This is an incidental procedure. It is not with infinite surprise that we can see in the 1978 Regulations of the Court, under section "d", which has the eloquent title of "incidental proceedings", in subsection number 1, the title is "provisional measures". In French, the term "mesures conservatoires" is used, in Italian "misure cautelari", in German "einstweilige Maßnahme".
- 1 Concept
- 2 Basis of jurisdiction (Article 41 of the Statute of the Court)
- 3 Conditions
- 4 Binding nature of provisional measures
- 5 Annexes
- 6 References
Concept[edit | edit source]
What is the purpose of these provisional measures? If we mean the term "provisional measures" or "mesures conservatoires" which means "mesures provisoires", what could be the justification for an incidental procedure, which means that we are in the context of a main procedure, a case has been brought before the Court and we are somewhere between the time of the request and the time of the final decision. Now, there is this procedural incident with precautionary measures. What could be the purpose of provisional measures? What is the danger if there is no provisional measures?
It is sometimes necessary to safeguard the very object to which the proceedings relate, or else, in a more general but not false formula, to ensure that the subjective rights in question are protected or safeguarded. Consider a proceeding before a domestic court involving an object X whose ownership is disputed and where the procedure is lengthy and sometimes years, and it is quite conceivable that a defendant who does not want to give this object to the plaintiff because the two have hated each other for years can, of course, especially if he anticipates that he will lose, destroy the object of the dispute or sell it to others or otherwise make provisions on the object of the dispute which would mean that the judgment given by the court against him could no longer be executed. Because if it is a work of art and it is the subject of the dispute, we could take a measure that would be a conservatory measure meaning that we would raise the object to put it in a deposit for example during the time of the judgment.
But there is also something else in provisional measures. There are basically two things in provisional measures. One is more a matter for the Court than for the parties, safeguarding the subject matter of the proceedings, this mainly safeguards the rights of the States concerned or the parties, it is usually the parties who ask the Court to indicate provisional measures.
If there is a dispute, especially if the parties are acrimonious or towards each other, it also happens to States, but it can also depend on the subject of the dispute. If the subject of the dispute concerns military operations in a border region, such a dispute can quickly and effectively escalate. The entire peaceful procedure before the Court could be put at risk because if a military confrontation escalates, a settlement of disputes with a judgment of the Court and with a chance of execution decreases accordingly. There is therefore also a public interest in the Court being able to intervene relatively early and try to calm the waters.
These are the two objects recognized for provisional measures. The first object is mainly in the interest of the parties, even if the Court obviously has an interest in protecting the object of the dispute, the second is mainly a public interest, i.e. an interest to which the Court itself must pay attention. This refers to Rule 73 et seq. of the Rules of Procedure.
Basis of jurisdiction (Article 41 of the Statute of the Court)[edit | edit source]
Request for the indication of provisional measures (Art. 73 of the Regulations of the Court)[edit | edit source]
When can the Court indicate provisional measures?
The term "indicate" is a term that comes directly from the Statute in its Article 41, which stipulates that "The Court shall have the power to indicate whether it considers that the circumstances so require which provisional measures of protection of the rights of each party should be taken". The second paragraph concerns the notification of these measures.
As to the Court's ability to indicate such measures, the Statute is not clear because in 1920, the Court's ability to indicate provisional measures under its own authority was a relatively bold innovation, as it indicated to States what they should do, if necessary even before they had decided on jurisdiction and still delicate. That is why many questions were left open in 1920 and in 1945 the provision was taken verbatim from the Statute of the former Court. This means that it has not been further specified.
The term "indicate" is an imprecise term because it correctly indicates the process, but it says nothing about the Statute. The Court has the power to indicate, but is this binding or not, to indicate is neutral in this respect and tells us nothing. This is not the formula "The Court has the power to impose on the parties".
On jurisdiction, there is nothing specific either, only the phrase "if it considers that the circumstances so require". If the Court considers that the circumstances do not require it, it will not indicate provisional measures, and that is an understatement.
It is therefore outside the texts in the first place, the Regulation is only a rationalisation of the Court's practice, it is therefore first of all outside the texts that the Court has had to meet the conditions to which these provisional measures have had to respond on a whole series of plans and already on the first of them, which is to know when it can indicate them. A Court of Justice does not like to be in discretionary because it immediately has the smell of politics. This may be appropriate for a political body, the judge does not feel comfortable because between discretion and arbitrariness he will always fear falling into the latter and his training as a lawyer and judge does not predispose him to it.
