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A perspective on provisional measures under UNCLOS

Published online by Cambridge University Press:  07 July 2009

Edward A. Laing
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This article analyses Article 290:1 of the United Nations Convention on the Law of the Sea (UNCLOS), concerning the elements required for the prescription of provisional measures, in the context of the Order of the International Tribunal for the Law of the Sea (ITLOS) of 11 March 1998 which prescribes provisional measures in The M/V ‘Saiga’ (No. 2) (St Vincent and the Grenadines v. Guinea) Article 290:1 provides:

If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision.

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Netherlands Yearbook of International Law , Volume 29 , December 1998 , pp. 45 - 70
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Copyright © T.M.C. Asser Press 1998

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References

2. 10 December 1982 UN Doc. A/CONF. 62/122, reprinted in 21 ILM (1982) p. 1261.Google Scholar

3. ITLOS Case No. 2. http://www.un.org; 37 ILM (1998) p. 360.Google Scholar Hereafter the Saiga No. 2 case. Both states became parties to UNCLOS by ratification; Guinea on 6 Sept. 1985, St Vincent and the Grenadines on 1 Oct. 1993.

4. Part XV of the Convention, on the Settlement of Disputes.

5. Part XI deals with The [International Seabed] Area. Section 5 of that Part deals with the Settlement of Disputes and Advisory Opinions (before ITLOS' Seabed Disputes Chamber).

6. See generally Dumbauld, E., Interim Measures of Protection in International Controversies (The Hague, Martinus Nijhoff 1932).CrossRefGoogle Scholar

7. 23 May 1969 UN Doc. A/CONF. 39/27 (1969) at p. 289, reprinted in 8 ILM (1969) p. 679.Google Scholar

8. In the closing words of Art. 290:1.

9. See generally Lawrence, Collins, Essays in International Litigation and the Conflict of Laws (Oxford, Oxford University Press 1994) pp. 169–171.Google Scholar This rationale for provisional measures is readily evident in a significant majority of the cases mentioned in notes 25, 33 and 40, below, where the ICJ ordered measures.

10. See Jerzy, Sztucki, Interim Measures of Protection in the Hague Court – An Attempt at a Scrutiny (Deventer, Kluwer Law & Taxation 1983) pp. 1–15.Google Scholar

11. Merrills, J. G., ‘Interim Measures of Protection and the Substantive Jurisdiction of the International Court’, 36 Cambridge LJ (1977) pp. 86–109, at p. 108CrossRefGoogle Scholar; Collins, op. cit. n. 9, at pp. 169–170.

12. Art. 290:1 provides for the prescription, not indication, of provisional measures. To some, it may be encouraging to perceive that sovereigns would so agree that they could be bound by a judicial order. Nevertheless, the potential addressees of this provision and of provisional measures also include non-State parties to disputes (commercial entities and certain intergovernmental agencies). The addition of this range of addressees underscores the point in the text. The language of Art. 41 of the ICJ Statute is ‘indicated’. This has given rise to some debate. See Henkin, L., ‘Provisional Measures, U.S. Treaty Obligations and the States’, 92 AJIL (1998) pp. 679–83CrossRefGoogle Scholar; Vásquez, C., ‘Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures’Google Scholar, idem, pp. 683–691; Damroch, L., ‘The Justiciability of Paraguay's Claim of Treaty Violation’Google Scholar, idem, pp. 679–704.

13. It is useful to recall that two of the leading works on provisional measures are squarely based on comparative law precedents and analogies and propose that a general principle of law governs the topic. See the books by Dumbauld and Elkind referred to at notes 6 and 23. In his recent work, Collins firmly states his support of the notion that the principle underlying provisional measures is a general principle of law. Collins, op. cit. n. 6, at pp. 169–171.

14. Which resulted in a judgment of 4 December 1997 in favour of St. Vincent and the Grenadines. See The M/V ‘Saiga’ (St Vincent and the Grenadines v. Guinea) http://www.un.org; 37 ILM (1998) p. 360Google Scholar; (hereafter Saiga No. 1 case).

