Interim Measures in International Human Rights: Evolution and Harmonization

Beginning of article

In this Article, the Author undertakes a comprehensive study of interim measures ordered in human rights cases before six international enforcement bodies--the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. An order of interim measures may require that the State take positive action, such as providing protection for human rights activists or .journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying the execution of prisoners ttntil their cases have been resolved before the international body. The purpose of interim measures in international human rights law is most often to protect pcrsons involved in a case from urgent danger of grave and irreparable injury. The Author concludes that the multiple jurisdictions charged with the enforcement of international norms are successfully harmonizing and evolving their treatment of interim measures. In general, States have accepted the decisions of international courts that interim measures are binding on the States that are parties to the applicable treaties. Many States Dave not yet accepted the view that interim measures specified by international quasi-judicial bodies also are binding on States. The Author argues inter alia that States that have accepted the right of individuals to petition international human rights bodies are bound to respect that petition process by refraining from interfering with the process and by protecting the lives and rights of those involved in the case. Thus, interim measures are implied in the constituent documents that provide for the right of individual petition and must be considered to be binding on States that are parties.

TABLE OF CONTENTS

   I. INTRODUCTION
  II. INTERIM MEASURES IN GENERAL
 III. AUTHORITY TO ORDER INTERIM MEASURES
      A. Express Authority
      B. Inherent Authority
      C. Implied Authority
  IV. INTERNATIONAL STANDARDS FOR ORDERING
      INTERIM MEASURES
      A. Urgency and Gravity
      B. Likelihood of Irreparable Injury
   V. BINDING NATURE OF INTERIM MEASURES
      A. International and Regional Tribunals
      B. International Quasi-Judicial Bodies
  VI. CIRCUMSTANCES REPEATEDLY GIVING RISE
      TO INTERIM MEASURES
      A. Pending State-Sponsored Executions
      B. Extradition or Deportment
      C. Protection of Petitioners, Witnesses, and
         National Attorneys
      D. Protection of Human Rights Organizations,
         Activists, and Journalists
      E. Protection for Local Judges and Opposition
         Politicians
      F. Protection to Allow Displaced Persons
         to Return to Their Homes
      G. Medical Assistance to Prisoners
 VII. COMPARATIVE PROCEDURES
      A. Parties Authorized to Petition an
         International Body to Order
         Interim Measures
      B. Prima Facie Jurisdiction
      C. Discretion to Order Interim Measures
      D. Prior Hearing
      E. The Period of Effectiveness of Interim
         Measures
VIII. OVERSIGHT OF STATE IMPLEMENTATION OF INTERIM
      MEASURES
  IX. STATE COMPLIANCE WITH INTERIM MEASURES
   X. CONCLUSION

I. INTRODUCTION

When the well-known Guatemalan newspaper El Peridioco published articles critical of the government, several of the newspaper's investigative reporters and staff received death threats. (1) The president of the paper was forced to leave Guatemala after his home was taken over and his family harassed by armed persons who identified themselves as National Police agents. (2) Two armed men entered the newspaper facilities, opened fire, and wounded a security agent. (3) In response to a complaint of human rights abuse filed with the Inter-American Commission on Human Rights, the Commission ordered the government of Guatemala to take interim measures to protect the director and the technical and administrative staff of the newspaper. (4) This immediate step protected the persons in danger during the time-consuming international proceedings.

The overriding importance of interim measures in human rights cases arises from their potential to terminate abuse rather than primarily to compensate the victim or the victim's family after the fact. International proceedings, which typically are not resolved for years, are inadequate in urgent circumstances to protect persons from imminent danger or death. There is, however, one procedural weapon in the arsenal of international tribunals and other quasi-judicial enforcement bodies that has been effective in saving lives and avoiding irreparable injury: an order to a State to take interim measures.

An order of interim measures may require that the State take positive action, such as providing protection for human rights activists, journalists, or judges who have offended those in power. Conversely, interim measures may call for the State to refrain from taking action, such as not extraditing a person or delaying the execution of prisoners until their cases have been resolved. The purpose of interim measures in international human rights law is most often to protect persons involved in a case from grave and irreparable injury. Thus, in human rights cases, interim measures are not only preventive but are also protective of human rights. (5) The authority to order a State to take interim measures is potentially one of the most valuable powers possessed by international tribunals and other enforcement bodies that deal with human rights issues. Their protective function is more important than the compensatory function of a final judgment.

The multiple jurisdictions charged with the enforcement of international norms are successfully harmonizing and evolving their treatment of interim measures. International norms must be interpreted consistently, and procedures must be applied in a similar manner by the various enforcement bodies. Inter-system harmonization may come about when enforcement bodies, although under no obligation to do so, choose to apply the reasoning or holdings of other international bodies or to emulate the practice of other systems. An excellent example is set forth in Mamatkulov and Abdurasulovic v. Turkey, in which the European Court of Human Rights, in determining that interim measures are binding on the parties to the European Convention, made reference to the jurisprudence and rules of the International Court of Justice (ICJ), the Inter-American Court of Human Rights, the United Nations Human Rights Committee (U.N. Human Rights Committee), and the United Nations Committee against Torture (U.N. Committee against Torture.) (6) The European Court stated in this regard that "the [European] Convention must be interpreted so far as possible consistently with the other principles of International Law of which it forms a part" (7)--an interpretation that advances the goal of interstate harmonization of international law.

