I Did the Math! (Provisional Measures and the ICJ)

Dear Reader, 

As you might have seen on twitter, on a very rainy Friday afternoon, having come to the end of my workday, I spied the ICJ press release for a new hearing on provisional measures – this time, on the Questions of jurisdictional immunities of the State and measures of constraint against State-owned property (Germany v. Italy). Germany instituted proceedings on 29 April 2022 – a subject of much debate and discussion – and the court has fixed hearings on provisional measures for 9 and 10 May 2022. 

I was impressed at the lightning speed with which these hearings are to take place, and couldn’t shake the impression that the time-line between institution of the application and a request for provisional measures, and the hearings before the court are becoming more compressed. But I didn’t have any empirical data to prove or disprove this. 

So, I got to work and did the math. (And no, I am not one of those lawyers that loves number crunching – in fact I really do not like numbers, like any good lawyer worth their salt!) 

This is a quick analysis of my findings over a quick hour – in terms of methodology, here is what I did – I went over the list of all contentious cases on the ICJ website (here) and looked at cases concluded from 2022 – 2015 (I should probably have gone over all of them, but there is a limit to what I will do on a Friday evening, despite my love of all things international law!) I then also looked at the 15 pending cases before the court and here are my findings: 

• Of the concluded cases, not all had provisional measures requests 

• Of the 21 concluded cases (only 2022 – 2015), there were 8 provisional measures requests and hearings (this included more than one PM request in a case, e.g., Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), where there were two requests and two sets of hearings

• Of the 15 pending cases, there were 7 PM hearings

• Of all these cases with PM hearings (8 concluded + 7 pending = 15 – I can do some math!) – the time between institution of PM request and the hearing was between approximately 54 days (the outer limit, in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and the shortest, in Jadhav (India v. Pakistan) at 7 days (given the death penalty in play, the urgency is reflected in the timeline).

• Many of the earlier cases – 6 cases – are in the range of 25 – 30 days including The Gambia v Myanmar; two are in the range of approximately 50 days (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)) and approximately 40 days (Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America).  

• There does seem to be a shortening of the time frame more recently, with 8 days in the Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)

• The time frame I assume also reflects the substance of the matter before the court

This analysis does not posit any theories. It has really been to satisfy my curiosity and provide a quick look into the workings of the court. And I hope someone picks this up and does a more in-depth study. 

And with that, I’m off to enjoy my Friday evening!