15. Decided to be the oil that had been discharged by Guinea, plus the sum of US$400,000. Saiga No. 1 case, paras. 80–85. The Tribunal's judgment in the Saiga No. 1 case and, in some instances, its Order in the Saiga No. 2 case have been commented on by Oxman, B., ‘Review of International Decisions’, 92 AJIL (1998) pp. 278–282CrossRefGoogle Scholar; Brown, E.D., ‘The M.V. Saiga Case on Prompt Release of Detained Vessels,’ 22 Marine Policy (1998) pp. 307–326CrossRefGoogle Scholar; Lauterpacht, E., ‘First Decision of the International Tribunal for the Law of the Sea: The M-V Saiga Case’, in Liber Amicorum: Professor Ignaz Siedl-Hohenveldern in honour of his 80th birthday, Hafner, G. et al. , eds. (The Hague, Kluwer Law International 1998)Google Scholar; Shabtai, Rosenne, ‘International Tribunal for the Law of the Sea’ 13 International Journal Marine & Coastal Law (1998) pp.487–514Google Scholar; Kwiatkowska, B., ‘Inauguration of the ITLOS Jurisprudence: The Saint Vincent and the Grenadines v. Guinea M/V Saiga Cases’, 30 Ocean Development & International Law (1999) pp. 43–77.CrossRefGoogle Scholar

16. This judgment was affirmed by a judgment of a Guinean Cour d' Appel on 3 February 1998.

17. Pursuant to UNCLOS Art. 290:5, the companion provision to 290:1.

18. As a UN member state, essentially pursuant to delegation or authorisation pursuant to a resolution of the Council under Chapter VII of the UN Charter.

19. Dealing, in the context of the interpretation or application of UNCLOS' provisions concerning fisheries, with ‘sovereign rights with respect to living resources in the [EEZ] or their exercise …’

20. In paras. 35–40 of its Order of 11 March, the Tribunal declared that since it had been informed that the Saiga and its crew had been released from detention, the Guinean request for the prescription of a provisional measure for their release would serve no purpose.

21. Sztucki, op. cit. n. 10, at p. 15.

22. Emphasis added. Of course, this discretionary power is not license for arbitrary, unprincipled and or unauthorised judicial action. Cf., Declaration of Judge Warioba in Saiga No. 2 case ‘This discretion conferred on the Tribunal … is not a discretion which should be used simply because it is there. It is not a discretion which should be used at a whim but one which should be exercised when there are compelling reasons borne by facts …’

23. See Elkind, Jerome B., Interim Protection – A Functional Approach (The Hague, Martinus Nijhoff 1981) pp. 170–177, 192.Google Scholar Note Merrills, op. cit. n. 11, at pp. 97–104, esp. p. 101. In UNCLOS, these jurisdictional matters are respectively covered by Art. 287 and Annex VI, Art. 20, on the one hand, and Art. 288 and Annex VI, Art. 21, on the other.

24. See e.g., Anglo-Iranian Oil Co. case (United Kingdom v. Iran) (Interim Protection), Order of 6 July 1951, ICJ Rep. (1951) (hereafter Anglo-Iranian Oil Co. case), p. 93. It is not proposed here to discuss the substantive doctrine of local remedies or the requirement of Art. 295 that Part XV of UNCLOS applies only after the exhaustion of local remedies when ‘required by international law.’ For the colloquy on local remedies in the Saiga No. 2 case see Verbatim Record of the public hearing of 24 February 1998, ITLOS/PV.97/3 pp. 45–47.

