Provisional Measures of the ICJ: Just a Short-Cut to Judgment? – Olivia Flasch

By Olivia Flasch

Associate Olivia Flasch discusses the conditions that the ICJ must satisfy in order to indicate provisional measures, and reveals how the International Court of Justice can order something like a freezing order against a sovereign state, in Legal Week.

Olivia’s article was published in Legal Week, 13 November 2020, and can be found here.

Freezing orders, search orders – these are words we have heard before. They form part of the interim injunctions a court may impose on a party pending final judgment. We rarely think twice about them when they arise in the context of a dispute before the English courts.

However, these are not words we typically associate with the International Court of Justice (“ICJ”). Because how could an international court, which already lacks enforcement power as it is, order something like a freezing order against a sovereign state? And yet, article 41 of the Statute of the ICJ allows it to indicate what is called “provisional measures” – temporary measures intended to preserve the rights of the parties – if it considers that circumstances so require.

Acting by the power of article 41, the ICJ has indicated provisional measures in roughly one third of the cases it has heard.

To impose the measures, the ICJ has to be satisfied, amongst other things, that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the merits of the case are adjudicated upon.

This is not a far steer from the criteria the English court needs to fulfil to order an interim injunction. However, rather than having to prove a real and imminent risk of prejudice, interim injunctions are granted when a party can show that the other party has invaded or threatens to invade their right(s), or has behaved or threatens to behave in a manner which is unconscionable (South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24).

Interestingly, the English courts will not grant, at an interim stage, the same remedy that would be sought at a final hearing, where doing so will involve pre-judging the issue of whether the applicant is entitled to such remedy (O’Brien v TTT Moneycorp Ltd [2019] EWHC 1491 (Comm)). As a result, the remedy sought at an interim stage in England and Wales will rarely be the same as that sought at trial (cue the freezing orders and the search orders).

Because the ICJ cannot grant, e.g., a freezing order, the provisional measures sought will nearly always be the same or similar to the remedy sought at trial. And yet, the ICJ also frequently reiterates that it will not pre-judge the merits of a case.

This begs the question: how can the ICJ determine whether there is a “real and imminent risk of prejudice” to certain rights of a party and consider imposing an interim remedy that may be identical or near identical to the remedy sought at trial, without inevitably reviewing at least some of the merits to evidence a past threat or breach of rights?

The answer is: it cannot. A recent case on point is the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). The Gambia asked the court to impose provisional measures against Myanmar to secure the rights of the Rohingya population against the risk of genocide. The court reviewed the evidence put forward by The Gambia regarding Myanmar’s alleged commission of genocide and decided that, given such evidence, there was a real risk that the Rohingya would be subjected to genocide, thereby violating their (and The Gambia’s) rights under the Genocide Convention.

Provisional measures aimed to stop Myanmar from committing any further acts of genocide against the Rohingya were put in place in January 2020 but, ironically, the issue of whether Myanmar had in fact committed genocide was tabled for a future hearing on the merits.

Arguably, by indicating the provisional measures, the ICJ effectively rendered its statement that it will not pre-judge the merits of the case meaningless. The ICJ had clearly already pre-judged the merits, as only evidence on the merits would allow it to assert that the Rohingya were at risk of genocide.

Forget for a moment the difference in approach between the ICJ and the English courts as regards the type of interim remedy sought. The main difference still appears to be the way the courts approach the balance of rights between the parties. When deciding whether to order an interim injunction, the English courts will balance any benefit of a temporary restriction against the risk of prejudice it may have on the party against which it is ordered (American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL).

The ICJ, rather than considering the risk of prejudice that the provisional measures may have on the party against which they are ordered, instead considers the risk of prejudice that not imposing the measures may have on the rights of the party requesting it. The balance is therefore tilted in the requesting party’s favour as opposed to the party against whom the measures are ordered.

This balance in favour of the requesting party makes some sense if you consider that the ICJ was founded to peacefully resolve disputes between states as an alternative to war. Arguably, the ICJ needs to have the power to prohibit a state from violating the international rights of another state with immediate effect so that it can prevent the possibility of further death and/or destruction.

The Gambia v Myanmar is a clear example of the court’s approach. Perhaps, therefore, to fulfil this vital function, it is implied and understood that an extensive review of evidence and a proper determination of fault will always have to come second.

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