115
The Court, in the Questions relating to the Obligation to Prosecute or Extradite
between Belgium and Senegal, ruled that:
[T]he power of the Court to indicate provisional measures will be exercised only if there is
urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be
caused to the rights in dispute before the Court has given its final decision.
47
This view was repeatedly confirmed by the Court in subsequent cases, such as
Certain Activities Carried Out by Nicaragua in the Border Area between Costa Rica
and Nicaragua,
48
Application of the International Convention for the Suppression of
the Financing of Terrorism and of the International Convention on the Elimination
of All Forms of Racial Discrimination between Ukraine and the Russian Federation,
49
and the Jadhav case between India and Pakistan.
50
Notably, the scope of irreparable prejudice may change over time. In this regard,
it is of particular interest to note that the loss of life was considered as irreparable
damage to the rights of a State in the ICJ jurisprudence concerning provisional measures. In its Order of 15th March 1996, the Court ruled that:
Whereas the events that have given rise to the request, and more especially the killing of
persons, have caused irreparable damage to the rights that the Parties may have over the
Peninsula; whereas persons in the disputed area and, as a consequence, the rights of the
Parties within that area are exposed to serious risk of further irreparable damage.
51
The ICJ, in the 2011 Preah Vihear (Interpretation) Order, also considered the
loss of life and bodily injuries as an element of irreparable prejudice to the rights of
Cambodia. In the words of the Court,
[T]he rights which Cambodia claims to hold under the terms of the 1962 Judgment in the
area of the Temple might suffer irreparable prejudice resulting from the military activities
in that area and, in particular, from the loss of life, bodily injuries and damage caused to the
Temple and the property associated with it.
52
The Court thus held that: “[B]ecause of the persistent tensions and absence of a
settlement to the conflict, there is a real and imminent risk of irreparable prejudice
47 ICJ, Case Concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Provisional Measures, Order, 28 May 2009, para. 62.
48 ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order, 8 March 2011, para. 64.
49 ICJ, Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russia), Provisional Measures, Order, 19 April 2017, para. 89.
50 ICJ, Jadhav Case (India v. Pakistan), Provisional Measures, Order, 18 May 2017, para. 50.
51 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Provisional Measures, Order, 15 March 1996, para. 42. This view
was echoed by Judges Ajibola and Koroma. Ibidem, Separate Opinion of Judge Ajibola, p. 53;
Ibidem, Declaration of Judge Koroma, p. 30.
52 ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear, Provisional Measures, Order, para. 55.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
The Court, in the Questions relating to the Obligation to Prosecute or Extradite
between Belgium and Senegal, ruled that:
[T]he power of the Court to indicate provisional measures will be exercised only if there is
urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be
caused to the rights in dispute before the Court has given its final decision.
47
This view was repeatedly confirmed by the Court in subsequent cases, such as
Certain Activities Carried Out by Nicaragua in the Border Area between Costa Rica
and Nicaragua,
48
Application of the International Convention for the Suppression of
the Financing of Terrorism and of the International Convention on the Elimination
of All Forms of Racial Discrimination between Ukraine and the Russian Federation,
49
and the Jadhav case between India and Pakistan.
50
Notably, the scope of irreparable prejudice may change over time. In this regard,
it is of particular interest to note that the loss of life was considered as irreparable
damage to the rights of a State in the ICJ jurisprudence concerning provisional measures. In its Order of 15th March 1996, the Court ruled that:
Whereas the events that have given rise to the request, and more especially the killing of
persons, have caused irreparable damage to the rights that the Parties may have over the
Peninsula; whereas persons in the disputed area and, as a consequence, the rights of the
Parties within that area are exposed to serious risk of further irreparable damage.
51
The ICJ, in the 2011 Preah Vihear (Interpretation) Order, also considered the
loss of life and bodily injuries as an element of irreparable prejudice to the rights of
Cambodia. In the words of the Court,
[T]he rights which Cambodia claims to hold under the terms of the 1962 Judgment in the
area of the Temple might suffer irreparable prejudice resulting from the military activities
in that area and, in particular, from the loss of life, bodily injuries and damage caused to the
Temple and the property associated with it.
52
The Court thus held that: “[B]ecause of the persistent tensions and absence of a
settlement to the conflict, there is a real and imminent risk of irreparable prejudice
47 ICJ, Case Concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Provisional Measures, Order, 28 May 2009, para. 62.
48 ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order, 8 March 2011, para. 64.
49 ICJ, Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russia), Provisional Measures, Order, 19 April 2017, para. 89.
50 ICJ, Jadhav Case (India v. Pakistan), Provisional Measures, Order, 18 May 2017, para. 50.
51 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Provisional Measures, Order, 15 March 1996, para. 42. This view
was echoed by Judges Ajibola and Koroma. Ibidem, Separate Opinion of Judge Ajibola, p. 53;
Ibidem, Declaration of Judge Koroma, p. 30.
52 ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear, Provisional Measures, Order, para. 55.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…