Abstract
Provisional measures are an essential tool of international adjudication, especially in the field of human rights. It has been argued that an autonomous legal regime is developing. Indeed, the essential function of provisional measures confers upon them a special status, that, nevertheless, cannot lead to the establishment of an autonomous legal regime. This chapter argues that the use of provisional measures cannot be fully detached from the pending case on the merits. At the same time, while the tool of provisional measures is not free-standing, for its use one should not replicate the criteria for the decision-making on the merits. After the analysis of requirements for provisional measures, the chapter also highlights international non-judicial tools, which are indeed autonomous and can be used to deal with urgent human rights situations.
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Notes
- 1.
See e.g. Cançado Trindade 2010 and ICJ, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Order of 3 October 2018, Separate opinion of Judge Cançado Trindade, para 28 and references therein.
- 2.
Providing advisory opinions also belongs to its functions. There have been theoretical discussions on whether it could order provisional measures while it is examining a request for an advisory opinion. See e.g. Kolb 2013, pp. 651–652 and Miles 2017, pp. 400–405. There is no practice in this respect, but I would argue that in any case such order should not be in the interest of the requesting organization. Instead it should just be to ensure a meaningful outcome of the request before the Court.
- 3.
See e.g. Hernández 2014.
- 4.
Currently Rule 94, HRCtee Rules of Procedure, UN Doc. CCPR/C/3/Rev.11, January 2019. The current version of the rules was adopted at the Committee’s 3567th meeting during its 124th session. In older cases, it was Rule 92 and in even older cases Rule 86.
- 5.
The Rule also stipulates that “[a]t any stage of the proceedings the Committee will examine any arguments presented by the State concerned on the request to take interim measures, including reasons that would justify the lifting of the measures” and that it “may withdraw a request for interim measures on the basis of information submitted by the State party and the author(s) of the communication”.
- 6.
Rule 95, HRCtee Rules of Procedure, UN Doc. CCPR/C/3/Rev.11, January 2019: Upon receiving information from the author of the communication, the Committee may also request the State party to take protection measures in favour of individuals, including the author(s), his/her counsel and family members, who might suffer acts of intimidation or reprisals as a result of the submission of the communication or cooperation with the Committee. The Committee may seek from the State party written explanations or statements clarifying the matter and describing any action taken in that regard. In 2014 the Committee explained that it had “developed the practice of requesting States parties to adopt measures of protection vis-à-vis the author(s) of a communication or close family members, when there are well-founded indications that the submission of the communication to the Committee has resulted or will result in acts of intimidation against these persons.” The mandate of the Special Rapporteur on New Communications and Interim Measures, UN Doc. CCPR/C/110/3, 6 May 2014, para 12. “Protection measures are to be distinguished from interim measures in that their purpose is not to prevent irreparable damage affecting the object of the communication itself, but simply to protect those who might suffer adverse consequences for having submitted the communication, or to call the State party’s attention to their aggravating situation linked to the alleged violations of their rights.” Ibid. See also Sect. 4.4 referring to the Committees’ concern about intimidation and reprisals in general (e.g. also in the context of involvement in the public hearings discussing state reports, or with the submission of shadow reports).
- 7.
This concerns the Honduran cases, 1987. For a discussion of these cases and other provisional measures to protect against death threats and harassment, see Rieter 2010, pp. 405–449.
- 8.
Rule 114 CAT Rules of Procedure, UN Doc. CAT/C/3/Rev.6, 1 September 2014: Interim measures: “(1) At any time after the receipt of a complaint, the Committee, a working group, or the Rapporteur(s) on new complaints and interim measures may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations. (2) Where the Committee, the Working Group, or Rapporteur(s) request(s) interim measures under this rule, the request shall not imply a determination of the admissibility or the merits of the complaint. The State party shall be so informed upon transmittal. (3) The decision to grant interim measures may be adopted on the basis of information contained in the complainant’s submission. It may be reviewed, at the initiative of the State party, in the light of timely information received from that State party to the effect that the submission is not justified and the complainant does not face any prospect of irreparable harm, together with any subsequent comments from the complainant. (4) Where a request for interim measures is made by the Working Group or Rapporteur(s) under the present rule, the Working Group or Rapporteur(s) should inform the Committee members of the nature of the request and the complaint to which the request relates at the next regular session of the Committee. (5) The Secretary-General shall maintain a list of such requests for interim measures. (6) The Rapporteur on new complaints and interim measures shall also monitor compliance with the Committee’s requests for interim measures. (7) The State party may inform the Committee that the reasons for the interim measures have lapsed or present arguments why the request for interim measures should be lifted. (8) The Rapporteur, the Committee or the Working Group may withdraw the request for interim measures.”.
