Abstract
Several cases before the International Court of Justice have served to focus attention on the problems concerning the indication of provisional or interim measures of protection to parties before the Court1 either on an application by one or both parties or proprio motu. The most recent case was the United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979.2 Another factor which impelled attention to the problem of provisional measures of protection in the jurisprudence of the Court was the fact that there has been a general overall revision of the Rules of Court during recent years culminating with the adoption by the Court of a new set of Rules in 1978.
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References
Fisheries Jurisdiction (United Kingdom v. Iceland) Interim Protection Order, I.CJ. Reports 1972, p. 12, and I.C.J. Reports 1973, p. 302; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Interim Protection Order, L C.J. Reports 1973, p. 99; Nuclear Tests (Australia v. France) Interim Protection Order, I.C.J. Reports 1972, p. 30; Nuclear Tests (New Zealand v. France) Interim Protection Order, I.C.J. Reports 1973, p. 313; Trial of Pakistaini Prisoners of War, Interim Protection Order, I.C.J. Reports 1973, p. 328; Aegean Sea Continental Shelf, Interim Protection Order, I.C.J. Reports 1976, p. 3.
LCJ. Reports 1979, p. 7.
See Professor B.A. Wortley’s interesting comparative study of the procedure of granting injunctions in “Interim Reflections on Procedures for Interim Measures of Protection in the LC.J.,” 11 Processo Internazionale Studi in Onore di Gaetano Morelli, 1975, pp. 1009–1019.
Hudson, The Permanent Court of International Justice: A Treatise, New York, 1943, pp. 428–430.
P.CLJ. Series A, No. 8, p. 5; Series C, No. 18, 1, pp. 305–306.
P.C.I.J. Series A, No. 12.
P.C.I.J. Series C, No. 69, pp. 15–49; Series A/B, No. 48.
P. C.1.J. Series C, No. 70, P. 429; Series A/B, No. 54.
P.C.LJ. Series A/B, No. 58.
P.C.I.J. Series A/B, No. 77; Series A/B, No. 79.
I.C.J. Reports 1951, p. 89.
I.C.J. Reports 1957, p. 105.
Polish Agrarian Reform case, 1933; Aegean Sea Continental Shelf case, 1966.
Aegean Sea Continental Shelfcase.
The Chorzów Factories case (P.C.I.J. SeriesA, No. 12, p. 10). Brief summaries of respective oral observations may be submitted.
P.CI.J. Series A113, No. 58, p. 177.
P.CI.J. Series A, No. 8, p. 6.
P.C.I.J. Series A/B, No. 48, pp. 287–289.
P.GI.J. Series C, No. 71, pp. 136–137.
P. C.I. J. Series A/B, No. 79,p. 199.
P.C.LJ. Series A/B, No. 48, pp. 284, 288; cf. Series A, No. 8, p. 7.
See Acts et Documents Relatifs à l’organisation de la Cour. Deuxième Addendum au No. 2 Modifications Apportées au Règlement en 1931, at pp. 253–254. The P.C.LJ. Rules were revised in 1936 and new ones adopted by the I.C.J. in 1947. The LC.J. made a partial revision of the Rules in 1972 and a complete version was adopted by the Court in 1978. It is noteworthy that, in the 1978 revision, Article 73 of the English text is headed “Interim Protection,” with paragraph 1 reading “provisional measures.”
See Article 32 of the 1972 Rules and Article 20 of the 1978 Rules.
Series E, No. 1, p. 248.
South-Eastern Greenland case, P.C.I.J. Series A/B, no. 55.
Series E, No. 14, p. 238.
Order of 21 Nov. 1927, Series A, No. 12, p. 10.
Series A/B, No. 48, p. 280.
ICJ. Reports 1976.
Hudson, ibid., at p. 420, would seem to be of the view that Article 53 of the Statute of the Court should be invoked if the party objecting to the jurisdiction of the Court in respect of an application for interim measures should fail to appear at the oral hearings.
Polish Agrarian Reform case, P. C.I.J. Series A/B, No. 52, p. 153; idem., No. 58, p. 179.
P.C.LJ. Series C, No. 54 (1932), p. 436; Series C, No. 55, p. 419; Series C, No. 56, p. 427.
In United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 Dec. 1979, I.C.J. Reports 1979, p. 7, the Iranian Government raised in its letter to the Court of 9 Dec. 1979 the issue of jurisdiction, but the Court held that that question did not arise for a decision in the instant proceedings, although it could be raised at the merits stage by Iran (see para. 45, ibid.).
It may be recalled that in the Anglo-IranianOil Co. case, the Court refused to draw the conclusion that, on the basis of the principle of forum prorogatum, Iran, by presenting an objection to the jurisdiction while also raising certain questions of admissibility, had thereby conferred jurisdiction upon the Court, as argued by the United Kingdom (see I.C.J. Reports 1952, pp. 113–114 ).
See the Dissenting Opinions in this case.
See the Separate Opinions of Judges Morozov and Tarazi.
The sentence he would have added was: “A preliminary objection, limited to the question of the jurisdiction of the Court, will not be considered by the Court as an acceptance of the jurisdiction of the Court within the meaning of Article 36 of the Statute.” A similar suggestion might also be needed to take care of the appointment of an Agent, he thought. Judge Dillard explained: “Its purpose is to avoid the anomaly of a party bringing to bear his views on a case while technically remaining a non-party. The idea is to introduce the legal device of a non-prejudicial `Special Appearance’… This suggestion was tendered to me by a friend and student of the Court [sic Judge Philip Jessup]… In his recent article on our Aegean Sea case Professor Leo Gross appears to be making a similar suggestion (47 A.J.LL., 31–59, January 1977).”
The Rules Committee so recommended and the Court accepted the recommendation, after carefully considering and examining the purpose served by a “special or conditional appearance” in Anglo-American procedural law. “To appear to recognize any procedure whereby a State might not be bound by the Court’s decision on the challenge to jurisdiction would be contrary to Article 36, paragraph 6, of the Statute,” said the Committee for the Revision of the Rules of Court, RR 77/10, 7 July 1977, p. 4.
Documents, p. 134, Records of First Assembly Committee I, p. 368.
Series D, No. 2, 3rd add., p. 282.
Docs., p. 103, Records of First Assembly Committee I, p. 307.
Docs., p. 172, Records of First Assembly, Plenary, p. 467.
P.C.LJ. Series A, No. 12, pp. 6–7.
See Minutes of the 1929 Committee of Jurists, pp. 340, 588, 650.
P. C.I.J. Series A/B, No. 48.
Op. cit., p. 415.
Idem, p. 420.
See President’s Order of 8 Jan. 1927 in the Belgian-Chinese case, P.C.I.J. Series A, No. 8, p. 7.
See Order of 3 Aug. 1932 in the South-Eastern Greenland case, P. C1..1. Series A/B, No. 48, p. 288; Article 19 of Locarno Treaties 1923; League of Nations Treaty Series, pp. 313, 325, 337, 352.
P.C.LJ. Series A/B, No. 48, 1932, p. 268.
P.CI.J. Series A/B, No. 79, 1939, pp. 194–199.
I.CJ. Reports1976.
LC.J. Reports 1973, p. 99.
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Elias, T.O. (1983). The International Court of Justice and the indication of provisional measures of protection. In: The International Court of Justice and some contemporary problems. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4865-0_4
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