Interim Measures ‘Geneva Style’

In proceedings supported by the Society for Civil Rights (‘GFF’) before the UN Committee on Economic, Social and Cultural Rights (‘Committee’ or ‘CESCR’), in mid-October 2025, Germany was provisionally requested to grant the complainant subsistence benefits pending the Committee’s decision on the merits. However, the German government seemingly does not intend to comply with the request. This raises the question as to the legal quality of the interim measures issued by the CESCR.

Proceedings in Germany

In October 2024, a change to the Asylum Benefits Act (AsylbLG) entered into force, according to which refugees whose asylum application has been rejected because another EU member state is responsible for the asylum procedure under the Dublin system are not entitled to social assistance (Section 1(4)(1) no. 2). The threshold to continue receiving benefits beyond a transitional period of two weeks is enormously high for substantial reasons, as they are only granted in special circumstances for overcoming particular hardship and covering temporary needs.

In practice, this law could lead to ‘Dublin refugees’ who have no assets of their own being forced into homelessness, denied access to healthcare and left to suffer hunger and thirst. Somewhat unsurprisingly, the provision has been interpreted more generously or deemed inapplicable by numerous courts across Germany (here) due to concerns of incompatibility with EU and constitutional law.

Yet, the Gotha Social Court and the Thuringia Higher Social Court took a different view, upholding an administrative withdrawal of benefits on the basis of Section 1(4) AsylbLG in preliminary relief proceedings (for a critique, see here). The person concerned is a Syrian who had previously applied for asylum in Malta and for whom Malta could be responsible under the Dublin-III Regulation. The constitutional complaint lodged against the appeals court decision was dismissed on procedural grounds due to the fact that the applicant had not exhausted all legal remedies. Subsequently, the applicant initiated proceedings before the administrative court – without any success, however.

Proceedings Before the CESCR

Having exhausted all domestic remedies, in late September the claimant lodged an individual complaint before the CESCR alleging violations of his rights to social security (Art. 9 ICESCR), to an adequate standard of living (Art. 11(1) ICESCR), to health (Art. 12 ICESCR) and to the non-discriminatory exercise of these rights (Art. 2(2) ICESCR). This is permitted under the OP-ICESCR, which Germany only acceded to in mid-2023. Due to the drastic consequences of the complete withdrawal of benefits, substantive violations of the ICESCR seem highly likely (see also the complaint, pp. 17–26).

The complainant also sought the issuance of interim measures pursuant to Art. 5 OP-ICESCR in conjunction with Rule 7 Rules of Procedure to the OP-ICESCR. In a letter dated 17 October 2025, the Committee requested the Federal Republic of Germany to ensure that the author is provided with basic housing, healthcare and access to minimum subsistence support.

Since then, the relevant ministries have been ‘intensively’ examining how to deal with the request from Geneva. Almost two months later, this examination has still not produced any publicly visible results. Meanwhile, although the claimant has been offered a bed in shared accommodation, he has not yet been provided with food, clothing, access to healthcare and soap.

Notwithstanding its obvious double standards in this regard (see on this, e.g., here and here), the German federal government at least formally supports the international legal order (here, lines 3983–3988). Thus, it cannot be ruled out that it is currently preparing a statement to the Committee in accordance with Rule 7(8) RoP-OP, arguing that the interim measures should be lifted. As far as is publicly known, it contends that the interim measures taken by the Committee, as well as the entire proceedings, are not legally binding. It is probable that this would similarly guide its submissions to the CESCR.

Bindingness of the Interim Measures

However, here the German government is oversimplifying matters. While it is generally accepted that the pronouncements of UN Treaty Bodies are not binding under international law (International Law Commission (ILC), p. 109), it would appear to be a different question as to whether this also applies to the CESCR’s interim measures. As the ILC explains in the passage cited, the binding nature of a pronouncement by a UN Treaty Body depends primarily on the specific underlying norm of international law. This, in turn, must be determined in accordance with the principles of treaty interpretation codified in Art. 31 and 32 VCLT. So let us take a closer look.

