Skip to main content
SpringerLink
Log in

Provisional Measures

  • Chapter
  • First Online:
Nicaragua Before the International Court of Justice

Abstract

A study of procedural issues relating to indication by the ICJ of provisional measures (Article 41 of the Statute of the International Court of Justice), that arose in the various cases before the Court involving Nicaragua, (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States); 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). These were: the Court’s power to act proprio motu; the effect of measures, and their relationship with the rights claimed; the concepts of ‘plausible’ rights and of ‘irreparable prejudice’; the impact of measures on third parties; the modification of measures, and the role of indications falling short of measures.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
eBook
USD 16.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 129.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 179.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    In the case of the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, Nicaragua appeared as an intervening State, but was not admitted as a party to the proceedings (see Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Application by Nicaragua for Permission to Intervene, Judgment, ICJ Reports 1990, p. 92). As a non-party, Nicaragua would not have been entitled to submit a request for provisional measures even if there had been a need (in its view) for such measures: Article 31 of the ICJ Statute confers the power to indicate measures ‘to preserve the rights of either party’ (emphasis added).

  2. 2.

    Nicaragua’s participation in any advisory cases before the Court is not here relevant, since provisional measures have never been indicated in advisory proceedings (and probably cannot be).

  3. 3.

    See the Chronological List of Cases of Nicaragua before the ICJ at the beginning of this book.

  4. 4.

    On this topic, see e.g. Thirlway (1994), Oda (1996), Frowein (2004), Rosenne (2004), Palchetti (2008), Kempen and Zan (2009), Rylatt (2013) and Thirlway (2013a, b).

  5. 5.

    For the Request, see Border and Transborder Armed Actions (Nicaragua v. Honduras), Pleadings, Vol. I, pp. 511–520; for the letter of withdrawal, see ibid., Vol. II, No. 63, pp. 265–266.

  6. 6.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, ICJ Reports 1984, p. 169 (hereinafter ‘Nicaragua v. United States (Provisional Measures)’).

  7. 7.

    Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, p. 6; Order of 16 July 2013, ICJ Reports 2013, p. 230 and Order of 22 November 2013, ICJ Reports 2013, p. 354 (hereinafter ‘Certain Activities (Provisional Measures)’).

  8. 8.

    Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional Measures, Order of 13 December 2013, ICJ Reports 2013, p. 398 (hereinafter ‘Construction of a Road (Provisional Measures)’).

  9. 9.

    Order of 17 April 2013, ICJ Reports 2013, p. 184. The Court rendered a single judgment on 16 December 2015 (hereinafter ‘Certain Activities; Construction of a Road (Judgment)’). See contribution by Sobenes E below.

  10. 10.

    For a recent example, see the Order of 18 July 2011 in the case of 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) (ICJ Reports 2011, p. 551, para 58 and cases cited).

  11. 11.

    Application instituting proceedings, 21 December 2011, paras 53–54. The Court noted in its ultimate judgment in the case that ‘[t]he Parties broadly agree on the existence in general international law of an obligation to conduct an environmental impact assessment concerning activities carried out within a State’s jurisdiction that risk causing harm to other States, particularly in areas or regimes of shared environmental conditions’ (Certain Activities; Construction of a Road (Judgment), supra n. 9, para 101).

  12. 12.

    The fact that hearings are provided for in Article 74 (paragraph 3) does not imply that they are excluded if the Court is acting under Article 75. In one case, the Permanent Court did reject a request for measures without inviting comment from the respondent, but on the basis that the request was misconceived, as ‘not covered by the provisions of the Statute and Rules cited therein’ (Factory at Chorzów (Indemnities), Order of 21 November 1927, PCIJ Series A, No. 12, p. 10 (hereinafter ‘Factory at Chorzów (Indemnities)’)).

  13. 13.

    LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, p. 14, para 21. In that case, Germany, unlike Nicaragua, had filed a formal request for the indication of measures.

  14. 14.

    Memorial of Nicaragua, 19 December 2012, para 6.6. Curiously, here and in the Application, the obsolete term ‘interim measures of protection’ is used.

  15. 15.

    In the context of the oral proceedings on the request, Nicaragua might have tried the device of asking the Court to call for the Assessment as part of the evidence, as it had done to obtain the production of some studies on the impact of dredging, in the proceedings on Costa Rica’s request for measures in the Certain Activities case (Order of 8 March 2011, supra n. 6, p. 12, para 27). It is not clear that such an Assessment yet existed, however, and the Court might well have applied a fortiori its reasoning as to identity of measures and potential finding on the merits (see Sect. 3 below).

  16. 16.

    See Certain Activities; Construction of a Road (Judgment), supra n. 9, para 162.

  17. 17.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325.

