Alexandre Genest, 2014
DCC 3117 – Public International Law – Class 3 –
Provisional Measures, Arbitration & Sources of
A.Provisional Measures of Protection and Crisis
See Rosenne, International Courts and Tribunals, pp. 97-100; see also Rosenne
(MPEPIL), ICJ, p. 20 para 87.
A. Defining Provisional Measures
ASK NAT OR SOMEONE FOR THIS
Protect the subject matter of the dispute pending final decision ... i.e the Mosque
We’re looking at this through the ICJ and the ITLOS..? ICJ was born in 1945 which
continued from the league of nations PCIJ.. so provisional measures go all the way back
They’ve evolved and now serve different aims through new means.
B. Why are Provisional Measures Needed?
Preserve the …ask nat for this
C. Prerequisite for Adopting Provisional Measures
1-Constituent instrument…ICJ it would be the statute of the Ineeds to provide
specifically in a worded fashion that renders specific court as a provisional measure
court. (textually authorizing issuance)
2-Existence of pending proceedings. You can’t just ask the ICJ to just have a permanent
order on something, they’re not there to prevent anyone to do anything unless it’s
against the law. It must be an issue that forms part of a bigger dispute. The idea is
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not about it should it be built or not? The issue is more how must it be built, how can we
find some kind of solution between both? So a measure limited in time to make sure
nothing INREPERABLE is done until the final decision is taken. LISTEN TO
A constituent instrument providing for provisional measures
D. The existence of pending proceedings between the parties
E. All Pronouncements Made in Connection With Provisional Measures
To prevent of issuing a provisional measure on something they don’t have jurisdiction
over, they give the standing court or tribunal some leeway by saying you have the right
to make provisional measures that could ultimately be wrong but it’s okay because this
may be required…
F. PCIJ and the Beginnings of Provisional Measures
It existed as result of the Versailles treaty by the League of Nations. General and open
ended PROVISION. aRTICLE 41 OF THE icj (P.98 OF ROSEANNE’S TEXT) ICJ
drawing from the wording of that provision developed the practice of providing
provisional measures by saying that it has prima-fascia (at first glance) superficial idea
athat it deems it has jurisdictional power over the measure than it has the right to provide
provisional measures. However, it’s very common of going back on your PRELIMINARY
STATEMENT a few months after.
“LAGRAND case, ICJ interpreted statute 41 with the confusion that “the order indiciating
provisional measures, is binding on the part and a failure to comply with it would be an
internationally wrongful act that could give rise of claims for reparation.” Examples in
G. Provisional Measures and Maintaining or Restoring International
Example of the anglo-iranian crisis where an order by the ICJ was ordered by the 1950’s
when iran nationalized the company. ICJ issued provitional measures of protection that
helped diffused tensions between UK and Iran. (used to maintain or restore
35 years later, conflict of power in Nicaragua (U.S gets involved). Nicaragua went and
told the ICJ on the U.S on the idea of non-intervention in the peace of a State, so they
asked for an order to tell the U.S to stay out of their shit. The ICJ asked the US to not
have any effects on the entrance or exist of Nicaragua and to stop laying mines.
IT CAN ALSO REMEDY BORDER TENSIONS, in pending tensions and can reinstate
the status quo until at least a decision is made.
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Also, could be to ensure the evidence necessary for a case. i.e if you allege that a State
RNDD ARTICLE 41 TO BE FAMILIAR WITH IT, TO UNDERSTAND THE MECHANICS.
2 paragraph is next point
H. Notification of ICJ Provisional Measures to the UN Security Council
AskS ICJ to notify the UN Security Council when provisional measures are in order.
Because the Security Council has to maintain international peace and they may have to
allow the use of violence at some point..
I. Arbitration and The Permanent Court of Arbitration
Important is to see contrast between standing court and tribunal. It doesn’t exist
physically besides the permanent court of arbitration (it’s just kind of a registry that
provides admin services)
It’s much older than standing courts and tribunals. Well established yet obscure because
it’s not visible. It’s not very institutionally perceivable. i.e There’s NAFTA and an
investment chapter within in, providing rights to foreign investors, these investors can
sue the states directly, and the arbitration court will be the one working it.
In context of an arbitration, decisions are made by judges chosen by the parties.
A. Differences Between Arbitration and Judicial Settlement
1. Arbitration: decision is made by judges chosen by the parties
Each party will choose an arbitrator and the 2 together will choose the 3rd arbitrator. The
issue though is that you need a majority decision and if one of the parties picks one very
partial arbitrator, the other 2 will ignore him.
J. Arbitration: Parties must agree on logistical matters
Either you agree to apply a set for pre-existing procedural rules (easiest way to go) (i.e
like hearings every 6 months, admissions, fees, etc.)
K. Arbitration: No mandatory publicity and transparency
A lot of arbitrations are confidential. Sometimes people open their mouths a lil too much
but a decision can be kept confidential. A State can be sued but can tell to keep this
confidential. (You don’t want people to know that you fucked up) opposed to the ICJ
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making a decision) KNOW ALL 3 DIFFERENCES. Standing courts and arbitraton
L. Why Have Recourse to Arbitration?
If you’re not stuck going to the ICJ, and you can make a side agreement to go to
arbitration, it might be beneficial sometimes. 1) Keeping it quiet or the process isn’t rly
1. A High Degree of Unpredictability Surrounds ICJ Decisions
Stay away from some effed up judges on the ICJ
M. Arbitration Provides Greater Flexibility
More trouble sometimes but also sometimes when your case is super complicated, you
don’t really have to do it the ICJ way. Selecting the arbitrators is great flexibility. Also
transparency. Also the award be reasoned or not reasoned (1 page explanation or 500
page decision). You can empower the arbitrator with some powers.
N.Sources of International Law and Article 38 of the
Statute of the ICJ
1.Not well drafted, 2.outdated,3. Political statement (not drafted by scholars, it was
states with political interests)4.it’s not a hierarchy ,so nothing being higher than the other
See Rosenne, Where to Find the Law, p. 49.
See Thirlway, Sources of Int'l Law, p. 96.
VERY IMPORTANT…do these readings
O.International Conventions (Treaties)
A. Treaties as the First and Main Source of International Law
This is a little contradictory to the point of no hierarchy, but it is what it is. Treaty is the
most important source because of convenience and one of the rules used to establish a
priority of application between sources of law (the latin is lex specialis derogate generali)
priority of specific over the general rule. Treaties are usually rather specific.
2) A written is always favourable to unwritten (for the use of lawyers, courts, structured
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See Rosenne, Where to Find the Law, pp. 49-50.
P. A State Must Perform Its Treaty Obligations in Good Faith
States must comply with the pacta sunt servanda principle of basically having to comply
with treaties that you’ve signed and you must do it in good faith.
See Thirlway, Sources of Int'l Law, pp. 97, 99.
Q. A State Not Party to a Treaty is not Bound by Such a Treaty
Also latin expression here (doesn’t need to be memorized res inter alios acta) meaning
a transaction between others neither disadvantages nor benefits parties or entities that
are not involved in this transaction.
See Thirlway, Sources of Int'l Law, p. 100.
R. Erga Omnes Treaty-Based Rules and Consent to Jurisdiction: the
Case of East Timor
Some rules have been perceives as more than just treaty. Erga omnes: Towards
all. It’s owed to all. It’s a rule that has evolved to something that has bec