Provisional Measures and the Link Requirement

Abstract

In the context of requests for provisional measures, the link requirement has not attracted much scholarly attention and might be regarded as raising limited controversy. However, this article argues that the link is an unnecessary requirement for granting provisional measures by the International Court of Justice and the International Tribunal for the Law of the Sea. First, the function which the link purports to fulfil is already fulfilled by other requirements (i.e., prima facie jurisdiction, plausibility and real and imminent risk of irreparable prejudice). Second, if the link is understood as requiring provisional measures to be tailored to the rights of which protection is sought, the ICJ and ITLOS have the power to indicate measures different from those requested. One may suggest that the link therefore emerges as an unnecessary requirement which overburdens provisional measures proceedings.

Keywords: provisional measures – International Court of Justice – International Tribunal for the Law of the Sea – link – Article 41 ICJ Statute – Article 290 UNCLOS