Compliance with the International Court of Justice’s provisional measures orders has been low and appears to be decreasing, as underscored by the recent cases of Israel and Syria. So, attention is again turning to whether the measures can be enforced. Most commentary has focused on the possibility—yet to be put into practice—of enforcement measures by the UN Security Council. What about countermeasures?
To date, most scholars (though not all) have concluded that the parties to an ICJ case may use countermeasures in response to non-compliance. But so far, commentators have rejected the idea that non-parties might deploy countermeasures. However, two recent developments call for a reexamination: the ICJ’s recognition of erga omnes (partes) standing in an increasing number of cases and the crystallizing state practice supporting third-party countermeasures. Against this backdrop, this essay revisits the possibility of third-party enforcement of provisional measures through “provisional countermeasures.”
Readers may wonder whether an entitlement to provisional countermeasures will make any practical difference. Provisional measures typically restate existing legal obligations or apply them to the circumstances of a dispute. So, states are already entitled to respond to breaches of those existing obligations. However, provisional measures often clarify the scope and applicability of those obligations, enabling states to pinpoint the relevant duties and monitor compliance. Consider the case of South Africa v. Israel. There is considerable doubt whether Israel’s actions in Gaza constitute genocide as defined by the Convention. But evidence is mounting that Israel is violating the provisional measures order to facilitate effective delivery of humanitarian aid into Gaza. Both injured and third states can have significantly more confidence in deploying provisional countermeasures in such cases.
Provisional countermeasures by the parties
It is worth starting with a review of the more straightforward case of provisional countermeasures by the parties. In its LaGrand judgment (¶110), the Court finally decided that its provisional measures are “binding in character and create a legal obligation” for the party concerned. Thus, defiance of provisional measures is an internationally wrongful act under ARSIWA Article 2, entitling the “injured state” to take countermeasures per ARSIWA Article 49. This conclusion is compelled by the text and logic of ARSIWA, and confirmed by the Commentaries.
Under ARSIWA Article 42, a state qualifies as an “injured state” entitled to invoke the responsibility of the breaching state when the obligation violated is either owed to that state individually, or to a group of states among which that state is specially affected. Even in erga omnes (partes) cases where the applicant state is not directly injured by an underlying legal violation (e.g., The Gambia and South Africa), that state would nevertheless be injured by the breach of a provisional measure, since compliance is directly owed to that state.
The ARSIWA Commentaries implicitly recognize the possibility of provisional countermeasures. They note that a provisional measures “will perform a function essentially equivalent to that of countermeasures. Provided the order is complied with it will make countermeasures unnecessary pending the decision.” This implies that a breach of provisional measures may make countermeasures necessary to preserve the requesting state’s rights pending the court’s judgment. Although the commentary refers to countermeasures in response to the original breach, its logic also applies to breaches of provisional measures, which create equally binding legal obligations.
Provisional countermeasures by third parties
The right of third states to deploy provisional countermeasures is more complex. The issue is particularly significant given the recent rise in erga omnes (partes)—hereafter just called erga omnes—cases at the Court, some involving applicant states with limited countermeasure leverage. Although the little existing commentary on this issue concludes that third states may not use countermeasures, this section seeks to challenge this view by sketching out two possible justifications for third-party enforcement.
The first possibility is that provisional measures in erga omnes cases create binding obligations owed to third states. If this is correct, the third states to whom the underlying erga omnes obligations in a case are owed could use provisional countermeasures. (This view assumes that third-party countermeasures are allowed—a plausible, but not indisputable, assumption.)
The issue is that provisional measures do not themselves create erga omnes obligations, at least not in the usual sense of the term. In Barcelona Traction (¶33), the Court described erga omnes obligations as those which are “the concern of all States” and in whose protection “all States can be held to have a legal interest.” It enumerated examples: outlawing aggression, genocide, slavery, and racial discrimination. As a category, provisional measures would not seem to fit into this group, even in erga omnes cases. Indeed, the text of the ICJ Statute supports the exclusively inter-party nature of provisional measures. Article 41 authorizes “any provisional measures which ought to be taken to preserve the respective rights of either party,” suggesting that provisional measures merely create rights and obligations between the parties.
However, the dynamics of erga omnes cases challenge the idea that provisional measures create merely bilateral obligations. Where a specially-affected state is not a party to the case, that state surely also has a legal interest in compliance with provisional measures. Consider South Africa v. Israel and the position of Palestine. Despite Palestine’s non-party status, the Court considered and accepted as plausible (¶54), both the rights of “the Palestinians in Gaza to be protected from acts of genocide . . . and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.” Setting aside issues of statehood and the difference between the rights of a state and a group, the Court’s consideration of the rights of a non-party is significant. It opens the door for provisional measures to create obligations to non-party, injured states. And, if those states, then why not other states to which the erga omnes obligation is owed? Recognizing obligations to third states in erga omnes cases would be consistent with the Court’s standing jurisprudence and acknowledge the essentially multilateral nature of such disputes.
