1 Rendered December 5, 1939 in the case of the Electricity Company of Sofia and Bulgaria. Publications of the- Permanent Court of International Justice, Series A/B, no. 79. (Publications of the Court will hereinafter be cited simply by their letters and numbers.)

2 The subject of this article was treated by the author in his Interim Measures of Protection in International Controversies, 1932, pp. 144-173. Later literature includes: Hans G. Niemeyer, Einstweilige Verfügungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen, 1932 (reviewed in this Journal, Vol. 27 (1933), pp. 198-199); Paul Guggenheim, Les Mesures conservatoires dans la Procédure arbitrate et judiciare, Académie de Droit international de la Haye, Recueil des Cours, Vol. 40 (1932), pp. 649-761; Henri A. Rolin, Force obligatoire des Ordonnances de la Cow permanente de Justice internationale en matière de Mesures conservatoires, in Mélanges offerts à Ernest Mahaim, 1935, Vol. II, pp. 280-298; Åke Hammarskjöld, Quelques Aspects de la Question des Mesures conservatoires en Droit international positif, Zeitschrift für ausländisches öffenlliches Recht und Völkerrecht, Vol. 5 (1935), pp. 5-33; Giancarlo Venturing he misure cautelari net diritto intemazionale, in Archivio giuridico Filippo Serafini, Vol. 119 (1938), pp. 40-89, 152-182. The present article supplements the author's earlier work on the subject by surveying developments from 1932 to date.

3 Publication A/B no. 48, pp. 277-289.

4 Same, p. 278. Denmark filed suit against Norway the same day, praying that the Norwegian occupation be declared illegal, and reserving the right to apply for interim protection, but no such application was ever made: pp. 279-80. The two proceedings were consolidated by the Court's order of August 2, 1932: p. 271.

5 Same, p. 278.

6 Same, p. 283. Norway agreed that the Court might defer its decision on the Norwegian request for interim protection “should the Danish Government inform the Court that it will not adopt coercive measures“ and that the request should be understood as contemplating indication of measures of interim protection applicable equally to both parties. Same, pp. 278, 282.

7 Same, p. 283.

8 Rule 57, in the version adopted on February 21, 1931, provided: Une requitê adressée à la Cour par les parties ou par I'une d'entre elles en vue de mesures conservatoires, a la priorité sur toutes autres affaires. II est statué d'urgence et, si la Cour ne siège pas, elle est à cette fin convoquée sans retard par le Président. En l’absence d'une requitê, si la Cour ne siège pas, le Président peut convoquer la Cour pour lui soumettre la question de l'opportunité de semblables mesures. Dans tous les cas, la Cour n'indique des mesures conservatoires qu'après avoir donné aux parties la possibilité de faire entendre leurs observations à ce sujet.

9 Dumbauld, work cited, p. 159. Before adoption of the 1931 version of Rule 57, indication of interim measures could be made without a hearing, and by the President if the Court was not sitting. After 1931 these procedural reasons no longer prevented the use of judgments, but the Court continued to prefer orders. “The reason for the Court's decision to employ the form of an order appears to be that measures of protection are essentially provisional in character, whereas judgments are final decisions.” Moreover, “measures of protection may be indicated by the Court proprio motu, whereas this would not be possible in the case of a judgment.” E no. 9, 171.

10 Publication A/B no. 48, p. 280. See also E no. 9, p. 162.

11 Publication E no. 9, pp. 164-5.

12 Publication A/B no. 48, pp. 283-4. See Dumbauld, p. 155; Hudson, The Permanent Court of International Justice, 1934, p. 416. Paragraph 1 of Rule 61, as adopted on March 11, 1936, now specifies that an application for interim protection may be made only in connection with a pending case.

13 Publication A/B no. 48, p. 284. Judges Negulesco and Schücking had previously indicated their acceptance of the broader view of the Court's power. Publication D no. 2, 2nd addendum, pp. 192-3; Dumbauld, pp. 26, 28-9,187. The Court later reached the same conclusion, in the case of the Electricity Company of Sofia and Bulgaria, Publication A/B no. 79, p. 199. See note 53, below.

14 Publication A/B no. 48, p. 284.

15 Same, p. 287.

16 Same, p. 285. See McNutt, v. General Motors Corporation, 298 U.S. 178, 181 (1936).Google Scholar

17 Same, pp. 285, 287. Dumbauld, p. 159. The Court also drew attention to the fact that in 1931 in another part of Eastern Greenland nationals of the two countries, respectively invested by their governments with police powers, were simultaneously present, without the occurrence of any “incidents.” Publication A/B no. 48, p. 283.

