La codificazione della funzione cautelare internazionale ad opera dell'Institut de droit international

The resolution adopted by the Institut de droit international on general principles of law recognized by civilized nations about the indication of provisional measures lies at the crossroad among private law, private international law and international procedural law. The article compares the content of the resolution with the case-law of the International Court of Justice, which has increasingly resorted to this kind of measures. There is a convergence between the two contexts relating to prima facie jurisdiction on the merits of the dispute as a precondition for the indication of measures. The conditions to which provisional measures are subordinated are also consistent in the two domains. The merits of the case and urgency play a role. A further area of convergence between the resolution and the jurisprudence of the Court concerns the binding nature of the measures, explicitly recognized by the Court since the LaGrand judgment. Finally, the resolution acknowledges the possibility of adopting measures aimed at preventing the aggravation of the dispute. This is consistent with the recent case-law of the International Court of Justice, which has addressed situations involving a risk for human lives by prescribing measures of a rather general scope.