¹ ICJ Reports (2002) para 93.Google Scholar

² See, eg, Legality of Use of Force (Yugoslavia v Belgium) ICJ Reports (1999) para 19.Google Scholar

³ ibid para 48.

⁴ ibid para 49.

⁵ ICJ Reports (2006) para 82.Google Scholar

⁶ ibid (2005) para 221.

⁷ ibid (1991) 20 para 35.

⁸ New Zealand v France (1990) XX RIAA 274, para 126.Google ScholarSee the few comments of Davidson, J Scott, ‘The Rainbow Warrior Arbitration Concerning the Treatment of the French Agents Mafart and Prieur’ (1991) 40 ICLQ 456Google Scholar; see also Carpentier, J, ‘L'affaire du Rainbow Warrior: la sentence arbitrale du 30 avril 1990 (Nouvelle Zélande c/ France) (1)’ (1990) XXXVI AFDI 407.Google Scholar

⁹ See the declaration of Judge Buergenthal in the case concerning the Armed Activities on the Territory of Congo (Democratic Republic of the Congo v Rwanda), order, ICJ Reports (2002).

¹⁰ Rosenne, S, The Law and Practice of the International Court (M Nijhoff, The Hague/Boston, 1997) 1585, III.373.Google Scholar

¹¹ See S Rosenne, ibid 1587, III.374; see also Combacau, J and Sur, S, Droit international public (Montchrestien, Paris, 2001) 605.Google Scholar

¹² On this debate see Lauterpacht, H, The Development of International Law by the International Court of Justice (Praeger, New York, 1958) 37.Google ScholarSee also Shaw, MN, ‘The International Court of Justice: A Practical Perspective’ (1997) 46 ICLQ 848.Google Scholar

¹³ This does not mean that reasons in points of law are automatically without any legal effects. Some of them can be authoritative interpretations of international law.

¹⁴ Davidson, J Scott (n 8) 456Google Scholar; Carpentier, J (n 8) 407.Google Scholar

¹⁵ See also the award of the arbitral tribunal in the Rainbow Warrior case where the recommendation followed the dispositif, As it was not part of the dipositif itself, it could not be considered as legally binding (1990) XX RIAA, 274.Google Scholar Unconvincingly, one author has argued that this recommendation amounted to a form of satisfaction. See Migliorino, L, ‘Sur la declaration d'illicéité comme forme de satisfaction. A propos de la sentence arbitrale du 30 avril 1990 dans l'affaire du Rainbow Warrior’ (1992) 96 RGDIP 73.Google Scholar

¹⁶ See Lagrand case, ICJ Reports (2001) paras 102–9.Google Scholar

¹⁷ Rosenne, S, Provisional Measures in International Law (OUP, Oxford, 2005) 3Google Scholar; Merrills, JG, ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’ (1995) 44 ICLQ 90, 93Google Scholar; Collins, L, ‘Provisional and Protective Measures in International Litigation’ (1992–II) 234 Recueil 9, 23.Google Scholar

¹⁸ ICJ Reports (1991) 20, para 35.Google Scholar

¹⁹ ITLOS, The Mox Plant Case (Ireland v United Kingdom), order, para 89; case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), order, para 106.

²⁰ See, for instance, Legality of the Use of Force (Yugoslavia v Belgium), ICJ Reports (1999) para 49.Google ScholarSee also Pulp Mills on the River Uruguay (Argentina v Uruguay) ICJ Reports (2006) para 82.Google Scholar

²¹ This type of provisional measures dates back to the Permanent Court of International Justice which had ordered Bulgaria, in the Electricity Company of Sofia and Bulgaria case ‘to ensure that no step of any kind is taken capable of […] aggravating or extending the dispute submitted to the Court’ (PCIJ, Series A/B, No 79, 199). See also the Frontier Dispute case (Burkina Faso v Mali), ICJ Reports (1986) para 18.Google Scholar On this question see Thirlway, HWA, ‘The Indication of Provisional Measures by the International Court of Justice’ in Bernhard, R (ed), Interim Measures Indicated by International Courts (Springer-Verlag, Berlin, 1993) 13.Google ScholarSee also the dissenting opinion of Judge Weeramantry in the cases concerning the Legality of Use of Force; see for instance Legality of Use of Force (Yugoslavia v Belgium), order, ICJ Reports (1999). As it falls outside the framework of this paper, this controversy is left aside.Google Scholar

²² Nuclear Test (Australia v France), order, ICJ Reports (1973) 106Google Scholar; Nuclear Test (New Zealand v France), order, ICJ Reports (1973) 142Google Scholar; case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), order, ICJ Reports (1984); case concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports (2000) para 47.Google Scholar

²³ See, however, the dissenting opinion of Judge Kreca in the case concerning the Legality of Use of Force (Yugoslavia v Belgium), ICJ Reports (1999) para 7. He contends that abovementioned statements of the Court ‘have been designed within the model of general, independent provisional measures’.Google Scholar

²⁴ ICJ Reports (2002) para 93.Google Scholar

²⁵ Legality of Use of Force (Yugoslavia v Belgium), ICJ Reports (1999) para 19.Google Scholar

²⁶ ICJ Reports (2005) para 221.Google Scholar

²⁷ ibid. (2006) para 82.

