Rule 36: Immediate Measures

Abstract

The provision on immediate measures (mesures immediates) in collective complaints procedures was inserted by the ECSR in its Rules of Procedure during the 250th session on 10 May 2011 and was amended during the 308th session on 10 September 2019 . Its introduction squarely falls within the trend of human rights courts, tribunals and quasi-judicial (treaty) bodies, which provide for the possibility of immediate (interim/provisional) measures when necessary for preventing and suppressing a risk of irreparable injury to the rights of claimants of human rights violations. Since the 2011 introduction of the provision, the ECSR has considered the adoption of immediate measures a couple of times, having granted them on four occasions, while refusing to indicate them in an equal number of instances. The commentary will be structured in the following way: In Part II, we will present the procedural contours of the immediate measures mechanism, focusing on the temporal scope of the request and the measures’ effects, the right to initiate the said procedure as well as issues regarding the standard and burden of proof. In Part III, we will analyze the conditions for indicating immediate measures, that is, the necessity to adopt immediate measures in order to “avoid irreparable injury or harm”. In this framework, we will examine what differences exist in the conceptualization of those terms in cases of collective complaints for alleged violations of the ESC in comparison to the traditional usage of provisional measures for the prevention of irreparable harm to civil rights, such as the right to non-refoulement or the right to life. In Part IV, we will present some examples of immediate measures that have been (or can be) adopted by the ECSR and their scope ratione personae and materiae. In Part V, we will delve into the most controversial aspect of a ECSR decision on immediate measures, namely, its legal status. In all instances, valuable lessons and pertinent analogies will be drawn between the immediate measures mechanism of the ECSR and other human rights bodies’ procedures on provisional/interim measures.