18 The Court is here referring to the established principle that where infraction of a party's rights can be adequately redressed by pecuniary compensation, and the Court has power under the Optional Clause to award such redress, the availability of that legal remedy renders unnecessary the indication of interim measures of protection under Article 41 of the Statute. Publication A no. 8, p. 7; Dumbauld, pp. 149-150, 163, 165-6. Where Article 33 of the General Act applies, however, the legal remedy other than interim measures under Article 41 of the Statute may itself consist precisely in appropriate relief pendente lite which the Court is empowered by Article 33 of the Act to award. In such a case the Court is endowed with a separate and additional jurisdiction to grant interlocutory relief, quite apart from its jurisdiction under Article 41 of the Statute.

19 Publication A/B no. 48, pp. 288-9.

20 Publication A/B no. 54, pp. 150-154.

21 Publication C no. 70, pp. 202-3. The German application, dated May 2, 1933 and delivered to the Court on the following day, prayed the Court ‘'to indicate to the Polish Government, as an interim measure of protection, pending the delivery of judgment upon the Application of May 18, 1932, that it should abstain from any measure of constraint in respect of the property of the Prince von Pless, on account of income-tax.” Publication A/B no. 54, p. 151.

22 Eu égard ce qui précède ainsi que esprit du Staiut et autres actes internaiionaux concernant règlement pacifique différends acceptés par Pologne me permets suggérer Voire Excellence opportunité examiner possibilité arrêler mesures coercition éventuelles contre Pless en attendant réunion Cour prévue pour date non postérieure à 15 mai courant et en attendant que Cour ait pu statuer. Publication C no. 70, pp. 429-430.

23 Publication C no. 70, pp. 431-432.

24 Same, p. 432.

25 In thus explicitly distinguishing the questions of jurisdiction and merits in the proceeding for indication of interim measures from the questions of jurisdiction and merits in the principal litigation, the Court acted in accordance with the doctrine that the proceedings in which a claim for relief pendente lite is asserted constitute a separate and independent cause of action. Dumbauld, p. 19. See notes 11, above, and 64, below.

26 Publication A/B no. 58, pp. 175-188.

27 Publication C no. 71, p. 11. Germany had previously, in accordance with the second paragraph of Article 12, referred the dispute to the Council of the League of Nations on January 19, 1932: same, p. 12. Not satisfied with the solution proposed on December 9, 1932, by a committee which had carefully studied the matter, Germany announced on February 1, 1933, its intention of submitting the controversy to the Court. Same, pp. 96-126. See also Publication A/B no. 58, pp. 184-5.

28 Publication C no. 71,11-14. As interpreted by the German agent at the oral argument, this request contemplated that, with respect to members of the German minority, Poland should not commence or continue expropriations, or transfer to other persons estates taken from them, or establish settlers upon such estates. Same, pp. 36, 45; Publication, A/B no. 58, p. 178.

29 For the correspondence between the Registrar of the Court and the Polish Minister at The Hague regarding the date of the hearing, see Publication C no. 71, pp. 136-7, 140-141, 142-144, 144-5, 146, 147.

30 On July 10, 1933, at a private meeting the Court discussed: (1) whether the Court was obliged to hear observations of the parties; (2) whether the provisions of Article 53 of the Statute, regarding default, would apply if only one party were to be heard; (3) whether adjournment is permissible in urgent matters. Without deciding the first two questions, the Court determined to hold the public sitting scheduled for the next day and there adjourn, without hearing the observations of the German agent, who was, however, permitted to make a declaration. Publication E no. 14, p. 143.

31 The hearing was held on July 19, 20, and 21, 1933. Publication C no. 71, pp. 19-22.

32 Same, pp.17-18.

33 Same, p.21.

34 Same, p.40.

35 Same, p.42. Dumbauld, pp. 26,164.

36 Publication C no.71, pp.22-23.

37 Publication A/B no.58, p.177.

38 In the French: … ne peuvent pas être considérées comme tendant uniquement à sauvegarder I'objet du différend et I'objet de la demande principale elle-même, tels qu'ils sont soumis à la Cow par la requête introductive d'instance. Same, p. 178.

