Le misure cautelari nei giudizi interstatali sui diritti umani: la prassi recente della Corte internazionale di giustizia e della Corte europea dei diritti umani

In the last few years there has been a significant quantitative increase in requesting interim measures of protection in inter-State cases concerning human rights, namely in inter-State proceedings before the European Court of Human Rights (ECtHR) and in proceedings before the International Court of Justice (ICJ) grounded on the compromissory clauses included in human rights treaties. In these cases, the ultimate beneficiaries of the interim protection are individuals although, formally, proceedings focus on States’ rights and duties (concerning the protection of human rights). The present paper analyses the recent case-law of the said courts from a double perspective: on the one hand, with regard to the conditions for the indication of interim measures of protection; on the other hand, focusing on the characteristics of the measures adopted. The analysis shows that the power to indicate provisional measures is sufficiently flexible in order to adapt it to factual circumstances, aims and purposes which were not originally envisaged when the ECtHR and the ICJ established their practice concerning interim measures. More generally, it can be said that the case-law demonstrates the courts’ increasing willingness to protect human rights rather than focusing exclusively on safeguarding the respective interests of the States which are parties to the proceedings.