1. Prima facie no longer
The International Court of Justice (ICJ or Court) has long adopted a prima facie test for jurisdiction in provisional measures cases.Footnote 1 This test was introduced because Article 41 of the Statute of the ICJ,Footnote 2 which gives it the power to indicate provisional measures, does not expressly mention jurisdiction. Article 41 only provides that ‘[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’.Footnote 3 In the ICJ’s first two provisional measures cases, Anglo-Iranian Oil Co and Interhandel, judges disagreed on how certain the Court should be that it has jurisdiction over the merits to indicate provisional measures.Footnote 4 Writing separately in Interhandel, Judge Lauterpacht stated that the Court should indicate provisional measures if there is an instrument which ‘prima facie confers jurisdiction upon [it] and which incorporates no reservations obviously excluding its jurisdiction’.Footnote 5 The Court adopted this prima facie test in the subsequent Fisheries Jurisdiction casesFootnote 6 and, although it only applied this test until 2008, the Court has referred to it in every order on provisional measures.Footnote 7
However, the Court’s approach to jurisdiction at the provisional measures stage has changed since its 2008 provisional measures order in Georgia v Russian Federation.Footnote 8 In that case, the ICJ applied a new, more exacting test, no longer assessing whether there is a possible jurisdictional basis and reasons why it would obviously lack jurisdiction. Instead, the Court carries out a more granular assessment of its jurisdiction as regards the merits by examining not only the applicant’s arguments in support of jurisdiction, but also any counterarguments raised by the respondent which might successfully contest jurisdiction. Examples of the latter are that the applicant’s claim falls outside the scope of the Court’s jurisdiction ratione materiae,Footnote 9 or that the applicant has failed to satisfy procedural preconditions,Footnote 10 such as the requirement to negotiate or to refer a situation to another body before bringing a case before the ICJ. These preconditions appear in several jurisdictional titles on which the Court’s jurisdiction may be founded, such as Article 22 of the International Convention for the Elimination of All Forms of Racial Discrimination (CERD)Footnote 11 and Article 24 of the International Convention for the Suppression of the Financing of Terrorism (ICSFT).Footnote 12
This article argues that the Court has developed a new granular approach to jurisdiction which cannot be described as prima facie. It is unnecessary to be prescriptive as to the label of this new approach. Terminology alone says little of how the Court really examines jurisdiction at the provisional measures stage. It would be an exaggeration to suggest that, under this granular approach, the Court seeks to be certain that it has jurisdiction over the dispute. Rather, under this approach, the Court decides which it finds more persuasive: the applicant’s arguments for jurisdiction, or the respondent’s arguments against it. Put another way, the Court decides which party has the better argument as to jurisdiction based on the material available to it at the provisional measures stage. One may liken this granular approach to a ‘good arguable case’ test.Footnote 13 In some cases, the International Tribunal for the Law of the Sea has applied an approach comparable to the ICJ’s granular one,Footnote 14 as have certain investor–State arbitral tribunals.Footnote 15 However, as the ICJ’s jurisprudence seems not to have influenced the approaches of those bodies, it is not necessary to examine them in this article.
The focus of this article, provisional measures at the ICJ, is an important area of practice and scholarly work. In practice, the ICJ’s development of the granular approach matters for several reasons. First, the Court receives frequent requests for provisional measures, often in sensitive matters such as diplomatic immunities, the prevention of racial discrimination and the prevention of genocide.Footnote 16 Understanding the Court’s approach to jurisdiction can inform litigation strategy in future cases. This consideration is especially relevant given that requests for the Court to indicate provisional measures have risen since 2001, when the Court indicated that orders for provisional measures under Article 41 of its Statute are binding on the parties to the dispute, ending the long debate concerning the binding effect of provisional measures indicated under Article 41.Footnote 17 Second, the Court’s analysis under the granular approach overlaps with the Court’s analysis of plausibility, which is a separate requirement for provisional measures.Footnote 18 Third, the granular approach overlaps also with the Oil Platforms test that the Court uses to determine definitively whether it has jurisdiction over the dispute.Footnote 19
The article is structured as follows. Section 2 explores the development of the ICJ’s approach to jurisdiction in provisional measures cases. Section 3 explores two possible explanations for the ICJ’s shift to the granular approach: first, the binding character of provisional measures; and second, the political sensitivity of the cases in which the Court has made and consolidated this shift. Section 4 considers the ramifications of the granular approach: the malleability of the Court’s jurisdictional approach at the provisional measures stage; the overlap with the plausibility test; the overlap with the Oil Platforms test; and how the granular approach promotes a conception of the judicial function that is focused on dispute settlement. Section 5 concludes.
2. Development of the ICJ’s approach to jurisdiction
The prima facie test, adopted in Fisheries Jurisdiction, entailed a low threshold for establishing jurisdiction. The Court’s order in Georgia v Russian Federation marked the shift towards the granular approach, raising the jurisdictional threshold in provisional measures cases.
2.1. Prima facie test (1951–2008)
The ICJ’s first three provisional measures cases illuminate the operation of the prima facie test. Anglo-Iranian Oil Co originated from Iran’s expropriation of assets belonging to Anglo-Iranian Oil, a British company. The United Kingdom (UK) argued that the Court’s jurisdiction was founded on the parties’ optional clause declarations, but Iran’s declaration was limited by a reservation. The Court did not elaborate on its approach to jurisdiction, nor did it comment on Iran’s reservation; it simply held that ‘it cannot be accepted a priori that [the UK’s] claim … falls completely outside the scope of international jurisdiction’.Footnote 20 The Court did not use the ‘prima facie’ terminology but appeared to apply a very low threshold for jurisdiction. Judges Winiarski and Badawi Pasha dissented. They stated that provisional measures are ‘a scarcely tolerable interference in the affairs of a sovereign State’,Footnote 21 which justified adopting a rigorous test for jurisdiction: ‘if there exist weighty arguments in favour of the challenged jurisdiction, the Court may indicate interim measures of protection; if there exist serious doubts or weighty arguments against this jurisdiction such measures cannot be indicated’.Footnote 22 To them, the Court should decide which are more convincing: the arguments for jurisdiction or the arguments against it.
Interhandel involved a claim that jurisdiction was based on the parties’ optional clause declarations and a reservation by the respondent, the United States (US), to its declaration. The Court concluded that the circumstances did not require the indication of provisional measures,Footnote 23 and made no clear finding on jurisdiction, stating only that it would defer examination of the US objections to a later phase of the proceedings.Footnote 24 However, the classic formulation of the prima facie test was articulated in this case by Judge Lauterpacht in his Separate Opinion. He noted that States which have accepted the Court’s jurisdiction ‘have the right to expect that the Court will not act under Article 41 in cases in which absence of jurisdiction on the merits is manifest’Footnote 25 and, accordingly, some consideration of jurisdiction is required. Following international arbitral and judicial practice, he formulated the ‘correct practice’ as follows:
[t]he Court may properly act under the terms of Article 41 provided that there is in existence an instrument such as a Declaration of Acceptance of the Optional Clause, emanating from the Parties to the dispute, which prima facie confers jurisdiction upon the Court and which incorporates no reservations obviously excluding its jurisdiction.Footnote 26
The Court took the next available opportunity to adopt that test, although it formulated it more pithily. In the parallel Fisheries Jurisdiction cases, the UK and Germany claimed that the Court’s jurisdiction was founded on two separate but identical clauses under certain Exchanges of Notes with Iceland. Iceland did not appear but sent a message stating that the agreements under those Exchanges of Notes had achieved their object and purpose and, accordingly, had been terminated.Footnote 27 Without elaboration, the Court stated that ‘on a request for provisional measures [it] need not … finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest’.Footnote 28 The Court did not comment on Iceland’s objection, and held that each clause ‘appears, prima facie, to afford a possible basis on which the jurisdiction of the Court might be founded’.Footnote 29 The approach in Fisheries Jurisdiction shows continuity with the approach in the earlier two cases, because applying the prima facie test required deciding whether there was a basis on which jurisdiction might be founded but did not require considering a respondent’s arguments against jurisdiction.Footnote 30 In Fisheries Jurisdiction, the ICJ did not refer to reservations ‘obviously excluding’ jurisdiction, to which Judge Lauterpacht had referred in his Separate Opinion. However, if such reservations were present, lack of jurisdiction would be ‘manifest’, using the language of Fisheries Jurisdiction. The formulations of the prima facie test by the Court and Judge Lauterpacht are equivalent, both requiring that the Court simply consider whether there are reasons why its jurisdiction would be manifestly, or obviously, lacking.