- 9.
The Committee stresses Article 13 ICAT: “States parties shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given”. See http://www.ohchr.org/EN/HRBodies/CAT/Pages/ReprisalLetters.aspx. See also Sect. 4.4.
- 10.
See Article 31(4) Convention for the Protection of All Persons from Enforced Disappearance (2006) and Article 4 Convention on the Rights of Persons with Disabilities (2006); earlier already the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999); and subsequently also Article 5 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008); and Article 6 Optional Protocol to the Convention on the Rights of the Child (2011).
- 11.
- 12.
Rieter 2010.
- 13.
For instances where adjudicators ordered provisional measures in situations that are beyond the outer limits of the concept, such as in order to halt the seizure of assets, see Rieter 2010, pp. 584–587. The ACtHPR has now added instances as well. See ACtHPR, Alfred Agbesi Woyome v. Ghana, Order of 24 November 2017.
- 14.
Article 290(1) UNCLOS refers not to irreparable but to serious harm, and this provision does specifically refer to the ‘marine environment.’ For a general discussion of the protection of community interests in international law, see e.g. Tanaka 2011. There have been orders by the ICJ that did express concern both for the environment and for people. For an early discussion of the ICJ order in the Nuclear Test cases, see Elkind 1981, p. 223. More recently see ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Order for new provisional measures of 22 November 2013 (and separate opinions in earlier orders, e.g. ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Order of 8 March 2011, Declaration of Judge Greenwood, paras 13 and 15; separate opinion of Judge Sepúlveda-Amor, paras 4, 14–38; see also the Declaration by Judge Xue expressing concern about prejudgment, but indicating that she would have been in favour of a different type of provisional measure ordering both states to cooperate to prevent irreparable harm to the environment. Similarly, the Declaration by Judge ad hoc Guillaume. See further the practices developed by human rights adjudicators in the context of indigenous rights, Rieter 2010, 451–465.
- 15.
ICJ, US Diplomatic and Consular Staff in Tehran (US v. Iran) (Hostages case), Order of 15 December 1979.
- 16.
Elkind 1981, pp. 224, 258.
- 17.
See Rieter 2010 discussing the commonalities and differences in approaches to provisional measures by various human rights adjudicators and the ICJ, as well as their common core and outer limits, indicating in the practice until 2008, a convergence of approaches by the adjudicators. See also Saccucci 2006. More closely on convergence, see Rieter 2012, pp. 174–180. There have been important political developments in the European and Inter-American systems since 2008. Moreover, there is now practice by the ACtHPR as well. In this light there still appears to be a convergence between the approaches of the human rights adjudication in terms of the common underlying rationale for their use (prevent irreparable harm to life and limb) and the actual use of provisional measures in a specific context in more than one system. This also applies to cultural survival of indigenous peoples, the third situation that I consider to belong to the common core, see Rieter 2010, pp. 451–500. The ACtHPR has since added its voice by ordering provisional measures in the case of the Ogiek Community of the Greater Mau Forest: ACtHPR, African Commission on Human and Peoples' Rights v. the Republic of Kenya, Order for provisional measures of 15 March 2013 (Ogiek community). With its Order in Ogiek it confirmed the approach taken by the Inter-American Commission, the Inter-American Court, the African Commission on Human and Peoples’ Rights and the UN HRCtee in using provisional measures also in this context. Also noteworthy here is a different aspect: like the ICJ and the IACtHR, the ACtHPR publishes its Orders for provisional measures. Moreover, the Inter-American Commission on Human Rights now also publishes concrete information about its precautionary measures.
- 18.
Miles 2017, pp. 475–476.
- 19.
More closely discussed in Rieter 2019, pp. 158–167.
- 20.
ICJ, Avena II, Request for interpretation of the Judgment of 31 March 2004 (Mexico v. US), Judgment of 19 January 2009, para 61 under (2).
- 21.
See e.g. Palchetti 2017.
- 22.
But see, more recently, ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020: “submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court”. This Order may be followed by similar formulations in new cases. For older orders including an obligation to report (without a mechanism to follow this up), see Rieter 2010, pp. 90–91.