What is the fundamental problem facing the Court with regard to jurisdiction to indicate provisional measures? In simpler terms, what question should the judge in The Hague ask himself to the ICJ to know when he can indicate such measures, what are the problems he is facing at that time, what are the data he must balance, because in the procedure, it is basically always about that.
On the one hand, these measures must be indicated and, if necessary, as soon as possible, if the subject of the dispute is in danger, an attempt must be made to protect it as quickly as possible, the longer we wait and the more irremediable the situation may have occurred and at that point the whole exercise becomes illusory. The same applies to the aggravation of the dispute, if there is a risk of aggravation, action must be taken immediately.
Ex officio indication of provisional measures (Art. 75 of the Regulations of the Court)[edit | edit source]
What is the problem in making this kind of observation to States? A State may file a request and at the same time request provisional measures. Does the Court have jurisdiction at this stage? We don't know anything about it, maybe it isn't even at all, and the request is purely vexatious. This is not obvious to the Court, it makes it difficult for it to indicate such measures when it does not know whether it has jurisdiction because to determine whether it has jurisdiction or whether the application is admissible, it is a complex matter, it is not determined at the very beginning of the case, it must be examined, it requires documents, it requires States to submit arguments and it requires a large number of cogitations, but also the translation of acts.
This is the tension between the interest in acting quickly because circumstances require it and the need to respect the Court's area of jurisdiction, which is not to speak about everything, but only when it is authorized to do so because it is precisely a question of jurisdiction and we cannot know that at this stage.
Conditions[edit | edit source]
Prima facie jurisdiction[edit | edit source]
Prima facie jurisdiction The Court, in its case law, has explained to us for a long time in reality, as far as the International Court is concerned, we already find it in its first orders in the 1950s with the provisional cases, in particular with the Iranian Oil Company case, which is a magnificent case between the United Kingdom and Iran where Mossadegh, who was the Prime Minister of Iran at the time, who had studied at the University of Neuchâtel, did his thesis there, pleaded himself again before the Court because he was a lawyer. In this case we already find the Court's vocabulary which states, and this is the main criterion for indicating provisional measures, first of all, from the point of view of jurisdiction, the Court must be able to convince itself that it has prima facie jurisdiction.
There must be a preponderance of probability, more likely than not. This means that if it is more likely that the Court will have jurisdiction, it must, at that time, make room for urgency and indicate these measures because it is more likely to arrive at a substantive judgment than it is likely not to succeed because it is necessary to protect that substantive judgment. If, on the other hand, it is more likely not to be competent, that it is likely to be, then it is preferable to respect the rights of the defendant and not to infringe on his sovereignty by indicating measures when it is more likely not to have the right to express oneself to him that it is likely to be competent to express oneself to him. It's a pretty ingenious balancing act.
There are also other conditions for indicating provisional measures, there is not only this prima facie jurisdiction. The Court has not considered prima facie admissibility at this stage, because prima facie admissibility will be even more complicated at the determination stage. As these are more substantive issues, she has so far avoided getting into this.
All international courts, such as those for the law of the sea in Hamburg, also have provisional measures that are substantially similar to those of the Court, more than that, including in arbitration, investment arbitrators have very often drawn inspiration from the International Court's procedure in various and varied matters, including provisional measures. What we are discussing here has a slightly more general value than the law of the Court.
The problem of prima facie jurisdiction, as always in procedural matters, to balance divergent requirements, to balance them in a sufficiently sensible way. The two aspects that had to be balanced in this matter were, on the one hand, rapid action to make provisional measures meaningful, and on the other hand, the requirement not to encroach on the rights of States when the Court has not yet ensured that it has jurisdiction. Hence this intermediate figure of prima facie competence which gives rise to the predominant probability of competence. This is not the only criterion that the Court must verify before it can indicate provisional measures. There are others, including one other.
This other criterion, which is very old already, can be found in the first cases of the Court already developed by the Permanent Court, but if we leave it to the current Court, since the 1950s, particularly with the Anglo-Iranian Oil Company case in 1952, it is the criterion of irreparable prejudice. Provisional measures are only indicated in principle when the damage resulting from their non-indication appears to the judge to be irreparable. It is a notion that is sometimes complicated to define because one may wonder what "irreparable" means in law. In the very strict sense of the term, nothing is irreparable since it is always possible to make reparation, for example by way of compensation, but obviously this is not the purpose of provisional measures to allow the object of the dispute to be destroyed and then to allow it to be liquidated by equivalent financial or pecuniary measures.
