110
The requirement of urgency is consistently examined in the ICJ jurisprudence with
regard to provisional measures.
In some cases, ITLOS also examined urgency as a distinct requirement for prescribing provisional measures. In the 2012 “ARA Libertad” case, for instance,
ITLOS held that:
[A]ttempts by the Ghanaian authorities on 7 November 2012 to board the warship ARA
Libertad and to move it by force to another berth without authorization by its Commander
and the possibility that such actions may be repeated, demonstrate the gravity of the situation and underline the urgent need for measures pending the constitution of the Annex VII
arbitral tribunal.
9
In the 2013 “Arctic Sunrise” case, ITLOS clearly stated that under the circumstances of the present case, “the urgency of the situation requires the prescription by
the Tribunal of provisional measures” pursuant to LOSC Art. 290(5).
10
ITLOS, in
the 1999 Southern Bluefin Tuna Order, found that measures should be taken as a
matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock.
11
Furthermore, ITLOS Special Chamber, in
the 2015 Ghana/Côte d’Ivoire Order, accepted that the risk of irreparable prejudice
to the sovereign rights invoked by Côte d’Ivoire is imminent.
12
The Tribunal’s view in the 2003 Land Reclamation Order seems to be more
nuanced. On the one hand, ITLOS found that the evidence presented by Malaysia
did not show that there is a situation of urgency
13
; and that it did not consider it
appropriate in the circumstances to prescribe provisional measures with respect to
the land reclamation by Singapore in the sector of Tuas.
14
On the other hand, in the
subsequent paragraph, it stated that “[i]t is urgent to build on the commitments
made to ensure prompt and effective cooperation of the parties in the implementation of their commitments”.
15
This passage did seem to imply that the Tribunal
accepted the existence of a situation of urgency to prescribe provisional measures
for ensuring cooperation between the parties in dispute.
16
The Tribunal eventually
9 Emphasis added. ITLOS, The “ARA Libertad” Case (Argentina v. Ghana), Order, 15 December
2012, para. 99.
10 ITLOS, The “Arctic Sunrise” Case (Netherlands v. Russia), Provisional Measures, Order, 22
November 2013, para. 89.
11 Southern Bluefin Tuna Cases, Order, para. 80.
12 ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte
d’Ivoire in the Atlantic Ocean, (Ghana v. Côte d’Ivoire), Order, 25 April 2015, para. 96. For a commentary on this Order, see Tanaka (2015).
13 ITLOS, Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor
(Malaysia v. Singapore), Provisional Measures, Order, 8 October 2003, para. 72.
14 Ibidem, para. 73.
15 Emphasis added. Ibidem, para. 98.
16 In this regard, Judge Rao took the position that the provisional measures prescribed by ITLOS
underlined a sense of urgency arising out of the duty to cooperate as enshrined in Part XII of the
LOSC and general international law. Ibidem, Separate Opinion of Judge Chandrasekhara Rao,
para. 38. However, Judge Anderson took the view that urgency to ensure cooperation of the parties
was “less than self-evident”. Ibidem, Declaration of Judge Anderson, para. 3.
Y. Tanaka
The requirement of urgency is consistently examined in the ICJ jurisprudence with
regard to provisional measures.
In some cases, ITLOS also examined urgency as a distinct requirement for prescribing provisional measures. In the 2012 “ARA Libertad” case, for instance,
ITLOS held that:
[A]ttempts by the Ghanaian authorities on 7 November 2012 to board the warship ARA
Libertad and to move it by force to another berth without authorization by its Commander
and the possibility that such actions may be repeated, demonstrate the gravity of the situation and underline the urgent need for measures pending the constitution of the Annex VII
arbitral tribunal.
9
In the 2013 “Arctic Sunrise” case, ITLOS clearly stated that under the circumstances of the present case, “the urgency of the situation requires the prescription by
the Tribunal of provisional measures” pursuant to LOSC Art. 290(5).
10
ITLOS, in
the 1999 Southern Bluefin Tuna Order, found that measures should be taken as a
matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock.
11
Furthermore, ITLOS Special Chamber, in
the 2015 Ghana/Côte d’Ivoire Order, accepted that the risk of irreparable prejudice
to the sovereign rights invoked by Côte d’Ivoire is imminent.
12
The Tribunal’s view in the 2003 Land Reclamation Order seems to be more
nuanced. On the one hand, ITLOS found that the evidence presented by Malaysia
did not show that there is a situation of urgency
13
; and that it did not consider it
appropriate in the circumstances to prescribe provisional measures with respect to
the land reclamation by Singapore in the sector of Tuas.
14
On the other hand, in the
subsequent paragraph, it stated that “[i]t is urgent to build on the commitments
made to ensure prompt and effective cooperation of the parties in the implementation of their commitments”.
15
This passage did seem to imply that the Tribunal
accepted the existence of a situation of urgency to prescribe provisional measures
for ensuring cooperation between the parties in dispute.
16
The Tribunal eventually
9 Emphasis added. ITLOS, The “ARA Libertad” Case (Argentina v. Ghana), Order, 15 December
2012, para. 99.
10 ITLOS, The “Arctic Sunrise” Case (Netherlands v. Russia), Provisional Measures, Order, 22
November 2013, para. 89.
11 Southern Bluefin Tuna Cases, Order, para. 80.
12 ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte
d’Ivoire in the Atlantic Ocean, (Ghana v. Côte d’Ivoire), Order, 25 April 2015, para. 96. For a commentary on this Order, see Tanaka (2015).
13 ITLOS, Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor
(Malaysia v. Singapore), Provisional Measures, Order, 8 October 2003, para. 72.
14 Ibidem, para. 73.
15 Emphasis added. Ibidem, para. 98.
16 In this regard, Judge Rao took the position that the provisional measures prescribed by ITLOS
underlined a sense of urgency arising out of the duty to cooperate as enshrined in Part XII of the
LOSC and general international law. Ibidem, Separate Opinion of Judge Chandrasekhara Rao,
para. 38. However, Judge Anderson took the view that urgency to ensure cooperation of the parties
was “less than self-evident”. Ibidem, Declaration of Judge Anderson, para. 3.
Y. Tanaka