This panel was convened at 9:45 am, Thursday, April 4, by its moderator, Frederic G. Sourgens, (1) who introduced the panelists: Isabel Fernandez de la Cuesta, (2) Jennifer Gorskie, (3) Carmen Martinez Lopez, (4) James Upcher, (5) Elizabeth Whitsitt, (6) and Jarrod Wong. (7)
DIE GEISTER DIE ICH RIEF: UNCOMMON REMEDIES IN INTERNATIONAL DISPUTE RESOLUTION (8)
The proliferation of international courts and tribunals is an uncontroversial fact of international life. But its significance for the structure and coherence of international law continues to stir heated debate. Some commentators opine that
[t]hough several international tribunals have been created, and there is some discussion of the "proliferation" of international courts and tribunals, their influence is constrained by a combination of limited jurisdiction, cabined discretion, and lingering state influence. As one commentator observed, "[M]ost of the rulings are exactly what states hoped for when they delegated authority to [international tribunals]." (9)
Others disagree and consider that international courts and tribunals have reached critical mass to transform, permanently, the international legal landscape because "[s]uch courts serve, in some respects, as the lynchpin of a new, rule-based international order, which increasingly displaces or purports to displace the previous power-based international order." (10)
The question of what remedial powers international courts and tribunals hold--and how they came to hold these powers--is a touchstone for this larger debate. The issuance by courts and tribunals of provisional or interim measures and their award of moral damages are particularly sensitive indicators for this larger debate. Both reveal the kind of role that tribunals consider themselves to play--whether a purely expedient allocative mechanism for political decisions made ex ante by the parties submitting to them, or as a truly independent guardian of international law. (11)
The study of both interim measures and recent awards of moral damages may suggest that international courts and tribunals are on their way towards greater emancipation from the politics of international law and law-making, and are indeed reinventing themselves as the lynchpin of a new, rule-based international order. (12) How far down that road they have travelled--and by which road they have gone--remains a topic for future study and debate.
Interim measures have increasingly become part of international legal proceedings. For instance, Cambodia and Georgia sought to stop military activities by Thailand and the Russian Federation in recent ICJ proceedings in the Temple of Preah Vihear and Application of the International Convention on the Elimination of All Forms of Racial Discrimination cases. (13) In investor-state arbitrations, foreign investors sought to halt domestic criminal proceedings and the collection of taxes. (14) Such requests go to the core of the sovereign powers of the states parties in these disputes and raise a multitude of questions about the power of courts and tribunals within the international legal order. Accordingly, the question of whether and how international courts and tribunals have the power to order states from refraining to take certain actions is critical to understanding the role of international courts in international legal practice today. With this power in mind, the scope of judicial intervention depends upon the threshold at which courts can order interim relief. Further, how a court or tribunal can ensure the efficacy of its interim orders at the merits stage will determine the extent to which these orders will introduce international courts and tribunals as effective international actors. Finally, the question arises of whether international courts and tribunals can order moral damages for non-compliance with an interim measures order, if they should find that the party refusing to honor that order acted wrongfully.
Power to Issue Interim Relief
Why can courts order parties to act or refrain from acting prior to the disposition of the case before them on the merits? One basis for such relief is the consent of the parties. Parties can give such consent by reference: thus, the Rules of Court of the International Court of Justice state that the Court has the power to "indicate measures," whether requested or not, which it deems "ought to be taken or complied with by any or all of the parties." (15) The rules of the International Tribunal for the Law of the Sea state that "[w]hen a request for provisional measures has been made, the Tribunal may prescribe measures different in whole or in part from those requested and indicate the parties which are to take or to comply with each measure." (16) The rules of the Inter-American Court of Human Rights provide that "the Court may, on its own motion, order such provisional measures as it deems appropriate, pursuant to Article 63(2) of the Convention" at any time. (17) Similarly, the 1976 UNCITRAL Arbitration Rules provide in Article 26 that "[a]t the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute" in the form of an Interim Award. (18) The 2010 UNCITRAL Arbitration Rules authorize the tribunal to "order" the parties to act or refrain from acting in a certain way "any time prior to the issuance of the award by which the dispute is finally decided." (19)
But not all arbitration rules authorize international courts and tribunals to order interim relief. Most notably, the ICSID arbitration rules merely provide that a tribunal may "recommend" interim relief. (20) Despite this narrow limitation, ICSID tribunals have habitually ordered parties to act or refrain from acting in a certain way. (21) Further, the power of other international courts and tribunals frequently is narrowly circumscribed in the consent instruments, leaving open the possibility that other measures might yet have to be ordered. (22)
This lack of consent raises the question: Do international courts and tribunals have some inherent power to issue interim relief? (23) If so, what is its ultimate basis? One basis could be external to dispute resolution mechanisms, such as, for example, the obligation of cessation of wrongful acts. Another basis could be internal to dispute resolution mechanisms. It would submit that the critical mass of consents given to other tribunals to order interim relief changed the nature of public international law dispute resolution to such an extent that such a power is to be implied in any form of international law dispute resolution. This implication would thus transform earlier dispute mechanisms to harmonize them with current dispute resolution standards. This position entails acknowledging that the proliferation in quantity of consents to submission to different international tribunals have changed the quality of public international law dispute resolution itself. Depending upon one's point of view, this change in quality could be considered either an usurpation of the "separation of powers" in international law between international tribunals and their sovereign masters, or a natural progression towards an ever-stronger institutionalization of the rule of law and access to justice under international law.
The most far-reaching potential basis upon which a tribunal could rely is the duty of cessation of internationally wrongful acts. Article 30 of the International Law Commission's Draft Articles on State Responsibility declares that states have a general duty of cessation of internationally wrongful acts. (24) The commentary notes that "[cassation of conduct in breach of an international obligation is the first requirement in eliminating the consequences of wrongful conduct." (25) When there is a danger of a continuing internationally wrongful act, a basis for interim relief therefore may be prevention of a risk of international wrongfulness. Such a justification would most seriously support the view that international tribunals must at all times protect the rule of international law by snuffing out potential violations of international law in their infancy.
The theory of cessation of an internationally wrongful act may look appealing, since the obligation of cessation follows from the general obligation of each state to conduct itself in accordance with international law--but it appears ultimately to fail both as a matter of judicial or arbitral procedure and as a matter of substance. As a matter of procedure, the interim measures application would place the cart before the horse and ask the tribunal to make a determination of wrongfulness prior to the merits hearing. This a tribunal cannot do without literally prejudging the merits of the dispute. (26) The predicate for the cessation justification thus is missing procedurally at the interim measures stage. (27)
More importantly, as a matter of substance, the order of interim relief if not warranted itself interferes with the international legal rights of the state party against which it is ordered. (28) It is thus not possible in many instances to "err on the side of caution" without making a value preference between the conduct to be enjoined or ordered and the current state of affairs. (29) Anchoring such presumptions in legal rules may in many instances be extremely difficult.
This leaves the theory of an inherent power of international legal tribunals to organize their own proceedings. (30) According to this
basis, tribunals must have a general power to police the proceedings before them and maintain the status quo ante of the legal dispute. (31) Jurisdictional questions aside, the rationale is that if the parties have submitted themselves to arbitration for the determination of their dispute, then the tribunal must also have the power to preserve its ability to resolve that dispute in some meaningful way. (32)...