25. Saiga No. 2 case, para. 29. See case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Provisional Measures), Order of 15 March 1996, ICJ Rep. (1996) (hereafter Land & Maritime Boundary case), p. 21, para. 30; case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia, Serbia and Montenegro) (Provisional Measures), Order of 13 September 1993, ICJ Rep. (1993) (hereafter Genocide Convention case), pp. 337–38, para. 24; Case Concerning Passage through the Great Belt (Finland v. Denmark) (Provisional Measures), Order of 29 July 1991, ICJ Rep. (1991) (hereafter Great Belt case), p. 15, para. 14; case Concerning United States Diplomatic and Consular Staff in Tehran (Provisional Measures), Order of 15 December 1979, ICJ Rep. (1979) (hereafter US Staff case), p. 13, para. 15; Nuclear Test case (New Zealand v. France) (Interim Protection), Order of 22 June 1972, ICJ Rep. (1972) (hereafter Nuclear Test case – New Zealand), p. 137, para. 14; Nuclear Test case (Australia v. France) (Interim Protection), Order of 22 June 1972, ICJ Rep. (1972) (hereafter Nuclear Test Case – Australia), p. 101, para. 13. See also Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United Stales of America) (Provisional Measures), Order of 9 April 1998, http://www.icj-cij.org (hereafter Vienna Consular Convention case), para. 23. See further various articles in ‘Agora: Breard’, 92 AJIL (1998) pp. 666–712Google Scholar, including the articles cited in note 12, supra.

26. Generally, the citation of jurisdictional provisions in the Convention or other source and a basic factual background.

27. It will be noted that this formulation does not address the issue of the adequacy or otherwise of rebuttal evidence by the Respondent. Black's Law Dictionary, 6th edn. (St. Paul MN, West 1990) pp. 1189–1190Google Scholar. Presumably the Respondent has the liberty of coming forward and developing a case based on such contradictory evidence and the decision-maker will take this into consideration.

28. Saiga No. 2 case, Verbatim Record, supra, n. 24, p. 14. Cf., Sep. Opinion of Judge Weeramantry in Genocide Convention case, suggesting the ‘highest standards of caution … for making a provisional assessment of interim measures.’ (at. p. 371); Sep. Opinion of Judge Shahabudeen in idem., calling for ‘substantial credibility’ (at p. 360). He quotes Dumbauld, op. cit. n. 6, at p. 161. That author also notes that in view of the summary nature of the proceeding the rules of evidence should be relaxed. Elsewhere Dumbauld argues ‘[I]t is not necessary that the measures be absolutely indispensable; it is sufficient if they serve as a safeguard against substantial and not easily reparable injury. The degree of necessity varies with the nature of the measure.’ (at p. 163). Previous to the Genocide Convention case, in the Great Belt case, the ICJ stated that evidence had not been adduced of any invitation to tender which could affect Finnish shipyards at a later date, nor ‘had it been shown’ that the shipyards had suffered a decline in orders. Proof of damage had not been supplied (at pp. 18–19, para. 29). However, in his Separate Opinion in that case, Judge Shahabudeen, quoting Judge Anzilotti in the Polish Agrarian Reform & German Minority case, PCIJ Ser. A/B, No. 58 (1933) p. 175 at p. 181, urged that a state requiring interim measures of protection was ‘required to establish the possible existence of the rights sought to be protected.’ (at pp. 34, 36). For useful recent doctrinal views, see Collins, op. cit. n. 9, pp. 177–181; Merrills, J.G., ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’, 44 ICLQ (1995) pp. 90–146, at pp. 114–116.CrossRefGoogle Scholar

29. Art. 83(2) of the Rules of Procedure of the Court of Justice of the European Communities requires the ‘establishment of a prima facie case for the interim measures applied for.’ See Sztucki, op. cit. n. 11, at p. 6.

30. Arts. 90:1 and 74:1 assign priority of prescription proceedings over all others, although Art. 90:1 is subject to ITLOS Rules art. 112:1 (simultaneous provisional measures and prompt release proceedings – Tribunal to ensure that both are dealt with without delay); Art. 91:2 requires ‘the earliest’ date for the hearing to be set and authorizes the President to call upon the parties to act in such a way as will enable any order of the Tribunal to have appropriate effects. Art. 74:2 of the ICJ Rules requires the Court, if it is not sitting, to be ‘convened forthwith … as a matter of urgency.’

