Common Approaches to Provisional Measures in ICTs [I]: Sources of Power

Issue: to what extent there exists a common approachnto provisional measures across different courts and tribunals?

Acknowledgement: the answer to thisnquestion is based on C. Brown, 『Power of International Courts to GrantnProvisional Measures』, A Common Law of International Adjudication, OUP, 2007,npp. 119-151.

Provisional measures (hereinafter PM) arengranted by courts to preserve rights of respective parties before a finalnjudgment on the merit is made. The need to give provisional orders arises fromnthe fact that once a case is filed at a court, it takes some time to addressnthe dispute and during such period, incidents may occur to cause irreparablenharm to the rights that constitute the subject matter of the dispute, and failure to address the problem wouldnrender the final judgment unable to execute. Many international courts andntribunals (ICTs) have, as explicitly enshrined in their constitutive instruments,nthe power to issue orders of provisional measures while ICTs may issue ordersnof PMs where their constitutive instruments do not explicitly grant such powernand the exact ways of executing the power and the effect the order of PM mightnbe different, thus it begs the question whether and to what extent there existsna common approach to PM. This essay will analyse the law and practice on PM innvarious courts focusing on the source of power of ICTs to grant PM orders.

I. nSource of the Power to GrantnProvisional Measures

Many ICTs have an express power to indicatenPM according to their constitutive instruments.(ICJ Statute, Art. 41;UNCLOS,nArt. 290, ICSID Convention, Art. 47; other courts include ECJ, IACHR, NAFTAntribunals, etc.) or their rules of procedures (eg. ECHR, UN AdministrativenTribunal, etc.). Other ICTs, such as PCA tribunals, WTO panels and AppellatenBody, however, do not have such an express statutory power, but it is suggestednthat they may also have inherent powers to indicate PM (C. Brown). In thisnregard, I would argue that regardless of whether an explicit statutory rule empoweringnthe court to indicate PM exists, various international courts have an inherent powernto indicate PM as (i) such a power is supported by a general principle of law; (2)nsuch a power is necessary for the performance of functions of adjudication; (3)npractice of ICTs supports that international courts can issue PM even thoughntheir constitutive instruments or rules of procedure do not stipulate such anpower explicitly.

1.1 As A General Principle of InternationalnLaw

The power to indicate provisional measures isna general principle of law in the sense of Art. 38(1)(c) of the ICJ Statute. Thisnwas recognized in Electricity Companynin Sophia and Bulgaria, wherenthe PCIJ stated that it is a principle recognized by international tribunalsnthat 『parties must abstain from taking any measures capable of exercising anprejudicial effect in regard to the execution of the decision to be given』.[1]nIt is suggested by writers (eg. Collins) that there is a general practicencommon to domestic legal systems for courts to issue interim relief and thusnthe power to grant provisional measures can be considered a 『general principlenof international law』 in the sense of Art. 38(1)(c) of the ICJ Statute (C.nBrown). It may be argued that international courts cannot generate their powersnfrom general principles of international law but must be based on the consentnof parties as expressed in the constitutive instruments. However, it is also a principle that jurisdiction of international courts should be effective.(H. Lauterpacht) Since parties to a dispute generally accept the jurisdiction of a court to settle their disputes, it is suggested that the parties must have intended the court to have power to indicate PMs to ensure the effectiveness of jurisdiction. (Avena, LaGrand).

1.2 Necessary for functions of adjudicationn

The inherent power to indicate PM isnsupported by the functions of international justice. The first function ofninternational justice is to settle disputes by rendering binding judgments. Innthis regard, LaGrand casensupports the idea to read the power to indicate PM in light of the purpose andnobjective of settlement of international disputes through a binding judgement.nIf international courts were unable to indicate provisional measures preventingnconducts that might be harmful to the subject matter of the dispute in thencase, the function of settling dispute would be undermined (Gerald Fitzmaurice).

The inherent power to indicate PM is alsonnecessary for another function of international justice – management ofndisputes. (Thirlway) Such a function is realised by courts to render PM tonrequest parties to a dispute to refrain from taking any measures capable ofnaggravating or extending the disputes before the court. Even though PM based onnsuch a reason is not usually explicit in statutory provisions (it seems onlynthe convention establishing the Central American Court of Justice explicitlynempower the court to indicate PM based on such a reason), practice ofninternational courts generally support the existence of an inherent power tonrender PM to prevent aggravation or extension of disputes. In the case of ICJ,nfor example, Art. 41 only explicitly grants the power to render PM to preserve respectivenrights of parties; while in FrontiernDispute, the court held that it has a power to indicate PM to prevent aggravationnor extension of the dispute whenever it considers the circumstances so require.nIt would suggest that the court has an inherent power to indicate PM beyondnwhat is explicitly allowed by the statutory provisions. The purpose ofnmanagement of disputes has also been exemplified in other cases among variousncourts. (eg.Electricity Company ofnSofia and Bulgaria [PICJ], Fisheries Jurisdiction [UK v. Ireland], NuclearnTests [Australia v. France] [New Zeland v. France], Genocide case innthe ICJ, Amco v. Indonesia [ICSID], Mox Plant [ITLOS], LandnReclamation by Singapore in and around the Straits of Johore [ITLOS]). Therefore,nthe functions of international adjudication to settle and manage internationalndisputes can in some cases serve as the basis for courts to indicatenprovisional measures.

Other Practice of ICTs supporting the inherentnpower

There exist substantial practice supportingnthe existence of an inherent power to indicate PM regardless of the existencenof an explicit statutory rule in this regard. In Treaty of Corinto, the arbitral tribunal has no formal powernto grant PM based on its constitutive instrument. Nevertheless it ordered thentwo parties to the dispute (Nicaragua and Honduras) to retreat their troopsnfrom the frontier and put themselves on a footing of peace, which is akin tonprovisional measures. A further example is TrailnSmelter case, the arbitral tribunal before final judgment on the merit,nestablished a 『temporal regime』 requiring both parties to comply with, which isnin effect a form of provisional measure, as it intended to preserve rightsnunder dispute.

It may be argued that the power to grant PMnis not necessary for exercising functions of every international court. Forninstance, it may be argued that WTO panels and Appellate Body are unlikely tongrant provisional measures as it may be argued that the power to grantnprovisional measures would be inconsistent with the short period of timenprovided for each case. In addition, provisional measures are not necessary asnDSU already provides for expedited procedures in cases of 『urgency』. But I would argue that I shorter period ofntime does not necessarily prevent from granting provisional measures, as irreparablenharm to rights of parties may occur even during a short period of time (eg. EC-Hormones, DSB approved suspensionnof some sort of concessions). …

[1] Ser A/B, (No 79), 194, 199 (PCIJ, 1939).

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