Plausibility to Human Vulnerability or Both: Shifting Provisional Measures Standards in Human Rights Cases Before the International Court of Justice

Abstract

The International Court of Justice (ICJ) has the power to indicate provisional measures to preserve the rights of the States. States resorting to provisional measures as a first line of defence has recently increased exponentially. One of the requirements for rendering provisional measure is ‘plausibility’, which got its inception courtesy the separate opinion of Judge Abraham in the Pulp Mills case (2009). Lately, provisional measures orders have been invoked through human rights treaties. However, the surge in requests for provisional measures has also resulted in the ICJ setting out inconsistent plausibility standards. Additionally, the late Brazilian Judge Cancado Trindade endorsed ‘human vulnerability’ as the standard test in provisional measures orders over plausibility. In this article, the author comprehensively analyses the ‘plausibility test’ in human rights cases and argues that the ICJ has adopted an inconsistent approach to interpreting plausibility standards. The author also recommends balancing human vulnerability with plausibility in human rights cases to indicate provisional measures.