The chapter provides a thorough analysis of the Court’s jurisdiction to order provisional measures and its procedure. The author identifies an evolution in the Court’s practice on provisional measures, with the Court most recently developing specific conditions for the indication of provisional measures. The author examines those conditions and their elaboration through the Court’s caselaw, together with the Court’s findings as to the binding effect of its provisional measures orders.

These remedies involve the challenges of responding to the harms of colonialism and avoiding new neo-colonial harms. Part I stresses the importance of interim remedies to prevent irreparable harm to Indigenous rights. Courts should stop their tendency to discount pecuniary losses even while trying to off-set this with a more generous approach to non-pecuniary harms. Part II examines the duty to consult. It, like the South African practice of engagement, can result in consensual agreements but also authorize limits on rights, especially if no attempt is made to address inequality of bargaining power and respect Indigenous law. Part III argues that proportionality principles can be used to avoid allowing majoritarian and economic interests to weaken remedies. Following Article 40 of the United Nations Declaration on the Rights of Indigenous Peoples, the overall balance stage should be applied bi-jurally to respect both rights and Indigenous law including with respect to the environment. Part IV suggests that domestic and supra-national courts should focus on providing first-track remedies to prevent irreparable harm and compensate for past harm. They should employ a lighter and respectful touch that encourages bi-jural treaties as systemic remedies. Effective first-track remedies may make such agreements more likely.

This Chapter examines interim remedies. These allow courts to order remedies to protect rights from immediate and irreparable harm. Part I examines how international adjudicators have recognized the importance of interim relief in enforcing rights to life and health. Domestic courts have applied common law concepts such as the balance of convenience and higher standards for mandatory injunctions that may not be appropriate in the human rights context. Part II examines the irreparable harm standard and suggests that in some contexts, courts should engage in a closer review of the merits of the applicant’s case. Part III examines how proportionality principles can provide principles for decisions about the balance of convenience by calling attention to the legitimacy of the state’s objectives that justify limits on remedies, the tailoring of the remedy to accommodate competing rights and social interests and its overall balance. Part IV argues that interim relief, as an individual remedy, is related to the court’s ability to adjudicate a dispute and provide effective remedies and should not be deterred by potential remedial failure. Even breaches of interim remedies can be the focus of subsequent remedies and focus attention on the irreparable harm caused by some rights violations.