Provisional measures in regional courts of human rights: a comparative analysis

This article is a comparative legal analysis of the regulatory framework and practice of applying provisional measures by regional human rights courts — the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights. It notes that despite the considerations expressed about an ongoing convergence of the approaches of these courts regarding provisional measures, these approaches are strikingly different in all three courts. This can be explained by the fact that they were created by different international treaties with different State parties and varying degrees of detail on the issues of provisional measures. In addition, the practice of applying provisional measures is influenced by factors such as the duration of activity and the authority of each court, as well as the general political and legal contexts in which these courts operate and the specific context in which a decision about provisional measures is made. Because of this, in practice there is an evident pluralism of these courts’ approaches to such issues as the goals and criteria for the application of provisional measures, the inseparability of the connection of provisional measures with the main case under consideration by the court, and the legal characterization of non-fulfillment of provisional measures. In addition, regional human rights courts — unlike, for instance, investment tribunals and the International Tribunal for the Law of the Sea — do not apply in their practice the plausibility criterion developed by the International Court of Justice, nor do they apply the fumus boni iuris criterion used by the Court of Justice of the European Union. All this increases the risk of fragmentation of international law, not only because of human rights courts’ competing interpretations of similar norms of international law and conflicting decisions, but also because of these courts’ inconsistency and lack of uniformity when ordering provisional measures.