Binding effect of provisional measures as an inherent judicial power: An example of cross-fertilization

Abstract

The inherent powers of international courts and tribunals are a necessary consequence of properly exercising judicial functions in the context of a legal system lacking a central legislative power, setting the limits of these functions through firm legal rules. The power to grant binding provisional measures is the most extreme example of international judiciary reaching for inherent powers, since this process disregards ordinary textual interpretations of judicial statutes. At the same time, this process is an example of cross-fertilization between different judicial regimes in international law, where tribunals for the law of the sea influence general international courts, which in turn influence investment and human rights tribunals. The limits to these inherent powers must provide that state consent, as the central tenet of international legal order, remains unaffected. The fact that this practice has not met with resistance from states indicates that international courts and tribunals have assumed this inherent power with propriety and logic.