To simplify the issue and move forward, to get to the heart of the matter. We have previously discussed the justification for provisional measures. Their fundamental justification is to ensure that the final judgment, if it were to be rendered in favour of the plaintiff, would not lose its usefulness and meaning. That is, the subject-matter of the dispute is not destroyed or altered to such an extent that the Court's decision could no longer ultimately be properly implemented. It is this criterion that must be considered in relation to the subject matter of the dispute in order to determine whether the damage is irreparable or not. The criterion is therefore legal and requires some assessment.
Risk of irreparable harm[edit | edit source]
The criterion of irreparable damage is very close to emergency. The measures must appear urgent so that the Court can indicate them even before, if necessary, it has discharged its jurisdiction. If the measures do not appear to be urgent, i.e., if it seems that one could perfectly well allow time to see them coming and indicate them later, this amounts to saying that the damage prospected is not irreparable and at that moment, the Court refrains from indicating the measures because it would be unnecessarily impious on the rights, normally of the defendant.
It appears, and this is an area that goes beyond jurisdiction and is close, that the measures indicated must be likely to preserve the subject matter of the dispute and maintain the usefulness of the final judgment should it ever be delivered. It's a causal problem. The measures requested, or in any event the measures which the Court indicates, must appear to it to be appropriate for that purpose, namely to preserve the subject-matter of the dispute. Measures that would go beyond this goal, or worse still, that would not be suitable for the insured, are not indicated by the Court, they are foreign to the subject matter of the dispute and therefore within the scope of the Court's jurisdiction. It is thus perfectly possible to ask that, under domestic law, an object be placed under cover if one wishes to see it protected against possible destruction or evacuation, one would not see in what sense measures affecting the privacy of the other person, prohibition to move beyond a certain radius, etc., could be useful in order to preserve this object of the dispute, and the judge would not indicate such measures.
Finally and negatively. The International Court this time has not so far paid much attention to the plausibility of substantive rights. This is not a jurisdictional issue here. Jurisdiction is a question of prima facie jurisdiction in matters of provisional measures. What about substantive rights? Should they too appear plausible prima facie, should the rights invoked by the claimant also appear to be founded with a greater probability than the opposite? So far, the Court has not developed any case law in this respect and has refrained from entering into the question of the plausibility of substantive law. And that is understandable, because jurisdiction is a matter, as we have seen, that can be decided, not always, but in the vast majority of cases, at the preliminary stage. In the event of a dispute, it should, unless there is a very specific exception, express itself on the plausibility of the right invoked, which is very difficult at the first stage, because the Court does not have the necessary elements to do so, and it is understandable that in these circumstances it is very reluctant to commit itself to it, because, in addition, it would annoyingly give indications on its own conviction. It would give, from the very beginning, to both parties to the proceedings, an indication as to whether it believes in the goodness of the case or not. A court, particularly an international one, does not like to give its indications too early in the proceedings and thus give the impression of already having a bias when it does not yet know the arguments that will be presented later at the stage of the exhibits on the merits, and if necessary, even further specified at the time of the "oral arguments". The reality is that these pleadings at the International Court of Justice are presented orally, but in writing. It's quite particular, you read a text in court when you plead and you can't have the time to do anything else. However, it is possible to take a few small liberties, especially when there is no time, it is possible to shorten it. In principle, it is a text because it must be translated and it is translated simultaneously, the translators prepare themselves beforehand, it is not possible to improvise all the more since we represent States and it is not possible to say if it goes through the head. States must first read what is to be said and endorse each word. Therefore, it is not possible to speak freely.
It is unlikely that in the coming years, the Court will develop this branch of the plausibility of the law, undoubtedly, it will do so at most if the substantive law were to appear to be totally fanciful. Then, perhaps one day there would be a precedent where the Court would refuse to indicate provisional measures for that reason. She will not admit that it would be because of the plausibility of the law, if she finds another reason not to indicate these measures, particularly the absence of urgency, she will prefer to hide behind the conservative and well-assured circuses of her case law.
