Interim measures in international human rights: evolution and harmonization.

• Author: Pasqualucci, Jo M.

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...