Provisional Measures and the End of Prima Facie Jurisdiction

Abstract

This article argues that, in provisional measures cases, the International Court of Justice (ICJ) now examines jurisdiction by assessing not only an applicant’s arguments for jurisdiction, but also a respondent’s arguments against it. This more granular examination is different from the ICJ’s traditional prima facie test. The change in approach was demonstrated in the 2008 provisional measures order in Georgia v Russian Federation. This article suggests two likely explanations for the development of a more detailed test. The first is the ICJ’s reluctance to limit State sovereignty by imposing provisional measures since it held, in the 2001 LaGrand judgment, that they are binding. The second is the political sensitivity of the particular dispute. However, the more detailed approach to the question of jurisdiction in provisional measures has generated inconsistency in the ICJ’s jurisprudence: first, the malleability of this approach risks like cases being treated differently; second, this approach overlaps with the plausibility test, which concerns a separate requirement for provisional measures; and, third, this approach overlaps with the Oil Platforms test, which the Court uses to determine definitively whether it has jurisdiction ratione materiae. The new approach also promotes a dispute-settlement conception of the Court’s judicial function, rather than acknowledging its role in developing international law or maintaining public order.