Provisional Measures and the Authority of the International Court of Justice: Sovereignty vs. Efficiency
1(1) Leeds Journal of Law and Criminology (2013) 45
24 Pages Posted: 25 Jan 2015
Date Written: September 1, 2013
Abstract
Article 41 of the Statute of the International Court of Justice ('the ICJ' or 'the Court') allows the ICJ to indicate provisional measures providing interim protection to the rights of either party to a pending dispute. Provisional measures have rarely received compliance, leading to an apparent lacuna in the authority of the Court. This article will develop an argument from two starting premises: firstly, state consent is the primary value by which we can measure the legitimacy of international law; secondly, that compliance with provisional measures, granted under the 'inherent' jurisdiction of the Court and without the 'ideal' consent provided by both parties, is a stronger indicator of the Court's authority. From this position, the author will advocate an approach for greater clarity, consistency and restraint from the ICJ. In doing so, the article will contend that the Court's jurisprudence has provided an overly broad assertion of authority, leading to recent State and judicial backlash. The article will then consider extensions to Article 41, and argue that whilst the Court has been wise to limit its power to issue orders 'proprio motu', the extent of its authority to prevent the aggravation of a dispute is questionable following the recent Temple of Preah Vihear decision. Furthermore, it shall be argued that whilst the binding nature of provisional measures has now been confirmed, the lack of both State compliance and enforcement procedures detracts from the authority of the Court. Finally, experience will be drawn from courts of the European Union in order to advocate reform that will be both practical and implementable, clarifying the scope of the Courts' powers and consequently re-injecting legitimacy into its power to indicate provisional measures.
Keywords: International Law, International Court of Justice, Provisional Measures, Temple of Preah Vihear
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