²⁸ ibid. (1979) para 42.

²⁹ ibid.

³⁰ ibid.

³¹ ibid (2003), further request for the indication of provisional measures, paras 52–3.

³² See, for instance, the case concerning the Legality of Use of Force (Yugoslavia v Belgium), ICJ Reports (1999), order, paras 16–17.Google Scholar

³³ ibid (2005) para 221. See however the opinion of Judge Vereshchetin who declared that the ‘Court should have promptly expressed its profound concern over the unfolding human misery, loss of life and serious violations of international law which by the time of the request were already a matter of public knowledge’, ibid (1999).

³⁴ See the declaration of Judge Buergenthal in the case concerning the Armed Activities on the Territory of Congo (Democratic Republic of the Congo v Rwanda), ICJ Reports (2002) para 4.Google Scholar

³⁵ ibid para 5.

³⁶ See the declaration of Judge Koroma in the case concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), ICJ Reports (2002), order, para 12: ‘Although the Court has been unable to grant the request for want of prima facie jurisdiction, it has, in paragraphs 54, 55, 56, and 93 of the Order, rightly and judiciously, in my view, expressed its deep concern over the deplorable human tragedy, loss of life and enormous suffering in the east of the Democratic Republic of the Congo resulting from the fighting there’.Google Scholar

³⁷ cf (n 27). On this statement, see the comments of Bekker, PHF, ‘Legality of Use of Force’ (1999) 93 AJIL 928, 931.Google ScholarSee also Gray, C (2000) 49 ICLQ 729–36.Google Scholar

³⁸ Thirlway, H (n 21) 4–5Google Scholar; Rosenne, S (n 17) 168–70.Google Scholar

³⁹ Contra see Dissenting opinion of Judge Kreca, case concerning the Legality of Use of Force (Belgium v Yugoslavia) ICJ Reports (1999) para 7.Google Scholar See also Dissenting opinion of Judge Vereshchetin, ICJ Reports (1999).Google Scholar

⁴⁰ See the account of the practice by Rosenne, S (n 17) 168–70.Google Scholar

⁴¹ New Zealand v France (1990) XX RIAA 274, para 128.Google Scholar

⁴² See Davidson, J Scott (n 8) 456Google Scholar; see also Carpentier, J (n 8) 407.Google Scholar

⁴³ Lachs, Judge, Aegean Sea Continental Shelf, ICJ Reports (1976) 20Google Scholar; Evensen, Judge, Arbitral Award, ICJ Reports (1993) 73.Google Scholar

⁴⁴ See the declaration of Judge Buergenthal in the case concerning the Armed Activities on the Territory of Congo (Democratic Republic of the Congo v Rwanda), ICJ Reports (2002) para 7.Google Scholar

⁴⁵ Rosenne, S (n 17) 536, II.149.Google Scholar

⁴⁶ Case concerning the Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Rwanda), ICJ Reports (2002) para 93.Google Scholar

⁴⁷ With respect to the effect of statement about the responsibility of States by the Security Council under chapter VII, see d'Argent, P, d'Aspremont, J et al. , ‘Article 39’ in Cot, J-P, Pellet, A, and Forteau, M, Commentaire de la Charte des Nations Unies (Economica, Paris, 2005) 1138–40.Google Scholar

⁴⁸ Arts 1 and 2 of the Articles adopted by the International Law Commission on Responsibility of State for International Wrongful Act.

⁴⁹ ICJ Reports (2002) para 93.Google Scholar

⁵⁰ ibid (1999) para 19, 48, 49.

⁵¹ Rosenne, S (n 17) 121.Google Scholar

⁵² ICJ Reports (2005) para 221.Google Scholar

⁵³ Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom and United States), ICJ Reports (1954) 19Google Scholar; East Timor (Portugal v Australia), ICJ Reports (1995) 90.Google Scholar See also the recent case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports (2005) paras 198–204.Google Scholar

⁵⁴ Merrills, JG (n 17) 136.Google Scholar

⁵⁵ See Genocide, ICJ Reports (1993) 22, para 44Google Scholar; Nicaragua, ICJ Reports (1984) 182, para 31.Google Scholar

⁵⁶ Regarding this issue, see Thirlway, HWA (n 21) 27–8Google Scholar; Rosenne, S (n 17) 188–93Google Scholar; Merrills, JG (n 17) 100.Google Scholar

⁵⁷ ICJ Reports (2002) para 13.Google Scholar

⁵⁸ ibid para 16.

⁵⁹ ICJ Reports (1991) para 35.Google Scholar

⁶⁰ ibid (1999) para 48.

