117
While the Tribunal’s view is not wholly unambiguous, ITLOS seems to consider the
requirement of urgency and “irreversible damage to the rights it claims” at the same
time.
In other cases, however, the linkage between the urgency of the situation and
irreparable prejudice remains obscure. As noted, ITLOS, in the “Arctic Sunrise”
Order, ruled that: “[T]he urgency of the situation requires the prescription by the
Tribunal of provisional measures”.
60
Yet, the Tribunal made no reference to irreparable prejudice to parties’ rights. This point was criticised by Judge Kulyk, stating
that:
The Tribunal may not prescribe provisional measures unless it is satisfied that under the
particular circumstances of the case the situation of urgency exists in accordance with the
strict conditions on the time frame envisaged in the relevant provisions, meaning that not
just potentially the prejudice and damage to the rights might exist but rather that the prejudice and damage could reasonably be expected to happen in the period before the constitution of the Annex VII tribunal.
61
Similarly, ITLOS, in the “ARA Libertad” case, ruled that:
[U]nder the circumstances of the present case, pursuant to article 290, paragraph 5, of the
Convention, the urgency of the situation requires the prescription by the Tribunal of provisional measures that will ensure full compliance with the applicable rules of international
law, thus preserving the respective rights of the Parties.
62
Yet, it offered scant explanation about how Ghana’s action created irreparable prejudice to the right of Argentina. In this regard, notably Judge Paik attempted to clarify
the three factors to be examined when determining the existence of the situation of
urgency.
The first factor concerns “the nature of the rights or legal interests in respect of
which the request for provisional measures is made”.
63
The rights that are at issue in
the “ARA Libertad” case are that of Argentina to enjoy the immunity of a warship
in the port of a foreign State. Given that this right is clearly established in international law, and, in fact, constitutes one of the most important pillars of the ordre
public of the oceans, Judge Paik considered that an element of urgency exists in this
case.
64
The second element relates to the time frame envisaged under Art. 290(5) of the
LOSC. As Judge Paik observed, the time frame envisaged under Art. 290(5) is much
tighter than that under Art. 290(1). Here Judge Paik considered that potential aggravation of the situation cannot be taken lightly.
65
The third factor to be considered is the existence of assurances given by the parties that an action prejudicial to the rights of the parties will not be taken. In this
60 The “Arctic Sunrise” case, Order, para. 89.
61 Ibidem, Dissenting Opinion of Judge Kulyk, para. 7.
62 The “ARA Libertad” Case, Order, para. 100.
63 Ibidem, Declaration of Judge Paik, para. 2.
64 Ibidem.
65 Ibidem, para. 3.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
While the Tribunal’s view is not wholly unambiguous, ITLOS seems to consider the
requirement of urgency and “irreversible damage to the rights it claims” at the same
time.
In other cases, however, the linkage between the urgency of the situation and
irreparable prejudice remains obscure. As noted, ITLOS, in the “Arctic Sunrise”
Order, ruled that: “[T]he urgency of the situation requires the prescription by the
Tribunal of provisional measures”.
60
Yet, the Tribunal made no reference to irreparable prejudice to parties’ rights. This point was criticised by Judge Kulyk, stating
that:
The Tribunal may not prescribe provisional measures unless it is satisfied that under the
particular circumstances of the case the situation of urgency exists in accordance with the
strict conditions on the time frame envisaged in the relevant provisions, meaning that not
just potentially the prejudice and damage to the rights might exist but rather that the prejudice and damage could reasonably be expected to happen in the period before the constitution of the Annex VII tribunal.
61
Similarly, ITLOS, in the “ARA Libertad” case, ruled that:
[U]nder the circumstances of the present case, pursuant to article 290, paragraph 5, of the
Convention, the urgency of the situation requires the prescription by the Tribunal of provisional measures that will ensure full compliance with the applicable rules of international
law, thus preserving the respective rights of the Parties.
62
Yet, it offered scant explanation about how Ghana’s action created irreparable prejudice to the right of Argentina. In this regard, notably Judge Paik attempted to clarify
the three factors to be examined when determining the existence of the situation of
urgency.
The first factor concerns “the nature of the rights or legal interests in respect of
which the request for provisional measures is made”.
63
The rights that are at issue in
the “ARA Libertad” case are that of Argentina to enjoy the immunity of a warship
in the port of a foreign State. Given that this right is clearly established in international law, and, in fact, constitutes one of the most important pillars of the ordre
public of the oceans, Judge Paik considered that an element of urgency exists in this
case.
64
The second element relates to the time frame envisaged under Art. 290(5) of the
LOSC. As Judge Paik observed, the time frame envisaged under Art. 290(5) is much
tighter than that under Art. 290(1). Here Judge Paik considered that potential aggravation of the situation cannot be taken lightly.
65
The third factor to be considered is the existence of assurances given by the parties that an action prejudicial to the rights of the parties will not be taken. In this
60 The “Arctic Sunrise” case, Order, para. 89.
61 Ibidem, Dissenting Opinion of Judge Kulyk, para. 7.
62 The “ARA Libertad” Case, Order, para. 100.
63 Ibidem, Declaration of Judge Paik, para. 2.
64 Ibidem.
65 Ibidem, para. 3.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…