Provisional Measures in the ICJ and ICSID: Further Dialogue and Development

Abstract

This chapter reviews how provisional measures came to be understood as binding in international adjudication. It then addresses three specific issues: the character and degree of harm required; whether a threshold showing on the merits is necessary; and aggravation and extension of the dispute as a basis for provisional measures. The development of these issues is marked by significant dialogue between the International Court of Justice (ICJ) and tribunals constituted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). A legacy of the diplomatic nature of international dispute settlement in the first half of the 20th century, non-aggravation orders have a long history in public international law. While the ICJ has routinely made such orders when granting provisional measures, a number of recent cases have raised questions about whether non-aggravation orders are simply ancillary to provisional measures focused on preserving rights. Keywords: ICSID; International Court of Justice (ICJ); non-aggravation orders; provisional measures