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8 J. Int'l Disp. Settlement 1 (2017)

handle is hein.journals/jloildte8 and id is 1 raw text is: Journal of International Dispute Settlement, 2017, 8, 1-21 doi: 10.1093/jnlids/idv027 Advance Access Publication Date: 14 December 2015 Article Provisional Measures and the Margin of Appreciation before the International Court of Justice Cameron A. Miles* ABSTRACT Since its determination in 2001 that provisional measures awarded under Article 41 of its Statute are binding, the International Court of Justice has steadily increased the com- plexity of its jurisprudence on interim relief. One area in which this development has been most noticeable is that of compliance with provisional measures: both in terms of the assessment thereof and the consequences of non-compliance. Recent advances notwith- standing, the Court's approach to these questions is still developing. This article seeks to assess one possible direction that the Court may go when testing compliance with provi- sional measures, namely the use of the margin of appreciation. This tool is found elsewhere in international law, and gives states a measure of latitude in determining whether their obligations under international law have been the subject of compliance. 1. INTRODUCTION A frequent refrain of the critics of international law is that it lacks compelling force-that the absence of an effective enforcement mechanism within its genome renders it largely 'optional' in character.I For the most part, an examination of the reality to which most international lawyers subscribe reveals that such concerns are misplaced-provided that the jurisdiction of an international court or tribunal can be validly invoked, a judgment on the merits is likely to be followed by the parties to which it is directed,2 a vindication of Louis Henkin's famous pronouncement that * Gray's Inn, London, UK. Email: cmiles(a@3vb.com. This article is drawn from a paper presented at the PluriCourts and Centre Franco-Norvegien en sciences sociales et humaines seminar entitled 'A Future for the Margin of Appreciation in International Law' on 10 February 2014. The author wishes to thank Eirik Bjorge and Sir Christopher Greenwood for their thoughtful comments on an earlier draft. The usual caveat applies. 1 See eg John Bolton, 'Is There Really 'Law' in International Affairs?' (2000) 10 TLCP 1, 7ff; Jack Goldsmith and Eric Posner, The Limits of International Law (OUP 2005) 13. 2 With respect to the case law of the ICJ, see Constanze Schulte, Compliance with the Decisions of the International Court of Justice (OUP 2004) 271-75. For a more cutting rebuke of the discipline's existential critics, see generally James Crawford, 'International Law as Discipline and Profession' (2012) 106 Proceedings of the American Society for International Law 471. For a rebuttal of the realists on their own terms, see Tai-Heng Cheng, When International Law Works: Realistic Idealism after 9/11 and the Global Recession (OUP 2012). © The Author 2015. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com . 1

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