I have voted in favour of the Order because I concur fully with the reasoning of the Tribunal on the main substantive issues. In particular, I endorse the clear conclusion in paragraph 81 of the Order that
in the circumstances of this case, the Tribunal does not find that the urgency of the situation requires the prescription of the provisional measures requested by Ireland, in the short period before the constitution of the Annex VII arbitral tribunal.
However, I consider that the Order goes too far in two respects (namely, jurisdiction and the dispositif), and not far enough in its findings regarding two other issues (namely, the preservation of rights and the prevention of serious harm to the marine environment). In accordance with article 8, paragraph 6, of the Resolution on the Internal Judicial Practice of the Tribunal, this separate opinion concentrates on these four points of difference with the Order.
In regard to the question of jurisdiction, the role of the Tribunal in cases under article 290, paragraph 5, is rather unusual: the Tribunal has to form a view on the question of another tribunal’s jurisdiction. The standard of appreciation is simply that of a prima facie case, without prejudice to the decision of the other tribunal once it has been constituted. It may be recalled that the prima facie test, in relation to the similar question of interim measures under article 41 of the Statute of the International Court of Justice, was explained many years ago by Judge Lauterpacht in the following terms: