{"id":3934,"date":"2018-10-12T00:00:00","date_gmt":"2018-10-12T07:42:28","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/plausibility-and-the-icj\/"},"modified":"2020-12-09T13:07:23","modified_gmt":"2020-12-09T12:07:23","slug":"plausibility-and-the-icj","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/plausibility-and-the-icj\/","title":{"rendered":"Plausibility and the ICJ"},"content":{"rendered":"

Since the ICJ\u2019s 2001 decision in LaGrand (Germany v US)<\/a><\/em>, the Court\u2019s jurisprudence on provisional measures indicated under Article 41 of its Statute has expanded dramatically. This is for two reasons\u2014both, in my mind, connected to LaGrand<\/em>. In the first place, with the Court having declared its provisional measures binding, it was incumbent upon it to ensure their requirements were clear and predictable. In the second (and in view of the first), the prospect of interim relief became a powerful tool in the arsenal of potential applicants\u2014resulting in a relative deluge of applications and a corresponding increase in the opportunities available to the Court to refine its thinking on the matter.<\/p>\n

Nowhere has that deluge been more apparent than in the past two years. During that time, the Court has issued five decisions on provisional measures: Immunities and Criminal Proceedings (Equatorial Guinea v France)<\/a><\/em>, Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation)<\/a><\/em>, Jadhav Case (India v Pakistan)<\/a>,<\/em>Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v UAE)\u00a0<\/a><\/em>and Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Iran v US)<\/a><\/em>.<\/em><\/p>\n

(As a slightly churlish aside, all of these emerged in rapid succession immediately after I published a book on the topic<\/a>. In hindsight, for me to speak of a \u201ccomparative calm in the field<\/em>\u201d, as I did there, was wildly premature.)<\/p>\n

Each of these decisions has continued the ICJ\u2019s development of its practice on provisional measures. But\u2014as the 5 October 2018 post on V\u00f6lkerrechtsblog <\/em>by Mark Somos and Tom Sparks\u00a0<\/a>correctly notes\u2014the greatest advances in the jurisprudence have been with respect to the so-called \u2018plausibility\u2019 test. This blog post has been prepared in response to their fine work.<\/p>\n

In their post, Somos and Sparks identify what they consider to be a trend\u2014exemplified in the Qatar v UAE <\/em>and Treaty of Amity <\/em>cases\u2014of the Court relaxing the requirement of plausibility. This is said to be based on the Court\u2019s acceptance in both cases that the plausibility requirement would be met where the rights identified by the applicant were, in the first instance, grounded in \u201ca possible interpretation<\/em>\u201d of the relevant treaty (see Qatar v UAE\u00a0<\/em>at paragraph 46; Treaty of Amity\u00a0<\/em>at paragraph 67).<\/p>\n

I would like to posit a different view: the Court is actually increasing<\/em>the requirements of plausibility. This is a trend that observers of the Court\u2019s practice\u2014most notably Massimo Lando<\/a>, whose work on the topic is first rate\u2014had apprehended in the Court\u2019s practice as early as the Equatorial Guinea v France <\/em>or Ukraine v Russia <\/em>cases. And this trend is perpetuated in the cases analysed by Somos and Sparks\u2014particularly Treaty of Amity<\/em>. So far as their criticism of the \u201cpossible interpretation<\/em>\u201d requirement in that case is concerned, however, I see this merely as making explicit what was previously implicit in the Court\u2019s jurisprudence. The real action is elsewhere.<\/p>\n

\u2018Plausible\u2019 has always meant \u2018possible\u2019<\/strong><\/p>\n

In order to understand this point, we have to consider where the plausibility requirement comes from\u2014and how the Court has generally gone about developing its jurisprudence on provisional measures. Somos and Sparks point to the Court\u2019s order in Passage through the Great Belt (Finland v Denmark)\u00a0<\/a><\/em>as the origin of plausibility, but I think that is somewhat ambitious. At paragraph 21 of that order, the Court repeats the Danish submission that Finland must demonstrate \u201ca reasonable prospect of success in the main case<\/em>\u201d. It then notes in paragraph 22 that the existence of the Finnish right was not challenged and implicitly adopts the Finnish argument that it would be inappropriate to pronounce on the merits at this stage. As is well-known, the Finnish application was eventually dismissed for lack of urgency. If there are hints of the plausibility test there, they are very faint indeed.<\/p>\n

