77 Provisional Measures

The first incidental proceedings that very often occurs is a request for interim measures of protection. Very often, on the same day or a few days later after having filed its case, the claimant addresses to the court a written request for the indication of provisional measures. Provisional measures are regulated under Article 41 of the statute and Article 73 to 78 of the rules. The purpose of such provisional measures is the preservation of the rights pending a judgement on the merits, and several conditions must be cumulatively met in order for the court to indicate provisional measures. The court must have prima facie jurisdiction over the merits of the case. A link must exist between the measures requested and the rights protected. Those rights must have a plausible character. There must exist a risk of irreparable prejudice. And finally, a condition of urgency must be concretely met. After this video, a reading will help you to understand those various conditions in a specific case. It is important to note that not only the claimant but also the respondent may request the indication of provisional measures, and furthermore, the court may indicate such measures on its own initiative, that is proprio motu, and it may also indicate measures different from those requested, or also indicate measures to both parties, while only one of them had requested measures of protection. For a long time, there has been a debate about the binding character of provisional measures, and this is because Article 41 of the statute states that the court has, I quote, the power to indicate, if it considers that the circumstances so require, any provisional measure which ought to be taken to preserve the respective rights of either party, end of quote. However, in a case between Germany and the United States relating to the trial, in the US, of two German brothers that did not benefit from consular assistance, the court made clear in 2001 that the provisional measures are legally binding on the state on which they are indicated, and that such state incurs international responsibility if it does not comply with the obligations so created. Provisional measures take the form of an order of the court. Because it is an order and not a judgment, provisional measures, despite being binding on the parties, are not res judicata for the court, which means that the court may change the measures ordered or indicate additional measures if the circumstances change and require new measures. Let us turn to a reading in order to put provisional measures in a concrete context and get a sense of what the various conditions for the indication of provisional measures mean concretely.