The Humanisation of Provisional Measures? Plausibility and the Interim Protection of Rights before the ICJ

Abstract

In order for an international court to grant interim protection (provisional measures), it should first satisfy that the party seeking protection has at least a plausible claim to the rights in question. So says, at least, the doctrine of plausibility, a relatively modern development in the criteria for the granting of provisional measures, but nonetheless one that now appears to be well-entrenched. But what standard does plausibility denote? This paper will trace the introduction and development of plausibility as a key criterion in provisional measures cases, and will discuss its various interpretations. Although plausibility was first introduced as a low standard intended only to exclude weak or speculative requests for interim protection, it evolved to require a meaningful—albeit provisional—analysis of the applicant party’s claim. Recent developments, however, have seen a retreat from the higher standard, and in some recent cases the plausibility assessment could better be characterised as a possibility assessment. This paper will consider the rationale of plausibility, and its changing use over time. In particular, it will ask whether plausibility is bifurcating, creating a situation in which one—strict—version of the plausibility assessment is applied where most categories of States’ rights are concerned (plausibility as a reasonable prospect of success and substantive link to the merits), and another—refocussed—standard is applied to situations where individual and group rights are at risk (plausibility as human vulnerability). The paper will focus on the case-law of the ICJ, where plausibility has been extensively discussed in orders and separate/dissenting opinions, and where some of the most exciting recent developments have taken place.

Keywords: International Court of Justice; provisional measures/interim measures of protection; plausibility; humanisation of international law