Since Fisheries Jurisdiction, the Court has repeated adherence to the prima facie test in all orders indicating provisional measures.Footnote 31 Until Georgia v Russian Federation, the Court did not examine jurisdictional objections in its orders on provisional measures even though respondents may have raised them.Footnote 32 In some cases, respondents did not contest jurisdiction, either at all or by reserving the right to raise jurisdictional objections at a later stage.Footnote 33 The political sensitivity of other cases might have resulted in lengthier reasoning on jurisdiction, but even in such cases the Court generally summarised the parties’ arguments and deferred analysis of all jurisdictional objections.Footnote 34
The Court examined such objections in only two cases,Footnote 35 Legality of the Use of Force Footnote 36 and Democratic Republic of the Congo (DRC) v Rwanda.Footnote 37 In Legality of the Use of Force, Yugoslavia argued that jurisdiction was founded on various titles, including Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).Footnote 38 The Court considered whether the acts of which Yugoslavia complained prima facie constituted genocide under the Genocide Convention, which meant that it decided on the objection that it lacked prima facie jurisdiction ratione materiae.Footnote 39 In DRC v Rwanda, the DRC sought to found the Court’s jurisdiction on several treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.Footnote 40 Rwanda objected that it had never been a party to that Convention, which the Court found to be true.Footnote 41 In both cases, and in contrast to its established approach, the Court examined the respondents’ arguments against jurisdiction, perhaps as a result of the political sensitivity of the case and to take the opportunity to ground a finding of no jurisdiction on more detailed reasoning. The Court returned to assessing jurisdiction based on the prima facie test in subsequent cases. At most, the orders in Legality of the Use of Force and DRC v Rwanda can be seen as foreshadowing the adoption of the granular approach in Georgia v Russian Federation.
2.2. Granular approach (2008–present)
Georgia v Russian Federation is both a turning point in the ICJ’s provisional measures jurisprudence and a paradigm of the granular approach. This approach is characterised by more complex jurisdictional objections by the parties, closer scrutiny of the evidence by the Court, and its applicability regardless of the type of jurisdictional title on which applicants rely.
2.2.1. Georgia v Russian Federation as a turning point and paradigm
On 12 August 2008, Georgia instituted proceedings against the Russian Federation for alleged breaches of CERD stemming from the Russian military operations in Abkhazia and South Ossetia. Georgia founded the Court’s jurisdiction on Article 22 CERD.Footnote 42 The Russian Federation raised three objections to jurisdiction. First, it argued that the dispute fell outside the Court’s jurisdiction ratione materiae, as it did not concern racial discrimination but alleged violations of international humanitarian law.Footnote 43 To support this argument, the Russian Federation relied on the language in Georgia’s pleadingsFootnote 44 and the lack of references to a CERD dispute in certain bilateral and multilateral fora.Footnote 45 Second, the Russian Federation argued that CERD had no extraterritorial application.Footnote 46 Third, it argued that the procedural preconditions under Article 22 CERD had not been met, filing documentary evidence of exchanges between the parties to substantiate its contention.Footnote 47
In its Order, although the ICJ iterated the prima facie jurisdiction requirement,Footnote 48 it actually examined the Russian Federation’s objections more closely than a prima facie examination would require. The Court considered whether the application of CERD was limited ratione loci, looking at the language of CERD both generally and specifically in relation to Articles 2 and 5.Footnote 49 As to the objection to jurisdiction ratione materiae, the Court found that there was a dispute concerning the interpretation or application of CERD because the parties disagreed as to whether CERD was applicable to the events in Abkhazia and South Ossetia.Footnote 50 This finding would have been sufficient for a prima facie assessment, but the Court went further by finding also that the Russian Federation’s acts could breach Georgia’s rights under CERD.Footnote 51 Not only that, but the Court referred to Georgia’s argument that its evidence showed the existence of racial discrimination within the meaning of CERD, which indicates that the Court examined that evidence.Footnote 52 Last, the Court considered the objection concerning procedural preconditions. To dismiss it, the ICJ made three points: it analysed the plain text of Article 22 CERD; it compared Article 22 with jurisdictional clauses from other treaties, to find that its structure was different from that of those jurisdictional clauses; and, again, it examined the evidence on file indicating that Georgia had publicly referred to a dispute under CERD before starting proceedings.Footnote 53 The Court then declared that ‘in view of all the foregoing, [it] considers that, prima facie, it has jurisdiction under Article 22 of CERD to deal with the case’.Footnote 54 The Court reached its conclusion only following a detailed issue-by-issue examination of the respondent’s arguments against jurisdiction. The seven judges who wrote a joint dissenting opinion considered the Russian Federation’s arguments in even more detail. They focused on the interpretation and application of Article 22, including in light of earlier ICJ decisions, and on further evidence showing that the procedural preconditions had not been met.Footnote 55
2.2.2. Features of the granular approach
Georgia v Russian Federation illustrates the features of the granular approach, which later cases also reflect. The first feature is that the granular approach responds to an increasing tendency for States to file more complex objections to jurisdiction. In some cases following Georgia v Russian Federation, the respondents have not contested jurisdiction and the Court therefore has not discussed it in detail.Footnote 56 In other cases, respondents have contested jurisdiction on various grounds, and the Court has addressed their concerns by applying the new granular approach.Footnote 57 The objections raised can be broadly grouped into three classes: lack of jurisdiction ratione materiae; failure to satisfy procedural preconditions; and reservations, both to optional clause declarations and to specific treaty provisions. An example of an objection to jurisdiction ratione materiae occurred in the case between Ukraine and the Russian Federation under the ICSFT and CERD. The Russian Federation argued that Ukraine had failed to demonstrate that the alleged facts constituted a violation of its rights under CERD, and that those rights were already protected in Crimea. For instance, in respect of the right to education, the Russian Federation filed evidence to show that Ukrainian and Tatar were languages of instruction at the Crimean Federal University and that numerous schools offered Ukrainian-language education.Footnote 58
Respondents have also objected that relevant procedural preconditions had not been satisfied. In Alleged Violations of the 1955 Treaty, the US argued that Iran had not given it an adequate opportunity to settle their dispute by negotiation, as required by Article XXI of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (1955 Treaty).Footnote 59 The US filed into evidence diplomatic notes between itself and Iran concerning the dispute.Footnote 60 Respondents have also based jurisdictional objections on reservations to optional clause declarations that are different from ratione materiae reservations. An example is Pakistan’s objection in Jadhav that India’s reservation excluded the Court’s jurisdiction in disputes between members of the Commonwealth.Footnote 61 Respondents have based yet other jurisdictional objections on provisions specific to the treaties containing the compromissory clauses on which the applicants founded jurisdiction. In the case brought by The Gambia, Myanmar argued that the Court lacked jurisdiction because of its reservation to Article VIII Genocide Convention, which allows parties to that Convention to refer situations of alleged genocide to United Nations (UN) organs like the Court.Footnote 62
The second notable feature of the granular approach is the detailed examination by the Court of the evidence filed by respondents to support their jurisdictional objections raised at the provisional measures stage. This practice has made it apparent that respondents often file considerable evidence relating to jurisdiction, though it is difficult to know precisely how extensive the evidential record is because, in provisional measures cases, the Court does not make the entire record public. However, the parts of the Court’s orders summarising the parties’ arguments often mention the evidence filed and can provide some insight. The Court’s focus on evidence does not indicate that jurisdictional objections were not raised in provisional measures cases prior to Georgia v Russian Federation, nor that the parties did not file evidence to support those objections. Rather, the Court simply did not examine such objections or the evidence adduced to support them, or, at least, did not record doing so.
