109
Pending the constitution of an arbitral tribunal to which a dispute is being submitted under
this section, any court or tribunal agreed upon by the parties or, failing such agreement
within two weeks from the date of the request for provisional measures, the International
Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes
Chamber, may prescribe, modify or revoke provisional measures in accordance with this
article if it considers that prima facie the tribunal which is to be constituted would have
jurisdiction and that the urgency of the situation so requires.
4
Art. 89(4) of Rules of the Tribunal also makes an explicit reference of urgency,
providing that:
A request for the prescription of provisional measures under article 290, paragraph 5, of the
Convention shall also indicate the legal grounds upon which the arbitral tribunal which is to
be constituted would have jurisdiction and the urgency of the situation.
5
The requirement of urgency in provisional measures provides an insight into the
impact of a time element in procedural rules of international courts and tribunals.
Thus this article seeks to examine the requirement of urgency in the ITLOS jurisprudence concerning provisional measures.
6
Following the Introduction, this article
overviews the practice of ITLOS with regard to the requirement of urgency by comparing it to the practice of the International Court of Justice (ICJ). It then examines
the inter-linkage between urgency and irreparable prejudice. Next, this article analyses the temporal standard for determining the urgency of the situation, before
offering conclusions.
2 The Requirement of Urgency in the Jurisprudence
of ITLOS
2.1 Urgency as a Distinct Requirement
The ICJ, in its jurisprudence made clear that it is only empowered to indicate provisional measures if there is an urgent need to prevent irreparable harm to rights that
are the subject of the dispute.
7
In the words of the ICJ,
Whereas provisional measures under Article 41 of the Statute are indicated ‘pending the
final decision’ of the Court on the merits of the case, and are therefore only justified if there
is urgency in the sense that action prejudicial to the rights of either party is likely to be taken
before such final decision is given.
8
4 Emphasis added.
5 Emphasis added. International Tribunal for the Law of the Sea, Rules of the Tribunal, ITLOS 8,
17 March 2009, available at: https://www.itlos.org/en/basic-texts-and-other-documents/.
6 Generally on this issue, see Miles (2017), pp. 245–252. See also Virzo R (2018).
7 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order, 13
July 2006, Dissenting Opinion of Judge ad hoc Vinuesa, p. 151.
8 ICJ, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order, 29 July
1991, para. 23.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
Pending the constitution of an arbitral tribunal to which a dispute is being submitted under
this section, any court or tribunal agreed upon by the parties or, failing such agreement
within two weeks from the date of the request for provisional measures, the International
Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes
Chamber, may prescribe, modify or revoke provisional measures in accordance with this
article if it considers that prima facie the tribunal which is to be constituted would have
jurisdiction and that the urgency of the situation so requires.
4
Art. 89(4) of Rules of the Tribunal also makes an explicit reference of urgency,
providing that:
A request for the prescription of provisional measures under article 290, paragraph 5, of the
Convention shall also indicate the legal grounds upon which the arbitral tribunal which is to
be constituted would have jurisdiction and the urgency of the situation.
5
The requirement of urgency in provisional measures provides an insight into the
impact of a time element in procedural rules of international courts and tribunals.
Thus this article seeks to examine the requirement of urgency in the ITLOS jurisprudence concerning provisional measures.
6
Following the Introduction, this article
overviews the practice of ITLOS with regard to the requirement of urgency by comparing it to the practice of the International Court of Justice (ICJ). It then examines
the inter-linkage between urgency and irreparable prejudice. Next, this article analyses the temporal standard for determining the urgency of the situation, before
offering conclusions.
2 The Requirement of Urgency in the Jurisprudence
of ITLOS
2.1 Urgency as a Distinct Requirement
The ICJ, in its jurisprudence made clear that it is only empowered to indicate provisional measures if there is an urgent need to prevent irreparable harm to rights that
are the subject of the dispute.
7
In the words of the ICJ,
Whereas provisional measures under Article 41 of the Statute are indicated ‘pending the
final decision’ of the Court on the merits of the case, and are therefore only justified if there
is urgency in the sense that action prejudicial to the rights of either party is likely to be taken
before such final decision is given.
8
4 Emphasis added.
5 Emphasis added. International Tribunal for the Law of the Sea, Rules of the Tribunal, ITLOS 8,
17 March 2009, available at: https://www.itlos.org/en/basic-texts-and-other-documents/.
6 Generally on this issue, see Miles (2017), pp. 245–252. See also Virzo R (2018).
7 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order, 13
July 2006, Dissenting Opinion of Judge ad hoc Vinuesa, p. 151.
8 ICJ, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order, 29 July
1991, para. 23.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…