Remembering Peace in a Time of War: Why International Law Matters More Than Ever | Building Peace
Multiple Provisional Measures Requests before the ICJ: A Facilitator or Obstacle for Peace Processes?
by Onur Uraz
The International Court of Justice (ICJ), as the only judicial organ referred to in the UN Charter, is designed to be the apex judicial body for inter-state disputes, upholding international law and promoting peaceful coexistence. The peaceful settlement of disputes is a foundational principle of the UN Charter, enshrined in Article 2(3) and elaborated in Chapter VI, which obliges states to resolve their international disputes by peaceful means in such a manner that international peace, security, and justice are not endangered. The ICJ, as the principal judicial organ of the UN, plays a central role in this framework by providing a legal forum for the adjudication of inter-state disputes based on consent, thereby reinforcing the rule of law and the commitment to peaceful dispute resolution in the international system. A particularly important tool in the Court’s arsenal in this regard is its ability to issue provisional measures under Article 41 of the ICJ Statute (see here). Provisional measures constitute the principal means of interim relief utilised by the Court. They are intended to preserve the rights of the parties pendente lite, prevent irreparable harm, and maintain the integrity of the judicial process by preserving the status quo (see here pp. 616-621).
Since the Court’s decision in LaGrand (2001) (para. 98 ff.), it is well established that such measures are legally binding. Crucially, however, the Court does not need to reach a conclusion on jurisdiction or any aspect of the merits at this early stage. Instead, it requires a prima facie basis for jurisdiction, a link between the rights asserted and the measures requested, the plausibility of the rights asserted, and evidence of urgency and the risk of irreparable harm. This relatively low threshold, coupled with the potential political and symbolic gains that provisional measures offer, makes them a particularly attractive tool for states involved in high-stakes disputes (see here p. 366).
Indeed, in recent years, the ICJ has witnessed an upsurge in the number of provisional measures requests, including an increasingly frequent practice: repeated or multiple requests within the same proceedings (see here, here, here and here). This raises some important questions for scholars and practitioners of international law and relations. Specifically, how do multiple provisional measures requests affect international peace processes? Are they a mechanism that supports conflict de-escalation and nurtures diplomacy, or do they risk embedding adversarial dynamics, aggravating tensions, and complicating resolution efforts?
A Double-Edged Sword: Peace Processes, Judicial Interventions and Provisional Measures
The interaction between judicial mechanisms and peace processes is characterised by a considerable degree of complexity. On the one hand, provisional measures have the capacity to function as stabilising devices. By establishing judicially mandated obligations, such as the cessation of hostilities, the protection of civilians, and the preservation of evidence, these measures have the potential to de-escalate or freeze tensions (see here at p. 13). Moreover, the Court’s institutional impartiality and grounding in legal principles can lend legitimacy to peace negotiations by framing them within a rules-based order (see here at p. 20). It can be argued that, particularly in the context of constantly transforming disputes, the constant legal re-evolution of the dispute may be considered beneficial as it attributes to the Court the role of setting the legal limits on how the dispute should be manifested and resolved. While analogous arguments can be made in relation to UNSC Resolutions (See. Kriener/Peters), the UN Security Council is ultimately a political body that is effectively obliged to take into account (or even to prioritise) the power dynamics and political aspects of the dispute. By contrast, the ICJ, by virtue of its purely legal nature, is better placed to play the role of ‘legal boundary setting’.
In this light, it can be claimed that provisional measures may function not only as legal tools but as instruments of diplomacy through other means. In a normative sense, the submission of multiple requests can be seen as indicative of a state’s dedication to a rule-based resolution. Provisional measures can also create space for diplomacy, as they may—if respected—‘buy time’ by freezing the status quo and allowing political actors to rearrange. Furthermore, the Court’s orders have the capacity to delineate the legal parameters and substance of peace negotiations. To illustrate this point, one may consider the example of a provisional order indicating to the possibility of genocide, which could, at least in some cases, facilitate the incorporation of provisions for the investigation of such allegations and the prosecution of those responsible in peace negotiations. The case of Gambia v. Myanmar demonstrates how provisional measures can, at least to a certain extent, serve to affirm legal norms and maintain international pressure on (alleged) violators (see here at p. 466). Even when not fully implemented, such measures can act as markers of international concern, influencing state behaviour, public opinion, and diplomatic agendas. In other words, the filing of a case with the ICJ and the granting of provisional measures is a way of drawing greater attention to a conflict that may not have had a high profile.
However, the picture becomes more nuanced when recurring applications are used ‘strategically’. It is claimed that, in situations where the conflict is ongoing and highly politicised, repeated recourse to the ICJ may risk judicialising what are fundamentally political issues (see here and here). This may result in the hardening of positions, the narrowing of the space for compromise and peaceful resolution (see here and here). While provisional measures have been shown to provide symbolic value and international attention, it can be questioned that they have had limited direct impact on peacebuilding. Moreover, because provisional measures are not self-enforcing and depend on the good faith compliance of states, their proliferation in the face of persistent defiance may lead to disillusionment with judicial remedies altogether (see here). This is particularly evident in the context of the Gaza situation, where the ICJ’s orders have been publicly disregarded or reinterpreted (see here and here), raising concerns about the erosion of judicial authority and the performative dimension of legal proceedings. Similarly, if the process is perceived as a tool of legal posturing rather than genuine risk prevention, the legitimacy of the regime may be eroded. This phenomenon was exemplified by the observations concerning Armenia’s multiple provisional measures requests against Azerbaijan, wherein some observers contended that judicial remedies were being employed to bolster political narratives rather than address immediate threats.
Procedurally, the recurrent nature of such requests carries with it the risk of overburdening the Court’s docket, thereby diverting resources away from the adjudication of the main case and engendering a state of uncertainty regarding the legal status and evolution of interim measures (see here). Finally, as the Court does not make decisions about the main issues at this stage, the orders can be interpreted in different ways by the parties, especially when the more general and vague the measure ordered (see here at p. 119). This can lead to legal uncertainty and recurring applications for further clarifications, which may potentially delay meaningful decisions.
Finding a Middle Path? Judicial Modesty and Procedural Innovation
So what would be the appropriate response to these potential drawbacks without undermining the potential contributions of the provisional measures regime to the peace processes? Evidently, the answer is not to close the door to multiple applications altogether. Given the fluidity of many conflict situations, a rigid one-off approach to provisional measures would be both unrealistic and undesirable. Moreover, as explained above, provisional measures have the potential to contribute to peace processes in a variety of ways. However, greater clarity and restraint are needed.
In order to optimise the value of the provisional measures regime for the facilitation of peace processes, a more coherent framework for dealing with successive applications may be required. This framework should balance urgency with judicial economy and avoid instrumentalisation, whether through an update of the rules or case law. To this end, the Court could consider issuing provisional measures with sunset clauses or expanding the efficiency and visibility of its built-in review mechanism for periodic assessment without requiring entirely new applications. Such a step could be beneficial in maintaining factual updates on the situation, which could potentially facilitate peace processes by reducing disputes on factual aspects and the possibility of parties ‘appearing aggressive’ or ‘irreconcilable’ by continually making new requests. In addition, greater procedural coordination between provisional measures proceedings and broader international peace efforts (notably UN mechanisms) could help harmonise the judicial and diplomatic tracks. A more creative reading and application of the UN Charter in relation to provisional measures and their relationship to peace processes could reinforce their importance and proper use. (see here at p.293).
Dr Onur Uraz
Assistant Professor, School of Law, Hacettepe University (Ankara), Turkiye.
Visiting Researcher, Centre for International Law, National University of Singapore