Common Approaches to Provisional Measures in ICTs [III]: Binding Nature

02-02

In UNCLOS Art. 290(6), it explicitly require PM rendered bynITLOS and UNLCOS tribunals to be binding. While the case is less clear for thenICJ, as the terms in ICJ Statues are not consistent. The statute grants the power to thenICJ to 『indicate』 which 『ought』 to be taken(Art. 41(1)); while that parties andnSC are to be notified if PM are 『suggested』 (Art. 41(2)) The issue was solved atnLaGrand, which took an approach of interpretation based on the principle ofneffectiveness in treaty interpretation, considering the purpose and objective of the ICJ Statute and the function of international adjudication. It found thenpurpose of PM is to prevent the Court from being hampered in exercise of itsnfunction because the rights of the respective parties are not preserved.

The power of the ICJ to issue binding PM orders could notnonly be explained based on the principles of treaty interpretation; also, thencompetition between international courts and tribunals can shed light onnit. It can be speculated that ICJ is motivated by the desire to increase itsncaseload, especially in the background of the establishment of ITLOS and UNCLOSntribunals, which are empowered by UNCLOS to issue binding PM orders. It isnsuggested that in Southern Bluefine Tuna,nthe reason why parties eventually choose UNCLOS tribunals rather than the ICJnis that they had concerned the binding feature of PM orders in UNCLOSntribunals. (C. Romano) ICJ was certainly aware of the issue regarding to potentialndifference on binding nature of PM in the ICJ and other UNCLOS disputensettlement mechanisms. As noted by US innLaGrand, PM are 『indicated』 by the ICJ while are 『prescribed』 by the UNCLOS.nThus, the possibility of losing case-load due to the unbinding nature of PMnorder in the ICJ may be reduced throughnLaGrand Case.

Admitted, the rationale of competition between ICTs is onlynspeculative and there is not enough empirical evidence in this regard.nMoreover, it can only explain competition of courts which share the same jurisdictionnratione materiae, such as ICJ, ITLOS and Annex VII tribunals, but it may not benthat relevant to other ICTs with different subject matter jurisdiction. (C.nBrown)

The emergence of a common approach in relation to bindingnnature of PM can also be found in other ICTs. In Mamatkulov v. Turkey, the ECHR deviated from previous humannright jurisprudence (Cruz Varas v. Sweden) and hold the provisional measures tonbe binding by reference to the principle of effectiveness in treatyninterpretation, the evolutive approach, also Art. 31(3)(c) of the VCLT. Itnspecifically held that the power of ECHR to issue PM should be understood innlight of other principles of international law and thereby the court resortednto the jurisprudence of the ICJ, IACHR and other international human rightsnbodies to reach the conclusion that PM in ECHR are also binding. IACHR in itsnjurisprudence also confirmed the common approach of the binding nature ofnprovisional measures. (eg. James et al v. Trinidad and Tobago).

It should be noted that the general rule of internationalncourts relating to binding nature of PM shall not apply if it is inconsistentnwith the clear language in a particular court』s constitutive instrument. ICSID tribunalnis such a case. In its Convention, Art. 47 explicitly refer to the power of thentribunals to 『recommend』 provisional measures and in light of the ordinarynmeaning, the PM in ICSID could by no means be binding. (C. Brown) However, the jurisprudencenof the ICSID tribunals goes against such an interpretation. In Victor PeynCasado, the tribunal made a lot of reference to the ICJ jurisprudence (esp.nLaGrand) and in Tokios Tokeles, the ICSID tribunal expressed that according to thenwell-established principle of international law, the PM recommended by ICSIDntribunals should be binding. These decisions represent great examples tondemonstrate the power of a common approach in ICTs, which can even prevail the explicit rules in constitutive instruments of ICTs.

Reference: Chester Brown, A Common Law of International Adjudication, OUP, 2007, p. 119 ff.