31. See United Nations Convention on the Law of the Sea 1982 – A Commentary, Vol. V, Shabtai, Rosenne and Sohn, Louis B., vol. ed., (Dordrecht, Martinus Nijhoff 1989) p. 56Google Scholar. The apparent legislative history of Art. 290:5 is clear, although the language of the article lacks complete clarity.

32. See generally Merrills, loc. cit. n. 28, pp. 111–113.

33. Circumstances: See e.g., Case Concerning Military & Paramilitary Activities in and Against Nicaragua (Nicaragua v. the United States of America)(Provisional Measures), Order of 10 May 1984, ICJ Rep. (1984) (hereafter Military & Paramilitary Activities case), p. 180, para. 27; Aegean Sea Continental Shelf case (Interim Protection), Order of 11 September 1976, ICJ Rep. (1976) (hereafter Aegean Sea) case p. 11, para. 32; Elkind, op. cit. n. 23, at p. 258. Object: Land & Maritime Boundary case, p. 23, para. 42; Genocide Convention Case, p. 342, para. 35; Great Belt case, p. 16, para. 16; Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali (Provisional Measures), Order of 10 January 1986, ICJ Rep. (1986) (hereafter Frontier Dispute case), p. 10, para. 21. Purposes: e.g., Thirlway, H.W.A, ‘The Indication of Provisional Measures by the International Court of Justice’, in Rudolf, Bernhardt, ed., Interim Measures Indicated by International Courts (Berlin, Springer Verlag 1994) pp. 1–36, at pp. 5–16Google Scholar. Criteria: e.g., Merills, loc. cit. n. 28, at pp. 106–125; Grieg, D.W., ‘The Balancing of Rights and the Granting of Interim Protection by the International Court of Justice’, 11 Austr. YBIL (1991) pp. 108–140, at p. 123Google Scholar; Declaration of Judge Koroma in Vienna Consular case. Intention: e.g., Diss, opinion by Judge ad hoc Thierry in case Concerning the Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal) (Request for the Indication of Provisional Measures), Order of 2 March 1990, ICJ Rep. (1990) p. 82; Vienna Consular Convention case, para. 35

34. Emphasis added.

35. Emphasis added.

36. Thirlway, op. cit. n. 33, at pp. 7–8, suggesting that ‘infringement’ might be more realistic and that it is probably also realistic to talk about the possible imminent disappearance of the right or that the subject matter of the right was going to vanish totally.

37. As will be seen, to the formula the Court has added amplificatory language. In this declaration in the Vienna Consular Convention case, Judge Koroma, however, states ‘This is to safeguard the rights of the parties that are in dispute’. See further n. 64 infra.

38. Writing in 1933, Dumbauld, not appearing to reach as far as implied in the text, said: ‘The nature or content of the right is immaterial, except that it must be actionable in law and its violation irreparable in money.’ Dumbauld, op. cit. n. 6, at p. 165.

39. See Sztucki, op. cit. n. 10, at p. 92, noting that only reasons, consequences and measures must be specified in the Application for measures, indicating ‘the lack of excessive formalism in entertaining requests for interim measures.’ This is presumably relevant to the point under discussion.

40. Provisional measures are ex hypothesi indicated before it is known what the respective rights of the parties are. Thirlway, H.W.A., Non-Appearance Before the International Court of Justice (Cambridge, Cambridge University Press 1985) p. 84.Google Scholar Note the Separate Opinion of Judges Amoun, Foster and Aréchaga in the Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland) (Interim Protection), Order of 17 August 1972, ICJ Rep. (1972) (hereinafter Fisheries – FRG case), p. 36 and Fisheries Jurisdiction (United Kingdom v. Iceland) (Interim Protection), Order of 17 August 1972, ICJ Rep. (1972) (hereafter Fisheries – UK) case, p. 18. Therein they note that the Judges’ Order ‘cannot have the slightest implication as to the validity or otherwise of the rights protected by the Order or of the rights claimed by a coastal State.’

