Book Review – Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication

Eva Rieter, Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication (Intersentia, Antwerp, 2010, xl + 1200 pp., €129.00) ISBN 978-90-5095-931-5 (pb)

This year, Eva Rieter, assistant professor in public international law and international human rights at Radboud University Nijmegen, has authored an extensive volume which is the result of years of research on provisional measures in the international human rights context.

Provisional measures—also termed precautionary measures or interim measures—are those actions which international tribunals direct States to take (or refrain from taking) in order to preserve the object of the litis or to prevent irreparable harm to individuals in situations of imminent risk.  International judicial and quasi-judicial tribunals that issue such measures include those of the regional human rights systems, some U.N. treaty bodies, and the International Court of Justice.

Although several scholars have previously written about the use of provisional measures, such literature has typically focused on individual tribunals[1] or on particular cases[2]. Rieter’s tome appears to be the first comprehensive analysis of the use of provisional measures in the field of international human rights law.

In addition to the dearth of scholarly analysis of provisional measures, this subject has remained elusive to practitioners and academics alike because few tribunals publish their decisions on provisional measures, and those that do may not include reference to supporting international law or jurisprudence. These factors complicate not only the study of precautionary measures, but also the work of those hoping to attain coherence and consistency in—if not progressively expand upon—their use. In addition, the lack of transparency raises questions about the expectations of States vis-à-vis their potential obligations in this area of the law.

Rieter’s book examines the conventional and/or statutory authority to examine requests for provisional measures; the procedural rules governing their authorization and implementation; and the substance of nearly a century of decisions granting, modifying and lifting such measures. Its chapters address, first, the relevant tribunals and the competence of each (Chapters I and II), before turning to the use of provisional measures in specific situations of risk (Chapters III through XII), the kind of protective action required of the State (Chapter XIII) and, lastly, more specific questions of jurisdiction  and enforcement (Chapters XIV through XVIII).

Chapters I and II describe the traditional purpose of provisional measures by international tribunals since their first implementation by the ICJ, and their modern-day availability as a tool for human rights protection by U.N. treaty bodies, regional human rights systems and the Bosnian Human Rights Chamber. Chapter II summarizes the authority of each body to grant provisional measures, the circumstances in which they have generally done so, their promptness, and availability of information on provisional measures decisions.  This chapter is particularly useful for a global understanding of provisional measures, for a comparative understanding of the relevant bodies, and for further researching the subject.

Chapters III through XII examine historical use of provisional measures in the following risk scenarios: executions, corporal punishment, expulsion or extradition, forced disappearance, detention involving risks to health and dignity, incommunicado detention, death threats and harassment, cultural and religious rights, mass expulsion and forced eviction, and other situations (including health risks outside the detention context, abuse of minors, and infringements on freedom of expression).  Most categories are broken down into several sub-categories. For example, Chapter VII: Intervening in Detention Situations Involving Risks to Health and Dignity is broken into the following sections: protecting against certain interrogation methods and other ill treatment; requests for information on the health situation of detainees; ensuring access to health care in detention; protecting particularly vulnerable detainees; and, access to health care for death row inmates.

Although much of the evidence cited to illustrate the Rieter’s conclusions is anecdotal (several cases are selected to illustrate each type of situation), the author also often provides a statistical overview, and the research appears comprehensive and the explanations thorough. The fact that the author distinguishes among decisions of the different tribunals facilitates both an understanding of the disparate levels of use of provisional measures among the regional and universal human rights bodies, and of the advances some bodies have made in more creatively interpreting their authority to grant such measures, relative to other bodies. Importantly, the author includes situations outside the traditional main of provisional measures decisions.

An example of the extraordinary usefulness of Rieter’s volume can be found in Chapter X, entitled Protecting (Indigenous) Cultural and Religious Rights, which details an area of the law of growing relevance and utility.  As in other chapters, Rieter “discusses the practice of the human rights adjudicators in urgently dealing with cases involving indigenous culture” before analyzing “how this practice relates to their case law on the merits and whether a finding of a violation is likely in this respect”.  Rieter describes the factual background relevant to each case discussed, which will allow readers to identify similar precedents.  Additionally, the chapter provides procedural insights which are uniquely valuable to practitioners, such as the timing of the request and granting of provisional measures, and the nature of State objections. This chapter concludes by comparing “the practice of the [Human Rights Committee], the Inter-American Commission and Court and the Bosnian Chamber…[with] the approach taken in the UN Declaration on the Rights of Indigenous Peoples” and concludes that the Human Rights Committee has issued “unsatisfactory” decisions and “could do more than it has thus far” to earlier and more effectively protect individual and collective cultural rights.

