La Cour internationale de justice et la problématique des droits de l'homme

SECTION II : ACADEMIES MEASUREMENTS AND CONSOLIDATION OF the CONSIDERATIONS Of HUMANITY

Modern justice requires that any litigation be distinct within a reasonable time, but that is not always possible for several reasons. Thus, like the adjective « academy » indicates it clearly, academies measurements are intended to prevent that the rights of each part to the disagreement are compromised throughout authority. They make it possible to freeze the situation so that the International Court of Justice can return its decision of court. Indeed, in certain cases of massive violations of humans right, or in the event of frontier conflict between two States ; in the absence of academies measurements, the situation on the ground would be likely to be modified by an armed intervention. Then the war solves the problem and the Court is put in front of an accomplished fact : it is with an aim of avoiding these problems which the States ask of academies measurements or which the Court enacts them itself, « landlord motu ».

We will consider here, the impact of academies measurements in the protection of the humans right (paragraphe1), before approaching their application (paragraph 2).

Paragraph 1: Impact of academies measurements in the protection of the humans right

We will define initially measurements academies (A), before examining their request for indication by the States (B).

A- Definition of academies measurements

Academies measurements are a legal technique making it possible to sterilize the situation between two parts and to avoid an aggravation of the litigation. According to article 41 of its Statute, the Court can indicate « if it estimates that the circumstances require it, which academies measurements of the right of each one must be taken on a purely provisional basis ». Thus in its ordinance of December 15, 1979, relating to the business of the diplomatic and consular Personnel from the United States in Teheran, the Court considers that : « the persistence of the situation which is the subject of the request exposes the human beings concerned to deprivations, a fate painful and distressing and even to dangers to their life and their health and consequently, a serious possibility of irrevocable damage, the Court with the need for indicating academies measurements »^94(*).

To know the extent of the circumstances which can require the indication of academies measurements by the Court, we will refer to his own jurisprudence in the business of Competence as regards fisheries : « considering that right for the Court to indicate academies measurements, envisaged with article 41, of its Statute, with for object to safeguard the rights of the parts while waiting for that the Court returns its decision, that it presupposes that an irrevocable injury should not be caused with the rights in litigation in front of the judge and that no initiative relating to litigious measurements must pre-empt the judgment of the Court »^95(*).

Thus, it is necessary thus to indicate academies measurements when the behavior of a part is likely to cause an irrevocable injury with the rights in question, that is to say to undertake on the decision to come. It is finally by preoccupations of humanity and a safeguard of human dignity that the International Court of Justice indicates academies measurements. Indeed, it is seldom that the Court remained of marble or confined in dumbness, when there is on behalf of the belligerents to the litigation, the violations serious, massive and repeated humans right, or in the event of war violent one.

However, the decision of the Court as regards academies measurements « do not prejudge of anything competence Court to know the bottom of the business and leaves intact the right of the defendant to put forward his means to dispute this competence »^96(*).

* ⁹⁴ CIJ, diplomatic and consular Personnel from the United States in Teheran (Iran against the United States), ordinance in academies measurements of December 15, 1979, Rec., 1979, p. 19. It is indeed at the Court to estimate if the provisional measures are essential, within sight of the situation  : it orders them only if it is convinced of the imminence of a not easily reparable damage.

* ⁹⁵CIJ, Competence as regards fisheries (the United Kingdom C. Iceland, the Federal Republic of Germany C. Iceland), ordinance of August 17, 1972, Rec., 1972, p.16 §21 and p. 34 §22.

* ⁹⁶ CIJ, Interhandel Business, ordinance in academies measurements of October 24, 1957, Rec., 1957, p. 111.