The treatment of interim measures has been harmonized recently by the principal international and regional courts. In well-reasoned decisions, the ICJ, (8) the European Court of Human Rights, (9) and the Inter-American Court of Human Rights (10) have held that interim measures are necessary to the effective functioning of the tribunals and, thus, are binding. These decisions largely put to rest a lengthy controversy as to whether an international tribunal's order that a State take interim measures was binding or a mere suggestion to be followed if the State chose to comply. Consensus has not yet been reached on the equally important issue of whether interim measures specified by international quasi-judicial treaty bodies, such as the U.N. Human Rights Committee, the U.N. Committee against Torture, and the Inter-American Commission on Human Rights also are binding on States. This Article argues that States that have accepted the right of individuals to petition international human rights bodies are bound to respect that petition process by refraining from interfering with the process and by protecting the lives and rights of those involved in the case. Thus, interim measures are implied in the constituent documents that provide for the right of individual petition and must be considered to be binding on the states parties to the treaties.

The increasing harmonization of the treatment of interim measures in international law may minimize the concerns of some commentators that the growing multiplicity of international fora could result in inconsistent pronouncements on basic concepts and potentially hamper international law's continuing evolution into a coherent and harmonious body. (11) Were the enforcement organs to work in a vacuum without reciprocally recognizing and relying on developments in the other bodies, international law could become splintered and conflicting, and the law would not be truly "international." It is essential that the multiple international organs make an effort to harmonize not only their holdings but also their practice and procedures. As demonstrated by the harmonized intersystem rulings on interim measures, the multiplicity of international fora can have a positive effect on international law. In a world-wide system in which the tribunals and enforcement bodies look to the interpretations of other fora, the most advanced, well-reasoned decisions are finding acceptance and being adopted by other international bodies, which spurs developing concepts and procedures. (12) In this way the important pillars of evolution and harmonization of international law are both being served.

The growing consensus that interim measures must be followed by a State--not solely out of the State's goodwill but rather out of a legal obligation--makes an inroad into the classical theory of international law. The classical or positivist view holds that international law is derived from the voluntary will of the State. (13) The State, in most cases, is only bound by international law when it has ceded a particular aspect of its sovereignty by ratifying a treaty or failing to object persistently to an evolving principle of international law. (14) If the State ratifies a treaty, the positivist theory provides that the State is only bound to the explicit provisions of the treaty, and that it cannot be held to greater obligations than it has expressly accepted. If the State also accepted the jurisdiction of an international body with the authority to enforce the treaty, the enforcement body must not infringe on any procedural protections afforded the State or assert against it any rights to which the State has not agreed. In this vein, States have argued that interim measures are not binding on States when the authority to order such measures is not included in the constituent document or when the wording of the constituent document does not appear to be mandatory. (15) Nonetheless, the major international tribunals have held that interim measures are essential to the functioning of the tribunal and that States have a legal obligation to comply with interim measures regardless of whether the authority to order them is expressed, inherent, or implied. (16)

This development is especially important in human rights law which, comparatively, has only recently been established as a separate branch of international law. International human rights law is an offshoot of traditional international law, which is based on the principle of State sovereignty. (17) Human rights law, however, undercuts certain foundational concepts of international law and establishes the supremacy of human rights over the will of the State. The purpose of international human rights law is to protect individuals from the misuse of power by the State or from the State's failure to curb the misuse of power by entities or persons within the State. (18) Publicly ordered interim measures by an international body bring attention to bear on abuses as they are happening and often have the effect of curtailing those abuses. In this regard, interim measures have been unexpectedly successful in the limited number of cases in which they have been applied and may have a chilling effect on similar abuses.

This Article represents a comprehensive study of interim measures in multiple international fora including the ICJ, the Inter-American Court of Human Rights, the European Court of Human Rights, the U.N. Human Rights Committee, the U.N. Committee against Torture, and the Inter-American Commission on Human Rights. (19) Although these international bodies may use different terminology to signify interim measures, the concept remains the same. Interim measures may also be designated as "provisional measures," "precautionary measures," "emergency measures," and "conservatory measures." The term "interim measures" will be used in this Article except when the source discussed employs an alternative term. This multi-forum study of interim measures in international human rights law argues that interim measures ordered by any international body to which States have granted the right to receive individual complaints must be considered to be binding. This study will provide governments, non-governmental organizations, and others litigating before international bodies with an understanding of the application of interim measures in appropriate circumstances. It will also inform the enforcement bodies on the treatment of interim measures by the other international tribunals and quasi-judicial bodies. Furthermore, it may encourage the development and harmonization of other substantive rights and procedures in international human rights law.

