Provisional measures

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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 on the possibility—yet to be put into practice—of enforcement measures by the UN Security Council. What about countermeasures? To date, most scholars (though not all) have concluded that the parties to an ICJ case may use countermeasures in response to non-compliance. But so far, commentators have rejected the idea that non-parties might deploy countermeasures. However, two recent developments call for a reexamination: the ICJ’s recognition of erga omnes (partes) standing in an increasing number of cases and the crystallizing state practice supporting third-party countermeasures. Against this backdrop, this essay revisits the possibility of third-party enforcement of provisional measures through…

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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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Ukraine’s ICJ Provisional Measures: A Narrow Path to Remedies

On February 2, the International Court of Justice dealt Ukraine’s case against Russia under the Genocide Convention a heavy blow when it dismissed the majority of the claims for lack of jurisdiction. The decision effectively transformed the case into one about whether Ukraine violated international law (by committing genocide), a far cry from…

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“Not All Scripts Come with One Voice”: Variations in State Responses to South Africa v Israel

This post examines responses to the ICJ 26 January Order on provisional measures (‘Order’) in South Africa v Israel by States in the West that regularly claim to subscribe to a so-called “rules-based international order”, a concept coined to replace the much more precise concept of international law, explained to the point by John Dugard…

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