The Court’s attention to the respondents’ arguments on jurisdiction and the evidence submitted in that regard shows that assessing whether it has jurisdiction now entails a much closer scrutiny than before Georgia v Russian Federation. This closer scrutiny is different from Judge Lauterpacht’s prima facie test that the Court adopted in Fisheries Jurisdiction. That test requires the Court, at most, to consider whether respondents have made arguments showing that it obviously lacks jurisdiction.Footnote 63 No objection raised since Georgia v Russian Federation has appeared compelling enough to show that the Court obviously lacks jurisdiction. Addressing objections to its jurisdiction ratione materiae requires the ICJ to examine whether a respondent’s conduct, as alleged by an applicant, might amount to a breach of certain rights. It is difficult for such objections to show obvious lack of jurisdiction except in extreme cases, which are unlikely to arise in practice, such as in the hypothetical scenario where an applicant founds jurisdiction on CERD and complains that a respondent has breached its right to enjoy freedom of navigation. Objections that certain procedural preconditions have not been satisfied require the Court to examine evidence of the exchanges between the parties, for example to decide whether an applicant has given a respondent an adequate opportunity to negotiate or has genuinely attempted to negotiate. Unless the evidence shows that there was no contact whatsoever between the parties, also unlikely in practice, it is difficult for objections concerning procedural preconditions to show obvious lack of jurisdiction. The Court has examined these and other jurisdictional objections individually and, considering the early stage in the proceedings and the relative scarcity of evidence, quite thoroughly. This examination is stricter than that under the prima facie test.
The third feature of the granular approach is that its application does not depend on the type of jurisdictional title on which applicants rely, which was also the case for the prima facie test. Jurisdictional limitations are comparable under compromissory clauses and where jurisdiction is based on optional clause declarations or special agreements. The prime example is limitations ratione materiae. Compromissory clauses are, by their character, limited to the subject-matter of the treaties in which they are contained. Similarly, special agreements confer jurisdiction limited to certain matters.Footnote 64 States can also declare that their acceptance of the Court’s compulsory jurisdiction does not extend to cases concerning certain matters.Footnote 65 All cases since 2008 in which respondents have contested jurisdiction began by way of a compromissory clause. This fact might suggest that the Court uses the granular approach to avoid adjudicating on disputes that, by their subject-matter, do not fall within the scope of the treaty that contains the relevant compromissory clause. Put differently, the Court might have used the granular approach to discourage applicants from disaggregating disputes, which is the practice of artificially framing the subject-matter of a dispute to fit within the scope ratione materiae of whichever treaty might confer jurisdiction on the Court.Footnote 66
There are two problems with this view. First, the Court is likely to discourage the disaggregation of disputes irrespective of jurisdictional title, as long as that title is limited ratione materiae. In Fisheries Jurisdiction (Spain v Canada), an optional clause case, the ICJ’s jurisdiction ratione materiae was limited by Canada’s reservation to its optional clause declaration. Canada’s reservation excluded from the Court’s jurisdiction certain disputes about conservation and management measures enacted by Canada itself in respect of a certain maritime area.Footnote 67 The parties characterised the dispute differently to support their respective arguments as to whether the dispute fell within the scope of that reservation or not.Footnote 68 The Court made its own independent characterisation of the dispute,Footnote 69 signalling that States should not artificially frame disputes to make them fit within the available jurisdictional titles, as Spain seemed to have done in this case.Footnote 70 The second argument against the granular approach being a response to the disaggregation phenomenon is that the disaggregation phenomenon was known before Georgia v Russian Federation.Footnote 71 To discourage this phenomenon, the Court could have used different jurisdictional tests depending on the title invoked, without needing to conduct a detailed examination of both parties’ arguments in relation to jurisdiction. Nevertheless, the jurisprudence before 2008 shows that the Court adopted the same test across all cases, regardless of jurisdictional title.
3. Explanations for the granular approach
Two main reasons may explain the development of the granular approach by the Court: first, the binding character of provisional measures, and second, the political sensitivity of the cases in which the Court introduced and consolidated the new approach.
3.1. Binding character of provisional measures
The Court clarified that provisional measures impose international obligations on States in its 2001 LaGrand judgment.Footnote 72 The granular approach represents a safeguarding of sovereignty that introduces a higher threshold for imposing international obligations through provisional measures. Moreover, the Court’s examination of whether an applicant’s claimed rights exist, a legacy of LaGrand, can be cast as a question of jurisdiction, which then appears also to be linked to the binding character of provisional measures.
3.1.1. Safeguarding of sovereignty
Interference with sovereignty may be an inevitable consequence of protecting the rights at issue on the merits,Footnote 73 but the Court is traditionally reluctant to grant requests that might come across as too intrusive into State sovereignty.Footnote 74 The jurisdictional test in provisional measures proceedings aims to find a balance between the competing objectives of preserving the rights claimed to be at risk of prejudice by an applicant and avoiding placing limitations on the sovereignty of a respondent when the question remains whether the Court has jurisdiction on the merits. The prima facie test prioritises protecting the applicant’s rights over the respondent’s sovereignty, as it allows the Court to indicate provisional measures where there is little certainty that it has jurisdiction. The granular approach gives greater weight to the protection of the respondent’s sovereignty, at least in principle. It is difficult not to see this development as a legacy of LaGrand, the thrust of which was that provisional measures create international obligations that limit sovereignty.
The question is whether the granular approach has altered the balance between protecting rights and not unduly limiting sovereignty not only in principle, but also in practice. This may be illustrated by how often the Court has found that it lacked jurisdiction under the two different approaches. Since adopting the granular approach, the Court has found that it lacked jurisdiction only in Immunities and Criminal Proceedings and, even then, only in respect of Equatorial Guinea’s claims under the UN Convention against Transnational Organized Crime (Palermo Convention).Footnote 75 Under the earlier approach, the Court found that it lacked jurisdiction in two cases: Legality of the Use of Force and DRC v Rwanda.Footnote 76 This record may not be conclusive proof of how likely it is for the Court to find that it lacks jurisdiction under either approach, but it may suggest that the balance between protecting rights and avoiding undue limitations on sovereignty is not that different under either approach.
This view is, however, misleading. In Legality of the Use of Force and DRC v Rwanda, the Court applied a higher jurisdictional threshold than usually required under the prima facie test, by deciding whether it had jurisdiction ratione materiae.Footnote 77 In all cases in which the Court has found that it lacks jurisdiction at the provisional measures stage, it has not applied a prima facie test. It thus seems likely that the granular approach in practice does alter the balance between protecting an applicant’s rights and avoiding undue limitations on a respondent’s sovereignty, giving the latter greater weight than it would have had under the prima facie test.
