116
being caused to the rights claimed by Cambodia” and “there is urgency”.
53
It is true
that under Art. 41 of the ICJ Statute, the aim of provisional measures is to preserve
the rights of either party, namely, a State. By considering “the loss of life” and
“bodily injuries” as an element of irreparable prejudice to territorial sovereignty,
arguably the Court may indicate provisional measures for the protection of human
life in a territorial dispute, provided that other conditions for such measures are
fulfilled.
54
Here one may find the impact of the consideration of humanity on the
requirements of urgency and irreparable prejudice to the rights of the parties in dispute to indicate provisional measures.
3.2 Inter-Linkage Between Urgency and Risk of Irreparable
Prejudice in the ITLOS Jurisprudence
In some cases, ITLOS also linked the urgency requirement to irreparable prejudice.
The Ghana/Côte d’Ivoire Order is a case in point. In this Order, the ITLOS Special
Chamber held that it may not prescribe provisional measures unless it finds that
there is “a real and imminent risk that irreparable prejudice may be caused to the
rights of the parties in dispute”.
55
It then ruled that:
[U]urgency is required in order to exercise the power to prescribe provisional measures, that
is to say the need to avert a real and imminent risk that irreparable prejudice may be caused
to rights at issue before the final decision is delivered.
56
After examining the competing claims of the parties, the Special Chamber accepted
the existence of the imminent risk of irreparable prejudice to the sovereign rights of
Côte d’Ivoire.
57
ITLOS, in the MOX Plant case, ruled that provisional measures may be
prescribed
if the Tribunal considered that the urgency of the situation so requires in the sense that
action prejudicial to the rights of either party or causing serious harm to the marine environment is likely to be taken before the constitution of the Annex VII arbitral tribunal.
58
Furthermore, ITLOS, in the Land Reclamation case, stated that:
[T]he evidence presented by Malaysia does not show that there is a situation of urgency or
that there is a risk that the rights it claims with respect to an area of territorial sea would
suffer irreversible damage pending consideration of the merits of the case by the Annex VII
arbitral tribunal.
59
53 Ibidem, para. 56.
54 See also ibidem, Separate Opinion of Judge Cançando Trindade, paras 74–78, and 100.
55 The Ghana/Côte d’Ivoire Case, Order, para. 41.
56 Ibidem, para. 42.
57 Ibidem, para. 96.
58 The MOX Plant Case, Order, para. 64.
59 Case Concerning Land Declamation by Singapore in and Around the Straits of Johor, Order,
para. 72.
Y. Tanaka
being caused to the rights claimed by Cambodia” and “there is urgency”.
53
It is true
that under Art. 41 of the ICJ Statute, the aim of provisional measures is to preserve
the rights of either party, namely, a State. By considering “the loss of life” and
“bodily injuries” as an element of irreparable prejudice to territorial sovereignty,
arguably the Court may indicate provisional measures for the protection of human
life in a territorial dispute, provided that other conditions for such measures are
fulfilled.
54
Here one may find the impact of the consideration of humanity on the
requirements of urgency and irreparable prejudice to the rights of the parties in dispute to indicate provisional measures.
3.2 Inter-Linkage Between Urgency and Risk of Irreparable
Prejudice in the ITLOS Jurisprudence
In some cases, ITLOS also linked the urgency requirement to irreparable prejudice.
The Ghana/Côte d’Ivoire Order is a case in point. In this Order, the ITLOS Special
Chamber held that it may not prescribe provisional measures unless it finds that
there is “a real and imminent risk that irreparable prejudice may be caused to the
rights of the parties in dispute”.
55
It then ruled that:
[U]urgency is required in order to exercise the power to prescribe provisional measures, that
is to say the need to avert a real and imminent risk that irreparable prejudice may be caused
to rights at issue before the final decision is delivered.
56
After examining the competing claims of the parties, the Special Chamber accepted
the existence of the imminent risk of irreparable prejudice to the sovereign rights of
Côte d’Ivoire.
57
ITLOS, in the MOX Plant case, ruled that provisional measures may be
prescribed
if the Tribunal considered that the urgency of the situation so requires in the sense that
action prejudicial to the rights of either party or causing serious harm to the marine environment is likely to be taken before the constitution of the Annex VII arbitral tribunal.
58
Furthermore, ITLOS, in the Land Reclamation case, stated that:
[T]he evidence presented by Malaysia does not show that there is a situation of urgency or
that there is a risk that the rights it claims with respect to an area of territorial sea would
suffer irreversible damage pending consideration of the merits of the case by the Annex VII
arbitral tribunal.
59
53 Ibidem, para. 56.
54 See also ibidem, Separate Opinion of Judge Cançando Trindade, paras 74–78, and 100.
55 The Ghana/Côte d’Ivoire Case, Order, para. 41.
56 Ibidem, para. 42.
57 Ibidem, para. 96.
58 The MOX Plant Case, Order, para. 64.
59 Case Concerning Land Declamation by Singapore in and Around the Straits of Johor, Order,
para. 72.
Y. Tanaka