The Ever-Expanding “Provisional Measures” Authority of the ICJ

by Julian Ku

The International Court of Justice issued a “provisional measures” order today in a dispute between Thailand and Cambodia over a World Heritage temple located near or on the boundary between the two nations.  The request for provisional measures was brought by Cambodia, which sought the withdrawal of Thai troops from around the temple.  The ICJ granted this request, but went much farther.  In a somewhat remarkable order, the ICJ drew a “demilitarized zone” around the temple which excludes both Thai and Cambodian military forces.

61. Whereas the area of the Temple of Preah Vihear has been the scene of armed clashes between the Parties and whereas the Court has already found that such clashes may reoccur; whereas it is for the Court to ensure, in the context of these proceedings, that no irreparable damage is caused to persons or property in that area pending the delivery of its Judgment on the request for interpretation; whereas, moreover, in order to prevent irreparable damage from occurring, all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia; and whereas, therefore, the Court considers it necessary, in order to protect the rights which are at issue in these proceedings, to define a zone which shall be kept provisionally free of all military personnel, without prejudice to normal administration, including the presence of non-military personnel necessary to ensure the security of persons and property;

63. Whereas both Parties, in order to comply with this Order, shall withdraw all military personnel currently present in the zone as thus defined; whereas both Parties shall refrain not only from any military presence within that provisional demilitarized zone, but also from any armed activity directed at the said zone;

As a practical matter, a provisional DMZ seems a sensible way to proceed.  But as a legal matter, there are grave doubts about the ICJ’s authority to make such an order.  The ICJ was quite seriously divided, with the ICJ’s President and its two newest members providing perhaps the most serious criticisms of the scope of the ICJ’s authority under its “provisional measures” power.  Judge Xue of China and Judge Donoghue of the United States, along with President Owada of Japan, all criticized the “DMZ” power (see here for links to all of the opinions).  What troubles all of these dissenters is the fact that the provisional DMZ actually goes beyond the disputed territories and, in essence, orders each nation to withdraw military forces from their own undisputed sovereign territory (check out the cool “sketch map” on p. 17).

I won’t go into any further depth at this point. It all turns on analysis of the ICJ’s authority to issue provisional measures that I have little expertise on. I will only note that since the ICJ only decided in 1999 that provisional measures were binding, it is somewhat remarkable that this same doubtfully binding provision also gives the ICJ the power to order states to withdraw military forces from their own territories.

http://opiniojuris.org/2011/07/18/the-ever-expanding-provisional-measures-authority-of-the-icj/

5 Responses

  1. This is how international law is meant to be. A court should be able to commend two warring parties to stop fighting.
     
    I don’t have a problem with the power to order states to withdraw military forces from their own territories. If a state is awarded a sum of money, that money comes from the territory of another state. Thus the paying state is not free to do whatever it wants with the money in it’s own territory.
     
    In Gabcíkovo – Nagymaros the court has also ruled what parties should do on their own territories.
     
    If there is an internal military conflict, the warring parties might be ordered by a court to stay out of a demilitarized zone.
     
    And some DMZ are claimed by both parties, such as the one between Israel and Syria in the Golan. Thus both parties are supposed to keep their military away from ‘their’ own territory.

  2. I fail to follow the last argument in the post: why would the Court’s provisional measures be ‘doubtfully binding’ just because their binding effect was only stated in 2001 (not 1999)? Also, why would any doubt about the correctness of that holding – which doubt would certainly not be held by the Court – lead the Court to be careful in applying its provisional measures power?
     
    I do, however, understand the concern over the PDZ imposed in this case. There is certainly an argument to say that, since provisional measures are only intended to protect the rights at issue from any prejudice pending trial, they must be limited to what is actually at issue. Therefore, any provisional measures should only be about the disputed territory. The case is not strictly about the fighting in the broader area (because the 1962 judgment was not), so while it is understandable for the Court to step in to prevent fighting, it may have overstepped the limits of its jurisdiction.
     
    I am much less impressed, I should say, by the simple argument that the Court’s order makes too great inroads into the sovereignty of the parties. Article 41 of the Statute, like any other international obligation, allows for limitations on the exercise of sovereignty. How much it allows depends on the four corners of the case and the conditions under Article 41 (prima facie jurisdiction, irreparable prejudice etc.).

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  3. […] but also from territory indisputably under their own sovereignty (see also post by Julian Ku at Opinio Juris). I will return to this point later. However, the main thing I want to do is to highlight two […]