123
In summary, the concept of urgency in the context of conservation of marine living resources needs to be considered in a longer time-frame than an imminent risk,
taking account of consideration of ‘prudence and caution’. The same is true of the
cumulative marine pollution, such as certain land-based marine pollution. In this
case, the concept of urgency does not mean an imminent danger, but concerns the
prevention of a trend of deterioration of the marine environment which may create
serious harm in the future. Like conservation of marine living resources, scientific
uncertainty exists with regard to adverse effects of marine pollution. Hence, when
examining the concept of urgency in the context of marine environmental protection, there is a need to ascertain whether there is an urgent need to take measures to
prevent a trend of deterioration of the marine environment.
5 Conclusions
One can argue that the requirement of urgency is at the heart of provisional measures. However, the above consideration reveals that the ITLOS jurisprudence comprises some issues that need further consideration in this matter. Three points can be
made.
First, the ITLOS jurisprudence is not uniform with regard to the requirement of
urgency when prescribing provisional measures. In some cases, ITLOS made no
explicit reference to the requirement of urgency, when prescribing provisional measures. In light of the importance of the requirement of urgency, there will be a need
for the Tribunal to examine this requirement when prescribing provisional
measures.
Second, in the ICJ jurisprudence, the existence of a risk of irreparable prejudice
to rights of the parties in dispute provides a criterion for determining the existence
of urgency to indicate provisional measures. However, the inter-linkage between the
risk of irreparable prejudice and urgency is not fully endorsed by ITLOS in its jurisprudence. Given that provisional measures aim to preserve the respective rights of
the disputing parties pending the final decision, however, the inter-linkage of irreparable prejudice to rights of the parties and the urgency of the situation deserves
serious consideration.
Third, a time-frame for determining urgency is contextual. In this regard, it is
argued that two types of urgency exist in international law governing provisional
measures: urgency as imminence and urgency as process. In certain contexts of
conservation of marine living resources and marine environmental protection, the
concept of urgency is not synonymous with imminence but concerns the prevention
of a trend of decline toward a collapse of fish stocks concerned or further degradation of the marine environment. When examining the trend, consideration of prudence and caution is needed in light of scientific uncertainty. Thus, the concept of
urgency in the context of conservation of marine living resources and protection of
the marine environment from certain pollution must be considered from a viewpoint
of the prevention of a trend toward further decline of the fish stock concerned or
deterioration of the marine environment.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
In summary, the concept of urgency in the context of conservation of marine living resources needs to be considered in a longer time-frame than an imminent risk,
taking account of consideration of ‘prudence and caution’. The same is true of the
cumulative marine pollution, such as certain land-based marine pollution. In this
case, the concept of urgency does not mean an imminent danger, but concerns the
prevention of a trend of deterioration of the marine environment which may create
serious harm in the future. Like conservation of marine living resources, scientific
uncertainty exists with regard to adverse effects of marine pollution. Hence, when
examining the concept of urgency in the context of marine environmental protection, there is a need to ascertain whether there is an urgent need to take measures to
prevent a trend of deterioration of the marine environment.
5 Conclusions
One can argue that the requirement of urgency is at the heart of provisional measures. However, the above consideration reveals that the ITLOS jurisprudence comprises some issues that need further consideration in this matter. Three points can be
made.
First, the ITLOS jurisprudence is not uniform with regard to the requirement of
urgency when prescribing provisional measures. In some cases, ITLOS made no
explicit reference to the requirement of urgency, when prescribing provisional measures. In light of the importance of the requirement of urgency, there will be a need
for the Tribunal to examine this requirement when prescribing provisional
measures.
Second, in the ICJ jurisprudence, the existence of a risk of irreparable prejudice
to rights of the parties in dispute provides a criterion for determining the existence
of urgency to indicate provisional measures. However, the inter-linkage between the
risk of irreparable prejudice and urgency is not fully endorsed by ITLOS in its jurisprudence. Given that provisional measures aim to preserve the respective rights of
the disputing parties pending the final decision, however, the inter-linkage of irreparable prejudice to rights of the parties and the urgency of the situation deserves
serious consideration.
Third, a time-frame for determining urgency is contextual. In this regard, it is
argued that two types of urgency exist in international law governing provisional
measures: urgency as imminence and urgency as process. In certain contexts of
conservation of marine living resources and marine environmental protection, the
concept of urgency is not synonymous with imminence but concerns the prevention
of a trend of decline toward a collapse of fish stocks concerned or further degradation of the marine environment. When examining the trend, consideration of prudence and caution is needed in light of scientific uncertainty. Thus, the concept of
urgency in the context of conservation of marine living resources and protection of
the marine environment from certain pollution must be considered from a viewpoint
of the prevention of a trend toward further decline of the fish stock concerned or
deterioration of the marine environment.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…