114
to the rights of the parties is likely to occur before the arbitral tribunal has been
constituted and become functional.
42
In the view of Judge Heider, it is very unlikely
that a criminal trial over the Italian marines would be commenced within this period
of time.
43
Hence Judge Heider concluded that the requirement of urgency is not
fulfilled.
44
2.3 Summary
The above cursory survey seems to reveal that the ITLOS jurisprudence is inconsistent with regard to the requirement of urgency. In some cases, ITLOS examined the
existence of a situation of urgency as a distinct requirement for prescribing provisional measures. In other cases, however, the Tribunal remained mute on the existence of urgency, while it prescribed provisional measures. It can be observed that
the ITLOS jurisprudence is flexible with regard to the requirement of urgency.
Given that urgency can be regarded as an essential requirement of the prescription of provisional measures, the existence of the urgency of situation needs careful
consideration. In this connection, there is a need to clarify a standard for determining the existence of urgency. In approaching this issue, the inter-linkage between
urgency and irreparable prejudice and the time frame must be examined,
respectively.
3 The Inter-Linkage Between Urgency and Irreparable
Prejudice
3.1 Inter-Linkage Between Urgency and Risk of Irreparable
Prejudice in the ICJ Jurisprudence
In the ICJ jurisprudence concerning provisional measures, there is a clear trend that
the ICJ examines risk of irreparable prejudice and urgency at the same time.
45
By
way of example, the ICJ, in Certain Criminal Proceedings in France, ruled that:
[T]here is at the present time no risk of irreparable prejudice, so as to justify the indication
of provisional measures as a matter of urgency.
46
42 Ibidem, Dissenting Opinion of Judge Heider, paras 7–12.
43 Ibidem, para. 14.
44 Ibidem, para. 2.
45 Sugihara (1996), p. 280; Oellers-Frahm (2012), p. 1047.
46 ICJ, Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional
Measures, Order, 17 June 2003, para. 35.
Y. Tanaka
to the rights of the parties is likely to occur before the arbitral tribunal has been
constituted and become functional.
42
In the view of Judge Heider, it is very unlikely
that a criminal trial over the Italian marines would be commenced within this period
of time.
43
Hence Judge Heider concluded that the requirement of urgency is not
fulfilled.
44
2.3 Summary
The above cursory survey seems to reveal that the ITLOS jurisprudence is inconsistent with regard to the requirement of urgency. In some cases, ITLOS examined the
existence of a situation of urgency as a distinct requirement for prescribing provisional measures. In other cases, however, the Tribunal remained mute on the existence of urgency, while it prescribed provisional measures. It can be observed that
the ITLOS jurisprudence is flexible with regard to the requirement of urgency.
Given that urgency can be regarded as an essential requirement of the prescription of provisional measures, the existence of the urgency of situation needs careful
consideration. In this connection, there is a need to clarify a standard for determining the existence of urgency. In approaching this issue, the inter-linkage between
urgency and irreparable prejudice and the time frame must be examined,
respectively.
3 The Inter-Linkage Between Urgency and Irreparable
Prejudice
3.1 Inter-Linkage Between Urgency and Risk of Irreparable
Prejudice in the ICJ Jurisprudence
In the ICJ jurisprudence concerning provisional measures, there is a clear trend that
the ICJ examines risk of irreparable prejudice and urgency at the same time.
45
By
way of example, the ICJ, in Certain Criminal Proceedings in France, ruled that:
[T]here is at the present time no risk of irreparable prejudice, so as to justify the indication
of provisional measures as a matter of urgency.
46
42 Ibidem, Dissenting Opinion of Judge Heider, paras 7–12.
43 Ibidem, para. 14.
44 Ibidem, para. 2.
45 Sugihara (1996), p. 280; Oellers-Frahm (2012), p. 1047.
46 ICJ, Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional
Measures, Order, 17 June 2003, para. 35.
Y. Tanaka