Open AccessŚrodki tymczasowe w stanach nadzwyczajnych. Uwagi na tle sprawy Gruzja v. Federacja Rosyjska przed Międzynarodowym Trybunałem Sprawiedliwości
Author(s) -
Elżbieta Hanna Morawska
Publication year - 2019
Publication title -
polski rocznik praw człowieka i prawa humanitarnego
Language(s) - English
Resource type - Journals
ISSN - 2082-1786
DOI - 10.31648/prpc.3769
Subject(s) - international court , law , political science , principle of legality , jurisdiction , sovereignty , interim , statute , vienna convention on the law of treaties , international law , convention , public international law , politics
The article deals with some aspects of the International Court of Justice (ICJ) jurisdiction considered in recently decided dispute between Georgia and Russian Federation. The analysis essentially covers the question of provisional measures: the conditions for their indication, their legal nature and function.
The article refers to measures indicated under Article 41 of the Statute of the ICJ which allows the Court to indicate provisional measures providing interim protection to the rights of either party to a pending dispute. Having regard to the relevant case-law of the ICJ, two issues are discussed, namely the existence of prima facie jurisdiction and risk of irreparable prejudice and urgency.
In addition to the measures referred to specific measures aimed at preserving specific rights, the article draws attention to the Interim measure of general nature with the view of ensuring the non-aggravation of the dispute between the Parties.
As Russia does not recognize the compulsory jurisdiction of the ICJ, the greater part of the article are dedicated to questions regarding the jurisdictional basis for Georgia’s action before the ICJ and the issues of the procedural preconditions for the sesin of the Court in the compromissory clause, under art. 22 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).
It will also comment on whether the dispute between Georgia and Russia really concerned the issues of “the interpretation or application” of CERD, or respect for others international law principles, i.e. the legality of the use of force, sovereignty, territorial integrity and self-determination.