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This chapter analyzes the practice of the Court with regard to judgments and provisional measures from the perspective of compliance. It argues that the record of compliance and efficiency of provisional measures is far from satisfactory and offers a stark contrast vis-à-vis the overall positive picture of compliance with judgments.

This chapter explores the Court's jurisdiction to indicate provisional measures of protection. It highlights the first provisional measures case before the International Court of Justice, the Anglo-Iranian Oil Co. case. In 1978 the Court promulgated revised Rules of Court, with changes in the provisions regarding provisional measures. Clearly, the existence of jurisdiction over the merits, both ratione personae and ratione materiae and its absence can each be ‘manifest’ to the Court, although there is a difference between the two. If the proceedings are regularly instituted, the Court's prima facie jurisdiction to indicate provisional measures has to be established from such judicial examination of the title of jurisdiction and of the objections to it that is feasible in the short time available within which the decision on the provisional measures has to be made.

This chapter focuses on the institution of provisional measures proceedings, and states that a request for provisional measures gives rise to proceedings that are independent of the principal proceedings on the merits of the claim. It discusses the composition of the Bench of the ICJ, and elaborates on the additional President's duties regarding a special power to call upon the parties to act in such a way as will enable any order that the Court or Tribunal may make on the request for provisional measures to have its appropriate effects. The Permanent Court first raised the issue of its power to act proprio motu when dealing with provisional measures in the South-Eastern Greenland case in 1932. In principal, provisional measures are only relevant to contentious proceedings.

This chapter explores the powers of the International Court of Justice to indicate provisional measures in situations of dire emergency. New States are showing increasing willingness to establish their legal rights through judicial procedures of the International Court, which is slowly bringing the Court into the general context of the international mechanisms for the maintenance and restoration of international peace and security. The Court's work in the sphere of provisional measures of protection, as it has developed from its cautious beginnings at the start of the existence of the Permanent Court in 1927, is probably the most significant of the Court's activities for the settlement of international disputes and the maintenance of international peace and security, the prime objective of the United Nations of which the Court is a principal organ.

This chapter considers the lessons learned from the actual practice of states with regard to the issue of compliance and evaluating prospects for the future. The analysis of practice has shown a generally satisfactory compliance record for judgments and a more problematical (yet somewhat successful) one for provisional measures. For both types of decisions, the Nicaragua case marked a paradigm shift as the last in a series of instances of open defiance and non-appearance. The authority of judgments or provisional measures was not subsequently challenged. The limited efficiency of the provisional measures following the Nicaragua decision is owing to reasons other than an overt non-compliance: all parties pretended to have complied with the provisional measures.

This chapter takes an account of the Statute of the International court of Justice that left the development of the law and practice relating to provisional measures of protection in the hands of the Court. It further discusses the Article 30 of the Statute that asserts the Court to frame rules for carrying out its functions, and also about the Rules of 1922, 1931, 1936, 1946, and 1972 along with the Rules of 1978. The Provisional Measures in Annex VII arbitration tribunal possesses an original jurisdiction to prescribe provisional measures, independently of its jurisdiction to modify, revoke, or affirm provisional measures already prescribed by International Tribunal for the Law of the Sea, but how the arbitral tribunal does this will depend on its Rules of Procedure.

Urgency, which is specifically mentioned as one of the requirements for the prescription of provisional measures, is the focus of this chapter. Urgency as such is not mentioned in the Statute of the International Court of Justice; however it can be implied when the Court considers that the circumstances so require it. As a matter of substance, the International Court of Justice has rarely mentioned urgency by name, preferring to recite the circumstances, which have led it to exercise, or not its power. Thus, urgency is mentioned specifically only in Article 290, paragraph 5, of the Law of the Sea Convention, and for International Tribunal for the Law of the Sea it is regulated in Articles 89 to 95 of the Rules of the Tribunal.

This chapter examines the doctrine forum prorogatum and the evidence of provisional measures in the International Court of Justice (ICJ). It explains that forum prorogatum has been applied by the Permanent Court of International Justice (PCIJ) and the ICJ as a flexible way of founding the jurisdiction of the Court over the merits of a dispute. It suggests that a case must first exist before the Court may proceed to consider a request for provisional measures, and that there must be prima facie evidence of jurisdiction before the Court may indicate provisional measures.

This chapter explores the period of time within which provisional measures may be indicated. A party may make a request to the International Court of Justice for the indication of provisional measures at any time during the course of the proceedings in the case in connection with which the request is made. The word ‘party’ in this context refers to a State recognized by the Court as a party to the case in question. It emphasizes on Article 94, paragraph 2, of the ICJ Rules and Article 124, paragraph 2, of the ITLOS Rules provide that a judgment becomes binding on the parties on the day of the reading. Unless the court or tribunal should specify otherwise when ordering provisional measures, such an order remains in force until either it is changed or cancelled by the competent court or tribunal or until the final decision on the merits or other definitive decision of the court or tribunal.

This chapter summarizes the nature and the purpose of the concept of provisional measures of protection in the modern law of international judicial proceedings. The power of an international court or tribunal to order provisional measures of protection is commonly understood as coming within the scope of its ‘incidental jurisdiction’. One of the features of the development of international law in the 19th century has been the increasing use of arbitration procedures, culminating in the Alabama arbitration of 1881–2. The chapter also focuses on the contributions of Asser who was a prominent member of the Dutch delegation at The Hague Peace Conference of 1899. He was actively responsible for the preparation of the Convention for the Pacific Settlement of International Disputes, containing the first internationally agreed code of arbitral procedure. It further discusses about the Bryan Treaties that provided recourse to a Permanent International Commission when ordinary diplomatic proceedings had failed and the parties did not have recourse to arbitration.