There may be reasons unrelated to the application of either approach that could explain why the Court found that it lacked jurisdiction only in Legality of the Use of Force and DRC v Rwanda. For example, these two cases could be seen as exceptional because Yugoslavia and the DRC, as opposed to respondents in other cases, did not advance any credible arguments in support of the Court’s jurisdiction. This difficulty was confirmed in the Court’s later decisions that it lacked jurisdiction in respect of the cases filed by Yugoslavia and the DRC.Footnote 78 It is also conceivable that the clarification in LaGrand that provisional measures are binding might have pushed respondents to make more elaborate arguments against jurisdiction, to use all possible ways to prevent the indication by the Court of provisional measures that would limit their sovereignty. This view might explain the outcomes in DRC v Rwanda and Immunities and Criminal Proceedings, but it does not explain that in Legality of the Use of Force, which took place two years before the LaGrand judgment. Whatever the possible explanations for why the Court found that it lacked jurisdiction in these particular cases, it is clear that the Court applied a jurisdictional threshold higher than that applied under the prima facie test.
3.1.2. Existence of rights as a question of jurisdiction
In its 2009 order in Belgium v Senegal, the ICJ adopted a new requirement under which ‘the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible’.Footnote 79 The adoption of this plausibility requirement followed from the recognition that provisional measures are binding in character, the idea being that the Court should indicate such measures only where they would protect rights that plausibly exist under international law.Footnote 80 However, whether an applicant’s rights might be said plausibly to exist can be cast as a question of jurisdiction ratione materiae, the existence of which the Court may have to determine under the granular approach.Footnote 81 It follows that, if plausibility is linked to the binding character of provisional measures, so too is the granular approach to jurisdiction.
Prior to adopting the plausibility requirement, in the second provisional measures phase in Pulp Mills, the Court examined the existence of the applicant’s claimed rights as a question of jurisdiction ratione materiae. The respondent, Uruguay, requested provisional measures, seeking to protect its rights to continue constructing and operating a pulp mill and to have its dispute with Argentina settled by the Court,Footnote 82 which it argued were about to be breached by the blockade of a transboundary bridge by Argentinian citizens. Argentina argued that Uruguay’s claimed rights did not exist under the 1975 Statute of the River Uruguay (1975 Statute),Footnote 83 on which the Court’s jurisdiction was based, but under the treaty establishing Mercosur.Footnote 84 Accordingly, Argentina submitted that Uruguay’s claims fell outside the Court’s jurisdiction ratione materiae,Footnote 85 thus framing the question of the existence of Uruguay’s claimed rights as a question of jurisdiction.
In its reasoning, the ICJ adopted Argentina’s framing. The Court stated that ‘in establishing [its] prima facie jurisdiction … the question of the nature and extent of the rights for which protection is being sought in the request for the indication of provisional measures has no bearing’.Footnote 86 However, the Court considered the substance of Uruguay’s claimed rights. It found that the right to continue constructing the pulp mill ‘effectively constitutes a claimed right in the present case, which may in principle be protected by the indication of provisional measures’.Footnote 87 This phrasing is not entirely clear but the underlying idea appears to be that, as the 1975 Statute provided the basis for the Court’s jurisdiction, only rights arising under it were before the Court. The right to continue constructing the pulp mill could not have ‘in principle be[en] protected by the indication of provisional measures’, which are available only to protect rights before the Court,Footnote 88 unless the Court found it to exist under the 1975 Statute. The ICJ’s conflation of questions of jurisdiction with questions concerning the existence of an applicant’s claimed rights can be explained by considering that, in 2007, plausibility was not yet a requirement for provisional measures in the Court’s jurisprudence. The Court lacked an established non-jurisdictional framework within which to examine Argentina’s argument that Uruguay’s claimed rights did not exist or, to use plausibility’s language, had no plausible basis under the 1975 Statute. Nonetheless, Pulp Mills shows that the question of plausibility can be cast as a question of jurisdiction ratione materiae. To that extent, and as plausibility follows from the binding character of provisional measures, the Court’s approach in Pulp Mills suggests that the granular approach is also rooted in the binding character of provisional measures as recognised in LaGrand.
3.2. Political sensitivity of disputes
The shift to the granular approach to jurisdiction can also be explained by reference to the political sensitivity of the cases in which the ICJ made and has consolidated that shift. In politically sensitive cases, it can be difficult to secure States’ acceptance of the Court’s decisions.Footnote 89 To pre-empt such difficulties, it may be desirable for the ICJ to show that, at the relevant stage of the proceedings, it gives full consideration to whether it has the power to make the decision requested of it. This drive to give the fullest possible justification potentially explains the Court’s close examination of a respondent’s arguments against jurisdiction and the relevant evidence in relation to provisional measures.
Politically sensitive disputes are those which, owing to their subject-matter or the potential for resistance by certain States, are seen as highly controversial.Footnote 90 It should be beyond serious doubt that certain categories of cases are politically sensitive, such as cases concerning alleged breaches of the rules on the use of force and the protection of human rights, as well as cases concerning the alleged commission of morally reprehensible acts, like genocide. Politically sensitive cases may include disputes concerning immunity, both of States and their property, and of high-ranking State officials. The identity of the parties can add a layer of complexity. For instance, the political sensitivity of a case on the use of force could increase if one of the parties is a permanent member of the UN Security Council (UNSC). There are other cases in which the subject-matter and the identity of the parties may not immediately suggest a high degree of political sensitivity, but which emerge as politically sensitive due to the facts from which they stem. For example, disputes concerning obligations that appear neutral, such as the obligation to prosecute or extradite, may acquire a politically sensitive dimension where they stem from the alleged perpetration of serious human rights violations.
The ICJ foreshadowed and later adopted its granular approach in politically sensitive cases. Legality of the Use of Force was an intensely political case, originating from Yugoslavia’s ethnic cleansing in Kosovo, concerning allegations of genocide and involving, among others, three permanent members of the UNSC. DRC v Rwanda concerned the use of force and violations of human rights and international humanitarian law, including allegations of genocide. Georgia v Russian Federation was politically sensitive due to its subject-matter, which concerned alleged breaches of CERD, and also because a party was a permanent member of the UNSC. The cases following Georgia v Russian Federation in which the ICJ consolidated its granular approach were politically sensitive too: four cases also concerned alleged breaches of CERD arising from the use of force;Footnote 91 three cases concerned allegations of genocide;Footnote 92 one concerned allegations of torture;Footnote 93 and one originated from the imposition of the death penalty on a man detained in breach of his consular rights.Footnote 94 Belgium v Senegal arose from the refusal by Senegal to prosecute or extradite Hissène Habré, who had committed gross violations of human rights in Chad during his time as President. Immunities and Criminal Proceedings and Alleged Violations of the 1955 Treaty were politically sensitive too: the former because it touched on the immunity of the Vice-President of Equatorial Guinea; the latter because it arose from the US administration’s decision to reimpose economic sanctions on Iran on the basis that it had allegedly breached commitments relating to its nuclear programme.
The ICJ had already heard politically sensitive cases featuring requests for provisional measures prior to Georgia v Russian Federation, including United States Diplomatic and Consular Staff in Tehran,Footnote 95 Nicaragua Footnote 96 and Bosnian Genocide.Footnote 97 In those cases, however, the ICJ did not examine the respondents’ arguments against jurisdiction. The question is therefore what the difference is between these cases and those heard since Georgia v Russian Federation that justifies the application of the different jurisdictional tests. A first distinction is that the finding in LaGrand that provisional measures are binding has added to the political sensitivity of requests for such measures. It is now clear that the Court’s orders impose international obligations limiting sovereignty in areas in which States do not wish to give up control, the use of force being an example. A second difference is the change in the political discourse on international law, especially with the rise of populist narratives since the end of the 2000s challenging multilateral institutions and processes.Footnote 98 In this context, it is understandable that the Court would seek to fashion its reasoning to enhance its authority and legitimacy.
