Year: 2024
Type: article
Abstract: Introduction. Within the Russian scientific and legal doctrine studying the issue of application of the provisional measures by the international judicial or quasi-judicial bodies and institutions has not become comprehensive yet. On the contrary, the international legal doctrine reveals a wide range of disputable issues in this field, which arise due to the absence of the clear provisions in the statutory documents and regulations of the international judicial, quasi-judicial institutions and tribunals, as consequence, the existing gaps are filled in with the judicial practice. The aim of the article is to study the general guiding principles for application of the provisional measures, which were developed and adopted by the Institute of International Law upon the analysis of application thereof in the international and national dimensions. Materials and Methods. The study was carried out using the dialectical method of cognition as the main scientific method, the general scientific methods of analysis, synthesis, as well as the specific juridical methods – empirical and legalistic ones. Results. In the article the guiding principles for application of the provisional measures have been analysed and systematised, based on the results of the research held by the leading scientists and international law experts, as well as judges of the international institutions and judicial bodies. Upon the results of the study on grouping the provisional measures, it has been revealed that their contribution to the international legal doctrine is significant, since they stipulate a clear attitude to a number of disputable aspects of their application, and at the same time define the certain features of their practical application. Discussion and Conclusion. It has been noted that these principles have already stipulated a list of conditions for application of the provisional measures, as well as an unambiguous attitude to the legally-binding effect thereof. Nevertheless, on the one hand, the guiding principles answer the disputable issues existing in the international legal doctrine, on the other hand, they arise a number of new theoretical and practical issues, which will be a target of this article. In the frame of the present study, it has been found that the purpose and conditions for application of the provisional measures are contained in the several separate guiding principles, however the logic of consistent order of these principles is unclear. In the article the conclusion was made that the disputable issues result from the fact that the guiding principles cover the practices of provisional measures application not only by the international bodies and judicial institutions, but also by the national courts. Availability of the clarifications to each of the principles would facilitate the correct and coherent application of these principles in practice. Moreover, further research into the possibilities of application of the provisional measures in the frame of the general guiding principles proposed by the Institute of International Law is considered important both for the international and Russian legal doctrine.
Source: Legal Order and Legal Values
Authors: A. A. Kuzubov, A. N. Maksimenko
Institution: Don State Technical University
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
OpenAlex ID: W4400544922