First of all, from whom can or should the request for the indication of provisional measures emanate? The answer can be found in the Court's Rules of Procedure. Incidental proceedings shall be opened with subsection 1 of section "d", entitled "provisional measures" in articles 73 et seq. Article 73, the very first, in the first paragraph already begins by clearly stating who, in legal terminology, is actively entitled to request such measures: "a party may submit an application for an indication of a provisional measure". It also means, on the other hand, that States that would participate incidentally in the proceedings, but without becoming a party to the proceedings, are not entitled to request such measures.
Who are other States participating in the proceedings without becoming a party? These would be States that do not have active legitimacy to request provisional measures because they have not gone to the proceedings. These are the interveners, in particular within the meaning of Articles 62 and 63 of the Staff Regulations. The States parties to the proceedings, i. e. plaintiff and defendant, and these may include several plaintiffs and defendants, such as the case of the legality of the use of force in which Serbia brought a case against 10 NATO States. States Parties to the proceedings may submit several requests for the indication of provisional measures. This means that if the Court rejects the first request in this sense, it does not in any way mean that these States or the State concerned, or the State which made the first request for the indication of provisional measures, will almost always be the plaintiff, but the defendant may also do so in a counterclaim, that these States may not repeat, return, request again provisional measures and this is understandable because the Court will have rejected the first request, particularly as regards the lack of urgency. But the situation may also change at any time, and therefore the Court may have to reconsider the issue with new elements.
There have been lengthy proceedings, and we can think of the genocide case between Bosnia and Serbia before the Court, a procedure that lasted thirteen years, during which the requests for provisional measures fell much like snow in winter and in addition to both parties. The Court had to say in this case that it did not want to indicate any additional measures, it reminded the parties that it had already indicated such measures and that it was time to implement them before requesting further measures. In any case, the Regulation provides that provisional measures may be requested again as in Article 75(3) of the Regulation.
It is also possible to claim counterclaims, i.e. the defendant may also re-claim remedies from the plaintiff in the proceedings. Moreover, independently of the parties to the proceedings, the Court may also indicate provisional measures of its own authority. It therefore does not depend on the request of one or more parties, it may also, of its own motion, indicate the measures it considers necessary. Article 75§1 stipulates that "The Court may at any time decide to examine ex officio whether the circumstances of the case require the indication of provisional measures that the parties or one of them should take or enforce". The Court can therefore indicate such measures, it will do so in accordance with its case law established more or less since the cases in the mid-1980s, namely Burkina Faso - Mali with the border dispute case in 1985, and the Nicaragua case in 1983 at the time of the provisional measures. The substantive judgments in these two cases are both in 1986. The Court has therefore done so since that time in order to preserve not so much the subject matter of the dispute, but rather to ensure that the dispute does not escalate.
The Court considered that when relations between the parties are further extended by unilateral actions, in particular, armed actions, the chances of success of the judicial settlement and ultimately the judgment that the Court may deliver drastically decreases and that consequently, as it is better to prevent than to cure, the Court takes the lead and tries to indicate the measures likely to calm the parties. In the two cases mentioned above, these were military operations. In the Burkina Faso - Mali case, there were tensions at the border between the two States, which was a delimitation dispute. Since then, the Court has indicated such measures, it does so with a certain parsimony, but does not deprive itself of them. As Article 75§ 1 indicates, the measures that the Court will take on its own initiative may concern both parties, as was the case in the situation between Burkina Faso and Mali, but may also concern a party if it is mainly to one party that certain conduct likely to lead to de-escalation must be indicated. The Court tries to indicate neutral measures as much as possible even when it refers to a particular State, it prefers to indicate provisional measures formulated for both parties and then each of the parties will recognize itself behind them. The Court is not obliged to do so, it can also address measures to a party, which is always a little more problematic from its point of view because it is "a little" discriminatory.
Emergency[edit | edit source]
Another procedural point is the priority of requests for provisional measures. As these are urgent requests, the Court gives them all the necessary priority and this priority is not only a matter of its goodwill or discretion, but also of a regulatory basis. Article 74§ 1 of the Rules of Procedure is very clear that "The request for the indication of provisional measures shall have priority over all other cases". This means that the planning of pleadings, for example before the Court, has suffered in recent years from increasing uncertainties because at the very last moment, the Court is confronted with a request for provisional measures, and at that moment either the Court must simply stay for days when there should be judicial vacancies, or simply scheduled hearings must be postponed at the last minute, which is more unfortunate for States seeking to advance the case before the Court.