In relation to provisional measures, it is unsurprising that the drive to buttress the Court’s authority has resulted in its seeking to provide detailed justification for its jurisdiction, explaining the adoption of the granular approach. This approach responds to the concern of States that the Court may take an expansive view of its jurisdiction. It is States that define the Court’s jurisdiction under the Statute, special agreements and other treaties containing compromissory clauses. The definition of jurisdiction is an ex ante political constraint which operates to limit the Court’s jurisdiction even before a case is brought, and which States expect the Court to heed.Footnote 99 To do so, the ICJ can use jurisdictional arguments, which also help it avoid engaging with politically sensitive issues.Footnote 100 An example is finding that there is no ‘dispute’ between the parties, as the Court did in the Nuclear Disarmament cases.Footnote 101 Similarly, the granular approach can help the Court to avoid indicating provisional measures in politically charged cases, such as Legality of the Use of Force. Even where the ICJ indicates provisional measures, the granular approach can provide an argumentative framework for dissenting judges to influence the outcome of subsequent decisions on jurisdiction. In Georgia v Russian Federation, a seven-judge minority dissented from the Court’s finding on jurisdiction at the provisional measures stage. At the preliminary objections stage, that minority was part of the ten-judge majority which found that there was no jurisdiction because the preconditions under Article 22 CERD had not been satisfied.Footnote 102 Whether the granular approach is used as an avoidance technique by the Court or as a framework for dissenting opinions, it is an instrument that the Court can use in politically sensitive cases either to find that it lacks jurisdiction, or to give the appearance that it has grounded its jurisdiction in sound reasoning.
4. Ramifications of the granular approach
The granular approach has two main ramifications: first, it has generated inconsistency in the ICJ’s jurisprudence; and second, it promotes a conception of the ICJ’s judicial function as focused on the settlement of disputes rather than on the development of international law or the maintenance of public order.
4.1. Inconsistency in the Court’s jurisprudence
There are three strands of inconsistency that have been introduced into the ICJ’s jurisprudence through its adoption of the granular approach: first, the granular approach is so malleable that, by applying it, the Court risks treating like cases differently; second, it overlaps with the plausibility test, which is a separate requirement for provisional measures; and third, it overlaps with the Oil Platforms test, which the Court uses to make definitive decisions on whether it has jurisdiction ratione materiae.
4.1.1. Malleability of the granular approach
The granular approach is a more malleable jurisdictional test than the prima facie test. Under the latter, as long as an applicant relied on a possible jurisdictional title, parties could expect the Court to find that it had jurisdiction, unless a respondent’s objections were already so compelling at the provisional measures stage that the only sound decision was not to indicate provisional measures for want of jurisdiction.Footnote 103 The granular approach, however, requires consideration of a respondent’s jurisdictional objections and an examination of the available evidence, which introduce indeterminacy into the ICJ’s decisions on jurisdiction.
First, the Court exercises a high degree of discretion in determining whether a jurisdictional objection is ‘sufficiently’ compelling to justify finding that there is no jurisdiction. The function of courts of law is to decide whether an argument is more convincing than another by exercising their judgment. It is undesirable to limit this appreciation too much. However, the ‘sufficiency’ element may give the Court too much discretion in evaluating jurisdictional objections, which offsets the equally important need for predictability in that evaluation.
Second, there is no clear guidance concerning whether and how closely the Court should examine the evidence relating to a respondent’s jurisdictional objections. Absence of clarity on the evaluation of evidence is not specific to provisional measures proceedings but, rather, is a general concern given the paucity of specific rules on evidence at the ICJ.Footnote 104 Under the prima facie test, the Court did not have to worry about whether and how to assess evidence relating to a respondent’s jurisdictional objections. Parties also knew that the Court would not consider respondents’ objections in relation to jurisdiction.
The indeterminacy resulting from these two factors shows how malleable the granular approach can be. Two cases exemplify this malleability and how the Court can use the granular approach to justify any decision on jurisdiction that it may wish to make. In Immunities and Criminal Proceedings Footnote 105 and in Qatar v United Arab Emirates (UAE),Footnote 106 the existence of the Court’s jurisdiction depended on the interpretation of certain treaty provisions. Despite the similarity of the underlying question, the Court applied the granular approach differently: it interpreted the Palermo Convention in Immunities and Criminal Proceedings, thus raising the jurisdictional bar, but deferred interpretation of CERD in Qatar v UAE, thus lowering that same bar.
In Immunities and Criminal Proceedings, the parties disputed whether Article 4 Palermo Convention incorporated rules of customary international law on the immunity of State officials. Equatorial Guinea argued that it did because, under Article 4 itself, States must implement their obligations consistently with ‘the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States’.Footnote 107 The Court stated that Article 4 ‘does not appear to … incorporate rules of customary international law concerning those immunities’ and, on that basis, found in the order on provisional measures that it lacked jurisdiction.Footnote 108 The Court developed its reasoning along two strands: first, it looked at the provisions of the Palermo Convention to identify the types of obligations that they created; and second, it characterised the dispute not as an assessment of France’s performance of its obligations under the Palermo Convention but, rather, as an examination of whether Equatorial Guinea’s Vice-President had immunity ratione personae under customary international law.Footnote 109 Under the granular approach, the Court did not need to consider other provisions of the Palermo Convention or to characterise the dispute. The Court could merely have stated that references to sovereign equality and non-intervention were sufficiently open-ended to incorporate customary rules into the Palermo Convention, leaving the interpretation of Article 4 to a later stage in the proceedings. Such a decision would also have been consistent with the practice, under the granular approach, not to interpret treaty provisions.Footnote 110
Qatar v UAE also raised a question of treaty interpretation. Article 1 CERD lists ‘national origin’ as a ground of discrimination that is prohibited under CERD. The parties disputed whether ‘national origin’ encompassed ‘nationality’, meaning that discrimination based on ‘nationality’ would also be prohibited under CERD.Footnote 111 The Court found that it did not need to address this issue at the provisional measures stage and decided that it had jurisdiction ratione materiae to indicate provisional measures.Footnote 112 Unlike in Immunities and Criminal Proceedings, where the judges unanimously found that the Court had jurisdiction, in Qatar v UAE four judges dissented on the ground that ‘national origin’ did not cover ‘nationality’.Footnote 113 Given the disagreement among judges, the Court had more cause to interpret Article 1 CERD in this case, however cursorily, than it did to interpret Article 4 Palermo Convention in Immunities and Criminal Proceedings. In fact, the Court later decided that it lacked jurisdiction when it interpreted Article 1 CERD at the preliminary objections stage.Footnote 114 In Qatar v UAE, the Court could have made the same finding that it lacked jurisdiction as it made in Immunities and Criminal Proceedings. The fact that the granular approach allows such different outcomes in such similar cases indicates how much flexibility the Court has when applying it.
The danger of a high degree of flexibility is that it enables the Court to treat like cases differently, exactly as it did in the above cases. Such an approach reflects poorly on the consistency of the Court’s jurisprudence. Inconsistency could adversely affect the quality of judicial reasoning and diminish the authority of the Court’s decisions as a consequence.Footnote 115 Reduced authority can generate various problems, including a weaker pull towards compliance.Footnote 116 At the level of normative authority, persuasive, high-quality reasoning significantly enhances an international judicial body’s reputation among States. A good reputation makes an international judicial body an attractive dispute settlement forum, especially in a system without compulsory jurisdiction where international courts and tribunals compete for cases.Footnote 117 The ICJ is not in dire need of attracting more cases, with its docket as full as ever. However, the Court must remain aware of the risk of its caseload decreasing, as occurred in the 1970s and 1980s, and the possibility it may need to capitalise on its reputation to gain judicial business in the future.