- 23.
See the development in ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Orders of 8 March 2011, 16 July 2013 and 22 November 2013.
- 24.
See e.g. ICJ, 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), Judgment of 16 December 2015, para 126, where the ICJ noted that it had already ascertained certain facts in its provisional measures Order and then explained that “that statement was only instrumental in ensuring the protection of the rights of the Parties during the judicial proceedings. The judgment on the merits is the appropriate place for the Court to assess compliance with the provisional measures. Thus, contrary to what was argued by Nicaragua, a statement of the existence of a breach to be included in the present Judgment cannot be viewed as ‘redundant’. Nor can it be said that any responsibility for the breach has ceased: what may have ceased is the breach, not the responsibility arising from the breach.”.
- 25.
ICJ, Jadhav case (India v. Pakistan), Judgment of 17 July 2019.
- 26.
See also Rieter 2019, p. 151.
- 27.
But see Haeck et al. 2008.
- 28.
See further Sect. 4.4.
- 29.
The Commission itself has explicitly and extensively recognized that its precautionary measures are autonomous. They can operate independently of a case pending before it. See Article 65 of its rules.
- 30.
In its Rules of Court (2009) it added that it may order provisional measures “at any stage of the proceedings” and it repeats this in its Annual Reports. This appears to relate mainly to (1) its practice of ordering provisional measures in cases not yet before it, but upon request by the Commission (see further in the main text); (2) its practice of ordering provisional measures after a judgment on the merits, but while the proceedings on reparations are still pending; and (3) its practice of ordering provisional measures while the case is already at the stage of monitoring compliance. Since its development of a system for monitoring supervision, where a case is not closed until the Court has determined that the state has satisfactorily implemented the judgment, it has lifted certain provisional measures. When they mainly concerned compliance with its judgment it transferred further monitoring to its monitoring mechanism. When it concerns death threats against victims, witnesses or others involved in the case, it still maintains its provisional measures during the stage of monitoring compliance. The Court has refused expansion of the group of beneficiaries of existing Orders involving matters still pending before the Commission if this expansion was not requested by the Commission. See e.g. IACtHR, Matter of the communities of Jiguamiandó and Curbaradó (Colombia), Order of 30 August 2010, considering clauses 17 and 21. See also considering clause 71: the Commission must keep the Court informed of the procedural state of the petition before the Commission.
- 31.
Yet the Inter-American system is not the only one that has a special possibility in this context. The ITLOS, for instance, also has a formal role examining requests for provisional measures in cases that are not pending before it.
- 32.
In its rules it distinguishes not only the contentious cases before the Court and the matters not yet submitted to it, but also its proprio motu use. But in practice I would say that most Orders are either part of the contentious proceedings or requested by the Commission. There the question of course is whether the matter brought before the Court is already a case pending before the Commission, or whether the Commission has opened its discussion of this case proprio motu, without there being a formal merits case. An example where the Inter-American Court explicitly referred to the fact that there was no case pending before the Commission was its July 2009 Order in the Matter of Liliana Ortega et al. (Venezuela), paras 3 and 4.
- 33.
See, among others, IACtHR, Matter of Danilo Rueda, Order of 28 May 2014, considering clause 3, referring to Case of Herrera Ulloa v. Costa Rica (Newspaper “La Nación”). Provisional Measures regarding Costa Rica, Order of 7 September 2001, considering clause 4, and Case of Wong Ho Wing. Provisional Measures regarding Perú, Order of 31 March 2014, considering clause 10.
- 34.
Not to be confused with another Statute, that of an African Court of Justice and Human Rights. This Court does not exist (yet), but it features prominently in textbooks and documents books, while the existing Court is the African Court on Human and Peoples’ Rights.
- 35.
At the same time caution is warranted here. Irreparable harm has sometimes followed a decision to lift provisional measures. Provisional measures on behalf of Digna Ochoa remained in place for almost two years. In August 2001 they were lifted at the request of Mexico and without the opposition of the Commission. The state had argued that it was ‘an abuse of provisional measures to use them as a de facto substitute for prosecuting a case that should have sufficient merit to be heard before the Inter-American Court of Human Rights’. It was reported that Digna Ochoa and her colleagues considered that violence against them “could not happen in present day Mexico”. Tragically, two months later Digna Ochoa was found dead. Immediately the President of the Court ordered new provisional measures on behalf of her colleagues and family. A hearing took place discussing the circumstances, including the earlier decision to lift the provisional measures, after which the Court confirmed the President’s measures, 8th and 10th. IACtHR Miguel Agustín Pro Juárez Human Rights Center et al. (Mexico), Order of 30 November 2001, 8th and 10th ‘having seen’ clause.
