111
prescribed its own provisional measures different from those requested by
Malaysia.
17
2.2 Provisional Measures Without Reference to Urgency
In other cases, ITLOS prescribed provisional measures even where there was no
urgency of the situation. In the 1998 M/V “Saiga” (No. 2) case, for instance, ITLOS
prescribed its own provisional measures.
18
Yet, it remained mute on the urgency of
the situation, even though Guinea claimed that there was no urgent need for provisional measures in this case.
19
In the 2001 MOX Plant case, ITLOS did not find that
the urgency of the situation requires the prescription of the provisional measures
requested by Ireland in the short period before the constitution of the Annex VII
arbitral tribunal.
20
Nonetheless, it prescribed provisional measures. A possible interpretation might be that the Tribunal found the situation sufficiently urgent to prescribe its own provisional measures, even though the requirement of urgency was
not fulfilled to order measures requested by Ireland. In any case the Tribunal did not
provide any precision in this matter.
21
ITLOS, in the 2010 M/V “Louisa” case between Saint Vincent and the Grenadine
and Spain, focused on the question of whether or not there existed a real and imminent risk that irreparable prejudice would be caused to the rights of the parties,
without referring to urgency.
22
In this case, the Tribunal eventually found that the
circumstances were not such as to require the exercise of its powers to prescribe
provisional measures under Art. 290(1) of the Convention.
23
The existence of the urgency of the situation constituted the most debatable issue
in the 2015 “Enrica Lexie” Incident case between Italy and India.
24
In this case,
Italy requested that ITLOS prescribe the following provisional measures:
(a) India shall refrain from taking or enforcing any judicial or administrative measures against
Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica
Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie
Incident; and
17 Ibidem, Order, para. 106.
18 ITLOS, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Order,
11 March 1998, para. 52.
19 Ibidem, para. 22.
20 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, 3
December 2001, para. 81.
21 Brown (2002), p. 282.
22 ITLOS, The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Spain), Provisional
Measures, Order, 23 December 2010, para. 72.
23 Ibidem, para. 83.
24 ITLOS, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 24 August
2015. For the “Enrica Lexie” incident, see for instance, Ronzitti (2013), Del Vecchio (2015),
Schiano Di Pepe (2016, 2017), and Virzo (2017). See also Tanaka (2017).
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
prescribed its own provisional measures different from those requested by
Malaysia.
17
2.2 Provisional Measures Without Reference to Urgency
In other cases, ITLOS prescribed provisional measures even where there was no
urgency of the situation. In the 1998 M/V “Saiga” (No. 2) case, for instance, ITLOS
prescribed its own provisional measures.
18
Yet, it remained mute on the urgency of
the situation, even though Guinea claimed that there was no urgent need for provisional measures in this case.
19
In the 2001 MOX Plant case, ITLOS did not find that
the urgency of the situation requires the prescription of the provisional measures
requested by Ireland in the short period before the constitution of the Annex VII
arbitral tribunal.
20
Nonetheless, it prescribed provisional measures. A possible interpretation might be that the Tribunal found the situation sufficiently urgent to prescribe its own provisional measures, even though the requirement of urgency was
not fulfilled to order measures requested by Ireland. In any case the Tribunal did not
provide any precision in this matter.
21
ITLOS, in the 2010 M/V “Louisa” case between Saint Vincent and the Grenadine
and Spain, focused on the question of whether or not there existed a real and imminent risk that irreparable prejudice would be caused to the rights of the parties,
without referring to urgency.
22
In this case, the Tribunal eventually found that the
circumstances were not such as to require the exercise of its powers to prescribe
provisional measures under Art. 290(1) of the Convention.
23
The existence of the urgency of the situation constituted the most debatable issue
in the 2015 “Enrica Lexie” Incident case between Italy and India.
24
In this case,
Italy requested that ITLOS prescribe the following provisional measures:
(a) India shall refrain from taking or enforcing any judicial or administrative measures against
Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica
Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie
Incident; and
17 Ibidem, Order, para. 106.
18 ITLOS, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Order,
11 March 1998, para. 52.
19 Ibidem, para. 22.
20 ITLOS, The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, 3
December 2001, para. 81.
21 Brown (2002), p. 282.
22 ITLOS, The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Spain), Provisional
Measures, Order, 23 December 2010, para. 72.
23 Ibidem, para. 83.
24 ITLOS, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 24 August
2015. For the “Enrica Lexie” incident, see for instance, Ronzitti (2013), Del Vecchio (2015),
Schiano Di Pepe (2016, 2017), and Virzo (2017). See also Tanaka (2017).
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…