121
[T]he said period is not necessarily determinative for the assessment of the urgency of the
situation or the period during which the prescribed measures are applicable and that the
urgency of the situation must be assessed taking into account the period during which the
Annex VII arbitral tribunal is not yet in a position to “modify, revoke or affirm those provisional measures”.
84
This view was confirmed by the Tribunal in the Arctic Sunrise Order. For the
Tribunal,
[T]here is nothing in article 290, paragraph 5, of the Convention to suggest that the measures prescribed by the Tribunal must be confined to the period prior to the constitution of
the Annex VII arbitral tribunal.
85
4.2 Two Types of Urgency
In considering the time-frame for determining the urgency of situation and a risk of
irreparable prejudice, two types of urgency need to be distinguished. The first type
concerns the concept of urgency as imminence. ‘Urgency’ in international law is
often connected to imminent danger or risk.
86
For example, execution within a very
short period of time in the LaGrand case can be considered as an imminent risk.
87
In this case, urgency means imminence. Likewise, an accident involving oil platform, such as Deepwater Horizon oil spill of 2010, may also cause an imminent
danger. In this case, too, urgency is equivalent to imminent. In relation to urgency
as imminence, no serious issue would arise if the time-frames set out under paragraph 5 of Art. 290 were interpreted in a restrictive manner.
The second type relates to the concept of urgency as process. For instance, the
decline of fish stocks may be caused by cumulative effects of various elements,
including the over-exploitation. The phenomenon of the exhaustion of marine living
resources is a continuous process. One cannot deny the possibility that a certain
conduct of a disputing party might accelerate the decline of the fish stock or caused
novel deterioration of the stock.
88
In light of cumulative effects on the fish stock and
the need for precaution, there appears to be a need to determine whether or not there
is the urgency of situation which requires provisional measures to prevent a trend of
decline toward a collapse of the fish stock. The 1999 Southern Bluefin Tuna cases
provide a useful insight into this issue.
89
84 Ibidem, para. 68.
85 The “Arctic Sunrise” Case, Order, para. 84.
86 Roucounas (2001), pp. 201–203.
87 In the LaGrand case, the ICJ ruled that the indication of provisional measures is a “matter of the
greatest urgency”: LaGrand (Germany v. United States), Provisional Measures, Order, 3 March
1999, para. 26.
88 Gautier (2009), p. 149.
89 This part relies on the following study with modifications. Tanaka (2014), pp. 262–266.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
[T]he said period is not necessarily determinative for the assessment of the urgency of the
situation or the period during which the prescribed measures are applicable and that the
urgency of the situation must be assessed taking into account the period during which the
Annex VII arbitral tribunal is not yet in a position to “modify, revoke or affirm those provisional measures”.
84
This view was confirmed by the Tribunal in the Arctic Sunrise Order. For the
Tribunal,
[T]here is nothing in article 290, paragraph 5, of the Convention to suggest that the measures prescribed by the Tribunal must be confined to the period prior to the constitution of
the Annex VII arbitral tribunal.
85
4.2 Two Types of Urgency
In considering the time-frame for determining the urgency of situation and a risk of
irreparable prejudice, two types of urgency need to be distinguished. The first type
concerns the concept of urgency as imminence. ‘Urgency’ in international law is
often connected to imminent danger or risk.
86
For example, execution within a very
short period of time in the LaGrand case can be considered as an imminent risk.
87
In this case, urgency means imminence. Likewise, an accident involving oil platform, such as Deepwater Horizon oil spill of 2010, may also cause an imminent
danger. In this case, too, urgency is equivalent to imminent. In relation to urgency
as imminence, no serious issue would arise if the time-frames set out under paragraph 5 of Art. 290 were interpreted in a restrictive manner.
The second type relates to the concept of urgency as process. For instance, the
decline of fish stocks may be caused by cumulative effects of various elements,
including the over-exploitation. The phenomenon of the exhaustion of marine living
resources is a continuous process. One cannot deny the possibility that a certain
conduct of a disputing party might accelerate the decline of the fish stock or caused
novel deterioration of the stock.
88
In light of cumulative effects on the fish stock and
the need for precaution, there appears to be a need to determine whether or not there
is the urgency of situation which requires provisional measures to prevent a trend of
decline toward a collapse of the fish stock. The 1999 Southern Bluefin Tuna cases
provide a useful insight into this issue.
89
84 Ibidem, para. 68.
85 The “Arctic Sunrise” Case, Order, para. 84.
86 Roucounas (2001), pp. 201–203.
87 In the LaGrand case, the ICJ ruled that the indication of provisional measures is a “matter of the
greatest urgency”: LaGrand (Germany v. United States), Provisional Measures, Order, 3 March
1999, para. 26.
88 Gautier (2009), p. 149.
89 This part relies on the following study with modifications. Tanaka (2014), pp. 262–266.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…