With the emergence of the concept of community interests, it appears that international law is entering into a new stage of its development. In this regard, an issue arises whether and to what extent international courts and tribunals can respond to the protection of community interests. Provisional measures prescribed by the International Tribunal for the Law of the Sea (ITLOS) for protecting the marine environment provide an important insight into this subject. Thus this contribution examines ITLOS provisional measures in the context of marine environmental protection focusing on three issues: (1) the role of ITLOS provisional measures in the regulation of marine pollution and conservation of marine living resources, (2) the Tribunal’s manner in which the requirements to prescribe provisional measures are examined, and (3) the effectiveness of ITLOS provisional measures.

In the “Enrica Lexie” Incident case between Italy and India, two judicial organs, i.e. the International Tribunal for the Law of the Sea (ITLOS) and the Annex VII Arbitral Tribunal prescribed provisional measures. It is rare that ITLOS and the Annex VII Arbitral Tribunal prescribed different provisional measures in the same dispute. The “Enrica Lexie” Incident case provides an insight into the procedural law governing provisional measures under the UN Convention on the Law of the Sea. This article examines the provisional measures prescribed by ITLOS and the Annex VII Arbitral Tribunal in the “Enrica Lexie” Incident case focusing particularly on three issues: (1) the relationship between the request by Italy submitted to ITLOS and that submitted to the Annex VII Arbitral Tribunal, respectively, (2) the existence of the urgency of the situation, and (3) the legal effect of considerations of humanity.

A state seeking the introduction of provisional measures must show that jurisdiction prima facie exists, notwithstanding conditions, reservations and the operation of reciprocity between declarations. There exists the possibility that acts carried out prior to the crucial date ‘nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date’. This latter eventuality is indeed reflected in the International Law Commission’s Draft Article 25 on State Responsibility. It is not the International Court of Justice alone which has had to formulate jurisprudence on the concept of ‘continuing events’: so has the European Court of Human Rights. This chapter offers a commentary on the proceedings instituted by Yugoslavia against Spain and by Serbia and Montenegro against Belgium, Canada, Netherlands, Portugal, and the United Kingdom. The chapter gives an opinion on each of the cases.

This chapter presents some concluding thoughts. The Court's prestige is at an all-time high even if compliance has not always been easy. The relatively positive compliance record for ICJ decisions merits greater recognition and is all the more remarkable in light of the increasing diversity in terms of litigants before the Court.

The safeguard and preservation of the integrity of international jurisdiction are of the utmost importance for assuring the access of individuals to international justice. In recent years, both the European and Inter-American Courts of Human Rights have put limits to State voluntarism and thereby safeguarded the integrity of the respective international mechanisms of human rights protection, duly preserved, to the benefit of the alleged victims.The direct access of individuals to international justice is also manifested in provisional measures of protection, in so far as the preventive dimension is concerned. It further encompasses, in proceedings on contentious cases, the safeguard of the guarantees of the due process of law.

This chapter presents a speech delivered to the United Nations General Assembly on the occasion of its examination of the Report of the International Court of Justice (ICJ) for the period August 1, 2007 to July 31, 2008. All 192 United Nations Members are ipso facto parties to the Court’s Statute. Of those, sixty-six states have accepted the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute. In addition, some 128 multilateral conventions and 166 bilateral conventions envisage that the Court will be resorted to for dispute settlement. This chapter examines the judgments rendered by the Court during the reporting period. It also briefly addresses the order on provisional measures issued previously.

Most developments related to the concept of cultural genocide occurred in the field of public international law (international human rights law and international cultural heritage law), thus involving state responsibility. If international law does not recognize state criminal responsibility, states can still be held responsible for the crime of genocide and serious violations of cultural rights. This chapter builds upon this context to inquire whether state responsibility could be articulated in order to cover some specific features of cultural genocide. The current state of international law indicates that its intentional character could be addressed through a principle of aggravated state responsibility. However, international law still seems to lack mechanisms of genocide prevention, in which context attacks against groups’ cultures may stand as an early warning of potential further escalation.

This Note focuses on the Judgment handed out by a special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in a dispute concerning delimitation of maritime areas between Ghana and Cote d’Ivoire. This is the only decision of substance of ITLOS during 2017. Among the elements of particular interests of the Judgment the following should be noted. First, the consideration and rejection of the argument that oil concession practice may constitute a tacit agreement. Second, the reliance, however limited to this case, as regards delimitation of the territorial sea on the same methodology used for the delimitation of the exclusive economic zone and the continental shelf, namely, the equidistance/relevant circumstances methodology. Third, the distinction between the function of the Chamber in delimiting the continental shelf beyond 200 nm and that of the Commission on the Limits of the Continental Shelf in delineating the outer limits of the shelf. Fourth, the examination of the question of whether the Chamber had jurisdiction to decide on questions of responsibility, and of the applicability of customary international law thereto. Fifth, the statement that to adjudicate on the claim that Ghana had contravened the Chamber’s Order on provisional measures belonged to the Chamber’s “inherent competence”. Sixth, the analysis of the regime of contested areas in light of Article 83 of UNCLOS.