In extreme cases, it has occurred that the President of the Court has had to hold a conference call in order to be able to indicate provisional measures within 12 hours, i.e. in less than a day; since Germany brought the LaGrand brothers' case before the Court late and was to be executed in Texas, Germany argued that the entire sentence was questionable because the two brothers of German origin and nationality had been unable to obtain consular assistance from Germany so that their defence would have been put in difficulty. In the event that it is necessary to re-trial and redetermine their guilt, if they have already been executed, this is complicated from the point of view of urgency and irreparable damage. Since the time was extremely short, the president had to contact the other judges by telephone and in urgency, which did not have the desired effect, because Texas opposed not the court but Washington. The U.S. administration wanted to enforce the court order and Texas refused the central government's order that Texas is independent in its judicial affairs. The brothers were executed. Sometimes, speed is a frenzy. Twelve hours are very short to execute an order, it just so happens that the presidents cannot even be at headquarters, which is why you have to call and hopefully the phone calls will work at that time.
Plausibility of the right whose protection is sought[edit | edit source]
The Court indicates the provisional measures in an order. Why a prescription? The orders are governed by article 48 of the Statute and article 44 et seq. of the Rules. What kind of judicial act is there in the Court? There are orders, judgments, judgments or decisions.
What distinguishes an order from a judgment? And why, then, does the Court invariably make orders here? There is no judgment on provisional measures and there will be none, it would be a legal error. Why it is an order and not a judgment, which implicitly tells us here perhaps what the fundamental difference is between the two acts. In English, we speak of "order" for an "order" and "judgement" for "judgment". It is not possible to appeal against orders, but can the Court's judgments be used? It is possible to appeal against the Court's judgments in a very specific case such as the request for revision and the interpretation of judgments as in Articles 60 and 61 of the Statute.
As there is the possibility of "appeals" against judgments, there is also the possibility of having measures indicated in orders reviewed, in particular by requesting their modification through new applications. The main point of the difference is elsewhere.
Link between the protected right and the measures requested[edit | edit source]
What is the purpose of a prescription? How do the courts make orders? If there are judgments, then the Court should take judgments, why invent another category. There is a reason. The order are procedural indications such as, for example, setting time limits for pleadings, counter-memorials or even saying when there will be pleadings, all these things must be done in order to accompany the proceedings; they are not done in a judgment, but in an order. The difference between the order and the judgment is that the judgment is based on the principle of adversarial proceedings. There is a judgment only when there is a dispute, which means that there is one party who claims one thing and the other who opposes it. At that time, the Court decides, it decides by a judgment, it has heard both parties, the contradictory arguments and it decides by a judgment. This is a judgment and it must always be a judgment, it cannot be an order when there is an adversarial situation. On the other hand, when there are accompanying measures in the proceedings where there is no dispute, the parties agree on a specific date in order to open something or it is the prerogative of the Court without even having heard the parties to fix something such as, for example, saying such a date for the filing of pleadings, it always does so in the order, which is legally different from the judgment because the judgment is based on contradictory judgment in principle. An order that is not based on the adversarial principle does not become res judicata and may therefore be amended at any time.
The parties may repeatedly submit requests for a protective measure, they may do so precisely because the previous order is not considered final. That is why the Court will never put provisional measures in a judgment, this would be a double legal error. First, because there is not necessarily contradictory, since these are very urgent measures, there is no time to formalize a procedure in which the various parties take a crystallized position, and second, but if this were the case that the parties had contradictory visions and had presented them to the Court for a decision, it would not be a judgment in the sense that this is the particular case of measures that must be modified. What is proper to do is to do it in an order accompanying the proceedings and that is how the Court proceeds. So there are always ordinances, which leaves complete flexibility in the matter.
These prescriptions also have another advantage. As the orders are grafted onto the current proceeding, it automatically falls with the end of the proceeding, and there is no need to make a new order to terminate a previous order. If provisional measures are indicated, they continue to run until the Court has amended them until the end of the proceedings, i.e. until the final judgment. After the final judgment, there is no longer any need to maintain provisional measures because now there is the judgment and it is what must be executed and nothing else.
The Court does not need to indicate or adopt a new order in order to say that the provisional measures have been completed. This would obviously be the case if it were a judgment, there would have to be a new judgment or a clause would have to be inserted in the main judgment to disable the provisional measures indicated before. But this is not necessary since it is an order, it is added to the procedure. As soon as the procedure is completed, it has no more object, so it falls automatically.
