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Interim Measures of Protection and The Substantive Jurisdiction of The International Court

Published online by Cambridge University Press:  16 January 2009

J. G. Merrills
J. G. Merrills
Affiliation:
Senior Lecturer in Law, Sheffield University.
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Extract

It is unlikely that those who were responsible for giving the World Court the power to indicate interim measures of protection could have anticipated the controversy which was ultimately to surround its exercise. Applications for interim measures have been few, even by the inexacting standards of international litigation, but the cases in which such measures have been sought have raised questions of fundamental importance. Controversial issues have included the power of the Court to indicate interim measures on its own initiative, the binding nature and enforceability of interim measures, their purpose and their relation to the Court's substantive jurisdiction, that is its jurisdiction to rule upon the merits of a dispute.

Type
Articles
Information
The Cambridge Law Journal , Volume 36 , Issue 1 , April 1977 , pp. 86 - 109
Copyright
Copyright © Cambridge Law Journal and Contributors 1977

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References

1 On interim measures see Dumbauld, Interim Measures of Protection in International Controversies (1932); Goldsworthy (1974) 68 Am.J.Int.L. 258; and Mendelson (1972–73) 46 Brit. Yearbook Int.L. 259.

2 See Denunciation of the Treaty of 2 November 1865 between China and Belgium, Orders of 8 January, 15 February and 18 June 1927Google Scholar, P.C.I.J. Series A, No. 8; and Electricity Company of Sofia and Bulgaria, Order of 5 December 1939Google Scholar, P.C.I.J. Series A/B, No. 79, p. 194.

3 The Anglo-Iranian Oil Co. case, see the Order of 5 July 1951, I.C.J.Rep. 1951, p. 89Google Scholar; the Interhandel case, see the Order of 24 October 1957Google Scholar , I.C.J.Rep. 1957, p. 105; the two Fisheries Jurisdiction cases, see the Orders of 17 August 1972, I.C.J.Rep. 1972, pp. 12Google Scholar and 30; the two Nuclear Tests cases, see the Orders of 22 June 1973Google Scholar, I.C.J.Rep. 1973, pp. 99 and 135; the Trial of Pakistani Prisoners of War case, see the Order of 13 July 1973, I.C.J.Rep. 1973, p. 328Google Scholar; and the Aegean Sea Continental Shelf case, see the Order of 11 September 1976, I.C.J.Rep. 1976, p. 3.Google Scholar

4 I.C.J.Rep. 1973, p. 111 (trans.).

5 In his separate opinion in the Aegean Sea Continental Shelf case, I.C.J.Rep. 1976, p. 22.Google Scholar

6 See Fitzmaurice's separate opinion in the Northern Cameroons case, I.C.J.Rep. 1963, at pp. 102–106Google Scholar and his earlier discussion of this issues in (1958) 34 Brit. Yearbook Int.L. at pp. 107–115.

7 Lellouche (1975) 16 Harv.Int.L.J. 619.

8 Factory at Chorzó, Order of 21 November 1927Google Scholar, P.C.I.J. Series A, No. 12.

9 In the Anglo-Iranian Oil Co. case, the Fisheries Jurisdiction cases and the Nuclear Tests cases the interim measures indicated by the Court differed in a number of respects from those sought by the applicant. The power of the Court to indicate interim measures proprio motu is a prominent feature of the Legal Status of South Eastern Greenland, Orders of 2 and 3 August 1932, P.C.I.J. Series A/B, No. 48, p. 268.Google Scholar

10 Judge Forster, I.C.J.Rep. 1973, p. 113 (trans.).

11 Lellouche (1975) 16 Harv.Int.L.J. 621.

12 I.C.J.Rep. 1957, p. 118.

13 See (1962) 38 Brit. Yearbook Int.L. 70.

14 I.C.J.Rep. 1951, p. 93.

15 Ibid., p. 97.

16 I.C.J.Rep. 1957, pp. 118–119. For comment on Lauterpacht's view see Fitzmaurice (1962) 38 Brit. Yearbook Int.L. 70–77.

17 See Case of Certain Norwegian Loans, I.C.J.Rep. 1957, p. 34.Google Scholar

18 Judge Klaestad, Ibid., p. 115 and Judge Wellington Koo, Ibid., p. 113.

19 I.C.J.Rep. 1972, p. 16.

20 I.C.J.Rep. 1973, p. 102.

21 Ibid., p. 103.

22 Ibid., p. 115.

23 (1974) 68 Am.J.Int.L. 267.