⁶¹ Rosenne, S (n 17) 213Google Scholar

⁶² See, for instanc, his declaration in the case concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), ICJ Reports (2002) para 16: ‘In my view, if ever a dispute warranted the indication of interim measures of protection, this is it. But while it was not possible for the Court to grant the request owing to certain missing elements, the Court has, in accordance with its obiter dicta in the cited paragraphs, nevertheless discharged its responsibilities in maintaining international peace and security and preventing the aggravation of the dispute. The position taken by the Court can only be viewed as constructive, without however prejudging the merits of the case. It is a judicial position and it is in the interest of all concerned to hearken to the call of the Court’.Google Scholar

⁶³ See, for instance, Legality of Use of Force (Yugoslavia v Belgium), ICJ Reports (1999).Google Scholar

⁶⁴ Gray, C (1993) 42 ICLQ 709.Google Scholar

⁶⁵ PCIJ, Series A, No 22, 13.Google Scholar

⁶⁶ ICJ Reports (1986) 577, para 46.Google Scholar

⁶⁷ ibid (1991) para 35.

⁶⁸ Merrills, JG (n 17) 133Google Scholar; See also the dissenting opinion of Judge Vereshchetin in the case concerning the Legality of Use of Force (Yugoslavia v Belgium), ICJ Reports (1999)Google Scholar; see also the declaration of Judge Tarassov, case concerning the Passage through the Great Belt, ICJ Reports (1991) 24.Google Scholar

⁶⁹ Merrills, JG (n 17) 133Google Scholar; Judge, Lachs, Aegean Sea Continental Shelf, ICJ Reports (1976) 20.Google ScholarSee contra Carpentier, J (n 8) 407.Google Scholar

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⁷¹ Contra see Dissenting opinion of Judge Kreca, case concerning the Legality of Use of Force (Belgium v Yugoslavia), ICJ Reports (1999) para 7.Google Scholar See also Dissenting opinion of Judge Vereshchetin, ICJ Reports (1999).Google Scholar

⁷² Merrills, JG (n 17) 136–7.Google Scholar

⁷³ cf above.

⁷⁴ Regarding recommendations inviting the parties to negotiate, Judge Oda contended, in his separate opinion in the case concerning the Passage through the Great Belt, that those recommendations calling upon the party to negotiate, pending judgment of the merits, with a view to achieving a direct and friendly settlement will hardly be lived up to because the parties will fear that any trade-off prejudice its case, ICJ Reports (1991) 26–27.Google Scholar Contra Kritsiotis, D, (2001) 50 ICLQ 669.Google Scholar

⁷⁵ See on this issue, Merrills, JG (n 17) 135.Google Scholar

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⁷⁷ Merrills, JG (n 17) 136.Google Scholar

⁷⁸ Jennings, RY, ‘The International Court of Justice after Fifty Years’ (1995) 89 AJIL 493, 505.Google Scholar

⁷⁹ Shaw, MN, ‘The International Court of Justice: A Practical Perspective’ (1997) 46 ICLQ 837.Google Scholar

⁸⁰ ‘The Charter […] does not confer exclusive responsibility upon the Security Council for [the maintenance of international peace and security]. While in Art 12 there is a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard to that dispute or situation unless the Security Council so requires, there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary function with respect to the same events[.]ICJ Reports (1984), order, 397, 434, para 95.Google Scholar See also Application of the Genocide Convention, ICJ Reports (1993), order, 3, 19, para 33Google Scholar; Armed Activities on the Territory of the Congo (Congo v Uganda), ICJ Reports (2000), order, 111, 126, para 36.Google Scholar

⁸¹ ‘[I]t does not seem to have occurred to any member of the Council that there was or could be anything irregular in the simultaneous exercise of their respective functions by the Court and the Security Council. Nor is there in this any cause for surprise. Whereas Article 12 of the Charter expressly forbids the General Assembly to make any recommendation with regard to a dispute or situation while the Security Council is exercising its functions in respect of that dispute or situation, no such restriction is placed on the functioning of the Court by any provision of either the Charter of the Statute of the Court. The reasons are clear. It is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to a dispute; and the resolution of such legal questions by the Court may be an important, and sometimes decisive, factor in promoting the peaceful settlement of the dispute. This is indeed recognized by Article 26 of the Charter’. ICJ Reports (1980) 21, para 40Google Scholar; see also Military and Paramilitary Activities in and against Nicaragua, ICJ Reports (1984), order, 433, para 93.Google Scholar

⁸² On the heels of the Aegan Sea Continental Shelf case, the Security Council adopted resolution 395 (1976)Google Scholar which referred to ICJ; see also Aegan Sea Continental Shelf, ICJ Reports (1986) para 41.Google Scholar In the US Diplomatic and Consular Staff in Teheran, ICJ Reports (1980)Google Scholar, judgment, para 93 where the court referred to the Security Council resolutions; the Security Council resolution 819 (1993) borrowed three operative clauses of the first order indicating provisional measures in the Application of the Genocide convention. Against the backdrop of the dispute between Cameroun and Nigeria, the Security Council requested the Secretary General to keep it informed ‘bearing in mind the Court's order on PM of 15 March 1996’. In the case concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), the Court indicated a series of measures including compliance with Security Council resolution 1304, ICJ Reports (2000).Google ScholarSee generally Rosenne, S (n 17) 196–201Google Scholar; Merrills, JG (n 17) 125.Google Scholar