- 36.
Higgins 1997.
- 37.
For a recent example see ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020.
- 38.
For non-aggravation as such: ICJ, Frontier Dispute (Burkina Faso/Republic of Mali), Order of 10 January 1986; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Order of 15 March 1996; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 1 July 2000. For preserving the integrity of the judicial process and preserving the evidence: Frontier Dispute (Burkina Faso/Republic of Mali), Order of 10 January 1986; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Order of 15 March 1996. See also Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Order of 18 July 2011; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Orders of 8 March 2011 and 16 July 2013. See further Rieter 2010, pp. 19–20.
- 39.
See for further references Thirlway 2013, pp. 1802–1803; Kolb 2013, pp. 616–619, and Rieter 2010, pp. 7, 16–39, 47–48 and 98. See also Zyberi 2015, pp. 342–365. For other general works on provisional measures in the practice, among others of the ICJ, see e.g. Elkind 1981, Sztucki 1983, Bernhardt 1994, Rosenne 2005, Cohen-Jonathan and Flauss 2005, Saccucci 2006, Le Floch 2008, He 2010, Oellers-Frahm 2012 and Miles 2017.
- 40.
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, paras 49–50. This approach was continued in subsequent orders, see e.g. ICJ. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, para 43.
- 41.
See also ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, Separate Opinion of Judge Buergenthal, para 8 supporting a continued stand-alone option by referring to the inherent power of courts to “ensure that the orderly adjudication of cases pending before it is not aggravated or undermined by extrajudicial coercive measures resorted to by one party to the dispute against the other”. See Palchetti 2008, p. 636.
- 42.
On death threats and harassment, see Rieter 2010, pp. 405–449. On preserving evidence: Rieter 2010, pp. 556–564, and Leach 2016. On access to counsel, see further Rieter 2010, pp. 385–396 including provisional measures to ensure procedural rights such as habeas corpus. For a more recent instance, see Registrar of the ECtHR, ECHR grants an interim measure in case concerning the Sea Watch 3 vessel, Press Release of 29 January 2019, ECHR 043 (2019).
- 43.
ACtHPR, Konaté v. Burkina Faso, Order of 4 October 2014, para 19 (with two dissents).
- 44.
IACtHR, Case of the Miguel Castro-Castro Prison v. Peru, Order denying provisional measures of 29 January 2008, considering clause 10. See also IACtHR, Matter of James et al. (Trinidad and Tobago), Order of 20 August 1998, considering clause 6; Matter of “Globovisión” Television Station (Venezuela), Order of 29 January 2008, considering clause 10 and Matter of Luisiana Ríos et al. (Venezuela), Order of 3 July 2007, considering clause 9.
- 45.
IACtHR, Case of the Miguel Castro-Castro Prison v. Peru, Order denying provisional measures of 29 January 2008, considering clauses 11 and 12. See also Case of the Miguel Castro-Castro Prison v. Peru, Order of 30 January 2007 (denying a request for provisional measures) and the Miguel Castro-Castro Prison, Judgment of 25 November 2006.
- 46.
ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017. The so-called plausibility criterion was introduced by the Court in ICJ, Questions relating to the obligation to prosecute or extradite (Belgium v. Senegal), Order of 28 May 2009, para 57.
- 47.
See more closely Rieter 2019, pp. 151–157.
- 48.
ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Order for provisional measures of 23 July 2018, para 48.
- 49.
Ibid., para 49.
- 50.
