108
place in the ITLOS jurisprudence. To date, ten out of twenty-five cases submitted to
ITLOS involved a request for the prescription of provisional measures and the
Tribunal prescribed provisional measures in nine cases (see Table 1).
Provisional measures aim to preserve the respective rights of the disputing parties pending the final decision of a court and effective judicial functions.
1
If the
preservation of rights were not urgent, it would be acceptable to wait until such time
as the international court would render the judgment. Thus, a time element, i.e.
urgency, can be thought to be an essential requirement to prescribe provisional measures.
2
The requirement of urgency is explicitly provided in Art. 290(5) of the UN
Convention of the Law of the Sea (LOSC) as follows
3
:
1 See for instance, ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order, 18
July 2011, para. 33; ICJ, Case Concerning Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua v. United States), Provisional Measures, Order, 10 May 1984, para. 32; ICJ,
Aegean Sea Continental Shelf (Greece v. Turkey), Provisional Measures, Order, 11 September
1976, Separate Opinion of President Jiménez de Aréchaga; Kolb (2013), p. 616.
2 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures, Order, 27 August 1999, Separate Opinion of Judge Treves, para. 2; Sugihara (1996),
p. 279; Treves (2017), p. 1873.
3 10th December 1982. Entered into force on 16th November 1994. Text in: 1833 UNTS 3.
Table 1 List of ITLOS cases concerning provisional measures
Year
Case
Outcome
1998
The M/V “SAIGA”(No. 2) Case
Prescribed
a
(Saint Vincent and the Grenadines v. Guinea)
1999
The Southern Bluefin Tuna Cases
Prescribed
a
(New Zealand v. Japan; Australia v. Japan)
2001
The MOX Plant Case
Prescribed
a
(Ireland v. United Kingdom)
2003
The Land Reclamation Case
Prescribed
a
(Malaysia v. Singapore)
2010
The M/V “Louisa” Case
Not-prescribed
(Saint Vincent and the Grenadines v. Spain)
2012
The “ARA Libertad” Case
Prescribed
a
(Argentina v. Ghana)
2013
The “Arctic Sunrise” Case
Prescribed
a
(The Netherlands v. Russian Federation)
2015
Dispute concerning Delimitation of the Maritime
Boundary between Ghana and Côte d’Ivoire in the
Atlantic Ocean
Prescribed
a
(Ghana v. Côte D’Ivore)
2015
The “Enrica Lexie” Incident
Prescribed
a
(Italy v. India)
Bold: the State which requested provisional measures
a
ITLOS prescribed measures different in whole or in part from those requested
Y. Tanaka
place in the ITLOS jurisprudence. To date, ten out of twenty-five cases submitted to
ITLOS involved a request for the prescription of provisional measures and the
Tribunal prescribed provisional measures in nine cases (see Table 1).
Provisional measures aim to preserve the respective rights of the disputing parties pending the final decision of a court and effective judicial functions.
1
If the
preservation of rights were not urgent, it would be acceptable to wait until such time
as the international court would render the judgment. Thus, a time element, i.e.
urgency, can be thought to be an essential requirement to prescribe provisional measures.
2
The requirement of urgency is explicitly provided in Art. 290(5) of the UN
Convention of the Law of the Sea (LOSC) as follows
3
:
1 See for instance, ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order, 18
July 2011, para. 33; ICJ, Case Concerning Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua v. United States), Provisional Measures, Order, 10 May 1984, para. 32; ICJ,
Aegean Sea Continental Shelf (Greece v. Turkey), Provisional Measures, Order, 11 September
1976, Separate Opinion of President Jiménez de Aréchaga; Kolb (2013), p. 616.
2 ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures, Order, 27 August 1999, Separate Opinion of Judge Treves, para. 2; Sugihara (1996),
p. 279; Treves (2017), p. 1873.
3 10th December 1982. Entered into force on 16th November 1994. Text in: 1833 UNTS 3.
Table 1 List of ITLOS cases concerning provisional measures
Year
Case
Outcome
1998
The M/V “SAIGA”(No. 2) Case
Prescribed
a
(Saint Vincent and the Grenadines v. Guinea)
1999
The Southern Bluefin Tuna Cases
Prescribed
a
(New Zealand v. Japan; Australia v. Japan)
2001
The MOX Plant Case
Prescribed
a
(Ireland v. United Kingdom)
2003
The Land Reclamation Case
Prescribed
a
(Malaysia v. Singapore)
2010
The M/V “Louisa” Case
Not-prescribed
(Saint Vincent and the Grenadines v. Spain)
2012
The “ARA Libertad” Case
Prescribed
a
(Argentina v. Ghana)
2013
The “Arctic Sunrise” Case
Prescribed
a
(The Netherlands v. Russian Federation)
2015
Dispute concerning Delimitation of the Maritime
Boundary between Ghana and Côte d’Ivoire in the
Atlantic Ocean
Prescribed
a
(Ghana v. Côte D’Ivore)
2015
The “Enrica Lexie” Incident
Prescribed
a
(Italy v. India)
Bold: the State which requested provisional measures
a
ITLOS prescribed measures different in whole or in part from those requested
Y. Tanaka