120
lift of restrictions on the liberty of the two marines. Thus, whether the consideration
of humanity can be considered as a standard for determining the requirement of
urgency in the ITLOS jurisprudence needs further consideration.
4 The Time Frame for Determining the Urgency
of the Situation
On the basis of the above consideration, this section addresses the time frame in
examining the existence of the situation of urgency. It appears that paragraphs 1 and
5 of Art. 290 provide different time-frames when considering the urgency of the
situation. Two contrasting interpretations exist with regard to the above provisions.
4.1 Interpretation of Art. 290(1) and (5)
First, according to a restrictive interpretation, the functions of the Tribunal under
paragraphs 1 and 5 of Art. 290 are different. Under LOSC Art. 290(5), ITLOS is to
determine whether the urgency of the situation requires provisional measures “pending the constitution of the arbitral tribunal”. It follows that the requirement of
urgency under paragraph 5 of Art. 290 is stricter than the same requirement in paragraph 1 thereof. This interpretation was supported by Judge Heider in the 2015
“Enrica Lexie” Incident Order.
80
In the same case, Judge Chandrasekhara Rao also
stated that:
The urgency of the situation has to be assessed not on a long term basis but with reference
to the short period involved before the Annex VII arbitral tribunal is constituted.
81
Second, according to the broad interpretation, the assessment of the urgency of
the situation is not confined to the period that an arbitral tribunal is being constituted. In the “Enrica Lexie” Incident case, Judge ad hoc Francioni took this interpretation, stating that: “[I]t would be misleading to assess the ‘urgency of the
situation’ only in the limited time frame of the weeks or months that will pass before
the Annex VII tribunal is constituted and can rule on the question” and “[t]he assessment of urgency requires that we look at the situation in its whole context”.
82
This
is not an isolated view. ITLOS in the Land Reclamation case, held that: “[T]here is
nothing in article 290 of the Convention to suggest that the measures prescribed by
the Tribunal must be confined to that period”.
83
In the view of the Tribunal,
80 The “Enrica Lexie” Incident, Order, Dissenting Opinion of Judge Heider, paras 6–7 and 12.
81 Ibidem, Dissenting Opinion of Judge Chandrasekhara Rao, para. 6. See also Treves (2017),
p. 1877.
82 Ibidem, Declaration of Judge ad hoc Francioni, paras 21–22.
83 The Land Reclamation Case, Order, para. 67.
Y. Tanaka
lift of restrictions on the liberty of the two marines. Thus, whether the consideration
of humanity can be considered as a standard for determining the requirement of
urgency in the ITLOS jurisprudence needs further consideration.
4 The Time Frame for Determining the Urgency
of the Situation
On the basis of the above consideration, this section addresses the time frame in
examining the existence of the situation of urgency. It appears that paragraphs 1 and
5 of Art. 290 provide different time-frames when considering the urgency of the
situation. Two contrasting interpretations exist with regard to the above provisions.
4.1 Interpretation of Art. 290(1) and (5)
First, according to a restrictive interpretation, the functions of the Tribunal under
paragraphs 1 and 5 of Art. 290 are different. Under LOSC Art. 290(5), ITLOS is to
determine whether the urgency of the situation requires provisional measures “pending the constitution of the arbitral tribunal”. It follows that the requirement of
urgency under paragraph 5 of Art. 290 is stricter than the same requirement in paragraph 1 thereof. This interpretation was supported by Judge Heider in the 2015
“Enrica Lexie” Incident Order.
80
In the same case, Judge Chandrasekhara Rao also
stated that:
The urgency of the situation has to be assessed not on a long term basis but with reference
to the short period involved before the Annex VII arbitral tribunal is constituted.
81
Second, according to the broad interpretation, the assessment of the urgency of
the situation is not confined to the period that an arbitral tribunal is being constituted. In the “Enrica Lexie” Incident case, Judge ad hoc Francioni took this interpretation, stating that: “[I]t would be misleading to assess the ‘urgency of the
situation’ only in the limited time frame of the weeks or months that will pass before
the Annex VII tribunal is constituted and can rule on the question” and “[t]he assessment of urgency requires that we look at the situation in its whole context”.
82
This
is not an isolated view. ITLOS in the Land Reclamation case, held that: “[T]here is
nothing in article 290 of the Convention to suggest that the measures prescribed by
the Tribunal must be confined to that period”.
83
In the view of the Tribunal,
80 The “Enrica Lexie” Incident, Order, Dissenting Opinion of Judge Heider, paras 6–7 and 12.
81 Ibidem, Dissenting Opinion of Judge Chandrasekhara Rao, para. 6. See also Treves (2017),
p. 1877.
82 Ibidem, Declaration of Judge ad hoc Francioni, paras 21–22.
83 The Land Reclamation Case, Order, para. 67.
Y. Tanaka