Abstract
In order for an international Court to grant interim protection (provisional measures), it should first satisfy itself that the party seeking protection has at least a plausible claim to the rights in question. So says, at least, the doctrine of plausibility, a relatively modern development in the criteria for the granting of provisional measures, but nonetheless one that now appears to be well-entrenched. But what standard does plausibility denote? This chapter will trace the introduction and development of plausibility as a key criterion in provisional measures cases, and will discuss its various interpretations. Although plausibility was first introduced as a low standard intended only to exclude weak or speculative requests for interim protection, it evolved to require a meaningful—albeit provisional—analysis of the applicant party’s claim. Recent developments, however, have seen a retreat from the higher standard, and in some recent cases the plausibility assessment could better be characterised as a possibility assessment. This chapter will consider the rationale of plausibility, and its changing use over time. In particular, it will ask whether plausibility is bifurcating, creating a situation in which one—strict—version of the plausibility assessment is applied where most categories of states’ rights are concerned (plausibility as a reasonable prospect of success and substantive link to the merits), and another—refocussed—standard is applied to situations where individual and group rights are at risk (plausibility as human vulnerability). The chapter will focus on the case-law of the ICJ, where plausibility has been extensively discussed in orders and separate/dissenting opinions, and where some of the most exciting recent developments have taken place.
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Notes
- 1.
In this chapter, the terms provisional measures and interim measures of protection are used interchangeably.
- 2.
Hernández 2014, pp. 4–5, 40.
- 3.
Oellers-Frahm and Zimmermann 2019, p. 1197 (references omitted), note that the ICJ’s approach to provisional measures “ha[s] been successfully transposed to almost all other international courts, tribunals and dispute settlement organs, so that interim protection may now be considered as an example of the uniformity of international law which otherwise is often criticized—rightly or wrongly—as suffering from fragmentation”. See also Miles 2017, pp. 12–17.
- 4.
Tomuschat 1999, p. 161.
- 5.
Ibid., p. 162.
- 6.
Simma 1994.
- 7.
Meron 2003.
- 8.
- 9.
- 10.
Teitel 2011, p. 4 (footnotes omitted).
- 11.
See, inter alia, Cassese 2008.
- 12.
Parlett 2011.
- 13.
Kjeldgaard-Pedersen 2018.
- 14.
Peters 2009.
- 15.
Peters 2016.
- 16.
Peters 2016, pp. 23–25, 408–435.
- 17.
Ibid., p. 60 et seq.
- 18.
Ibid., p. 115 et seq.
- 19.
Ibid., p. 167 et seq.
- 20.
At time of writing: August 2020.
- 21.
ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018 (hereinafter: Qatar v. UAE I); and ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 14 June 2019 (hereinafter: Qatar v. UAE II).
- 22.
ICJ, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018 (hereinafter: Treaty of Amity).
- 23.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020 (hereinafter: Gambia v. Myanmar).
- 24.
Statute of the International Court of Justice [ICJ Statute], Article 41.
- 25.
Statute of the Permanent Court of International Justice [PCIJ Statute], Article 41; ICJ Statute, Article 41.
- 26.
- 27.
Though note that provisional measures can be requested (and granted) at any stage in the proceedings, and so may post-date the Court's determination of its jurisdiction. See, e.g. Cambodia’s request for provisional measures in ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011. Here the Court’s initial determination of its jurisdiction over the dispute was made some fifty years previously, in ICJ, Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment of 26 May 1961.
- 28.
See, for example, Treaty of Amity, supra note 22, para 24.
- 29.
Oellers-Frahm and Zimmermann 2019, p. 1145 point out that the term “right” here is ill-chosen, because “the ‘right’ remains in existence even if it is infringed. Thus what is to be preserved is the subject-matter of the right”.
- 30.
See, for example, Treaty of Amity, supra note 22, para 78.
- 31.
Ibid., para 54.
- 32.
ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, para 57: “[T]he power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible”. See further Miles 2017, p. 197 et seq; Lando 2018, p. 642.
- 33.
Miles 2018a; see also Miles 2017, p. 197 et seq.; Lando 2018, p. 642; Uchkunova 2013, p. 407; though c.f. Lee-Iwamoto 2012, pp. 247–250. We have had a—brief and good-natured—disagreement with Cameron Miles on this subject on the Völkerrechtsblog, and venture to reprise and further substantiate our view here: Somos and Sparks 2018; Miles 2018b.
- 34.
For a similar view, see Oellers-Frahm and Zimmermann 2019, pp. 1156, 1159.
- 35.
ICJ, Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Interim Protection, Order of 17 August 1972, p. 18. An identical joint declaration was appended to the linked case Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Order of 17 August 1972, p. 36.
- 36.
ICJ, Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, p. 108; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1971, p. 144.
- 37.
Rosenne 2005, p. 72.
- 38.
ICJ, United States Diplomatic and Consular Staff in Tehran (United State of America v. Iran), Provisional Measures, Order of 15 December 1979, paras 38–44.
- 39.
Ibid., para 38.
- 40.
The specific circumstances of the cases concerned suggest that the absence of a comparable assessment of rights does not speak against the requirement already taking shape. Three provisional proceedings took place during that period. In ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Order of 10 May 1984, para 32, Nicaragua relied primarily on rights under the UN Charter—and in particular its Article 2(4)—and it could be argued therefore that the rights were self-evidently plausible. In ICJ, Frontier Dispute (Burkina Faso/Mali), Order of 10 January 1986, paras 15–21, both Parties sought to rely on the same international rights (of sovereignty and to territory), which consequently were agreed between the Parties and not in need of substantiation. Finally, in ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Order of 2 March 1990, para 26, the Court rejected the application on the grounds that the rights for which interim protection was sought were not at issue in the main case. A fourth request, filed by Nicaragua in ICJ, Border and Transborder Armed Activities (Nicaragua v. Honduras), Order of 31 March 1988, was withdrawn prior to a decision.
- 41.
ICJ, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, para 21.
- 42.
Ibid., para 22. The Court ultimately dismissed the claim without conducting an assessment of the extent of the right, holding that Finland had not shown that any right it claimed was at “urgent” risk of prejudice: para 27.
- 43.
Great Belt, supra note 41, Separate Opinion of Judge Shahabuddeen. Similarly influential separate opinions include that of Judge Abraham in Pulp Mills (see infra note 53 et seq), Judge Owada in Ukraine v. Russia (see infra note 96), and possibly also Judge Cançado Trindade in Ukraine v. Russia (see infra Sect. 5.5). Miles compiles a more extensive list: Miles 2018a, p. 37.
- 44.
Great Belt, supra note 41, Separate Opinion of Judge Shahabuddeen, p. 28.
- 45.
Ibid., p. 29.
- 46.
Ibid., p. 30.
- 47.
Ibid., p. 31.
- 48.
Ibid., pp. 31–35.
- 49.
The cases concerned were: ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 13 September 1993; ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996; ICJ, Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998; ICJ, LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999; ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures, Order of 8 December 2000; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Provisional Measures, Order of 1 July 2000; ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006 (hereinafter: Pulp Mills I); ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007 (hereinafter: Pulp Mills II); ICJ, Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008; ICJ, Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008. In the same period requests for provisional measures in the Use of Force cases (Yugoslavia v. Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, the UK and the USA) were all dismissed for lack of prima facie jurisdiction. See (1996) ICJ Reports, pp. 124–926, and further Oellers-Frahm and Zimmermann 2019, p. 1156, who argue that these cases are better understood as a denial of a prima facie case.
The exceptions are the LaGrand case, in which the fact that the case was submitted and decided within twenty-four hours could account for (though not, perhaps, justify) much more significant procedural irregularities; Arrest Warrant, in which a change of circumstances post the filing of the request for provisional measures meant that the risk of harm was no longer either urgent or irreparable (see para 72), and the case was thus decided on these headings; and Avena, in which the rights concerned had already been established by the Court in its previous judgment between the Parties. The only significant counterexamples to the contention that a plausibility requirement in some form was imposed by the Court during this period were Pulp Mills I and II, in both of which the Court assessed (and rejected) the claim to urgency and irreparability without first substantiating the rights claimed.
- 50.
Sztucki 1983, pp. 260–302; Thirlway 1994a, pp. 28–33; Bernhardt 1994, see in particular the remarks by Oellers-Frahm 1994, pp. 146–147 and Thirlway 1994b, pp. 150–151; Oellers-Frahm and Zimmermann 2019, pp. 953–959. Sources post–LaGrand acknowledge that the question was settled in that case: see, e.g., Rosenne 2005, pp. 34–40; Thirlway 2013, pp. 1649–1651.
- 51.
LaGrand, supra note 26, para 110.
- 52.
Thirlway 2013, p. 1649.
- 53.
Pulp Mills I, supra note 49, Separate Opinion of Judge Abraham.
- 54.
Ibid., paras 1–2.
- 55.
Ibid., para 3; Great Belt, supra note 44, Separate Opinion of Judge Shahabuddeen.
- 56.
Pulp Mills I, supra note 49, Separate Opinion of Judge Abraham, para 6.
- 57.
Ibid., para 6.
- 58.
Ibid., para 8.
- 59.
Ibid., paras 10–11. Though Judge Bennouna’s Separate Opinion in the same case was a more concrete and less detailed discussion, he reached highly consonant conclusions. See, in particular, paras 11–13.
- 60.
Obligation to Prosecute or Extradite, supra note 32, para 57. In ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, Separate Opinion of Judge Owada, para 11, Judge Owada noted his “understanding that this formal introduction did nothing more than making explicit what had long been implicit in the jurisprudence of the Court”.
- 61.
The availability of interpretive space between our contention and that of Miles and Lando is captured in the beautiful irony that Judge Koroma’s separate opinion in Certain Activities could serve equally well as a buttress to either of our points of view. Though he complains of the plausibility standard as having ‘appeared out of nowhere’ in Obligation to Prosecute or Extradite, his principle objection is that it risks lowering the standard of review conducted by the Court in provisional measures cases: ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, Separate Opinion of Judge Koroma, paras 6–7.
- 62.
Ibid., para 7.
- 63.
Recent treatments by scholars have not only recommended the formalisation of a standard, but have suggested its formalisation at quite different levels. Miles argues that the standard should be equivalent to that of prima facie jurisdiction, while Lando says it is ‘conceivably higher’; Lee-Iwamoto suggests that of fumus no mali juris, and Uchkunova that the interpretation suggested not ‘appear to be absurd’: Miles 2018a, p. 45; Lando 2018, p. 667; Lee-Iwamoto 2012, p. 250; Uchkunova 2013, p. 409.
- 64.
Obligation to Prosecute or Extradite, supra note 32, para 60 (emphasis added).
- 65.
- 66.
Separate opinions were issued in that case by Judges Koroma, Sepúlveda-Amor and Greenwood, and Judge ad hoc Dugard.
- 67.
Of these, only Judge Greenwood recommended a specific standard, arguing that plausibility should be equated to ‘reasonable possibility’, which he in turn defined as indicating that the “right might be adjudged to belong to” the applicant State (see Certain Activities, supra note 61, Separate Opinion of Judge Greenwood, para 5). One might reasonably contend that these suggested terms expand the definition of plausibility without particularly clarifying it.
- 68.
Certain Activities, supra note 61, para 58.
- 69.
Ibid., paras 55–58.
- 70.
ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, paras 38–40.
- 71.
ICJ, Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional Measures, Order of 13 December 2013.
- 72.
Ibid., para 19.
- 73.
Ibid., para 19; citing ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para 29.
- 74.
Construction of a Road, supra note 71, para 19.
- 75.
Ibid., para 19; citing ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, para 204.
- 76.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Merits, Judgment of 16 December 2015, paras 146–162.
- 77.
Ibid., paras 164–165.
- 78.
In Immunities and Criminal Proceedings Equatorial Guinea claimed that its building at 42 Avenue Foch, Paris was inviolable under the Vienna Convention on Diplomatic Relations, as the premises of a diplomatic mission. The Court found that the right was plausible relying on the indisputable truth of the legal contention that diplomatic premises are inviolable under the Convention, without assessing whether the building was in truth the premises of a mission (a fact disputed by France): ICJ, Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, paras 73–79. In Jadhav, the Court relied on the right of states to have access to nationals accused of crimes abroad under the Vienna Convention on Consular Relations, without considering it necessary to assess at this stage of the procedure Pakistan’s contention that the VCCR does not apply to nationals charged with certain categories of offences (espionage and terrorism), or that India’s right of access was precluded by an earlier agreement between the Parties: ICJ, Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, paras 40–44.
- 79.
- 80.
Miles 2017, pp. 200–201 notes that Timor-Leste’s pleadings do not adequately substantiate the right, and ‘might’ could therefore indicate that the Court is seeking a legal basis on its own conjecture, rather than assessing the argument of the Applicant.
- 81.
Certain Documents and Data, supra note 79, para 27.
- 82.
This is, as Oellers-Frahm and Zimmermann note, highly consonant with the German legal idea of Schlüssigkeit, which they translate as ‘conclusiveness’: Oellers-Frahm and Zimmermann 2019, pp. 1157–1158.
- 83.
Certain Documents and Data, supra note 79, Dissenting Opinion of Judge Greenwood, para 4.
- 84.
- 85.
Miles 2018a, pp. 43–44.
- 86.
International Convention for the Suppression of the Financing of Terrorism, signed 9 December 1999, in force 10 April 2002, 2178 UNTS 197, Article 2(1)(b).
- 87.
Miles 2018a, p. 24.
- 88.
Verbatim Record of the sitting held on 9 March 2017, CR 2017/04, 12.
- 89.
Ukraine v. Russia, supra note 60, para 75. As Miles 2018a, pp. 38, 44 notes, the Court did not offer Ukraine any indication of in what respects its proofs were deficient, or what standard it should have achieved.
- 90.
International Convention for the Elimination of All Forms of Racial Discrimination, signed 7 March 1966, in force 4 January 1969, 660 UNTS 195.
- 91.
Ukraine v. Russia, supra note 60, paras 78–83.
- 92.
- 93.
Miles 2018a, p. 34.
- 94.
Ibid., p. 31.
- 95.
See supra note 78 and accompanying text.
- 96.
Ukraine v. Russia, supra note 60, Separate Opinion of Judge Owada. At para 10 of his opinion, Judge Owada argues that the standard cannot be equated with that of a prima facie case, and at paras 18–20 argues that it should equate to “a certainty of fifty per cent or less”.
- 97.
Qatar v. UAE I, supra note 21; Treaty of Amity, supra note 22.
- 98.
Qatar v. UAE II, supra note 21. The Qatar v. UAE II request was dismissed on the grounds that the provisional measures requested were responses to those granted to Qatar in Qatar v. UAE I, and did not directly relate to the rights of the UAE under CERD. It is not, therefore, directly relevant to the present discussion.
- 99.
Gambia v. Myanmar, supra note 23.
- 100.
See e.g. Worth RF, Kidnapped Royalty Become Pawns in Iran’s Deadly Plot. New York Times, 14 March 2018, available at: https://www.nytimes.com/2018/03/14/magazine/how-a-ransom-for-royal-falconers-reshaped-the-middle-east.html; The $1bn Hostage Deal that Enraged Qatar’s Gulf Rivals. Financial Times, 5 June 2017, available at: https://www.ft.com/content/dd033082-49e9-11e7-a3f4-c742b9791d43; and discussion in Somos and Sparks 2018.
- 101.
Qatar v. UAE I, supra note 21, para 11.
- 102.
Ibid., para 79.
- 103.
Article 1(1) CERD; Qatar v. UAE I, supra note 21, paras 46–48.
- 104.
Qatar v. UAE I, supra note 21, para 53. See also para 27.
- 105.
Ibid., para 54 (emphasis added).
- 106.
Ibid., para 46.
- 107.
The JCPOA was a part of the context to the dispute, not a subject of it: Iran did not rely on the JCPOA in its pleadings.
- 108.
Treaty of Amity, supra note 22, paras 24–52.
- 109.
Ibid., paras 53–76.
- 110.
Ibid., paras 77–94.
- 111.
Ibid., para 67.
- 112.
Ibid.
- 113.
See above, notes 71–78 and accompanying text.
- 114.
Treaty of Amity, supra note 22, para 68, quoting the Treaty of Amity 1955. In so doing it has followed Miles’ advice that “the Court should expressly extend the contemplated review to cover the respondent’s defences”: Miles 2018a, p. 45.
- 115.
Treaty of Amity, supra note 22, para 68.
- 116.
Ibid., paras 69–70.
- 117.
Ibid., para 68. See also para 42, where the Court appears to characterise the provision as a treaty-specific circumstance precluding wrongfulness, rather than as a limit on the treaty’s scope of application.
- 118.
Request for Interpretation, supra note 70, para 69. Oellers-Frahm and Zimmermann 2019, pp. 1196–1197 note that it is far from unusual for the Court to be asked to issue interim orders in circumstances relating to the maintenance of international peace.
- 119.
Gambia v. Myanmar, supra note 23.
- 120.
Convention on the Prevention and Punishment of the Crime of Genocide, signed 9 December 1948, in force 12 January 1951, 78 UNTS 277 [Genocide Convention].
- 121.
Gambia v. Myanmar, supra note 23, para 12.
- 122.
Ibid., para 45.
- 123.
Ibid., paras 53–55, 67.
- 124.
Ibid., paras 47–48.
- 125.
Ibid., para 56.
- 126.
Judges Donoghue and Sebutinde, though members of the Court, were present and sitting in Gambia v. Myanmar but absent for the provisional measures stage in Treaty of Amity. The Judges ad hoc sitting in the two cases were, naturally, also different.
- 127.
Ukraine v. Russia, supra note 60, Separate Opinion of Judge Cançado Trindade, para 44 and passim.
- 128.
If borne out, this development would follow the well-established pattern, noted supra at note 43, that developments in the character and law of provisional measures have been articulated first in extraordinary separate opinions before being translated into the practice of the Court. For a list of such development see Miles 2018a, p. 37.
- 129.
Ukraine v. Russia, supra note 60, Separate Opinion of Judge Cançado Trindade, para 44.
- 130.
Ibid., para 53 (emphasis omitted).
- 131.
Ibid., para 68. Judge Cançado Trindade has repeated many of these arguments in his Separate Opinions in Qatar v. UAE I, supra note 21 and Treaty of Amity, supra note 22.
- 132.
Treaty of Amity, supra note 22, Separate Opinion of Judge Cançado Trindade, paras 99–100.
- 133.
See Treaty of Amity, supra note 22, para 21: It is intriguing to wonder exactly what threat arose from “the importation of Iranian-origin carpets”.
- 134.
Ibid., para 91.
- 135.
Ibid. In his Separate Opinion to that Order, Judge Cançado Trindade argued that the ICJ “has duly taken into account the humanitarian needs of the affected population”, and in so doing has “ended up discarding arguments grounded on ‘national interests’”. See Treaty of Amity, supra note 22, Separate Opinion of Judge Cançado Trindade, paras 90–91, 105.
- 136.
See above, Sect. 5.2.
- 137.
ICJ Statute, supra note 24, Article 41.
- 138.
Frontier Dispute, supra note 40.
- 139.
Land and Maritime Boundary, supra note 49.
- 140.
ICJ, Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014.
- 141.
Gambia v. Myanmar, supra note 23, para 86(3).
- 142.
LaGrand, supra note 26.
- 143.
See, for example, PCIJ, Denunciation of the Treaty of 2 November 1865 between China and Belgium, Provisional Measures, Order of 8 January 1927, p. 7 [Sino-Belgium Treaty]; ICJ, Aegean Sea Continental Shelf (Greece v. Turkey), Provisional Measures, Order of 11 September 1976, para 18.
- 144.
Genocide Convention, supra note 120, Article 1.
- 145.
Ibid., Article 5.
- 146.
- 147.
Higgins 1998, p. 108.
- 148.
See Frontier Dispute, supra note 40; Land and Maritime Boundary, supra note 49.
- 149.
Higgins 1998, pp. 107–108.
- 150.
Thirlway 2013, p. 1793; citing ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda), Provisional Measures, Order of 10 July 2002.
- 151.
Miles 2017, pp. 352–353.
- 152.
Miles 2018a, p. 30.
- 153.
Ibid.
- 154.
- 155.
See e.g. Chap. 7 by Marotti in this volume on ITLOS’s use of community interest and UNCLOS invocations of considerations of humanity.
- 156.
See above, notes 4–19 and accompanying text, and in particular Peters 2016.
- 157.
Treaty of Amity, supra note 22, Separate Opinion of Judge Cançado Trindade, para 106.
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Sparks, T., Somos, M. (2021). The Humanisation of Provisional Measures?—Plausibility and the Interim Protection of Rights Before the ICJ. In: Palombino, F.M., Virzo, R., Zarra, G. (eds) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-411-2_5
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