The Repercussions of the LaGrand Judgment: Recent ICJ Jurisprudence of Provisional Measures
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THE REPERCUSSIONS OF THE LAGRAND JUDGMENT:
RECENT ICJ JURISPRUDENCE ON PROVISIONAL MEASURES
Yoshiyuki Lee-Iwamoto*
Introduction
I. Emerging Formulation of the Requirements Relating to Rights
1. The Link Test: Link between the Provisional Measures and the
Rights on the Merits
2. The Plausibility Test: Plausible Character of the Rights Whose
Protection is Being Sought
II. Legal Consequences for Failing to Comply with Provisional
Measures Orders
1. Rejection of a Claim for Indemnification
2. Declaratory Relief as Satisfaction
Conclusion
Introduction
Undeniably, the most notable development in the procedural law of the
International Court of Justice (ICJ) in recent years has been the finding in the
LaGrand case that provisional measures indicated under Article 41 of the Statute
give rise to an obligation which is legally binding on the state to which the indi-
cation of measures is addressed.' Until the LaGrand case, the ICJ had not been
asked to decide the issue, and the LaGrand case provided an ideal opportunity to
rule on the legal effect of provisional measures. In response to the Applicant's
(Germany) claim that the Respondent (USA) had violated its international obli-
gation to comply with the Order on provisional measures, the Court took an active
stance toward the issue through adoption of an extensive interpretation of the
Statute.' Taking into consideration the fact that the provisional measures Order in
the LaGrand case apparently was based on the idea that the loss of human life
must be conceived as an irreparable prejudice to some right of the State of which
the victim is a national,' it is easy to assume that the positive decision on binding
* Associate Professor of International Law, Okayama University, Japan. This research was
supported in part by JSPS KAKENHI [Grant-in-Aid for Scientific Research].
See Hugh Thirlway, The International Court of Justice 1989-2009: At the Heart of the
Dispute Settlement System?, Netherlands International Law Review, Vol. 62 (2010), p. 380.
2 See LaGrand (Germany v. United States ofAmerica), Merits, Judgment of27June 2001,
LCJ. Reports 2001, pp. 501-506, paras. 99-110.
See LaGrand (Germany v. United States of America), Provisional Measures, Order of 3
Japanese Yearbook of International Law
Vol. 55 (2012), pp. 237-262.](ViewImageLocal?handle=hein.journals/jpyintl55&div=12&collection=&method=preview&ext=.png&size=3)
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The Repercussions of the LaGrand Judgment: Recent ICJ Jurisprudence of Provisional Measures
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