In the Public Eye

In recent years, the selective compliance and the repeated non-compliance of parties with provisional measures at the International Court of Justice have dented the legitimacy of the Court (see further here). In particular, the non-compliance of parties in the recent Genocide Convention cases against Israel, Russia and Myanmar has dealt a strong blow to the Court’s reputation. This “substantive” non-compliance (which hovers at around 50% of cases since 2001) contrasts sharply with “procedural” compliance—that is, compliance with an order to provide the Court with a compliance report, for example—which stands at 100%.

However, despite requiring parties in some cases to provide a report on their compliance with provisional measures, the Court has never published these reports—that is, until 12 January 2026, when the Court laid bare all twelve reports submitted by Myanmar (and The Gambia’s observations on each of those reports). On 17 December 2025, the Court announced that it ‘ha[d] amended Article 78 of the Rules of Court’, which now explicitly enshrines the Court’s power to request a compliance report on provisional measures from parties and allows for the publication of those reports (see Press Release No. 2025/26).

In light of these changes, this post will examine the amendment to the Court’s Rules, and in particular, the extent to which the new Article 78(2) of the Rules of Court may enhance the legitimacy and transparency of the Court.

The Text of the Amendment

From its introduction on 1 July 1978, the text of Article 78 read as follows:

The Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated.

The text of the new Article 78, which entered into force on 2 February 2026, now reads:

1. The Court may request that the parties shall submit reports to it on measures they have taken to give effect to an Order indicating provisional measures, within a time-limit specified by the Court. The Court may also request information on other matters connected with any provisional measure it has indicated.

2. Where the Court requests the submission of a report pursuant to paragraph 1 of this Article, it shall, after ascertaining the views of the parties, make the report or parts thereof accessible to the public as soon as possible, unless, in case of an objection by a party, it decides otherwise.

The amendments, therefore, introduce two key changes. Firstly, the Article now explicitly enshrines in the Rules the practice of the Court to request a report from the parties on their compliance with provisional measures. Secondly, it introduces a novel publication power, enabling the Court to publish the report “as soon as possible” and “after ascertaining the views of the parties”.

Prior to the amendment of Article 78, the power to order a compliance report was not provided for in the Rules as such. While its inclusion in paragraph 1 of the Article does not broaden the Court’s powers, it does place it in black and white in the Rules of Court. Such a move may encourage the Court to order compliance reports more often. This, in turn, will allow the Court to monitor compliance with provisional measures in a larger number of cases, which may help it tackle its growing compliance crisis.

The Novel Part of the Amendment: The Obligation to Publish Compliance Reports ASAP

In the Fisheries Jurisdiction cases, which were the first (and only) instance in which the Court published compliance reports, it did so as part of the “correspondence” section of the official reports of those cases (see Correspondence, p. 405–438). However, today, the inclusion of the phrase “as soon as possible” in the new Article 78(2) warrants further analysis. This section argues that provisional measures compliance reports should be published on the Court’s website as soon as they are submitted and after the passage of a reasonable amount of time has passed since the parties’ views are sought.

The documents relating to the Fisheries Jurisdiction cases were published in print in 1975. In particular, the Court published the full correspondence between it and the parties in the “Pleadings, Oral Arguments and Documents” volume (or volumes) of a case. Of course, the Court does still publish hard copies of the pleadings, but nowadays, in the digital age, it uploads the pleadings onto its website well before it publishes them in print. The Court has also gradually stopped publishing correspondence in cases before it. In the last 25 years, the Court has published some correspondence in only two cases, and even then, only on discrete issues.

In contrast, on 12 January 2026, the Court announced that it would publish the reports submitted in the Genocide Convention (The Gambia v Myanmar) case on the opening of oral proceedings that day (see further below), but it is not clear whether this will be the practice of the Court moving forward. In particular, the phrase “as soon as possible” should be interpreted to mean that the reports ought to be published on the Court’s website soon after they are submitted.

Here, a comparative approach with the practice of the International Tribunal of the Law of the Sea may be helpful. In recent cases, such as the Arctic Sunrise, Ukrainian Naval Vessels and M/T “San Padre Pio” cases, the Tribunal published the parties’ reports on compliance on its website, in some cases ‘immediately’ (see Abbott, Becker and Gelinas-Faucher)—which is the better practice—and after affording the parties an opportunity to raise any objections. This leads to the thornier part of Article 78(2): the requirement that the Court ascertain the views of the parties.

“Objection!”: The Effect of a Party’s Lack of Consent to Publication

The text of the new Article 78(2) states that the Court ‘shall’ publish a compliance report or parts of the report ‘after ascertaining the views of the parties… unless, in case of an objection by a party, it decides otherwise’. This section will argue that the objection of a party to the publication of a provisional measures compliance report should not automatically act as a bar to its publication, that the Court ought to develop clear (and objective) standards for the refusal of the publication of a report and that the redaction of a report, rather than a blanket embargo on publication, could be a useful tool.

