119
may be caused to the rights at issue, pending the final decision on the merits pursuant to
Article 290, paragraph 1, of the Convention.
73
However, it did not provide adequate explanation about the existence of the
urgency of the situation in the ‘Enrica Lexie’ Incident arbitration. Instead, the
Arbitral Tribunal stressed the concept of considerations humanity in this context.
According to the Tribunal, “its decision should seek to give effect to the concept of
consideration of humanity, while preserving the respective rights of the parties”.
74
It
thus prescribed the provisional measure that requires Italy and India to cooperate to
achieve a relaxation of the bail conditions of Sergeant Girone, an Italian marine, so
as to give effect to the concept of considerations of humanity.
75
Yet, there appears to
be some scope to consider the question regarding whether the Tribunal can prescribe provisional measures on the basis of the concept of considerations of humanity, without convincingly demonstrating the urgency of the situation and the
existence of a real and imminent risk of irreparable damage to the parties’ rights.
76
3.4 Summary
The above considerations reveal two points.
First, in some cases, ITLOS linked the requirement of urgency to prejudice to the
rights of parties or serious harm to the marine environment. In other cases, however,
the linkage between the urgency of the situation and irreparable prejudice remained
less clear. Overall it can be observed that, unlike the ICJ, ITLOS did not always
endorse the risk of “irreparable damage” as a standard for determining the urgency
of the situation.
77
Given that the essential purpose of provisional measures is to
preserve the respective rights of the parties to a dispute,
78
arguably more attention
must be devoted to the inter-linkage between the urgency of the situation and the
existence of a risk of irreparable prejudice to parties’ respective rights in the ITLOS
jurisprudence.
79
Second, Annex VII Arbitral Tribunal relied on the concept of humanity when
examining the requirements of urgency and irreparable prejudice to the respective
rights of the parties to the dispute. However, ITLOS, in the “Enrica Lexie” Incident
Order, did not prescribe provisional measures requested by Italy with regard to the
73 Ibidem.
74 Ibidem, para. 106.
75 Ibidem, para. 132(a).
76 Further, see Tanaka (2018).
77 See also Klein (2005), p. 78; Gautier (2009), p. 136.
78 Art. 290(1) of the LOSC also clearly refer to the preservation of the “respective rights of the parties to the dispute”.
79 When ITLOS prescribes provisional measures for protecting the marine environment, there may
be scope to argue that there must be a risk of “serious harm to the marine environment”. See
LOSC, Art. 290(1).
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
may be caused to the rights at issue, pending the final decision on the merits pursuant to
Article 290, paragraph 1, of the Convention.
73
However, it did not provide adequate explanation about the existence of the
urgency of the situation in the ‘Enrica Lexie’ Incident arbitration. Instead, the
Arbitral Tribunal stressed the concept of considerations humanity in this context.
According to the Tribunal, “its decision should seek to give effect to the concept of
consideration of humanity, while preserving the respective rights of the parties”.
74
It
thus prescribed the provisional measure that requires Italy and India to cooperate to
achieve a relaxation of the bail conditions of Sergeant Girone, an Italian marine, so
as to give effect to the concept of considerations of humanity.
75
Yet, there appears to
be some scope to consider the question regarding whether the Tribunal can prescribe provisional measures on the basis of the concept of considerations of humanity, without convincingly demonstrating the urgency of the situation and the
existence of a real and imminent risk of irreparable damage to the parties’ rights.
76
3.4 Summary
The above considerations reveal two points.
First, in some cases, ITLOS linked the requirement of urgency to prejudice to the
rights of parties or serious harm to the marine environment. In other cases, however,
the linkage between the urgency of the situation and irreparable prejudice remained
less clear. Overall it can be observed that, unlike the ICJ, ITLOS did not always
endorse the risk of “irreparable damage” as a standard for determining the urgency
of the situation.
77
Given that the essential purpose of provisional measures is to
preserve the respective rights of the parties to a dispute,
78
arguably more attention
must be devoted to the inter-linkage between the urgency of the situation and the
existence of a risk of irreparable prejudice to parties’ respective rights in the ITLOS
jurisprudence.
79
Second, Annex VII Arbitral Tribunal relied on the concept of humanity when
examining the requirements of urgency and irreparable prejudice to the respective
rights of the parties to the dispute. However, ITLOS, in the “Enrica Lexie” Incident
Order, did not prescribe provisional measures requested by Italy with regard to the
73 Ibidem.
74 Ibidem, para. 106.
75 Ibidem, para. 132(a).
76 Further, see Tanaka (2018).
77 See also Klein (2005), p. 78; Gautier (2009), p. 136.
78 Art. 290(1) of the LOSC also clearly refer to the preservation of the “respective rights of the parties to the dispute”.
79 When ITLOS prescribes provisional measures for protecting the marine environment, there may
be scope to argue that there must be a risk of “serious harm to the marine environment”. See
LOSC, Art. 290(1).
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…