Autonomy of Provisional Measures or Autonomy of the International Court of Justice?

Abstract

With growing demand for legally binding provisional measures (since LaGrand) on situations of ongoing tension, the International Court of Justice has passively extended its role from judicial settlement of dispute to crisis management and policy making as the world judiciary. Yet this proactive role has rendered the Court in dilemma given its consent-based jurisdiction and the contractual nature of the current international legal order. In such a context, Qatar v. UAE marks the second case (the first being Georgia v. Russia) where the Court stayed silent to the alleged non-compliance with provisional measures when jurisdiction is declined. Such silence intensifies the doubts about the so-called autonomy of provisional measures. Reviewing its jurisprudence, this Article traces the status quo of the Court’s position: The temporal validity of provisional measures where jurisdiction is declined remains equivocal, and the Court’s jurisdiction over the alleged non-compliance with provisional measures is based on its jurisdiction over the original dispute. Climbing from one intermediacy to another intermediacy, the regime of provisional measures does not simply develop upon legal positivism. Instead, it concerns the delicate balance of the multiplicity in the role of the Court and is inherently subject to the changing environment of the international legal order.