41. This approach is strongly supported by the Nuclear Test cases, where the ICJ recognised what was referred to in the Orders as a ‘legal interest’ thought to be controversial in international law and relations. ICJ Rep. (1973), p. 103 para. 23 and p. 140, para. 24. See Sztucki, op. cit. n. 10, pp. 92–99 and 101 and Merrills, loc. cit. n. 11, at p. 162. Note also US Staff case, where the ICJ, in a few words, makes the barest mention of rights, (‘continuance of the situation … exposes the human beings to privation, hardship, anguish and even danger to life and health and thus to a serious possibility of irreparable harm …’), immediately thereafter discussing injury. ICJ Rep. (1979) p. 20, para. 42. In the Military & Paramilitary case, on the other hand, the rights are set forth in some detail (p. 169, para. 23): rights to ‘life, liberty and security [of Nicaraguan citizens]; … be free … from the use or threat of force [against Nicaragua] …; to conduct its affairs … [by Nicaragua]; of self-determination [by Nicaragua], but the link with interim protection is ‘rather disappointing’. Thirlway, op. cit. n. 33, at p. 9. This criticism might be misplaced.

42. See generally Dumbauld, op. cit. n. 6, at pp. 175–176.

43. Cases in which orders were made include: Land & Maritime Boundary case; Frontier Dispute case; Military & Paramilitary case; US Staff case; Nuclear Test cases. An instructive case in which no order was made is the case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States) (Provisional Measures), Order of 14 April 1992, ICJ Rep. (1992) (hereafter Lockerbie case).

44. Cases in which orders were made include: Genocide Convention case; US Staff case; probably the Nuclear Test cases; Sino-Belgian Treaty case (Belgium v. China), PCIJ Ser. A. No. 8 1927, (hereafter Sino-Belgian case).

45. Cases in which orders were made include: US Staff case; Fisheries cases; Anglo-Iranian Oil Co. case; The Electricity Company of Sofia and Bulgaria (Request for the Indication of Interim Measures of Protection), Order of 5 December 1939, PCIJ Ser. A/B. No. 79 (hereafter Electricity Co of Sofia case); Vienna Consular Convention case. In the last-mentioned case, the right in question was for the consular authorities of States parties to the Vienna Convention on Consular Relations who are accredited to a receiving State to be informed of their national's incarceration and for the national to be informed of his right to request those authorities to be advised of his arrest and detention. Usually embedded in the State's rights are the rights of its nationals. However, in this case, the latter loomed very large, given the fact that the nub of the Applicant's complaint was the national's conviction of murder and his impending execution within 11 days of the date of the main Application and the simultaneous request for provisional measures. In fact, the request included a plea for a stay of execution pending the disposition of the Application. In para. 38 of its Order, the Court demonstrated sensitivity to the requirement that it is the rights of States that are implicated in provisional measures cases: ‘Whereas … the function of this Court is to resolve international legal disputes between States, inter alia, when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal.’ This point was forcefully made in his Declaration by Judge Oda, stressing that he had voted with the Court purely on humanitarian grounds and that there was ‘no question of … rights (of States parties) as provided in the Vienna Convention, being exposed to breach.’ In fact, he urged, the Court did not even have ‘prima facie jurisdiction to deal with the issues concerning the rights of the States parties.’ He therefore made the point that the Court “cannot act as a court of criminal appeal’ or intervene in matters relating to capital punishment and its execution. Judge Koroma made a similar point in his Declaration. Instructive cases in which no order was made include: Great Belt case; Interhandel case (Interim Protection), Order of 24 October 1972, ICJ Rep. (1972) (hereafter Interhandel case). See also the recent Case concerning the Vienna Convention on Consular Relations (Germany v. United States of America), a dispute concerning alleged violations of the Vienna Convention on Consular Relations with respect to two German nationals. In this case, it is the first time that the Court indicates provisional measures proprio motu.