Ordinary Meaning

To begin with, Article 5 OP-ICESCR (in the authentic English, French or Spanish versions) cannot be interpreted in a way that would suggest that the provisional measures are clearly non-binding. The English version refers to the call to take provisional measures as a ‘request’, the French version as a ‘demande’ and the Spanish version as a ‘podrá dirigir’. In their ordinary meaning, these wordings allow for different interpretations, ranging from binding to non-binding (see also Cambridge Dictionary, Dictionnaire de l’académie française, Diccionario de la lengua española). Yet, Art. 5 OP-ICESCR provides another piece to the puzzle. It stipulates that the request is transmitted to the State party ‘for urgent consideration’. While consideration may generally imply lack of bindingness, within this specific context, it may only relate to the necessity for the State concerned to work out the details of how the measure is implemented and precisely not the question as to whether it ought to be implemented at all. Otherwise, the entire interim procedure would be jeopardised. Art. 5 OP-ICESCR thus limits the State’s role to assessing the plausibility of the request at issue. Even though the ordinary meaning of the provision does not provide a conclusive answer to the question of the bindingness of such interim measures, taking into account a contextual and teleological interpretation allows for a different outlook.

Object and Purpose

The object and purpose of interim measures is to secure the proceedings on the merits and avert irreversible damage (here, para. 7). If the interim measures were subject to comprehensive review by the contracting state concerned, they could be circumvented all too easily. This would undermine the integrity of the proceedings and thus the function of (quasi-)judicial dispute resolution. It ultimately contravenes the fulfilment of the respective international treaty in good faith (Art. 27 VCLT). Precisely for this reason the provisional measures issued by international judicial bodies have previously and unanimously been regarded as binding by international institutions (inter alia ICJ, para. 102; ECtHR, paras. 124–128; IAGMR, para. 22; ACHPR, para. 114;  CAT, para. 6.1; CCPR here, paras. 5.1–5.4, and here, para. 19).

In particular, the ICJ interpreted a similar formulation to Art. 5 OP-ICESCR in Art. 41 of the ICJ-Statute so as not to preclude the binding nature of provisional measures. The ECtHR, in turn, went so far as to state that ‘[…] whatever the legal system in question, the proper administration of justice requires that no irreparable action be taken while proceedings are pending’ (para. 124).

The CESCR has endorsed this view early on for the same reasons (here, paras. 7.6–7.7, here, para. 10.2 and here, para. 13.2). Any contracting party that fails to take interim measures despite being requested to do so is in breach of Art. 5 OP-ICESCR and its obligation to observe the individual complaint procedure in good faith.

Context (Systemic Integration)

Insofar as the contracting parties to the Optional Protocol are also contracting parties to the treaties establishing the other judicial bodies, their case law may also be taken into account by way of a systemic interpretation of Article 5 OP-ICESCR in accordance with Article 31(3)(c) VCLT (Dörr, Art. 31: General Rule of Interpretation, in Dörr/Schmalenbach (Hg.), VCLT Commentary, 2. Ed., para. 101). This will apply at least to the ICJ, since all UN members are automatically parties to the ICJ Statute (Art. 93(1) UNC) and must accept the ICJ‘s interpretation of provisional measures under Article 41 of the ICJ-Statute, which existed before the negotiations on the OP-ICECR.

Drafting History

The binding effect of interim measures was also a controversial issue during the negotiations on the OP-ICESCR (here, paras. 67, 70–72, 75 and here, paras. 66, 160, 220, 226–230, 239), which constitute a supplementary means of interpretation under Art. 32 VCLT. At the same time, suggested formulations according to which these would be clearly non-binding (here, paras. 160, 230, 239) did not make it into the final text, even though the negotiating delegations were aware of the existing case law on the binding nature of provisional measures (ibid., para. 160). Conversely, it could thus be inferred that the contracting parties did indeed want to create a binding provision (unless one considers it to be yet another expression of constructive ambiguity, providing us with no clear conclusions).

Non-Bindingness of the Final Decision – An Unsurmountable Contradiction?

One obvious counterargument goes as follows: If even the Committee’s final decisions are not recognised as binding under international law (Art. 9(1) OP-ICESCR speaks of ‘recommendations’), then interim measures certainly cannot be either. Therefore, the reasoning of the ICJ or the ECtHR cannot be extended to the CESCR, as only the decisions of the former are binding under international law (cf. Art. 94 UNC, Art. 59 ICJ Statute, Art. 46 ECHR; for this view, see on this very blog). Furthermore, it may be considered unacceptable that, given the length of such proceedings, provisional measures effectively ought to create a binding legal situation of considerable duration.

However, this view misses the point of the interim measures as a procedural safeguard. In the case of proceedings with non-binding final decisions, the integrity of the proceedings is equally compromised if interim measures are disregarded and a fait accompli is created. If no benefits were granted to the complainant in the case in question, he could even die, which would obviously render the proceedings meaningless for him. Hence, if non-compliance with interim measures were legally permissible, proceedings involving serious and irreversible human rights violations would regularly be futile for the respective complainant. The considerable loss of significance of the proceedings associated with this is hardly desirable. Furthermore, the defendant State is protected in this respect, in that it can at any time argue why the interim measures should be lifted again.

Finally, the fact that the competence to request provisional measures is enshrined in the Optional Protocol itself underlines that binding force is intended. This is due, among other things, to the experience that the interim measures of the Human Rights Committee and the Committee against Torture have been regarded as non-binding on the grounds that they are laid down only in the internal rules of procedure and not in the treaty establishing the procedure itself (here, p. 71). In this regard, the OP-ICESCR continued the trend set by the OP-CEDAW (Art. 5) of enshrining the competence to request interim measures directly in the treaty itself and not in the internal rules of procedure (see further Art. 6 OP-CRC, Art. 4 OP-CRPD).

What now?

If the CESCR’s provisional measures are indeed binding, how can they be enforced in Germany? The claimant has argued before the Gotha Social Court that Section 1(4) AsylbLG must be interpreted in light of the interim measures so that he is granted benefits sufficient to secure his livelihood. He relies mostly on the teleological arguments set out above.

The following could be added here: assuming that the interim measures are binding, it stands to reason that the existing case law of the Federal Constitutional Court on UN Treaty Bodies’ pronouncements is not applicable. Rather, the principles established by the Federal Constitutional Court on binding judgments of the ECtHR are transferable to this case: Judgments of the ECtHR must be taken into account by national courts and integrated into the national legal system as gently as possible in order to end a violation of the Convention (Görgülü, paras. 30, 47–53, 58; Sicherheitsverwahrung, paras. 89, 94). This finding is itself binding on the constitutional organs of the Federal and Länder governments, as well as on all courts and administrative authorities pursuant to Section 31(1) Federal Constitutional Court Act.

For the Committee this means that the binding request for interim measures must in turn be observed by the Gotha Social Court and carefully incorporated into the existing German law. This should be possible without further ado, as shown by the fact that Section 1(4) AsylbLG is (albeit for other reasons) already being interpreted more generously or even left unapplied by numerous German courts (see again here). Similarly, this norm could be left unapplied pending the Committee’s final decision, arguing with the Völkerrechtsfreundlichkeit of the German Basic Law. If the Gotha Social Court does not follow this argument, the applicant could again appeal to the Higher Social Court and then to the Federal Constitutional Court.

And what about the federal government as the addressee of the interim measure? For reasons of separation of powers, it obviously cannot issue orders to the competent court. In addition, due to Germany’s federal structure it seems highly questionable whether the federal government can (directly or indirectly) order the local authority to pay benefits under the AsylbLG in this specific case. Politically, this is also highly unlikely, considering that the federal government is already disregarding and downplaying a domestic court’s ruling related to migration. It would be surprising, if it suddenly heeded an ‘obscure’ body from Geneva. Ultimately, this attitude reflects a trend to conceive law as a mere nuisance as soon as it conflicts with a State’s major policy goals, undermining both the domestic and international legal order – yet another step on the slippery slope towards a more authoritarian rule.