PROVISIONAL MEASURES: BINDING AND PERSUASIVE? ENABLING HUMAN RIGHTS ADJUDICATORS TO FOLLOW UP ON STATE DISRESPECT

Abstract

Given the importance of the rights at stake (the right to life, the prohibition of torture and cruel treatment and the right of individual petition as such) it is crucial that states respect provisional measures by human rights adjudicators. Many factors play a role in compliance and it is often difficult to disentangle them. Yet it is clear that whatever reasons states may have for occasionally disrespecting provisional measures, in those cases they will try to legitimise their own actions and at times even to undermine the standing of the provisional measures or of the adjudicator ordering them. This article discusses the concept of provisional measures, including their purpose and the convergence in their use by the various adjudicators. It argues that human rights adjudicators, other authorities and NGOs are in the best position to follow up on non-compliance if the provisional measures ordered are as persuasive as possible. For a great part this persuasiveness hinges on the nature of the rights to be protected by provisional measures. ‘Core rights’ play a key role in the decision whether or not to order such measures. Moreover, core rights underlie the convergence in decision-making on the binding nature of provisional measures. In addition, this binding nature in itself obviously enhances the persuasive force of provisional measures. Moreover, it is argued in this article that in most human rights systems maintaining persuasiveness also means maintaining a relation to the claim on the merits. In other words, provisional measures cannot yet be seen as a free-standing tool. This is particularly important in the European system, where certain states appear to be intent on undermining the Court's authority to order provisional measures.