Responsibility for breach of provisional measures of the ICJ. Between protection of the rights of the parties and respect of the judicial function

After its judgment in LaGrand, the Court has had several occasions to deal with cases where one of the parties had breached provisional measures indicated on the basis of Article 41 of the Statute. While recognizing that this conduct entails the responsibility of the non-complying party, so far the Court has said little about the principles governing such responsibility. The main purpose of this article is to attempt to systematize the regime of responsibility for breaches of provisional measures. The point of departure is the consideration that non-compliance with provisional measures is not a matter exclusively affecting the rights and interests of the contending parties and that the Court itself has a distinct and autonomous interest in ensuring respect for provisional measures. This distinction between an “institutional dimension” — involving the relations between the non-complying party and the Court —and an “interstate dimension”—involving the relations between the non-complying party and the other party — is then used as an analytical tool for assessing the content and scope of the Court’s power in this field. In particular, it is used to assess two main issues. The first is whether the Court may determine by its own initiative whether provisional measures have been complied with, possibly also in the absence of jurisdiction on the merits of the dispute. The other is whether the legal consequences provided under the general rules on State responsibility exhaust the range of legal consequences available against the responsible party. The article’s main conclusions are that: (a) Relying on its Statute, the Court can determine non-compliance with provisional measures, possibly also proprio motu or in the absence of jurisdiction over the merits; (b) the Court can also impose certain forms of sanction on the non-complying party, even if, in practice, the only sanction available to the Court seems to be that of expressing its censure of the non-complying conduct; (c) basing itself on the jurisdiction conferred by the parties, the Court can assess the claims of responsibility advanced by the injured party, as well as award reparation for the injuries eventually caused to that party.