Trials of Ordeal in the International Court of Justice: Why States Seek Provisional Measures when non-Compliance Is to Be Expected

Abstract

The article builds upon research showing that compliance with Orders on Provisional Measures by the International Court of Justice in armed activities cases is significantly lower than with Judgments. I make the assumption that compliance is not expected by the requesting party in these situations, even though there are many such cases and even though they concern high-profile conflicts like the Georgia–Russia war of 2008. The purpose of international adjudication is therefore often something other than compliance. I suggest it is useful to examine these cases as a strategy of inflicting costs in an underlying bargaining situation. Requests for provisional measures are particularly useful from this perspective because the jurisdictional bar is low. This article examines how the rules governing provisional measures as they have developed in recent years in particular allow for such strategic usage and explores different ways requests for provisional measures can be used to inflict costs on an adversary. For instance, they create legal obligations between the parties, resulting in a new ‘shadow of the law’ in which they must bargain. They also allow one of the parties to briefly transform the non-zero-sum game of a bargaining situation to a zero-sum game it has good prospects of winning, thereby improving its relative bargaining power. Taking the focus away from compliance allows us to rethink the effectiveness of international adjudication and to consider the power of international institutions in a new light.