4.1.2. Overlap with the plausibility test
The granular approach overlaps with the test to apply the plausibility requirement, at least where it requires the Court to address jurisdiction ratione materiae. The Court performs the same exercise to decide whether an applicant’s claims are plausible and whether, under the granular approach, it has jurisdiction ratione materiae. To avoid redundancy, the ICJ could dispense with the second stage of the plausibility test and continue applying the granular approach to jurisdiction.
As introduced in Belgium v Senegal, plausibility requires the Court to find whether an applicant’s claimed rights might have a basis in international law. The Court subsequently developed the plausibility requirement into a two-stage test, which also requires it to ascertain whether an applicant’s claims might be supported by the evidence available at the provisional measures stage.Footnote 118 In other words, the Court assesses the plausibility of claims by assessing whether a right exists and whether a respondent’s conduct might constitute a breach of the applicant’s rights. To address issues of jurisdiction under the granular approach, the Court may have to decide whether it has jurisdiction ratione materiae. The test for the latter is that formulated in Oil Platforms, under which the Court must assess whether the violations alleged fell within the provisions of the treaty, ‘and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain’.Footnote 119 This decision requires the Court to examine whether a respondent’s conduct might fall within the provisions of the relevant treaty, which means determining whether that conduct has the potential to amount to a breach of an applicant’s rights. The Court’s task at the second stage of the plausibility test is strikingly similar, even identical to its task under the granular approach in regard to jurisdiction ratione materiae.
If the Court stopped assessing the plausibility of claims entirely, plausibility would return to being a requirement concerned only with the existence of an applicant’s claimed rights, as it was when it was introduced in Belgium v Senegal. Framed as an inquiry into the existence of a right, plausibility would remain a useful requirement for provisional measures because no other requirement fulfils its particular function, that of allowing the Court to indicate provisional measures only where applicants invoke rights that might have a basis in international law. Assessing the plausibility of claims fulfils a separate function, allowing the Court to indicate provisional measures only where a respondent might breach an applicant’s plausible rights. A similar function is, however, fulfilled by another requirement for provisional measures, irreparable prejudice.Footnote 120 The aim of irreparable prejudice is to establish whether a respondent might prejudice an applicant’s rights irremediably before the Court’s final judgment, allowing it to indicate provisional measures only if a respondent might breach an applicant’s rights.Footnote 121
Yet, irreparable prejudice and plausibility of claims are not coextensive. Irreparable prejudice allows the indication of provisional measures where there might not only be a breach by a respondent, but irremediable prejudice would be caused by that breach. The latter aspect is irrelevant to the plausibility of an applicant’s claims. There may thus be cases in which an applicant’s claims are plausible, but the prejudice is not irreparable. The consequence would be that irreparable prejudice cannot always fulfil the function of assessing the plausibility of claims. This view is, however, unconvincing. Irreparable prejudice is a threshold question concerning whether the seriousness of the prejudice can rise to the level of irreparability.Footnote 122 When examining irreparable prejudice, the Court seeks to determine not whether there is a breach, but whether a respondent could make reparation for causing that prejudice. Irreparable prejudice does not require a yes-or-no answer concerning the existence of a breach. Thus understood, irreparable prejudice presupposes that there might be a breach. If the Court reaches the point at which it must consider the irreparability of the prejudice, it should necessarily be satisfied that it has jurisdiction under the granular approach, and therefore that a respondent’s conduct might constitute a breach of an applicant’s rights.
The Court has not assessed jurisdiction ratione materiae in all provisional measures cases since adopting the granular approach, but only where respondents have raised ratione materiae objections.Footnote 123 The problem could therefore be that the Court may analyse irreparable prejudice without having first established whether there might be a breach of an applicant’s rights. This situation could be problematic only where the Court finds that prejudice is not irreparable, as to find otherwise presupposes that there might be a breach. In a scenario where prejudice is not irreparable, the Court would not indicate provisional measures. This would be the result if the Court did not examine jurisdiction ratione materiae but determined that prejudice is not irreparable. This would also be the result if the Court did examine jurisdiction ratione materiae: if the Court found that a respondent’s conduct might not amount to a breach of an applicant’s rights, it would not indicate provisional measures; if the Court found instead that a respondent’s conduct might constitute a breach of an applicant’s rights, it would not indicate provisional measures either because, in this scenario, prejudice is not irreparable. The choice to examine jurisdiction ratione materiae or not does not have an impact on the result, as the Court would not indicate provisional measures in any event.
If the Court stopped assessing the plausibility of claims, the function of assessing whether there might be a breach, a task currently shared between plausibility and irreparable prejudice, would be sufficiently fulfilled by the irreparable prejudice and jurisdiction assessments. Irreparable prejudice presupposes a possible breach, while jurisdiction ratione materiae confirms whether the conduct might constitute such a breach. Thus, even if plausibility were confined to an inquiry into rights, which would better define its unclear contours that have generated much scholarly debate,Footnote 124 the Court would still safeguard against indicating provisional measures in cases lacking a plausible basis for breach, enhancing conceptual clarity and avoiding duplicative analyses.
Framing plausibility as concerning only the existence of rights would also limit its usefulness to cases in which applicants invoke rights under customary international law. Where applicants request provisional measures in respect of treaty rights, the existence of those rights in principle is certain, which is not necessarily the case for rights under customary international law.Footnote 125 Certain Documents and Data is a good example of the latter. Timor-Leste invoked a customary right to confidential communication with legal counsel, which the Court found to be plausible because it might be ‘derived from the principle of the sovereign equality of States’.Footnote 126 It is possible to imagine cases in which even a treaty right might not be found to be a plausible basis, for example, where an applicant puts forward a ludicrous interpretation of the treaty provision from which that right would stem. Such situations are unlikely in practice but, even if they were to materialise, the Court could address them using the granular approach to jurisdiction.
4.1.3. Overlap with the Oil Platforms test
The granular approach may be a sound substitute for assessing the plausibility of claims, but it raises problems of consistency with the Oil Platforms test. The Court uses this test to decide definitively whether it has jurisdiction ratione materiae in cases brought under a compromissory clause.
The Court has formulated the Oil Platforms test as a uniform approach, under which it decides whether a respondent’s conduct can, in principle, constitute a breach of the obligations under the treaty that contains the compromissory clause conferring jurisdiction on it.Footnote 127 In fact, the Oil Platforms test comprises three variants, which the ICJ applies separately, sometimes within the same judgment.Footnote 128 First, under the ‘dispute variant’, the Court decides only whether there is a dispute regarding the interpretation of the relevant treaty, as it did in Immunities and Criminal Proceedings in regard to Equatorial Guinea’s claims relating to the Vienna Convention on Diplomatic Relations (VCDR).Footnote 129 Second, under the ‘conduct variant’, the Court considers whether a respondent’s conduct can, in principle, amount to a breach of an applicant’s rights, as it did in respect of Ukraine’s claims against the Russian Federation relating to CERD.Footnote 130 Third, under the ‘interpretation variant’, the Court fully interprets the provisions of the treaty on which an applicant relies, as it did with Article X 1955 Treaty to determine that it had jurisdiction over Iran’s claims in Oil Platforms itself.Footnote 131 The dispute variant of the Oil Platforms test requires the Court to decide only whether the parties dispute the interpretation of a treaty, but under the granular approach the Court applies a more exacting test by also assessing the parties’ conduct based on the available evidence. It is procedurally problematic for the Court to apply a more exacting jurisdictional test at the provisional measures stage, under the granular approach, than it does when making a final determination on jurisdiction, under the Oil Platforms test.