39 Same, pp. 178-9.

40 Same, p. 180.

41 Same, p. 181.

42 Same, pp. 181-2.

43 Same, pp. 185-6.

44 Same, p. 187.

45 Same, pp. 187-8.

46 Publication A/B no. 79, pp. 194-200.

47 Rule 61 provides (Publication D no. 1, 3d ed., 1936, pp. 48-49):

48 Publication A/B no. 77, pp. 64-155. The Belgian agent in his letter of August 26, 1938 informed the Court that the Belgian government withdrew the request for interim protection. On August 27, 1938 the President of the Court made an order to that effect. Same, pp. 66-67.

49 Publication A/B no. 79, pp. 196, 198-9.

50 Same, p. 196. The Court pointed out that under Rule 61, paragraph 4, the Court may indicate measures other than those prayed for. Same, p. 199.

51 Same, p. 197. The Bulgarian Judge ad hoc likewise announced, in his telegram of November 25, 1939, that it was impossible for him to come to The Hague for the hearing. Same, p. 197. The Court's action in this case amounts to a decision that the Court is not required by Rule 61 to hear the observations of the parties, but is merely required to give them an opportunity to be heard. See notes 30, above, and 89, below. Perhaps the telegram of November 18, 1939, constituted a waiver of any right on the part of Bulgaria to be heard before the Court granted relief.

52 Same, p. 199.

53 See notes 13 and 38 above.

54 The Registrar raised the question whether it would be desirable to go back to the pre- 1931 practice (under which the President was empowered to indicate interim measures of protection when the Court was not sitting), or to sanction the method which the President of the Court had used in the Prince of Pless case. “Without indicating interim measures having the effect attributed to them by the statute, the President drew the attention of the government concerned to the desirability of taking steps to avoid prejudging the Court's future decision on the request for an indication of interim measures.” Publication D no. 2, 3rd addendum, pp. 827-8.

55 Four such committees, composed of Judges of the Court, were set up in 1931. There was also established a “Commission of Coordination” composed of the rapporteurs of each committee plus the President of the Court. Same, p. 857. The Third Commission was composed of Judges Anzilotti, van Eysinga, and Urrutia. On August 11, 1932, Judge van Eysinga was chosen as rapporteur. On December 13, 1933, Judge Anzilotti proposed that President Adatci, who had not been attending Commission meetings, be invited to sit with the Third Commission, since its assignment included interim measures, au sujet desquelles le Président a eu l'occasion d'acquérir une expérience particulière durant les trois années qui viennent de s'écouler. Same, p. 858.

56 The Third Commission's text was substantially identical with the 1931 Rule, except for the insertion of the new provision, in the second paragraph, that En attendant que la Cow se réunisse et statue définitivement sur la requête, le Président a le pouvoir d'indiquer toutes mesures provisoires qui lui paraîtront opportunts. Same, pp. 778-9.

57 Same, pp. 850-2.

58 Judge Kellogg wrote on April 4, 1934, disapproving the requirement that the whole Court meet in order to indicate interim measures. Same, p. 907. On April 23,1934, Judge Rostworowski submitted a substitute for the Third Commission's text, together with a memorandum in support of his proposal. Same, pp. 910-11, 911-13. Sir Cecil Hurst, President of the Court, also commented on the Third Commission's report in a memorandum dated May 3, 1934. Same, pp. 898, 903.

59 Same, pp. 875-6.

60 Same, pp. 875, 890.

61 Discussion continued from February 18 to February 21, 1935. Same, pp. 279-303. It is impossible to determine from the published minutes whether or not the Court considers that interim protection is available in cases where an advisory opinion is to be rendered by the Court. The text proposed by the Commission of Coördination expressly applied to any proceeding, contentious or advisory, affaire contentieuse ou consultative. Same, pp. 875, 890. However, the wording was later changed, although no action by the Court so amending the text is disclosed by the minutes. Same, pp. 279, 302.

62 Si, lors de la présentation de la demande, la Cow ne siège pas, et si, eu égard aux circonstances du cas d'espèce, le Président estime qu'elle ne peut être réunie dans un délai lui permettant de statuer utilement, il statue à ses lieu et place.

63 Same, p. 876.

64 Judges Rostworowski and Urrutia contended that such delegation of power was contrary to the Statute. Same, pp. 282, 287. Judge Guerrero believed that such a delicate political function should not be entrusted to the President. Same, pp. 282, 286. Judge Rostworowski agreed that it was undesirable for the President to have diplomatic powers, since the Court was a judicial body and the procedure for indication of interim measures was contentious. Same, p. 289. (See his previous view that such procedure constituted a separate judicial function, neither contentious nor advisory. Same, pp. 281, 850, 911.) Likewise Judge Negulesco asserted that acceptance of the Commission's proposal would give the President power to decide a contentious case. Same, p. 285. Judge van Eysinga shared the view that interim protection is an incident de la procédure contentieuse rather than a third function. Same, p. 281. Judge Anzilotti took a similar view. Same, pp. 852, 559. See notes 11 and 25, above.