Rather, I see the plausibility test as being a post-LaGrand <\/em>phenomenon originating in Judge Abraham\u2019s separate opinion in the first provisional measures order of Pulp Mills on the River Uruguay (Argentina v Uruguay)<\/a><\/em>. There, Judge Abraham referred at paragraph 7 to LaGrand<\/em>, and noted that in light of that case, the Court needed to undertake some review of the merits of the applicant\u2019s case to enhance its legitimacy\u2014before finally settling at paragraph 11 on the formulation \u201cthat there is a plausible case for the existence of the right<\/em>\u201d claimed to exist by the applicant. (He also referred to Great Belt<\/em>\u2014not to the Court\u2019s order, but to the separate opinion of Judge Shahabuddeen\u2014in paragraph 3.)<\/p>\n

Judge Abraham\u2019s formulation was then adopted by the Court as a whole in Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)\u00a0<\/a><\/em>at paragraph 57 of its order on provisional measures\u2014where it has remained to frustrate scholars and practitioners ever since.\u00a0 \u00a0<\/em><\/p>\n

The ICJ built out from Belgium v Senegal <\/em>in later cases. To my mind, at least, these have always reflected a mode of thought in which \u2018plausibility\u2019 is an extremely low bar. And that bar has always been framed (if not expressly by the Court) as referring to the mere \u2018possibility\u2019 that the claimed rights exist. Thus, in his separate opinion in the first provisional measures order in Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)<\/a><\/em>, Judge Greenwood noted at paragraph 4 that in order to satisfy the criterion of plausibility, the applicant must demonstrate \u201csomething more than assertion but less than proof; in other words <\/em>[\u2026]that there is at least a reasonable possibility that the right which it claims exists as a matter of law and will be judged to apply to that party\u2019s case<\/em>\u201d. He further linked this expressly with Judge Abraham\u2019s thoughts in Pulp Mills<\/em>.<\/p>\n

Judge Greenwood\u2019s equation of \u2018plausibility\u2019 with \u2018possibility\u2019 has now been formally adopted by the Court in paragraph 67 of Treaty of Amity <\/em>case. This perpetuates what has always been the Court\u2019s practice in developing its jurisprudence on provisional measures, going back to Judge Lauterpacht being the first member of the Court to float a version of the prima facie <\/em>jurisdiction test in Interhandel (Switzerland v US)\u00a0<\/a><\/em>at pages 117\u2013119 of the 1957 ICJ Reports<\/em>. That was then adopted by the Court proper in paragraph 17 of the first provisional measures order in Fisheries Jurisdiction (UK v Iceland)<\/a><\/em>. <\/em>What is past is prologue, we may well say.<\/p>\n

Tightening the requirements for plausibility<\/strong><\/p>\n

So, on that point, I respectfully disagree with Somos and Sparks. But what about my assertion that the Court is actually tightening <\/em>the requirements for provisional measures?<\/p>\n

I perceive this development from the Court\u2019s order in Ukraine v Russia<\/em>\u2014which is the first (and only) occasion (so far) that an applicant has failed to meet the plausibility threshold. At paragraphs 74\u201375 of the Court\u2019s order, it held that Ukraine\u2019s submissions that Russia had breached Articles 2 and 18 of the International Convention for the Suppression of the Financing of Terrorism\u00a0<\/a>were not plausible\u2014not because the rights in question did not exist, but because (it seems) the Court was not satisfied that the alleged Russian actions had violated them on the merits. This implied that the Court was going further than it had previously on questions of plausibility\u2014it was engaging in an assessment of the evidence.<\/p>\n

The Court said:<\/p>\n

\u201cIn the present case, the acts to which Ukraine refers\u00a0<\/em>[\u2026] have given rise to the death and injury of a large number of civilians. However, in order to determine that the rights for which Ukraine seeks protection are at least plausible, it is necessary to ascertain whether there are sufficient reasons for considering that the other elements set out in Article 2, paragraph 1, such as the elements of intention or knowledge noted above\u00a0<\/em>[\u2026] and the element of purpose specified in Article 2, paragraph 1 (b), are present. At this stage of the proceedings, Ukraine has not put before the Court evidence which affords a sufficient basis to find it plausible that these elements are present.<\/em>\u201d<\/p><\/blockquote>\n

This represents a significant and welcome advance in the Court\u2019s thinking on provisional measures\u2014a thought I develop at length in my recent article in the British Yearbook of International Law<\/a><\/em>. Absent from the Court\u2019s reasoning, however, was an assessment of whether Ukraine\u2019s case on plausibility could additionally be defeated by the strength of Russia\u2019s defences on the merits\u2014which would impose a further hurdle for the applicant to surmount.<\/p>\n

That gap has now been filled in the Treaty of Amity <\/em>case. At paragraph 68 of the Court\u2019s order, it was said:<\/p>\n