With respect to the conduct variant, there is substantial overlap between what the Court does to find whether it has jurisdiction ratione materiae at the provisional measures stage under the granular approach and what it does to find whether it has jurisdiction ratione materiae at the preliminary objections stage under the Oil Platforms test. The two tests are formulated in similar terms with the same practical effect: Georgia v Russian Federation requires the Court to analyse whether ‘the acts alleged by Georgia appear to be capable of contravening rights provided for by CERD’,Footnote 132 and Oil Platforms requires the Court to ‘ascertain whether the violations of the Treaty of 1955 pleaded by Iran do or do not fall within the provisions of the Treaty’.Footnote 133 Both tests require the Court to decide whether a respondent’s conduct can, in principle, constitute a breach of an applicant’s rights. It is possible that the Court applies two distinct jurisdictional thresholds when deciding whether a respondent’s conduct might amount to a breach of an applicant’s rights: a lower one under the granular approach at the provisional measures stage and a higher threshold under the Oil Platforms test at the preliminary objections stage.
However, this is not borne out by the jurisprudence, which shows that, within the same case, the Court has applied a higher jurisdictional threshold under the granular approach than under the Oil Platforms test. With respect to Ukraine’s claims against the Russian Federation under CERD, at the provisional measures stage the Court found that ‘the acts referred to by Ukraine … appear to be capable of falling within the scope of CERD ratione materiae’.Footnote 134 At the preliminary objections stage, the Court found that ‘the measures of which Ukraine complains … are capable of having an adverse effect on the enjoyment of certain rights protected under CERD’.Footnote 135 Under the granular approach, the Court found that the Russian Federation’s acts might fall within the material scope of CERD. In making this finding, the Court did not indicate that the Russian Federation might have breached only some of Ukraine’s claimed rights, the implication being that the Russian Federation might have breached all those rights. Conversely, under the Oil Platforms test, the Court determined that the Russian Federation’s acts might have breached only ‘certain’ of Ukraine’s claimed rights. The Court’s statement in its order on provisional measures, indicating that the Russian Federation might have breached all of Ukraine’s claimed rights, appears more exacting than its statement in its judgment on preliminary objections, that the Russian Federation might have breached only some of those rights, which the Court did not even identify. This difference suggests that the Court applied a higher jurisdictional threshold at the provisional measures stage.
Furthermore, in some cases the Court has appeared to examine the available evidence more thoroughly under the granular approach than under the Oil Platforms test. The Court’s reasoning in the orders since Georgia v Russian Federation indicates that it decides on the respondents’ arguments against jurisdiction by considering the evidence available at the provisional measures stage, though perhaps not in much depth.Footnote 136 The approach to evidence under the Oil Platforms test is ambiguous. Judges debated what that approach should be in Oil Platforms itself. Judge Ranjeva stated that the Court should establish whether an applicant’s case was ‘plausible’.Footnote 137 Judge Higgins instead wrote that the Court should ‘accept pro tem the facts as alleged by [an applicant] to be true’.Footnote 138 This debate developed most clearly in the case between Ukraine and the Russian Federation under the ICSFT and CERD at the preliminary objections phase. Ukraine took Judge Higgins’ view in its submissions,Footnote 139 while the Russian Federation argued that the Court should be satisfied that ‘there is a plausible claim under the treaty being relied on’.Footnote 140 The Court’s view on this point was unclear, as it stated that ‘an examination … of the plausibility of the claims is not generally warranted’ while adding that its task ‘is to consider the questions of law and fact that are relevant to the objection to its jurisdiction’.Footnote 141
If the Court did not consider questions of fact at the preliminary objections stage, this appears to be a less exacting jurisdictional examination than under the granular approach at the provisional measures stage, which seems procedurally unjustifiable. If the Court considers questions of fact at the preliminary objections stage, what it would do under the Oil Platforms test would be similar to what it would do under the granular approach. The question arises concerning the utility of, and opportunity for, examining jurisdiction twice in the same proceedings by a comparable, quite possibly identical, approach. By doing so, the Court might seek to ensure that respondents perceive that it has given their arguments against jurisdiction adequate consideration, which may help avoid disagreement with the Court’s finding on jurisdiction becoming a basis for respondents to justify not complying with a judgment on the merits.Footnote 142 The potential gain from retaining a respondent’s goodwill should be balanced with the perception of the Court’s reasoning by other States. Cogency of reasoning increases the authority of the Court’s decisions,Footnote 143 which contributes to making ICJ litigation an attractive mechanism for States to settle their disputes. It is at least doubtful, and possibly unlikely, that States would perceive the application of identical jurisdictional tests in two separate stages of the same proceedings as cogent reasoning.
However, there may be a way to solve the problems of consistency between the granular approach and the Oil Platforms test. The Court could always apply the Oil Platforms test by way of its ‘interpretation variant’. The practice under the granular approach is not to interpret the treaty provisions on which applicants have relied. The ‘interpretation variant’ requires the Court to perform a distinct exercise from that under the granular approach, which should avoid the overlap that results from applying the ‘conduct variant’. There are three obstacles to using the ‘interpretation variant’ to solve issues of consistency between the Court’s jurisdictional tests. First, under the ‘interpretation variant’, the Court has sometimes interpreted treaty provisions only to decide whether a respondent’s conduct might constitute a breach of its obligations under the provisions as interpreted. Examples of this approach are Oil Platforms and Certain Iranian Assets.Footnote 144 Applying the ‘interpretation variant’ is no guarantee that there will be no overlap between the assessments of jurisdiction at the preliminary objections and provisional measures stages.
Second, it is possible that the ‘interpretation variant’ does not entail a more exacting jurisdictional threshold than the granular approach. The ICJ performs two different exercises under each test, one interpretive and the other evaluative of the evidence, which makes it difficult to compare them to decide which is more exacting. Where, to apply the ‘interpretation variant’, the Court also considers whether a respondent’s conduct might constitute a breach of an applicant’s rights, the jurisdictional threshold appears higher than under the granular approach, but it seems difficult to take this assessment any further.