24 I.C.J.Rep. 1973, p. 128.

25 Ibid., p. 124.

26 Aegean Sea Continental Shelf, Interim Protection, Order of 11 September 1976, I.C.J.Rep. 1976, p. 3.Google Scholar

27 I.C.J.Rep. 1951, p. 98.

28 I.C.J.Rep. 1952, p. 103 (trans.).

29 See Lauterpacht, H., The Development of International Law by the International Court (1958), p. 255Google Scholar, n. 42.

30 See the Anglo-Iranian Oil Co. Judgment, I.C.J.Rep. 1952, p. 93.Google Scholar

31 Judges Levi Carneiro, Armand Ugon and Judge ad hoc Karim Sandjabi joined the Court for the Preliminary Objection hearing. Judge de Visscher who had been present at the interim measures stage was not a member of the 1952 Court.

32 See the Fisheries Jurisdiction Jurisdiction of the Court, Judgments, I.C.J.Rep. 1973, pp. 3 and 49.Google Scholar

33 See the dissenting opinions of Judge Forster, I.C.J.Rep. 1973, at p. 112, Judge Petren, Ibid., p. 125 and Judge Ignacio-Pinto, Ibid., pp. 129, 130.

34 The General Act was relied on by Cambodia in the Temple case but the Court preferred to decide the case on the basis of the parties' declarations under the Optional Clause. See the Temple of Preah Vihear, Preliminary Objections, Judgment, I.C.J.Rep. 1961, p. 17.Google Scholar

35 See the Nuclear Tests, Judgments, I.C.J.Rep. 1974, pp. 253 and 457.Google Scholar In its judgments the Court ruled that French statements that no further nuclear tests would be carried out in the Pacific constituted unilateral acts binding on France and as such deprived the claims of Australia and New Zealand of any object.

36 Locus standi was joined to the Merits in the Barcelona Traction case, for example. See Barcelona Traction, Light & Power Co. Ltd., Preliminary Objections, Judgment, I.C.J.Rep. 1964, p. 6.Google Scholar

37 The question whether local remedies had been exhausted was also joined to the Merits in the Barcelona Traction case (supra) and in the Norwegian Loans case. See Certain Norwegian Loans, Order of 28 September 1956Google Scholar, I.C.J.Rep. 1956, p. 73.

38 Claims of this kind were joined to the Merits in the Norwegian Loans case (supra) and the Right of Passage case. See Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J.Rep. 1957, p. 125.Google Scholar

39 I.C.J.Rep. 1973, p. 122.

40 I.C.J.Rep. 1976, p. 8 (emphasis added).

41 See Lauterpacht, H., The Development of International Law by the International Court (1958), p. 255.Google Scholar

42 The periods were: Anglo-Iranian Oil Co. case 13 days; Interhandel case 21 days; Fisheries Jurisdiction cases 29 days; Nuclear Tests cases 44 days; Aegean Sea Continental Shelf case 32 days. In the Trial of Pakistani Prisoners of War case consideration of interim measures of protection was postponed at the request of Pakistan and shortly afterwards all proceedings in the case were discontinued, see I.C.J.Rep. 1976, pp. 328 and 347.

43 The periods were:Anglo-Iranian Oil Co. case 14 months; Interhandel case 18 months; Fisheries Jurisdiction cases 10 months. In the last no argument was presented by the respondent state (Iceland), which also refused to appear. The proceedings in the Nuclear Tests cases were terminated a year after the award of the interim measures, without a decision on jurisdiction, see note 35 above.

44 See the apparently inconsistent decisions in the South West Africa, Preliminary Objections, Judgment, I.C.J.Rep. 1962, p. 319Google Scholar and the South West Africa, Second Phase, Judgment, I.C.J.Rep. 1966, p. 6.Google Scholar

45 See note 31 above.

46 The absentees were Judges Guerrero, Zoricic and Read; the newcomers were Judges Spiropoulos and Spender.

47 Mendelson (1972–73), 46 Brit. Yearbook Int.L. 259.

48 Ibid., pp. 318–319.

49 On the significance of models in international law see Schwarzenberger (1966) 19 Current Legal Problems 192.