Unilateral Diplomatic Assurances as an Alternative to Provisional Measures

What is it about?

This article identifies an emerging trend for states to make promises to international courts and tribunals as a way to avoid the court issuing an order to the state. During a case, litigants can request that the court issue provisional measures to the state to order it to not disturb the matter being litigated. In lieu of the order, sometimes states simply promise the court that they will not disturb the status quo. This article assesses and criticizes this practice with a particular focus on the International Court of Justice and European Court of Human Rights.

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Why is it important?

This practice of accepting a promise instead of a court order is beginning to be employed with increasing frequency. This practice brings up concerns over the ability of states to intervene in litigation as a creator of legal obligations rather than a party per se. As such, there is a risk of unequal or abusive intervention in the case. Moreover, promises are not necessarily being examined for credibility and reliability. That being said, the practice of courts is still somewhat inconsistent. There is a risk that the more accommodating practice before the International Court of Justice might migrate to the different context of the European Court of Human Rights.