46. Case in which orders were made: Nuclear Test cases. Instructive cases in which no order was made include: Great Belt case; Aegean Sea case. See Elkind, op. cit. n. 23, at p. 223. UNCLOS Art. 290:1, dealing with prevention of serious harm to the marine environment, now clearly reinforces this trend.

47. Contained in Parts XI, Section 5, and XV and Annexes V-VIII.

48. These include ship and crew detention; ship nationality; exercise of jurisdiction over ships by non-flag States; marine research; enforcement of domestic pollution laws against individual vessels; deep seabed mining – technical, contractual and commercial issues.

49. In Saiga No. 2, the rights in issue fell within the rough catalogue set forth in the text or clearly involve specific entitlements and claims under UNCLOS, plus, in one situation, general notions of human rights.

50. Dealing with sovereign rights with respect to the living resources in the EEZ or their exercise.

51. Generally providing that disputes concerning interpretation or application of the Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction are subject to the Convention's general compulsory procedures (such as submission to ITLOS) for dispute settlement entailing binding decisions.

52. Saiga No. 2 case, paras. 27 and 36.

53. It would have the same impact on Art. 292, on prompt release, and such related provisions as Arts. 73, 220:7 and 226:1(b). In this case, it will also be noted that Respondent, while invoking Art. 297:3(a), failed to proceed against the defendant in its own courts under legislation dealing with its sovereign entitlements relating to EEZ living resources, instead proceeding under its customs, marine and related legislation.

54. Dumbauld, suggests that ‘The more serious the hardship to defendant, the stricter the scrutiny of plaintiff's wants.’ (Dumbauld, op. cit. n. 6, at p. 163). The balancing requirement is often referred to in the common law domestic context as the ‘balance of convenience.’ See 24 Halsbury's Laws of England, 4th edn., reissue (1991), para. 856, citing American Cyanamid Co. v. Ethicon [1975] AC 396 at p. 408, 1 All ER 504 at p. 510 (House of Lords, Lord Diplock); Spry, I.C.F., The Principles of Equitable Remedies, 4th edn. (London, Sweet and Maxwell 1990) pp. 454, 462, 465Google Scholar; 42 American Jurisprudence, 2nd edn. (1969–1997) paras. 56–57.Google Scholar

55. Emphasis added.

56. Emphasis added. In the Vienna Consular Convention case (para. 21) the Court reiterated the argument of the United States that the Court should ‘take the rights of each of the Parties into consideration and ensure that it maintains a fair balance in protecting those rights …’

57. Great Belt case, p. 18, para. 27. For an earlier discussion, see Sztucki, op. cit. n. 10, pp. 115–116, suggesting that the Interhandel case was decided on that basis. See Interhandel case, p. 112. There, the judicial proceeding in question was actually before a domestic body, not the international provisional measures proceedings. Thirlway, op. cit. n. 33, at pp. 25–57 treats urgency as a ‘condition’ for ICJ provisional measures, the other two conditions being the existence of jurisdiction and the existence of prima facie jurisdiction. It has been pointed out that in the jurisprudence of the ICJ, considerable attention has been given to urgency since the case Concerning the Pakistani Prisoners of War (Pakistan v. India) (Request for the Indication of Interim Measures of Protection), Order of 13 July 1973, ICJ Rep. (1993) p. 328, where the case was dismissed on those grounds after Applicant requested postponement. Thirlway, ibid, at pp. 16–27. See also Land & Maritime Boundary case, p. 22, para. 35, which merely states that ‘provisional measures are only justified if there is urgency …’ The same language was used in the Vienna Consular Convention case, para. 35, while Judge Oda's Declaration refers to a requirement of ‘imminent irreparable breach’. Note the analysis in Merrills, loc.cit. n. 28, at pp. 111–113.

58. 42 American Jurisprudence, para. 26. However, urgency is not a universal rule in various American jurisdictions.

