Unduly Indicated? Provisional Measures and Subsequent Adverse Findings at the International Court of Justice

Abstract

The method currently applied by the International Court of Justice for the purpose of indicating provisional measures does not fully preclude the risk that provisional measures might prove in retrospect to have been unjustified in specific circumstances. The question arises whether a litigating State might be entitled to reparation for the prejudice incurred from complying with onerous provisional measures in such cases. While the Court has only exceptionally come close to such a situation, it has not been faced with reparation claims yet. However, developments since LaGrand should prompt an examination of how the Court’s judicial practice may address the risk of problematic discrepancy between provisional measures and the Court’s final decision.