Provisional Measures in the “Enrica Lexie” Case

2017 ◽  
Vol 16 (3) ◽  
pp. 413-436
Author(s):  
Ravindra Pratap
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
International Tribunal ◽  
Coastal State ◽  
Legal Development ◽  
Small Measure ◽  
United Nations Convention ◽  
The Law

Abstract “Enrica Lexie” is yet another landmark case under the United Nations Convention on the Law of the Sea (unclos). The provisional measures prescribed by the International Tribunal for the Law of the Sea (itlos) and the Annex vii Arbitral Tribunal share a discernibly significant commonality of result, if not a demonstrably identical approach to the issues contested between the flag state and the coastal state. There was no express finding by itlos on urgency other than in terms of prejudice to the rights of the parties. Whether the Arbitral Tribunal’s Order preserved the parties’ rights would depend in no small measure upon the nature and effectiveness of its decision on the merits. Perhaps the most important common legal development is the appreciation of human rights considerations. While their application might remain a matter of contestation, it would be difficult to characterize the Orders as unfair both for provisional measures as a temporary remedy and for their perceived bearings on the merits of the case.

6 Applications for Provisional Measures

2021 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
United Nations ◽  
Marine Environment ◽  
The Other ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
International Tribunal ◽  
The Third ◽  
United Nations Convention ◽  
The Law ◽  
The One

This chapter assesses applications for provisional measures of protection under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). At the Third UN Conference on the Law of the Sea, the need for courts or tribunals having jurisdiction under UNCLOS to have the power to prescribe provisional measures was beyond dispute although there was considerable debate concerning the details of the regime associated with such measures. The finally adopted Article 290 of UNCLOS, under the heading ‘Provisional measures’, represents the best possible compromise. Provisional measures are divided into provisional measures prescribed by the International Tribunal for the Law of the Sea (ITLOS) under Article 290(1) pending ITLOS’ judgment on the merits of the dispute, on the one hand, and provisional measures prescribed by ITLOS under Article 290(5) pending the constitution of an arbitral tribunal to which a dispute is being submitted, on the other hand. The request for the prescription of provisional measures shall be in writing and specify the measures requested, the reasons therefor, and the possible consequences, if the request is not granted, for the preservation of the respective rights of the parties or for the prevention of serious harm to the marine environment.

5 Applications for Prompt Release of Vessels and Crews

2021 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
United Nations ◽  
Law Of The Sea ◽  
Financial Security ◽  
International Tribunal ◽  
Coastal State ◽  
United Nations Convention ◽  
The Law ◽  
Laws And Regulations

This chapter looks at applications for prompt release of vessels and crews detained after violating laws and regulations of a coastal State. Pursuant to Article 292(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the International Tribunal for the Law of the Sea (ITLOS) has default jurisdiction over prompt release applications, unless the parties otherwise agree. The parties must be States Parties to UNCLOS and have not agreed to submit the question of release from detention to any other court or tribunal within ten days from the time of detention. Article 112 of the ITLOS Rules adds, inter alia, that ITLOS shall give priority to applications for release of vessels or crews over all other proceedings before ITLOS. In its judgment, ITLOS must determine in each case whether or not the allegation made by the applicant that the detaining State has not complied with a provision of UNCLOS for the prompt release of the vessel or the crew upon the posting of a reasonable bond or other financial security is well founded. If ITLOS decides the allegation is well founded, it shall determine the amount, nature, and form of the bond or financial security to be posted for the release of the vessel or the crew.

Regulatory Coherence

2021 ◽  
pp. 51-88
Author(s):  
Caroline E. Foster
Keyword(s):  
United Nations ◽  
Law Of The Sea ◽  
Legitimate Authority ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
United Nations Convention ◽  
The Law ◽  
Advisory Opinions

Part II comprises two chapters, Chapter Three and Chapter Four. These chapters together investigate the decisions and advisory opinions of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and United Nations Convention on the Law of the Sea (UNCLOS) Annex VII tribunals, as well as other Permanent Court of Arbitration (PCA) cases. The courts and tribunals studied in these chapters make use of a broad range of interpretive methodologies in identifying emerging global regulatory standards, including reliance on the inbuilt logic of the regulatory schemes they are applying. The standards articulated make relatively minimal demands on domestic legal systems compared with more demanding standards that could have been developed. In this respect the standards appear to enhance traditional procedural justifications for international law’s claim to legitimate authority. Chapter Three focuses on tests for ‘regulatory coherence’.

Innocent Passage of Warships

2016 ◽  
Vol 1 (2) ◽  
pp. 210-243 ◽  
Author(s):  
Anh Duc Ton
Keyword(s):  
United Nations ◽  
North Korea ◽  
East Asian ◽  
Law Of The Sea ◽  
Coastal State ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law

The United Nations Convention on the Law of the Sea (losc) is well known as the “Constitution for the Oceans”; however, the passage of foreign warships through the territorial sea of a coastal State is not clearly addressed. All East Asian littoral States (except North Korea and Cambodia) are parties to the losc but their practices regarding the innocent passage of warships are different. This article provides an analysis of the innocent passage regime of the losc, the practice of East Asian littoral States regarding the innocent passage of warships as well as factors that have influenced the trends in their practices.

Arctic Sunrise Arbitration (Netherlands v. Russia) (Perm. Ct. Arb.)

2016 ◽  
Vol 55 (1) ◽  
pp. 1-73 ◽  
Author(s):  
Theodore Kill
Keyword(s):  
United Nations ◽  
Ad Hoc ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law

An ad hoc arbitral tribunal convened pursuant to Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) delivered its award on the merits on August 14, 2015 in Arctic Sunrise (Netherlands/Russia). The award was unanimous on all holdings and included no separate opinions. In addition to establishing the Tribunal’s jurisdiction and admissibility of the claims, the Tribunal also found that Russia had violated its obligations under UNCLOS by detaining the Arctic Sunrise, a Dutch-flagged vessel, and the thirty people (Arctic 30) on board on September 19, 2013; by failing to comply with an earlier order on provisional measures; and by failing to pay its share of the arbitral expenses.

The Mox Plant Case–Provisional Measures in the International Tribunal for the Law of the Sea

2003 ◽  
Vol 16 (3) ◽  
pp. 611-619 ◽  
Author(s):  
MALCOLM J. C. FORSTER
Keyword(s):  
United Kingdom ◽  
United Nations ◽  
Irish Sea ◽  
Law Of The Sea ◽  
International Tribunal ◽  
The United Kingdom ◽  
Radioactive Substances ◽  
United Nations Convention ◽  
The Law ◽  
The Irish Sea

On 3 December 2001, the International Tribunal for the Law of the Sea (ITLOS) issued an Order in response to Ireland's request for the prescription of provisional measures in accordance with Article 290 of the United Nations Convention on the Law of the Sea (UNCLOS). In its request, Ireland alleged violation by the United Kingdom of numerous provisions of UNCLOS. The scope of provisional measures requested by Ireland included, among others, the immediate suspension by the United Kingdom of the authorization of the Sellafield Mox Plant and a guarantee of no movement of radioactive substances or materials or wastes that are in any way related to the plant into or out of the waters of the Irish Sea. This article reviews the background to the dispute between Ireland and the United Kingdom over the operation of the Sellafield Mox Plant. It focuses on the various jurisdictional challenges raised before ITLOS and critically assesses the conclusions reached by the Tribunal in its Order.

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