Chapter XIII analyzes the meaning of “protection” in the provisional measures context, by breaking down the kind of action or inaction required of States and the individuals or groups to be protected—providing specific examples under the category headings discussed in the prior chapters. In addition, this chapter examines provisional measures’ relation to measures States are directed to take to cease and repair the violations found in the merits decision.

Chapters XIV and XIV examine requirements related to jurisdiction, admissibility, immediacy and risk in the granting of provisional measures. Finally, chapters XVI through XVIII analyze the legal status of provisional measures, State responses, and compliance mechanisms.

The author summarizes her case for a somewhat restrictive approach to provisional measures in the book’s General Conclusion. Noting that the European Court and UN treaty bodies have been more conservative in their use of provisional measures than the inter-American organs, Rieter defines the “common core” of provisional measures in the human rights context as “mainly involving claims about the right to life and the prohibition of torture and cruel treatment”, the essential aim of which is to “prevent irreparable harm to persons and this relates to ensuring survival of persons and groups and ensuring personal integrity” (p.1091).

Rieter suggests that provisional measures should not be used in situations falling outside these parameters, such as those merely involving undue hardship rather than irreparable harm, in order to not reduce their impact. In this regard, Rieter points to the granting of provisional measures in the context of restrictions on freedom of expression and on the independence of the judiciary as “beyond the outer limits of the concept”, particularly where irreversible harm to the litigation is not likely. Yet, the author warns, “If adjudicators are too cautious in this respect and do not use provisional measures for lack of specific precedent on the merits [of the potential violation at issue] (or even for lack of a previous provisional measure in a similar case) they take the chance that irreparable harm will be caused to persons.” (p. 1092-93).

With regard to consistency, transparency and possibilities of cross-fertilization, the author concludes that “[i]n most systems the transparency of decision-making on provisional measures is insufficient” (p. 1083) and urges tribunals to make available not only their decisions granting provisional measures, but also their decisions rejecting them. She further argues that such decisions should “contain a clear motivation similar in structure to the Orders for provisional measures by the Inter-American Court of Human Rights” (p. 1084).

Rieter’s book is a very worthwhile and sorely needed reference. Overall, the book provides a comprehensive and organized explanation of provisional measures and the bodies that may issue them. Its most important contribution is found in the middle chapters addressing the various situations and kinds of harm previously addressed by human rights tribunals when granting provisional measures, although the practical suggestions to human rights tribunals are also surely welcome. Further, the Table of Cases and keyword Index will prove highly useful to those using this volume as a research tool.

However, Rieter’s approach to the subject is somewhat flawed by a failure to fully evaluate the free-standing importance of provisional measures, independent from any violations alleged or found through the contentious case proceedings.  Rieter sets out the core purpose of her text as that of analyzing practices in the granting of “provisional measures in human rights litigation” and explains that such measures are comparable to injunctive relief pendent lite. In addition, she pays careful attention to the “relationship between provisional measures and the merits of the relevant cases” (p. 209).  Although Chapter XIV of the book briefly addresses the granting of provisional measures when litigation is no longer pending, the discussion is not entirely complete.  Further, Rieter states in the General Conclusion that “for those adjudicators that have no additional monitoring functions (i.e. the various regional courts) there should always be a real claim on the merits with which the provisional measures are connected. Turning the concept of provisional measures into a summary procedure standing on its own, disconnected from any intent by the petitioner to even continue proceedings on the merits, would move it too far from its origins as developed by the ICJ and its predecessor”, which would diminish decisions’ “persuasive force” (p. 1099).

