118
regard, Judge Paik considered that the lack of assurance on the part of Ghana thus
does not help mitigate the urgency of the situation.
66
Here the learned Judge seems
to consider irreparable prejudice as a requirement independent from the requirement of urgency.
67
As noted, ITLOS, in the Southern Bluefin Tuna Order, remained mute on the
standard of urgency, even though it prescribed provisional measures as a matter of
urgency.
68
ITLOS, in the 2010 M/V “Louisa” Order, made no reference to the
urgency of the situation, even though it examined the existence of a real and imminent risk that irreparable prejudice would be caused to the rights of the parties.
69
Accordingly, the requirement of irreparable prejudice is detached from the urgency
requirement in the M/V “Louisa” Order.
3.3 Inter-Linkage Between Urgency and Considerations
of Humanity in the ITLOS Jurisprudence
A particular issue that arises in this context is the inter-linkage between the requirement of urgency and the concept of the consideration of humanity. As noted, such a
linkage can be seen in the Separate Opinion of Judge Jesus in the “Enrica Lexie”
Incident case. In this regard, Judge Jesus stated that:
[E]very day that a person is under detention or subject to restrictions on movement is one
day too many to be deprived of his or her liberty. Such situations, assessed in the context of
a request for provisional measures, carry with them a built-in need for urgency, as considerations of humanity are important in this regard.
70
This view was echoed by Judge ad hoc Francioni.
71
The requirement of urgency and considerations of humanity were also discussed
in Annex VII Arbitral Tribunal in the “Enrica Lexie” Incident arbitration at the
stage of the proceedings of provisional measures. The Arbitral Tribunal ruled that:
“[A] showing of urgency in some form is inherent in provisional measures
proceedings”.
72
It went to add that:
Generally, urgency is linked to the criterion of preservation of the respective rights of the
parties to the dispute in order to avert a real and imminent risk that irreparable prejudice
66 Ibidem, para. 4.
67 Ibidem, para. 5.
68 The Southern Bluefin Tuna Cases, Order, para. 80.
69 The M/V “Louisa” Case, Order, para. 72.
70 Emphasis added. The“Enrica Lexie” Incident, Order, Separate Opinion of Judge Jesus, para. 11.
71 Ibidem, Declaration of Judge ad hoc Francioni, para. 23.
72 PCA, The “Enrica Lexie” Incident, Order, Request for the Prescription of Provisional Measures,
29 April 2016, para. 89.
Y. Tanaka
regard, Judge Paik considered that the lack of assurance on the part of Ghana thus
does not help mitigate the urgency of the situation.
66
Here the learned Judge seems
to consider irreparable prejudice as a requirement independent from the requirement of urgency.
67
As noted, ITLOS, in the Southern Bluefin Tuna Order, remained mute on the
standard of urgency, even though it prescribed provisional measures as a matter of
urgency.
68
ITLOS, in the 2010 M/V “Louisa” Order, made no reference to the
urgency of the situation, even though it examined the existence of a real and imminent risk that irreparable prejudice would be caused to the rights of the parties.
69
Accordingly, the requirement of irreparable prejudice is detached from the urgency
requirement in the M/V “Louisa” Order.
3.3 Inter-Linkage Between Urgency and Considerations
of Humanity in the ITLOS Jurisprudence
A particular issue that arises in this context is the inter-linkage between the requirement of urgency and the concept of the consideration of humanity. As noted, such a
linkage can be seen in the Separate Opinion of Judge Jesus in the “Enrica Lexie”
Incident case. In this regard, Judge Jesus stated that:
[E]very day that a person is under detention or subject to restrictions on movement is one
day too many to be deprived of his or her liberty. Such situations, assessed in the context of
a request for provisional measures, carry with them a built-in need for urgency, as considerations of humanity are important in this regard.
70
This view was echoed by Judge ad hoc Francioni.
71
The requirement of urgency and considerations of humanity were also discussed
in Annex VII Arbitral Tribunal in the “Enrica Lexie” Incident arbitration at the
stage of the proceedings of provisional measures. The Arbitral Tribunal ruled that:
“[A] showing of urgency in some form is inherent in provisional measures
proceedings”.
72
It went to add that:
Generally, urgency is linked to the criterion of preservation of the respective rights of the
parties to the dispute in order to avert a real and imminent risk that irreparable prejudice
66 Ibidem, para. 4.
67 Ibidem, para. 5.
68 The Southern Bluefin Tuna Cases, Order, para. 80.
69 The M/V “Louisa” Case, Order, para. 72.
70 Emphasis added. The“Enrica Lexie” Incident, Order, Separate Opinion of Judge Jesus, para. 11.
71 Ibidem, Declaration of Judge ad hoc Francioni, para. 23.
72 PCA, The “Enrica Lexie” Incident, Order, Request for the Prescription of Provisional Measures,
29 April 2016, para. 89.
Y. Tanaka