Regarding the interpretation of Article 78(2), the first point to note is that the Court is obliged to make the report (or part of it) public if it requests the submission of a report. This is a positive step that is likely to bolster the Court’s legitimacy by increasing its transparency (see further Baetens). Article 78(2) makes clear that it is only ‘in case of an objection by a party’ that the Court can decide not to publish the report. It is not entirely clear, however, whether it can decide not to publish the report in other circumstances.

Specifically, there may be circumstances in which publication is not appropriate and may even detract from the Court’s legitimacy. Take, for example, a situation in which detailed information relating to victims is contained in the report. Nonetheless, the Court could overcome this issue by ordering that parts of the report be redacted or excluded from publication proprio motu. The fact that the Court ‘shall… make the report or parts thereof accessible to the public’ may, therefore, act as a “fail-safe”, giving the Court some leeway within which to act independently of the parties.

Second, while the Court must ascertain the views of the parties, ultimately, it decides whether to publish the report. The same applies to the Court’s practice with regards to the publication of pleadings, contained in Article 53(2), which states that ‘[t]he Court may, after ascertaining the views of the parties, decide that copies of the pleadings… shall be made accessible to the public’. Although reports by parties on compliance with provisional measures are not “pleadings” in a strict sense, the Court’s practice in relation to that provision may be of relevance. It is generally accepted that the current provision on publication of pleadings, which contains wording similar to the new Article 78(2), ‘does not mean that the Court has to wait for a positive reaction from the parties’ (Mačák, ‘Article 43’, para. 91).

Third, the text of the new Article 78(2) refers to “an objection by a party”, the legal effect of which is unclear. By way of comparison, Article 35(4) of the Rules contains similar wording; it includes the phrase “[i]n the event of any objection or doubt”. The Court has not, however, interpreted this provision to mean that an objection by the parties is determinative. For example, in the Use of Force cases, the Court upheld the appointment of several judges ad hoc despite objections by Yugoslavia (see, for example, Use of Force (Serbia and Montenegro v Belgium), Order of 2 June 1999, para. 12).

In contrast, the Court’s application of Article 53(2) of the Rules, which does not include a reference to an objection by one of the parties, has been much more deferential to the parties’ views. Mačák notes that, in practice, the Court has ‘never made the pleadings or parts of the pleadings accessible to the public when one of the parties has expressly objected’ (see  ‘Article 43’, para. 91). Indeed, such an approach may be considered too deferential to the objecting party. In the case of compliance reporting, it would defeat the purpose of the article if a party against whom a provisional measures order is made could escape publication of its report merely by raising an objection.

Recent Developments in the Genocide Convention (The Gambia v Myanmar) Case

On 12 January 2026, the Court announced that it had decided to make all reports submitted by Myanmar since 2020 on its compliance with the Court’s Order on Provisional Measures public (see Verbatim Record, CR 2026/1, 12 January 2026, p. 17). On the same day, it duly published the reports—which total almost 1,600 pages—on the website. The Court’s decision is all the more striking considering that the new provision has not yet come into effect; the reports all predate the entry into force of the provision, thus giving retroactive effect to the amendment. However, it strongly signals the Court’s commitment to transparency in respect of provisional measures compliance reports.

Two aspects are worth noting in relation to this latest development. The first is that, surprisingly, neither party raised any objection to the publication of the reports (see Verbatim Record, CR 2026/1, 12 January 2026, p. 17). As such, the case did not test the extent to which the Court would defer to the parties’ objections on the publication of reports on compliance with provisional measures. The second is that while the reports have indeed been published “as soon as possible” after the amendment was enacted, it is unclear whether the Court will establish a practice of publishing the reports on the opening of oral proceedings. Such an approach would run counter to the new provision, which dictates (as discussed above) that the reports must be published “as soon as possible”. Instead, the provision ought to be taken to mean that reports must be published as soon as they are submitted and the parties consulted.

Conclusion

Realistically, the amendment enables the Court to obtain and publish reports submitted by parties on their compliance with provisional measures—it is not a panacea for all the Court’s compliance problems. However, the real test lies in how assertively the Court uses its new powers in politically sensitive cases, and whether (and to what extent) it defers to the whims of the parties. Despite the challenges, the amendment is a strong step towards holding respondents to account for their implementation of provisional measures orders of the Court, including before the court of public opinion. The move by the Court will boost its transparency, which in turn amplifies its legitimacy. The lady (as Cassese once called the Court) is not for turning.

The author would like to express gratitude to Professor Carsten Stahn and Dr Jana Trapp, who provided thorough feedback on a previous version of this blog post. The author would also like to thank the Lutfia Rabbani Foundation and the Leids Universiteits Fonds, which generously provided the scholarship that made this research possible.