Ibid., para 53. It found “that the measures adopted by the UAE (…) appear to have targeted only Qataris and not other non-citizens residing in the UAE. Furthermore, the measures were directed to all Qataris residing in the UAE, regardless of individual circumstances. Therefore, it appears that some of the acts of which Qatar complains may constitute acts of racial discrimination as defined by the Convention. Consequently, the Court finds that at least some of the rights asserted by Qatar under Article 5 of CERD are plausible. This is the case, for example, with respect to the alleged racial discrimination in the enjoyment of rights such as the right to marriage and the choice of spouse, the right to education, as well as freedom of movement, and access to justice.” Ibid., para 54. In his separate opinion Judge Cançado Trindade again drew attention to the problems of the plausibility ‘requirement’, see paras 57–61. The dissenters focused on prima facie jurisdiction and/or on urgency and risk of irreparable harm, not on the issue of plausibility, although Judge Crawford did note that there is a question “whether the UAE’s statement of 5 June 2017 plausibly implicates rights under the CERD as invoked by Qatar, which equated national origin with present nationality”.
- 51.
ICJ, Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Order for provisional measures of 3 October 2018. In this Order the ICJ found that the rights whose preservation Iran sought “appear to be based on a possible interpretation of the 1955 Treaty of Amity and on the prima facie evidence of the relevant facts.” The measures complained of “appear to be capable of affecting some of the rights invoked by Iran under certain provisions of the 1955 Treaty” (para 67). But, the ICJ noted, it should also consider the invocation by the US of Article XX 1(b) (d) of the treaty. It did note that at this stage there was no need to fully assess the respective rights of the parties. But it did consider that the application of this treaty provision “might affect at least some of the rights invoked by Iran under the treaty of Amity” (para 68) and in light of the US argument it did not order the provisional measures requested by Iran. Other rights claimed by Iran, however, were not affected by Article XX, see para 69 of the Order: “In particular, Iran’s rights relating to the importation and purchase of goods required for humanitarian needs, and to the safety of civil aviation, cannot plausibly be considered to give rise to the invocation of Article XX, para 1, subparagraphs (b) or (d).” In effect, the decision to order provisional measures with regard to certain measures, but not to others, seems reasonable. In other words, the sanctions regarding nuclear materials and by-products could be necessary to protect essential security interests of the US and therefore postponing these sanctions is not part of the provisional measures order. But this relates to the substance of the provisional measures. And the Court’s ordering of provisional measures in the context of access to food, humanitarian needs and safety seems entirely in line with the its provisional measures in the general interest. What remains problematic is the reasoning of the Court.
- 52.
Miles 2018.
- 53.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020.
- 54.
Ibid., para 56. In paras 53–55 it referred to the 2019 report of the Independent International Fact-Finding Mission on Myanmar.
- 55.
See also ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020, Separate Opinion of Vice-president Xue, who voted along but put on the record “serious reservations” regarding the plausibility in terms of the subject matter.
- 56.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020, Declaration of Judge ad hoc Kress, paras 3 and 4.
- 57.
Ibid., para 4.
- 58.
See e.g. CAT guidelines on the receipt and handling of allegations of reprisals against individuals and organizations cooperating with the Committee under Articles 13, 19, 20 and 22 of the Convention, UN Doc. CAT/C/55/22, see https://www.ohchr.org/EN/HRBodies/CAT/Pages/ReprisalLetters.aspx; Committee on the Elimination of Racial Discrimination (CERD), Guidelines to address allegations of reprisals and acts of intimidation against individuals and organizations cooperating with the Committee, 9 January 2020. All treaty bodies have now appointed rapporteurs, or so-called focal points to deal with these situations, see https://www.ohchr.org/EN/HRBodies/Pages/Reprisal.aspx. This general page also includes e-mail addresses per treaty body, to be contacted in case of intimidation and reprisals. For the common policy agreed upon by the Committees, see: Twenty-seventh meeting of Chairpersons of the human rights treaty bodies, Guidelines against Intimidation or Reprisals (“San José Guidelines”), 30 July 2015, UN Doc. HRI/MC/2015/6. Beyond the treaty bodies, the UN thematic rapporteurs also deal with situations of reprisal. Moreover, the UN Secretary General has assigned the Assistant Secretary-General for human rights with the task to monitor situations of reprisal against those who cooperate with the UN: https://www.ohchr.org/EN/Issues/Reprisals/Pages/ReprisalsIndex.aspx.
- 59.
Higgins 1997.
- 60.
See more closely Rieter 2019.
- 61.
As Goldie 1974, p. 502, already pointed out in 1974, using provisional measures would be a “pointless exercise in empty authority” if there were “no possibility of the claimed rights being substantiated as having an existence in law”.
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Rieter, E. (2021). Autonomy of Provisional Measures. In: Palombino, F.M., Virzo, R., Zarra, G. (eds) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-411-2_4
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