  18. 18.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Reports 2007, p. 230, para 453. It would be interesting to consider whether this was necessarily so: if general pre-LaGrand international practice was sufficiently consistent in treating measures as non-binding, could this have been relevant either as a guide to interpretation, or even as a case of amendment by practice parallel to the treatment of Article 12 of the Charter in the Palestine Wall case, an evolution? (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 149, para 27). In LaGrand, the Court indicated that, had Germany made a claim for indemnification (rather than simply for a finding of breach of the order), one of the factors it would have taken into account was the fact that ‘when the United States authorities took their decision [not to comply] the question of the binding character of orders indicating provisional measures had been extensively discussed in the literature, but had not been settled by [the Court’s] jurisprudence’ (LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 508, para 116).

  19. 19.

    Nicaragua v. United States (Provisional Measures), supra n. 6, p. 187, para 41.C.

  20. 20.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 144, para 287.

  21. 21.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Preliminary Objections, Judgment, ICJ Reports 1984, p. 395, para 3.

  22. 22.

    Ibid., p. 442, para 112. It is not suggested here that the Court was wrong to find, in LaGrand, that measures are binding, but that it was at least unwise in basing this on a textual argument, which carried with it the corollary stated in the 2007 Genocide decision.

  23. 23.

    Certain Activities; Construction of a Road (Judgment), supra n. 9, para 126.

  24. 24.

    See ‘Certain Activities (Provisional Measures)’, Order of 8 March 2011, supra n. 7, p. 27, paras 86 (1) and 86 (3).

  25. 25.

    Certain Activities; Construction of a Road (Judgment), supra n. 9, para 129.

  26. 26.

    Ibid., para 139.

  27. 27.

    Ibid., para 142.

  28. 28.

    See Certain Activities; Road (Judgment), supra n. 9, Joint Declaration of Judges Tomka, Greenwood, Sebutinde and Judge ad hoc Dugard.

  29. 29.

    Cf. ibid., para 8.

  30. 30.

    It did not however explain its reasoning, as the Joint Declaration pointed out (ibid., para 9).

  31. 31.

    Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, ICJ Reports 1990, p. 70, para 26. See also Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, ICJ Reports 2009, p. 151, para 56 (hereinafter ‘Obligation to Prosecute or Extradite (Provisional Measures)’.

  32. 32.

    Construction of a Road (Provisional Measures), supra n. 8, p. 404, para 20.

  33. 33.

    Ibid., para 21.

  34. 34.

    Or, to be absolutely precise, not entitled to obtain on the grounds asserted in the case before the Court.

  35. 35.

    Factory at Chorzów (Indemnities), supra n. 12, pp. 7–8.

  36. 36.

    Ibid., p. 10.

  37. 37.

    Ibid., p. 6.

  38. 38.

    Construction of a Road (Provisional Measures), supra n. 8, p. 403, para 18. The first appearance of the term ‘plausible’ seems to be in the Obligation to Prosecute or Extradite case: ‘the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible’ (supra n. 31, p. 151, para 57).

  39. 39.

    The OED indicates under ‘plausible’: ‘Chiefly [used] of arguments or statements’. At least in some contexts, the word also has a pejorative tone: the OED definition is ‘Having an appearance or show of truth, reasonableness, or worth, apparently acceptable or trustworthy (sometimes with an implication of mere appearance); fair-seeming, specious’. This was a point made by Judge Koroma in his separate opinion attached to the Order of 8 March 2011 in the Certain Activities case (supra n. 7, p. 29, para 2).

  40. 40.

    As Oellers-Frahm (2012) observes, the term ‘does not reflect any defined legal concept, but rather suffers from vagueness and ambiguity […]’ (p. 1045, para 38).

  41. 41.

    Certain Activities (Provisional Measures), Order of 8 March 2011, supra n. 7, p. 20, para 64.

  42. 42.

    A possible example of a right being destroyed appears from Nicaragua’s concern for the impact of Costa Rica’s dredging operations on the wildlife of the wetlands (Construction of a Road (Provisional Measures), Order of 13 December 2013, supra n. 8, p. 407, para 34), since a species, or at least the local manifestation of a species, can certainly be wiped out. The Court rejected the assertion for lack of evidence.

  43. 43.

    Certain Activities (Provisional Measures), Order of 8 March 2011, supra n. 7, p. 19, para 58. This is apparently a general statement of the limits of the Court’s power, but with the implication that the measures which it is about to indicate will not so prejudge a title.

  44. 44.

    Certain Activities (Provisional Measures), Order of 8 March 2011, supra n. 7, p. 27, para 86(1).

  45. 45.

    Ibid., p. 24, para 75.

  46. 46.