Rieter’s conclusion, however, may be seen as a weakness in her treatment of the subject, in that—before at least two human rights tribunals—provisional measures may be requested and granted in the absence of a contentious claim. This capacity is clearly stated, for example, in the current Article 25(2) of the Inter-American Commission on Human Rights’ Rules of Procedure, which establishes that “In serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons under the jurisdiction of the State concerned, independently of any pending petition or case.”

Indeed, the Inter-American Court and Commission have granted a significant number of measures to individuals not involved in any pending petition or case.  As the Inter-American Court of Human Rights reiterated in its most recent decision on the request for precautionary measures on behalf of staff of the Venezuelan human rights non-governmental organization COFAVIC:

…the Court has indicated that provisional measures have two functions: one preventive and the other protective. The preventive function of provisional measures relates to the framework of international litigation. In this regard, the object and purpose of these measures is to preserve any rights that may be at risk until the dispute has been settled. Their aim is to ensure the integrity and effectiveness of the decision on merits and, thus, to avoid any harm to the rights in dispute that could impair or annul the effet utile of the final decision. Thus, provisional measures allow the State in question to comply with the final decision and, if applicable, proceed to make the reparations ordered. Regarding the protective function of provisional measures, the Court has indicated that provisional measures become a real jurisdictional guarantee of a preventive nature, because they protect human rights inasmuch as they seek to avoid irreparable damage to persons.

[The Court highlighted the fact that] no case is being processed before the Inter-American Commission concerning this matter… Consequently, the only appropriate analysis is limited to the protective dimension of the provisional measures; this is the criterion according to which the Court must verify the existence of the highest risk to life and personal integrity. Given that no litigation exists on this matter, the Court must ensure that the provisional measures are not denatured by being used to achieve a purpose that should be achieved through litigation.[3]

The actual or potential ability of tribunals to grant provisional measures outside the context of litigation is particularly relevant in situations where the risk originates not from the State (as would be the case, say, in the context of the death penalty or expulsion), but rather from private actors (as in the case of anonymous threats against human rights defenders) because in the latter instance, it may be that the only possible violation attributable to the State would be that of failing to provide protection in the face of a known risk from a third party to the individual’s life or well-being—a violation which may never have been alleged and may never materialize. In this sense, precautionary measures represent a unique area of international human rights law under which States may be obliged to take preemptive action to protect individuals against non-State actors, in the absence of an alleged violation attributable to the State. Its importance should not be overlooked.

Although far less important to the author’s purpose, it should also be noted that some developments have taken place around the time of the book’s publication which could not be reflected in its text.  For example, the Rules of Procedure of the Inter-American Commission on Human Rights were modified in late 2009 to essentially eliminate the Commission’s role in litigation before the Court (p. 148) and to require it to take into account additional factors when evaluating a request for precautionary measures.  Additionally, Protocol 14 to the European Convention on Human Rights, written several years ago but pending entry into force at the time of the book’s publication, which rearranges and streamlines decisions on applications, entered into force in June of 2010.

Any minor flaws, however, do not detract from the book’s central purpose of illuminating the opaque world of provisional measures, nor diminish its enormous contribution. Researchers, human rights defenders and the tribunals themselves will find much in Rieter’s volume to strengthen and enrich their work.  Ideally, the information it contains will contribute not only to better understanding of provisional measures, but also to coherence in, and progressive development of, this area of the law.

The book is available for purchase from Intersentia or Barnes & Noble.

[1] See, e.g., Clara Burbano Herrera, Provisional Measures in the Case Law of the Inter-American Court of Human Rights (2010); Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005). Cf., Interim Measures Indicated by International Courts (Rudolf Bernhardt ed., 1994).

[2] See, e.g., Tobias Thienel, The Georgian Conflict, Racial Discrimination and the ICJ: The Order on Provisional Measures of 15 October 2008, Human Rights L. Rev. Vol. 9(3), 465-72 (2009); Brian D. Tittemore, Guantanamo Bay and the Precautionary Measures of the Inter-American Commission on Human Rights: A Case for International Oversight in the Struggle Against Terrorism, Human Rights L. Rev. Vol. 6(2), 378-402 (2006).

[3] Order of the Inter-American Court of Human Rights of July 9, 2009, Provisional Measures Regarding Venezuela, Matter of Liliana Ortega et al, Series E No. 6, par. 3-4.

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