\u201cHowever, in assessing the plausibility of the rights asserted by Iran under the 1955 Treaty, the Court must also take into account the invocation by the United States of Article XX, paragraph 1, subparagraphs (b) and (d), of the Treaty. The Court need not carry out at this stage of the proceedings a full assessment of the respective rights of the Parties under the 1955 Treaty. However, the Court considers that, in so far as the measures complained of by Iran could relate \u2018to fissionable materials, the radio-active by-products thereof, or the sources thereof\u2019 or could be \u2018necessary to protect… essential security interests\u2019 of the United States, the application of Article XX, paragraph 1, subparagraphs (b) or (d), might affect at least some of the rights invoked by Iran under the Treaty of Amity.<\/em>\u201d<\/p><\/blockquote>\n

On this basis, the Court seems to have found that Iran had only met the requirement of plausibility with respect to a limited number of the rights claimed. In the following paragraph, it said.<\/p>\n

\u201cNonetheless, the Court is of the view that other rights asserted by Iran under the 1955 Treaty would not be so affected. In particular, Iran\u2019s rights relating to the importation and purchase of goods required for humanitarian needs, and to the safety of civil aviation, cannot plausibly be considered to give rise to the invocation of Article XX, paragraph 1, subparagraphs (b) or (d).<\/em>\u201d<\/p><\/blockquote>\n

Paragraphs 68 and 69 represent a further tightening of the plausibility test\u2014and one that could be overwhelmingly to the advantage of the respondent. As I read the order, the Court seems to be saying that if a defence raised by the respondent in the main proceedings \u201cmight affect<\/em>\u201d the rights asserted by the applicant, then this will render those rights non-plausible for the purpose of provisional measures. Thus, the respondent appears to benefit from the low threshold of plausibility originally introduced for the benefit of the applicant.<\/p>\n

It is difficult to elaborate on this further in a blog post\u2014and the relevant passage is Delphic rather than oracular. But if I am\u00a0<\/em>correct, then it would appear that a respondent could effectively undermine a request for provisional measures merely by positing a credible defence. That cannot be right. Surely, if plausibility is to be applied consistently, the defence raised by the respondent would have to be so strong that it renders the applicant\u2019s case on the merits non-plausible\u2014that is, borderline impossible to succeed as presently pleaded. This would seem to subvert the raison d\u2019\u00eatre <\/em>of provisional measures, being to protect the applicant\u2019s rights pendente lite<\/em>. Further clarification is called for.<\/p>\n

Conclusion<\/strong><\/p>\n

So, I take a somewhat different view to Somos and Sparks as to the wider import of the Court\u2019s recent decisions on provisional measures\u2014and on the order in the Treaty of Amity <\/em>case in particular. But this difference of opinion does not necessarily mean that either of us is, for now, wrong (although someone will have to be eventually). Rather, it highlights a persistent difficulty with the Court\u2019s provisional measures jurisprudence\u2014namely, that advances in that jurisprudence are difficult to detect, can only be gleaned by close reading of the relevant orders and separate\/dissenting opinions, and lead to wildly different conclusions by informed observers.<\/p>\n

Granted, a lot of this has to do with the Court\u2019s deliberative process. In controversial cases (as Treaty of Amity <\/em>is), the Court\u2019s legitimacy is best protected by having as few separate and dissenting opinions as possible. In this respect, it bears pointing out that the order in Treaty of Amity <\/em>was unanimous. With a bench of 16 judges (including ad hoc\u00a0<\/em>nominees\u2014one of whom was replacing the permanent US judge, who has recused herself) this means that the desired compromise came at the expense of clarity\u2014the perils of drafting by committee. But that lack of clarity tends to obscure the place of each case within the wider jurisprudence\u2014upon the consistency and predictability of which the Court\u2019s legitimacy may ultimately be seen to rest. But this is nothing new in the world of international courts and tribunals. Plus \u00e7a change<\/em>, indeed.<\/p>\n

 <\/p>\n

Cameron Miles\u00a0<\/a><\/em>is a practicing public international lawyer and a barrister at 3 Verulam Buildings in London.<\/em><\/p>\n

 <\/p>\n

Cite as: Cameron Miles, “Plausibility and the ICJ: A response to Somos and Sparks”, V\u00f6lkerrechtsblog<\/em>, 12 October 2018, doi:\u00a010.17176\/20181012-094819-0<\/a>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Since the ICJ\u2019s 2001 decision in LaGrand (Germany v US), the Court\u2019s jurisprudence on provisional measures indicated under Article 41 of its Statute has expanded dramatically. This is for two reasons\u2014both, in my mind, connected to LaGrand. In the first place, with the Court having declared its provisional measures binding, it was incumbent upon it […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[5006],"article-categories":[6000],"doi":[],"class_list":["post-3934","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-cameron-miles","article-categories-article"],"acf":{"subline":"A response to Somos and Sparks"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/3934","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=3934"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/3934\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=3934"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=3934"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=3934"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=3934"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=3934"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=3934"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}