisional measures are not technically “owed to a group of States” or “the international community as a whole” but only to the requesting state. But, if one agrees with my argument that provisional measures can create binding obligations in erga omnes cases, then you are right that Articles 48 and 54 can bridge the gap to justify countermeasures by non-injured states. Thank you for pointing this out.

Hi Milosz (if I may): Thank you for these great comments. I would say that the non-aggravation objection is surmountable because countermeasures—if taken in compliance with ARSIWA Chapter II—preclude the wrongfulness of otherwise illegal conduct. See Miles 2017, p. 326. Moreover, I am not sure that countermeasures, particularly those taken by third states, would necessarily aggravate a dispute. This probably needs to be determined case by case.

As to the preventative character of provisional measures, I would argue that low compliance is jeopardizing this core function. So enforcement—whether by the parties or third states—can be compatible with restoring the preventative power of interim relief. And ARSIWA’s countermeasures rules, particularly the proportionality requirement, builds in safeguards against punitive measures. In fact, the Commentary to Article 51 explicitly excludes measures with “a punitive aim.”

Finally, I don’t read the ICSFT/CERD case opinions as necessarily showing reluctance to ensure compliance. All three opinions point out the problem with finding a violation of provisional measures but not of the substantive rights of the applicant state. The judges seem to be saying that, in such cases, provisional measures are not valid and cannot be enforced once the Court has reached a decision on the merits. This is consistent with the view that provisional measures are enforceable in other cases and prior to a merits decision.

Hello Nicolas (if I may): This is an interesting question. The language of the Court in The Wall Case that you cite appears to be rooted in the Common Article 1 of the Geneva Conventions, which imposes certain obligations on all parties. Article I of the Genocide Convention contains somewhat analogous obligations (to prevent and punish genocide). As a number of commentators have pointed out after the ICJ’s Provisional Measures Order, these provisions plausibly trigger obligations for third states after the ICJ finds a “real and imminent risk” of a substantive violation (e.g., genocide). But the point that I try to make in this piece, although related to obligations to respect/prevent, is both narrower and broader. It’s broader for two reasons: (1) it would apply to all provisional measures, not just those related to obligations erga omnes that contain an obligation to respect/prevent, and (2) it would apply even when there is ambiguity about whether the “serious risk” threshold has been crossed (e.g., in the case of Israel’s breach of the humanitarian aid measure). But it’s narrower in that it would only allow—but not require—third states to respond.

Nicolas Boeglin says

March 21, 2024

Dear Professor Alexianu

Many thanks for your very kind answer. Recently Nicaragua presented an action against Germany, in a supportive action of the request by South Africa against Israel and ICJ order ´s of Jan 26. In the texte of the proceedings instituted last March 1st by Nicaragua, many reference are made to "peremptory norms of general intenational law" in order to obtain form ICJ a decision forcing Germany to cease its full support to Israel.

Please fin here a short note on hearings to be held next April 8-9:

https://derechointernacionalcr.blogspot.com/2024/03/gaza-israel-corte-internacional-de.html

Yours sincerely

Nicolas Boeglin

José Alves says

March 21, 2024

Great read Matei! When I read your post, however, I wonder if allowing “provisional countermeasures” would change anything on the ground. States these days implement sanctions without relying on the ARSIWA or rarely (if ever) calling these actions as countermeasures. Of course that in most cases to avoid the hurdles of “non-injured states” countermeasures.

Hendrik Mathis Drößler says

April 1, 2024

I genuinely appreciate your contribution. Being deeply interested in research focused on the rule of law and compliance, I found your work to be truly captivating. However, I believe there is a fundamental aspect that warrants further consideration: the determination of non-compliance. Your argument appears to imply that third parties, who may hold obligations, can independently assess compliance. If so, what criteria govern such assessments? What qualifies as compliance? When does a state fall into non-compliance with obligations stemming from a court order? Even within scholarly discourse, there exists a division on this matter. For instance, Constanze Schulte, in her study on Compliance with the ICJ, distinguishes between "difficulties in implementation" and "instances of open defiance," categorizing only the latter as non-compliance. Conversely, scholars like Colter Paulson argue that mere formal acceptance of a judgment as binding does not absolve a party from its obligation. Tams, in the Zimmermann Commentary, adopts a similar stance. One could also argue based on the Courts reasoning in the request for intrepation of the Temple of Preah Vihear judgment that the notion of compliance is equivalent with that of interpretation (para. 99).
Furthermore, the temporal dimension significantly influences this scrutiny; the timing of action by the burdened party matters—when does non-performance equate to non-compliance? In the Court's inaugural adjudicated case, the Corfu-Channel Case, it took forty-five years before Albania, as the losing party, fulfilled the indemnities ordered by the Court to the United Kingdom. Additionally, what about potential justifications, or in the terms of the Draft Articles, circumstances precluding wrongfulness? These circumstances can effectively suspend the obligation to comply for as long as they persist, provided they do not pertain to issues of jus cogens.
Before contemplating any potential countermeasure, it is imperative to thoroughly scrutinize these issues. Doubt or uncertainty regarding the existence of an international wrongful act undermines the very premise for considering a countermeasure.
In essence, while your argument holds promise and is deserving of further development, it appears to lack a robust foundation on the scope of obligation to comply and how to assess non-compliance.
Still, this might be of interest to you: Forlati and Almeida echo a similar line of reasoning to your proposal in their recently published article on the role of intervening parties in ICJ proceedings and their influence on compliance. They also advocate for the potential extension of the inter partes effect of the Court's decisions in certain instances, explicitly addressing the erga omnes issue you raised.
(For reference, the article is titled: "Is there a Role for Intervener States in Inducing Compliance with Decisions of the International Court of Justice" by Serena Forlati and Paula Almeida, Brill 2023.)

Thanks again for your article, and please do not understand my criticism wrong, I believe the angle your taking is super interesting and demands further attention.
Hendrik