159
In these two final decisions no mention is made to the fate of the provisional
measures whose effects must be considered automatically ceased given the definitive character of the decision.
In the Arctic Sunrise case where, as known, the Russian Federation did not participate in the proceedings before ITLOS and the Annex VII Arbitral Tribunal, the
order containing provisional measures adopted by ITLOS under Art. 290(5)
UNCLOS prescribed in the dispositif the immediate release by the Russian
Federation of the vessel, and all persons detained, upon the posting with the Russian
Federation of a bond or other financial security of a specific amount in a form of a
bank guarantee and that, upon this posting, the vessel and all persons detained are
allowed to leave the territory and the maritime areas under the jurisdiction of the
Russian Federation (dispositif para. 105 point 1 a) and b). In the Award on jurisdiction the Annex VII Arbitral Tribunal does not contain references to the ITLOS provisional measures except in a short passage citing the following statement of
Netherlands: “Russia did not fully comply with the provisional measures prescribed
by ITLOS”
9
but no one can doubt that at the date of the Award on Jurisdiction the
ITLOS provisional measures were still in force given that in the subsequent Award
on merits the Annex VII Arbitral Tribunal will declare that the Russian Federation
“… by failing to comply with paragraphs (1) and (2) of the dispositif of the ITLOS
Order … breached its obligations to the Netherlands under articles 290 (6) and 296
(1) of the Convention” (para. 360 and dispositif para. 401 at the letter D).
10
The definition of the “provisional situation” becomes more complex when, in
addition to ITLOS provisional measures pronounced ex Art. 290(5) UNCLOS, provisional measures are prescribed also by the Annex VII Arbitral Tribunal because
the duties of the parties of the dispute must be ascertained by considering the content of all provisional measures pronounced, as happened in the MOX Plant case
and in The “Enrica Lexie” Incident case.
In the MOX Plant case, as for the provisional measures prescribed by ITLOS, the
Annex VII Arbitral Tribunal in the Order n. 3 (Suspension of proceedings on jurisdiction and merits, and request for further provisional measure), while the proceedings were suspended until a certain date, confirmed expressly the ITLOS provisional
measure in the same words of Art. 290(5) UNCLOS (“affirms the provisional measure prescribed by ITLOS in its Order of 3 December 2001”) (dispositif point 2),
considering existent a prima facie jurisdiction and rejected the request of Ireland for
further provisional measures submitted ex Art. 290(1) UNCLOS prescribing, in the
9 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Jurisdiction, 26 November
2014, para. 11 with this note: “Memorial, paras 355-365”.
10 Arctic Sunrise Arbitration, Award on the Merits, 14 August 2015; this Award was followed by the
Award on Compensation, 10 July 2017 because all questions on the quantum of compensation and
interest were reserved to a later phase of proceedings. In this last Award, in calculating the nonmaterial damages in relation to the arrest, detention, and prosecution of those on board the Arctic
Sunrise is included the aggravating factor of Russia’s non-compliance with ITLOS Order’s prescriptions (para. 85).
The Provisional Measures in The “Enrica Lexie” Incident Case
In these two final decisions no mention is made to the fate of the provisional
measures whose effects must be considered automatically ceased given the definitive character of the decision.
In the Arctic Sunrise case where, as known, the Russian Federation did not participate in the proceedings before ITLOS and the Annex VII Arbitral Tribunal, the
order containing provisional measures adopted by ITLOS under Art. 290(5)
UNCLOS prescribed in the dispositif the immediate release by the Russian
Federation of the vessel, and all persons detained, upon the posting with the Russian
Federation of a bond or other financial security of a specific amount in a form of a
bank guarantee and that, upon this posting, the vessel and all persons detained are
allowed to leave the territory and the maritime areas under the jurisdiction of the
Russian Federation (dispositif para. 105 point 1 a) and b). In the Award on jurisdiction the Annex VII Arbitral Tribunal does not contain references to the ITLOS provisional measures except in a short passage citing the following statement of
Netherlands: “Russia did not fully comply with the provisional measures prescribed
by ITLOS”
9
but no one can doubt that at the date of the Award on Jurisdiction the
ITLOS provisional measures were still in force given that in the subsequent Award
on merits the Annex VII Arbitral Tribunal will declare that the Russian Federation
“… by failing to comply with paragraphs (1) and (2) of the dispositif of the ITLOS
Order … breached its obligations to the Netherlands under articles 290 (6) and 296
(1) of the Convention” (para. 360 and dispositif para. 401 at the letter D).
10
The definition of the “provisional situation” becomes more complex when, in
addition to ITLOS provisional measures pronounced ex Art. 290(5) UNCLOS, provisional measures are prescribed also by the Annex VII Arbitral Tribunal because
the duties of the parties of the dispute must be ascertained by considering the content of all provisional measures pronounced, as happened in the MOX Plant case
and in The “Enrica Lexie” Incident case.
In the MOX Plant case, as for the provisional measures prescribed by ITLOS, the
Annex VII Arbitral Tribunal in the Order n. 3 (Suspension of proceedings on jurisdiction and merits, and request for further provisional measure), while the proceedings were suspended until a certain date, confirmed expressly the ITLOS provisional
measure in the same words of Art. 290(5) UNCLOS (“affirms the provisional measure prescribed by ITLOS in its Order of 3 December 2001”) (dispositif point 2),
considering existent a prima facie jurisdiction and rejected the request of Ireland for
further provisional measures submitted ex Art. 290(1) UNCLOS prescribing, in the
9 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Jurisdiction, 26 November
2014, para. 11 with this note: “Memorial, paras 355-365”.
10 Arctic Sunrise Arbitration, Award on the Merits, 14 August 2015; this Award was followed by the
Award on Compensation, 10 July 2017 because all questions on the quantum of compensation and
interest were reserved to a later phase of proceedings. In this last Award, in calculating the nonmaterial damages in relation to the arrest, detention, and prosecution of those on board the Arctic
Sunrise is included the aggravating factor of Russia’s non-compliance with ITLOS Order’s prescriptions (para. 85).
The Provisional Measures in The “Enrica Lexie” Incident Case