65 A vote on the question, “Does the Court desire that the rules shall empower the President, pending the meeting of the Court, to indicate interim measures of protection in conformity with Article 41 of the statute?” resulted in a tie (Judges van Eysinga, Schücking, Anzilotti, Altamira and Hurst in the affirmative; Judges Negulesco, Urrutia, Rostworowski, Rolin-Jacquemyns and Guerrero opposed); and the President gave his casting vote in favor of the status quo. Same, p. 289.

66 Same, pp. 287, 288, 290, 291. There was some doubt as to whether the President's action in that case did or did not constitute indication of interim measures of protection. Same, pp. 285, 288, 290.

67 Same, p. 303. Several amendments to the Commission's text were adopted, in addition to those which have been discussed above. Same, pp. 293, 295, 297-300.

68 Same, p. 936. In addition to clarifications in wording, the drafting committee changed the order of paragraphs, and apparently also added a sentence, making applicable to the revocation or modification of the decision indicating interim measures the same requirements as to hearing which are prescribed for the original indication of such measures.

69 Same, p. 440.

70 Same, pp. 959-60.

71 Same, pp. 635-41, 990.

72 Same, pp. 732-33.

73 Same, pp. 746, 1014-15. Judges Anzilotti and van Eysinga were of the opinion that under the revised Statute (Article 23) the Court is always sitting, and that therefore the Rules should not say that the President may do certain things “if the Court is not sitting.” Same, pp. 744, 745.

74 Except as here specified, the analysis contained in Dumbauld, pp. 154-173, remains applicable.

75 Rule 61, paragraph 3.

76 See Dumbauld, pp. 5-6, 20, 30.

77 The express provision to this effect in Rule 61, paragraph 6, merely oodifies previous doctrine and practice. Dumbauld, p. 155; Publication A/B no. 48, p. 284.

78 Publication A/B no. 48, 284.

79 Rule 61, paragraph 1. In the Southeastern Greenland case the Court found it unnecessary to decide whether it had power to indicate interim measures of protection when there was no case pending before it other than the application for interim measures of protection itself. Publication A/B no, 48, pp. 283-4. See note 12, above, and Publication D no. 2, 3rd addendum, pp. 280, 912.

80 Rule 61, paragraph 5.

81 Rule 61, paragraph 7.

82 Rule 61, paragraph 1. Dumbauld, p. 157.

83 This is expressly provided in Rule 61, paragraph 4. It would follow also from the Court's power to indicate measures proprio motu. See Publication D no. 2, 3rd addendum, pp. 294-5. Moreover in any event Article 41 is explicit in empowering the Court, when passing upon a request by one party to a dispute, to protect the rights of the other party as well. Dumbauld, p. 156; Publication D no. 2, 3rd addendum, p. 294.

84 Publication A/B no. 79, p. 199. See Publication A/B no. 48, p. 284; Dumbauld, pp. 26, 187. See note 53 above.

85 Rule 61, paragraph 9; Publication A/B no. 48, p. 280; Publication E no. 9, p. 162. See Dumbauld, p. 157.

86 Publication E no. 9, pp. 164-5; Publication D no. 2, 3rd addendum, pp. 291-4.

87 Rule 61, paragraph 8. Refusal to indicate measures need not be preceded by hearing. Publication A no. 12; Dumbauld, p. 158.

88 The President of the Court so interpreted the requirement in the Prince of Pless case. Publication D no. 2, 3rd addendum, p. 827. Cf. the Third Commission's proposal: p. 779.

89 On July 10, 1933, in the case concerning the Polish Agrarian Reform and the German Minority, when one party failed to appear and present its observations on the date fixed for the hearing, the Court decided, over objection, to postpone the hearing: Publication E no. 14, p. 143; Publication C no. 71, pp. 17-18. Dumbauld, p. 161. Postponement was also granted, without objection, in the case of the first application by Belgium for interim protection in the case regarding the Electricity Company of Sofia and Bulgaria. Publication A/B no. 77, pp. 66-7. Upon the second application in that case, the Court, on December 5, 1939, granted interim protection although the Bulgarian agent had not been able to attend the hearing: Publication A/B no. 79, pp. 197, 199.