    Nicaragua v. United States (Provisional Measures), supra n. 6, p. 184, para 35 (quoting counsel for the US). It was also suggested that the other States were ‘indispensable parties in whose absence this Court cannot properly proceed’ (ibid.)

  47. 47.

    Ibid., p. 186, para 38.

  48. 48.

    This is an issue that might arise in cases in which the responsibility asserted by the applicant is shared between, or attributable jointly to, two or more States, but for jurisdictional reasons only one of them is a party to the case, as in the Nauru case, or the Yugoslavian proceedings against the NATO States: Certain Phosphate Lands in Nauru (Nauru v. Australia), Judgment, ICJ Reports 1992, p. 240 and Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 761 and (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 916.

  49. 49.

    See supra n. 7.

  50. 50.

    See supra n. 8.

  51. 51.

    Article 76(1) of the Rules of the ICJ. The paragraph begins ‘At the request of a party […]’, but it would seem that if the Court learned of a relevant change in the circumstance from some other source, it could decide to modify or revoke measures accordingly. In any event, it is bound to ‘afford the parties an opportunity of presenting their observations on the subject’ (Article 76(3)).

  52. 52.

    Certain Activities (Provisional Measures), Order of 16 July 2013, supra n. 7, p. 233, para 14.

  53. 53.

    Ibid., p. 234, para 17.

  54. 54.

    Ibid., p. 237, paras 26–27.

  55. 55.

    Ibid., para 28.

  56. 56.

    Ibid., p. 238, para 30.

  57. 57.

    For example, the Court’s criticism of the ill-fated attempt at rescue of the US hostages in the United States Diplomatic and Consular Staff in Tehran case (Judgment, ICJ Reports 1980, pp. 43–44, paras 93–94; the penultimate paragraph of the judgment declining jurisdiction in the Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (ICJ Reports 2006, pp. 52–53, para 127); the ‘reminder’ to the parties of their duty to comply with the Racial Discrimination Convention (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, p. 398, para 149).

References

  • Frowein JA (2004) Provisional measures by the International Court of Justice: the LaGrand case. ZaöRV 64:55–60

    Google Scholar 

  • Kempen B, Zan H (2009) The practice of the International Court of Justice on provisional measures: the recent developments. ZaöRV 69:919–929

    Google Scholar 

  • Oda S (1996) Provisional measures: the practice of the International Court of Justice. In: Lowe V, Fitzmaurice M (eds) Fifty years of the International Court of Justice: essays in honour of Sir Robert Jennings. CUP, Cambridge, pp 541–556

    Chapter  Google Scholar 

  • Oellers-Frahm K (2012), Article 41. In: Zimmermann A, Oellers-Frahm K, Tomuschat C, Tams CJ (eds) The statute of the International Court of Justice: a commentary, 2nd edn. OUP, Oxford, pp 516–529

    Google Scholar 

  • Palchetti P (2008) The power of the International Court of Justice to indicate provisional measures to prevent the aggravation of a dispute. LJIL 21:623–642

    Article  Google Scholar 

  • Rosenne S (2004) Provisional measures in international law: the International Court of Justice and the international tribunal for the law of the sea. OUP, Oxford

    Book  Google Scholar 

Further Reading

  • Rylatt JW (2013) Provisional measures and the authority of the International Court of Justice: sovereignty vs efficiency. Leeds J Law Criminol 1:45–68

    Google Scholar 

  • Thirlway H (1994) The indication of provisional measures by the International Court of Justice. In: Bernhardt R (ed) Interim measures indicated by international courts. Springer, Berlin, pp 1–26

    Google Scholar 

  • Thirlway H (2013a) The law and procedure of the International Court of Justice: fifty years of jurisprudence. OUP, Oxford

    Book  Google Scholar 

  • Thirlway H (2013b) Peace, justice and provisional measures. In: Gaja G, Grote Stoutenburg J (eds) Enhancing the rule of law through the International Court of Justice. Brill Nijhoff, Leiden/Boston, pp 75–86

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. The Hague, Netherlands

    Hugh Thirlway

Authors
  1. Hugh Thirlway
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Hugh Thirlway .

Editor information

Editors and Affiliations

  1. Embassy of Nicaragua in The Hague, Den Haag, The Netherlands

    Edgardo Sobenes Obregon

  2. University Paris Nanterre, Paris, France

    Benjamin Samson

Rights and permissions

Reprints and permissions

Copyright information

© 2018 Springer International Publishing AG

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Thirlway, H. (2018). Provisional Measures. In: Sobenes Obregon, E., Samson, B. (eds) Nicaragua Before the International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-62962-9_17

Download citation

  • DOI: https://doi.org/10.1007/978-3-319-62962-9_17

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-319-62961-2

  • Online ISBN: 978-3-319-62962-9

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation