The efficacy of provisional measures by the International Court of Justice

Abstract

This Dissertation analyses the efficacy of provisional measure orders by the International Court of Justice in maintaining the integrity of its final judgement. The point of commencement in understanding the nature of provisional measures is the calling of attention to the historical development of provisional measures in international law. Specifically, the drafting of Article 41 of the Statute of the International Court of Justice, and the establishment of crucial criteria of applicability for provisional measure orders by the International Court of Justice’s predecessor, the Permanent Court of International Justice. The Dissertation examines the evolvement of provisional measures through case-law of over seventy years, where criteria for the successful order of provisional measures have become sophisticated. The Court’s examination of jurisdiction, risk of irreparable harm, urgency, link between right being protected and the measures requested and plausibility, have brought about the necessity to develop targeted tests. The nature of the topic of this Dissertation required a desk approach method, whereby primary resources including international instruments and judgements are analysed. Reference is made to works of leading experts in this field, most of who served as judges at the International Court of Justice. This Dissertation scrutinised the level of monitoring and enforceability of the provisional measures by the International Court of Justice. The Dissertation considers principal cases where provisional measure orders were not applied by the State parties, and the repercussions this had on the integrity of the International Court’s Judgement and on the perception of international legal obligations emanating from the Charter of the United Nations and other international treaties such as the Vienna Convention on Consular Relations.