Part II of this Article discusses interim measures in general. Part III evaluates the authority to order interim measures, including express, inherent, and implied authority. The Author argues that judicial organs have the inherent authority to order interim measures and that quasi-judicial human rights bodies granted the competence to review individual human rights complaints have the implied authority to order interim measures. Part IV delineates the international standards for an order of interim measures: urgency, gravity, and the likelihood of irreparable injury. Part V analyzes whether interim measures should be binding when issued by all international fora that have the right to consider individual petitions. Part VI describes situations in which interim measures are most commonly ordered, including pending State-sponsored executions; extradition; protection of petitioners, witnesses, and human rights activists; protection to allow displaced persons to return home; and medical care for prisoners. Part VII compares the procedures applied by the international bodies when considering provisional measure requests. Part VIII discusses methods of implementation of interim measures, and Part IX evaluates State compliance with interim measures.

II. INTERIM MEASURES IN GENERAL

Interim measures traditionally have been ordered to preserve the subject matter of a dispute and, thus, maintain the status quo until a tribunal reaches a judgment on the merits. (20) Their primary purpose has been the preservation of the parties' rights pending a court decision. (21) Thus, a party may be barred from logging a forest that is the source of contention. On the international plane, interim measures may be ordered by international courts, quasi-judicial bodies, or arbitral bodies. (22) The International Court of Justice has stated that the power of the Court to indicate provisional measures "has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings." (23) The Permanent Court of International Justice earlier stated that "the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute." (24)

In addition to the traditionally preventive role of interim measures, these measures are fundamentally protective of human rights. (25) Although a State has an obligation, erga omnes, to protect all persons subject to its jurisdiction, international tribunals may order States to take special measures to protect persons who are in immediate danger of suffering irreparable injury. (26) A unique aspect of international human rights cases is that individuals involved in the case or even individuals related to those persons may be in danger and, therefore, in need of the protection that can be offered through interim measures. This need results from threats and attempts to intimidate or eliminate complainants, their attorneys, family members, and witnesses who have testified or have been called to testify. Such threats and acts of aggression are intended to interfere with the competence of the enforcement organ to hear all evidence and may be meant to dissuade future complainants from filing cases. The protection of all persons involved preserves the court's ability to consider every aspect of the case and to reach a conclusion based on all the evidence. The enforcement body must have the authority to ensure that physical evidence or subject matter not be injured or destroyed, as well as that same authority with respect to those giving testimonial evidence. In this sense, as in traditional cases, interim measures "prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved." (27)

An order that a State take interim measures does not prejudge a decision on the merits. (28) After ordering interim measures, the international entity considers the evidence and determines whether the State is liable for a human rights violation. When the U.N. Human Rights Committee requests that a State take interim measures, for instance, it informs the State that its request does not imply that the Committee has made a determination as to the merits of the petition. (29) Interim measures simply protect those involved in the pending case.

III. AUTHORITY TO ORDER INTERIM MEASURES

An international enforcement body, whether judicial or quasi-judicial, that is empowered to consider individual complaints of human rights abuse must have the authority to order a State to take interim measures. This authority is essential to fulfill the purpose of human rights treaties: the protection of persons. (30) A goal of the enforcement bodies established by the treaties is to afford individual complainants the procedural capability to enforce their rights. Especially in human rights law, "[t]he final result of the international procedure must have some practical relevance for the person concerned." (31) To accomplish this goal, the tribunal must have the legal authority to order provisional measures in any case in which there will be immediate and irreparable damage to those involved in the case in any capacity. This power is necessary for the effective functioning of international human rights systems.

A. Express Authority

The authority to order interim measures may be expressly provided for in the treaty, the constituent document that established the tribunal or enforcement body. When authorization is set forth in the constituent document, there is no question as to the organ's competence to order interim measures. Treaties, such as the Statute of the International Court of Justice, (32) the American Convention on Human Rights, (33) and the Protocol to the African Charter (34) expressly provide for interim measures. The Statute of the ICJ provides that "[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party." (35) The Inter-American Court's authority to order provisional measures, which is provided for in the American Convention on Human Rights, is the broadest in that it not only empowers the Court in particular circumstances to "adopt such provisional measures as it deems pertinent in matters it has under consideration" (36) but also authorizes the Court to act at the request of the Inter-American Commission even when a case has not yet been submitted to the Court. (37) As such, the Inter-American system of human rights expanded the application of provisional measures and adapted the doctrine and practice of their use to the two-tiered system in the Americas. Likewise, the Protocol to the African Charter on Human and Peoples' Rights, which establishes the African Court, provides that "in cases of extreme gravity and urgency and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary." (38) This provision partially echoes the American Convention.

Most enforcement bodies delineated their authority to order interim measures in their self-drafted rules of procedure, either to remedy the lack of a provision in the underlying treaty or to supplement the broad terms of the treaty. For example, the European Rules of Court contain the sole authority for the adoption of provisional measures in the European human rights system. (39) The European Rules provide that a chamber of the Court may "indicate to the party …