Provisional measures

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A Thought Experiment on Plausibility and ICJ Provisional Measures

The recent provisional measures orders of the International Court of Justice in the South Africa v. Israel and Nicaragua v. Germany cases have provoked much discussion of the notion of plausibility in the Court’s jurisprudence (see, e.g., yesterday’s post by Roy Schondorf and also Mike Becker’s comments to that post; and the post by Alex Wentker and Robert Stendel on the case against Germany). Broadly speaking, scholars are divided on whether plausibility should be understood solely as a legal question of whether rights asserted by the applicant plausibly exist, or whether plausibility also relates to the existence of facts on which a claim is based. Descriptively, my own view aligns with Mike Becker’s: while the Court generally speaks only about the plausibility of rights (and this is a key feature of cases such as Ukraine v. Russia re genocide), in some cases the Court does a factual analysis that goes beyond merely assessing whether the allegations fall within its subject-matter jurisdiction, i.e. it seems to be looking at the plausibility of the…

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Taking the Road Less Travelled: The ICJ’s Pragmatic Approach to Provisional Measures in Nicaragua v Germany

When President Salam announced the ICJ’s decision not to indicate provisional measures against Germany as requested by Nicaragua on Tuesday, the legal advisers of States lending support to the warring parties in Gaza were probably closely listening. As we argue in this post, the ICJ was acutely aware of the implications any decision would have…

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Third-Party “Provisional Countermeasures”: A Proposal to Give Teeth to Provisional Measures

Compliance with the International Court of Justice’s provisional measures orders has been low and appears to be decreasing, as underscored by the recent cases of Israel and Syria. So, attention is again turning to whether the measures can be enforced. Most commentary has focused…

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Still Valid: Provisional Measures in Ukraine v. Russia (Allegations of Genocide)

Problem The journey of the Ukraine v. Russia (Allegations of Genocide) dispute has generated much controversy as to perceived and real shifts in the ICJ’s approach. Let’s dissect this further. In its Provisional Measures (PM) Order of 16 March 2022, the ICJ, based on what has been characterised its ‘…

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Evaluating Security Assistance to Israel Following ICJ Provisional Measures Order

The provisional measures order recently published by the International Court of Justice (ICJ) in the ongoing dispute between South Africa and Israel has widely been characterized as a warning to States that they risk violating the order and eventually being held complicit in genocide for continuing to provide security assistance to Israel.

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