59. See Sztucki, op. cit. n. 10, at pp. 104–108. As Grieg argues, there is no need to consider urgency where rights have already been infringed, as in some aspects of Saiga No. 2, only where they are threatened, as has been alleged with other aspects of this case. Grieg, loc.cit. n. 33, at p. 136. Note his argument that it ‘is far from certain that it follows ineluctably from article 74 of the [ICJ's] Rules of Procedure [the counterpart of art. 90 of ITLOS’ Rules], that urgency is an essential and defined quality. He concludes that it has a direct bearing on the need to protect interests and can enhance irreparability. Grieg, idem, p. 137.

60. E.g., the value sought to be protected by the second leg of Art. 290:1 – threat of serious harm to the marine environment.

61. See Sztucki, op. cit. n. 10, at pp. 112–119, esp. p. 113. The preceding paragraph of the text demonstrates that it is self-evident that urgency might often be dictated by the circumstances. And the operational context of a system of provisional measures might have a significant dimension of urgency. E.g., Art. 63(2) of the American Convention on Human Rights, in the more suitable context of human rights, provides that the Inter-American Court of Human Rights may take provisional measures ‘in cases of extreme gravity and urgency …’ See 9 ILM (1970) p. 118.Google Scholar

62. In his analysis of his suggested (apparently substantive) urgency requirement, Thirlway actually discusses mainly procedural requirements, such as court scheduling.

63. Saiga No. 2 case, para. 52:1. In para. 52:3, the Tribunal decided ‘that Saint Vincent and the Grenadines and Guinea shall each submit the initial Report referred to in Article 95, paragraph 1, of the Rules [of the Tribunal] as soon as possible and not later than 30 April 1998, and authorises the President to request such further reports and information as he may consider appropriate after that date.’

64. Understandably, Art. 63(2) of the American Convention on Human Rights (authorising the Inter-American Court of Human Rights to adopt provisional measures in the specific context of violations of traditional human rights) refers exclusively to irreparable damage. In a broad context of civil rights, irreparability might be an important moral consideration which sometimes tends to loom large, even if the civil rights in question are not the rights of the primary party (the Applicant) but of a national under its protection. Thus, in the death penalty situation in the Vienna Consular Convention case, the Order provides that the power of the Court ‘presupposes that irreparable prejudice shall not be caused’ (para. 35) and that ‘the Court will not order interim measures in the absence of irreparable prejudice to the rights which are the subject of dispute’ (para. 36). Judge Oda's formula is ‘imminent irreparable breach’. However, Judge Koroma does not appear to require irreparability, saying that the purpose of a request for provisional measures is to preserve and safeguard rights especially when such rights or subject-matter of the dispute could be irretrievably or irreparably destroyed thereby rendering the Court's decision ineffective or without object.’ (Emphasis added).

The concept of irreparabilty is generally accepted in the doctrine. However, the wrong done or anticipated is described variously. See Merrills, loc. cit. n. 28, at p. 106 (irreparable damage), Elkind, op. cit. n. 28, at p. 258 (irreparable injury), Grieg, loc. cit. n. 33, at p. 123 (irreparable harm). A leading law dictionary defines each of ‘injury,’ ‘damage’ and ‘harm’ mainly by citing one or both of the other words as a synonym. However, ‘prejudice’ is defined as a ‘forejudgment; bias; partiality; preconceived opinion.’ Only the expression ‘without prejudice’ includes the notion of non-waiver or non-loss of rights or privileges. Black's Law Dictionary, op. cit n. 27, at pp. 389, 718, 785–786, 1179. Writers often imply that this is not a category, which is separate from prejudice of rights. However, Grieg lists irreparable harm and prejudice of rights as separate categories, not as paraphrase and principal category.

65. The Court seems to have focused on the reparability of prejudice to the Applicant's real or corporeal rights. At the same time, it declined to acknowledge the existence or irreparability of rights of national policy-determination or –formulation. Direct application of the preservation genus, along with a sensitive rendering of the concept of rights, might have induced a different result by the Court.