A major obstacle to this approach is Article 59 of the ICJ Statute, which holds that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.” One possible way around this hurdle would be the theory that, in erga omnes cases, the Court’s decisions—both provisional measures and judgments—have binding force between all the states that share the common interest being litigated. Scholars have recognized some exceptions to Article 59’s limitations, such as decisions with objective results (for example, boundary delimitations). Perhaps erga omnes cases might be another exception. This would be an appealing way to interpret Article 59, but so far lacks support from the Court’s jurisprudence or state practice.
These concerns would probably be moot when a state successfully intervenes as a party under Article 62 of the ICJ Statute. The implications for provisional measures of intervention “as a party” in erga omnes cases have yet to be studied (or observed). But, it would seem that the intervening party would have the same rights and obligations as the applicant with respect to provisional measures. Thus, it would be equally entitled to respond to non-compliance with countermeasures.
A second justification for third-party provisional countermeasures is the right to enforce judicial decisions. Under this rationale, the non-party need not be directly owed a legal obligation by the breaching state, so the justification is not limited to erga omnes cases. Although ARSIWA is silent on the issue, scholars have long proposed that states have a right to aid in the enforcement of international judgments. Over sixty years ago, Oscar Schachter argued that states are “entitled under international law (and possibly may be considered under a duty) to assist in the execution of a decision of the International Court, if that decision has not been complied with and the successful party requests such assistance.” Michael Reisman proposed that such a “duty to aid in enforcing community decisions” is a general rule of international law per Article 38(1)(c) of the ICJ Statute. More recently, Mary Ellen O’Connell identified growing state practice supporting a right to assist in enforcing international judgments.
To be sure, these scholars referred to final judgments, not provisional measures. But, since LaGrand, there seems to be little reason to distinguish between the enforceability of the two types of decisions. And, although these publications preceded ARSIWA, nothing in the Articles precludes a right to aid in enforcement.
The scope of third-party provisional countermeasures
Even if third parties are entitled to deploy provisional countermeasures, these measures will need to comply with the customary rules governing their use enumerated in ARSIWA Chapter II. Some requirements will be more important than others. The procedural requirement of notification (Article 52) will not apply in cases where an “urgent” response is required to safeguard a right, as will often be the case when provisional measures are breached. But the breach and proportionality requirements will be critical in all cases.
According to ARSIWA Article 49, “[a]n injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations.” The key parameters of interest for third states considering countermeasures are the obligations of the target state and its compliance with those obligations. The third state will need to pay close attention to each specific measure, and the Court’s reasoning underpinning it, to accurately assess both obligations and compliance.
As to obligations, provisional measures largely exist along a spectrum from simple restatements of existing obligations to applications of duties to the specific context of a dispute. (In some cases, provisional measures may create new obligations, as Tamada has recently pointed out, although the extent of this phenomenon remains controversial.) Recently, the Court has been in the habit of issuing measures that reproduce the key treaty obligations of the target state (e.g., four of the six measures in South Africa v. Israel essentially direct Israel to follow its Genocide Convention obligations). Such measures will give the third-party state little new information as to the target state’s obligations. But, other measures apply legal obligations to the factual circumstances. Examples include Israel’s obligation to ensure effective humanitarian access to Gaza, Russia’s obligation to end its invasion of Ukraine, and Azerbaijan’s obligation to allow the safe movement of Armenians to and from Nagorno-Karabakh. While the applicability of these obligations will sometimes be obvious, these measures will give third states confidence that they are entitled to seek the target’s states compliance.
Meanwhile, provisional measures orders will also vary in the amount of information they convey on compliance. Much of the evidence submitted to the Court at the provisional measures stage is the same publicly available evidence that states can use to monitor compliance on their own. But one kind of provisional measure might make an informational difference: the obligation to submit compliance reports (e.g., South Africa v. Israel, The Gambia v. Myanmar). These reports—if submitted and disseminated—can provide data on compliance to guide countermeasure decisions. And public scrutiny of compliance following ICJ orders can also be informative.
Based on this information about obligations and compliance, third states can decide whether to take provisional countermeasures. If they do, they must also take care that the measures are proportional to the “gravity of the internationally wrongful act and the rights in question” (ARSIWA Article 51). This reinforces the importance of precisely identifying the provisional measures being violated and the magnitude of the non-compliance.
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This piece has sketched out two avenues for justifying third-party provisional countermeasures in response to defiance of ICJ provisional measures. In erga omnes cases in particular, non-parties may be able to invoke both justifications when employing countermeasures—although the same limitations just discussed on the scope of those measures will apply. For now, there is little relevant state practice. But if the current proliferation of provisional measures orders (and accompanying state defiance) continues, we are likely to see a developing body of state enforcement that will clarify this issue.