A final procedural point is the notification to the Secretary-General of the United Nations, who in turn transmits it to the Security Council. It is provided that the Court, i. e. the Court through its Registrar who is at the head of the Registry, shall notify the Secretary-General of the United Nations of any provisional measure indicated by the Court. The Secretary-General shall transmit this information to the Security Council as provided for in Article 42(2) of the Statute and Article 77 of the Regulations.
Why should the Security Council be informed of these provisional measures? What is the Security Council's position on the Court? In other words, what is the specific function of the Security Council in relation to the Court? Article 94 of the Charter provides some guidance. It is the ultimate guardian of the execution of the Court's judgments.
To the extent that the Security Council could be approached to enforce measures taken by the Court, as it is the agent for the execution of the Court's judgments, it is appropriate to notify it of provisional measures so that the Council is aware of them. He could also consult the Council, but it is an act of courtesy to transmit it to it.
Moreover, provisional measures may be of more direct interest to the Security Council. The Court indicates this on its own authority and often does so in cases where there are armed actions in delimitation disputes, among others. Since armed actions and peacekeeping are the main focus of the Security Council, it is not completely inappropriate for the Council to be made aware of the measures that the Court has indicated to the parties in cases that are otherwise very likely to be dealt with by the Council.
The Statute states in a very modest way, in Article 41, that the Court may indicate provisional measures. But "to indicate" does not mean anything legally, it does not mean anything more than that it has the competence to formulate provisional measures. What is the status of these measures, and in particular, are they binding on the parties to the proceedings, or are they not? Is it a decision or just a recommendation?
For a very long time, this issue has been incredibly controversial with rather epic doctrinal disputes and highly subtle legal arguments put forward by both sides to try to provide an answer to this question. It was a very complex issue. In the meantime, it has been clarified in the Court's case law.
Binding nature of provisional measures [edit | edit source]
In the LaGrand case, the question arose before the Court, and for once, it could not avoid taking a position on it because in principle the Court did not have to take a position on the outcome of these provisional measures, it indicated them and then the States acted. As the Court does not automatically take up the violation of its orders or judgments, it had never before decided the question of the binding nature of its provisional measures. In the LaGrand case, Germany had the intelligence to reapply for compensation from the United States for violation of the Court's provisional measures. This time, the Court could not avoid taking a position on the issue since it was asked to award compensation for the violation of its measures, but this compensation could only be founded in law if the measures were binding. If the measures were merely a recommendation, Germany could not have sought compensation for their violation.
The Court therefore had to take a position and did so in the 2001 judgment in the sense of saying that the provisional measures indicated by the Court, unless the Court were to specifically indicate that they are not binding, but if it does not indicate anything, its measures are binding on the States parties to the proceedings, and therefore parties to the proceedings.
To achieve this result, the Court had to interpret the Statute, in particular in its Article 41. The Statute says nothing about this because in 1919-1920 the issue was too thorny, it was left open, the rules later did not express themselves either. So from a textual point of view, the Court cannot do much. There is a small difference between the French and English text, but the main thing is elsewhere. The interpretation given by the Court in order to arrive at the result of the binding character is a teleological interpretation.
In very simple terms, the Court says that the very purpose of provisional measures would be missed if they were not binding because they are appropriate to preserve the utility of the proceedings, to preserve the subject matter of the dispute. Basically, in order to ensure that the binding nature of the final judgment is preserved. If the measures were not binding, this goal would be missed. If States could do what they want with these measures, it would mean that, in reality, it would not be possible to effectively protect the subject matter of the dispute and the final judgment could become merely theoretical and therefore unenforceable. The Statute provides for this in Article 59 and the Charter also provides in Article 94§ 1 that the final judgment is binding. But for this final judgment to have any meaning in its binding nature, the provisional measures indicated precisely to preserve the utility of the proceedings must also be considered binding. This is essentially a teleological argument.
The record of provisional measures before the LaGrand judgment was very mixed. In many cases, these provisional measures were not implemented, in some cases they were implemented, but many conclusions cannot be drawn from this old practice for the simple reason that it was not clear at the time whether these measures were binding or not, we simply did not know. There were very divergent opinions on the issue. In this case, where there was doubt, States could not be accused of considering these measures as mere recommendations. After all, there were very strong doctrinal opinions in this direction, so there were good arguments in this direction.
Once the Court considered that its measures were binding, the balance sheet improved slightly. States now know that the measures are binding and that if they do not implement them, if necessary, the applicant may request a sanction.