66. Elkind, op. cit. n. 23, at p. 223.

67. Sztucki notes the ‘gravity’ of irreparability. See Sztucki, op. cit. n. 10, at p. 14.

68. See Separate Opinion of Judge Weeramantry in the Genocide Convention case, supra n. 25, p. 379.

69. Elkind suggests the category of the intolerableness of the continuance of the situation that complaining party cannot reasonably be expected to endure the status quo pending settlement. Elkind, op. cit. n. 23, at p. 230.

70. See Separate Opinion by Judge Weeramantry in Genocide Convention case, supra n. 25, p. 379. See also Judge Koroma's Declaration in Vienna Consular Convention case, referred to in n. 64, supra.

71. Such as the Land & Maritime Boundary case, supra n. 25, p. 18, para. 19.

72. See e.g., Dissenting Opinion of Judge Ad Hoc Thierry in Arbitral Award case, supra n. 33, p. 84 and the Lockerbie case, supra n. 43, pp. 180–181; Dissenting Opinion of Judge Ajibola in idem, pp. 193–198.

73. Sztucki, op. cit. n. 10, at p. 74, referring in particular to the ICJ's abstention, on the ground of absence of necessity, from deciding this point in the Aegean Sea case, supra n. 33, pp. 11–13, paras. 34–42 (attention to the problem being simultaneously given by the political organs of the United Nations) and criticisms thereof by Judges Lachs, pp. 20–21 and Elias, pp. 27–28.

74. See Land & Maritime Boundary case, supra n. 25, p. 22, para. 41; Frontier Dispute case, supra n. 33 p. 9, para. 18.

75. Saiga No. 2, para. 52:2.

76. Idem, para. 42–43.

77. In his Declaration in Saiga No. 2 Judge Vukas reflected on his perception of the specific need for such a clause given the facts of the case, involving ‘tragic events’ resulting in ‘human suffering and material damage.’

78. It will be recalled that Art 290:1 provides that the court or tribunal may prescribe such measures as it considers appropriate …’ (emphasis added). This implies that, as long as a party has requested any provisional measures, the Tribunal has power to order appropriate measures. Art. 89:5 of the Rules of the Tribunal, like Art. 75:2 of the ICJ Rules, provides for the Tribunal (on its own) to prescribe measures different in whole or in part from those requested. The significance of the discretionary power in this area will be recalled. In his Declaration, in Saiga No. 2, Judge Vukas remarked that the only provisional measures that the Tribunal is authorized to make are those that are prescribed (not recommended) and that are binding.

79. It is conceded that in cases involving private parties or largely commercial or technical matters (unlike the present case), questions might be asked about the desirability of routinely prescribing non-aggravation or non-extension measures.

80. The Tribunal was somewhat more oblique with its contemplation, in para. 43 of the Order, of an ‘arrangement’ (in order to prevent aggravation or extension) being concluded by the parties.

81. Additional to the alleged main categories of irreparable prejudice and urgency. Sztucki, op. cit. n. 10, at pp. 123 and 127–129.

82. See Merrills, loc. cit. n. 28, at pp. 106–125 (a ‘criterion’), Elkind, op. cit. n. 23, p. 230 (a ‘category’ which applies ‘generally’), Grieg, loc. cit. n. 33, at p. 123 (a ‘criterion’).

83. One notable exception is Elkind, apparently influenced by the Nuclear Test cases and making mention of the provision in the draft of what became Art. 290:1. See Elkind, op. cit. n. 23, at pp. 220–224.

84. See idem, p. 230, who seems to include environmental protection under his second, of three, ‘categories,’ viz…, ‘where the continuance of a situation is intolerable and the complaining party cannot reasonably be expected to endure the status quo pending judicial settlement of a dispute.’

85. Some of these more or less frequently may be manifested in such component paradigms as those suggested by Judge Weeramantry.

86. Emphasis added.