Third, applying the ‘interpretation variant’ depends also on whether a respondent objects to an applicant’s reading of the relevant treaty. Respondents seem likely to make such an objection, but they might choose not to, instead disputing only the claim that their conduct amounts to a breach of the applicant’s rights. Even in the more likely case where a respondent contests an applicant’s reading of the relevant treaty, it would not be certain that the Court would apply the ‘interpretation variant’. In Immunities and Criminal Proceedings, for example, the parties disputed the meaning of ‘premises of the mission’ under Article 1(i) VCDR, but the Court determined that it had jurisdiction, without interpreting that provision, based on the existence of an interpretive dispute between the parties.Footnote 145
4.2. Judicial function as dispute settlement
The granular approach responds to concerns that sovereignty is being eroded by apparent excesses of judicial power, such as the Court asserting jurisdiction where it may not exist.Footnote 146 It also stems from the Court’s concern to discourage States from involving it in politically sensitive disputes. The granular approach emerges as an instrument of avoidance. The implication of using this approach is that the Court promotes, implicitly or otherwise, a conception of its judicial function focused on dispute settlement, instead of a conception extending to the development of international law and the maintenance of public order. Promoting this conception suggests that the granular approach is an instrument to enhance legitimacy that could help to alleviate the concerns of those States which have been openly challenging multilateral institutions like the Court.Footnote 147
Broadly, the ICJ’s judicial function has two aims: first, settling disputes;Footnote 148 and second, developing the law and maintaining public order.Footnote 149 These aims are not mutually exclusive and could be seen as complementary, being integral parts of the international judicial function.Footnote 150 The significance of each aim varies from case to case and over time. The dispute settlement aim is likely preponderant in politically sensitive cases, which may justify a restrained approach by the ICJ and thus are not always appropriate opportunities to introduce new developments. The dispute settlement aim is likely preponderant also at times when the Court may face backlash from States, for example because States perceive, justifiably or not, that it has engaged in judicial activism.Footnote 151 Regardless of which aim appears predominant in particular cases, these aims emphasise different aspects of the Court’s judicial function. Settling disputes fulfils a primarily private function, in principle through the Court’s exercise of its contentious jurisdiction.Footnote 152 Developing international law and maintaining public order fulfil a distinctly public function that finds expression in the Court’s exercise of its advisory jurisdiction,Footnote 153 though the Court can also develop international law incidentally to the settlement of disputes.Footnote 154 In the context of Part XV of the UN Convention on the Law of the Sea (UNCLOS), these two aims have been conceptualised as a ‘procedural’ and a ‘substantive’ model: while the former emphasises consent and maximises sovereignty, the latter implies a responsibility to ensure the balance of rights between UNCLOS State Parties.Footnote 155
Underlying the granular approach are the hallmarks of the private or procedural conception of the judicial function. First, the granular approach applies in contentious proceedings, in which the Court’s primary aim is likely to be dispute settlement. Second, the granular approach emphasises consent because it raises the jurisdictional bar in provisional measures proceedings and, therefore, requires the Court to be more certain that parties have consented to its jurisdiction than under the prima facie test. Third, the granular approach maximises respect for sovereignty, its adoption being motivated, at least in part, by the concern to avoid imposing legal obligations on States by means of provisional measures.
Nevertheless, the adoption of the granular approach is not entirely incompatible with the public or substantive conception of the judicial function. The granular approach results from the Court’s development of its earlier approach to jurisdiction, the prima facie test. This development would fit within a public or substantive conception of the judicial function. The distinction is between the granular approach’s adoption and its application: its adoption is an exercise in the public or substantive judicial function, while its application is an exercise in the private or procedural judicial function. There are other ICJ cases that exemplify this distinction. In the Nuclear Disarmament cases, the Court developed the concept of ‘dispute’, a prerequisite to its jurisdiction, by adding the requirement that respondents must be aware, or could not be unaware, that their views are positively opposed by the views of the applicants.Footnote 156 New approaches or new requirements may emphasise consent and maximise sovereignty, but their very adoption illustrates the Court’s law-developing power. Although the power to develop the law is limited to the moment in time when the Court adopts a new approach or requirement, considerations of consent and maximisation of sovereignty project into the future, because in principle the Court applies new approaches and requirements across future cases. Even though the Court exercised its public or substantive judicial function in developing the granular approach, it has exercised, and continues to exercise, its private or procedural judicial function by repeatedly applying that approach.
As the granular approach emphasises consent, it can be seen as an instrument for the Court to enhance the legitimacy of its orders on provisional measures. The role of consent as a source of legitimacy, understood as the right to rule,Footnote 157 has declined,Footnote 158 but the Court still derives significant legitimacy from respecting the jurisdictional limits imposed by State consent.Footnote 159 The prima facie test prioritised an applicant’s consent, because it focused on whether an applicant provided a basis that might found the Court’s jurisdiction. The Court paid little regard to whether a respondent’s consent was more limited than an applicant’s because it did not consider a respondent’s arguments against jurisdiction unless they showed an obvious lack of jurisdiction. The granular approach strikes a different, and fairer, balance between an applicant’s and a respondent’s consent, which underlies the granular approach, by which the Court aims to determine which party has the better argument on the material available.
Seen in this light, the granular approach can result in decisions that better reflect the scope of the parties’ consent, which can enhance the legitimacy of the Court’s orders on provisional measures, both in terms of ‘input’ and ‘output’ legitimacy.Footnote 160 Input legitimacy is concerned with whether the Court has made its orders pursuant to established procedures. This includes whether the Court’s jurisdiction in contentious cases has a sound basis, which is based on consent and is given greater focus under the granular approach.Footnote 161 Greater focus on consent can enhance output legitimacy too, which is concerned with whether the Court’s orders alleviate the concerns of States,Footnote 162 including ensuring that the Court respects the limits of States’ consent to jurisdiction. The granular approach ensures respect for those limits better than the prima facie test. It also indicates that the Court pays more attention to another concern of States, that of avoiding restrictions on their sovereignty, especially where their vital interests are concerned.Footnote 163 Greater legitimacy can also strengthen the pull towards compliance with provisional measures.Footnote 164 Legitimacy is especially important at present, with numerous States undermining, or at least not openly supporting, international law, its institutions and processes. Increasing legitimacy may not address States’ criticism of the Court, but it can result in the Court remaining a viable, even attractive, dispute settlement forum. The granular approach can contribute to achieving this result.
5. A ‘good arguable’ case test
Since Georgia v Russian Federation, the ICJ has developed the established prima facie test for jurisdiction in provisional measures cases into a new approach. Under this approach, the Court considers not only whether an applicant has provided a basis on which jurisdiction might be founded, as it would do under the prima facie test, but it also examines a respondent’s arguments against jurisdiction and the evidence relevant to them. This approach requires a more granular consideration of jurisdictional questions at the provisional measures stage than under the prima facie test. This change in approach is likely to have been prompted by the Court’s recognition, in LaGrand, that provisional measures are binding. The possibility of casting questions of jurisdiction as questions concerning the existence of the rights to be protected, also a legacy of LaGrand, further illustrates the connection between the adoption of the granular approach and the binding character of provisional measures. Another potential motivation for developing a more granular approach is the political sensitivity of the cases in which the Court introduced and consolidated it.
Applying the granular approach, however, has some implications. First, it is vaguely formulated and, consequently, sufficiently malleable that the Court can use it to justify any decision it wishes to make concerning jurisdiction. Conversely, under the prima facie test, the parties could reasonably expect that the Court would not find that it lacked jurisdiction at the provisional measures stage. Second, the granular approach overlaps with the plausibility test applicable in deciding whether to indicate provisional measures. To address this overlap, the Court could stop applying the second limb of the test, assessing the plausibility of claims, because the function of that second limb would be subsumed by the inquiries into irreparable prejudice and jurisdiction ratione materiae under the granular approach. Third, the Court’s analysis under the granular approach overlaps with its analysis under the Oil Platforms test. The granular approach entails a jurisdictional threshold higher than that under the ‘dispute variant’ of the Oil Platforms test and an evaluation of jurisdiction at least identical to the one required by the ‘conduct variant’ of that test. Fourth, by adopting the granular approach, the Court promotes a private conception of its judicial function, aimed primarily at settling disputes rather than at developing international law or maintaining public order.
The essence of the granular approach is to require the ICJ to determine whether, on the material available, an applicant has better arguments for jurisdiction than a respondent against it. If one had to choose a label for this granular approach, it might be that of a ‘good arguable case’ test. Regardless, it remains that the Court has abandoned its classic, prima facie jurisdiction test and has been applying a granular approach widening the focus of its analysis from the applicant’s arguments for jurisdiction to the respondent’s arguments against it.
Acknowledgements
The author thanks Marco Dimetto, Jessica Joly Hébert, Paolo Palchetti and the reviewers for their comments. The usual caveats apply.
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