I agree with the finding of the Tribunal that, in the circumstances of the present case, the urgency of the situation does not require the prescription of the provisional measures requested by Ireland. On the facts as presented to the Tribunal in this case, I do not find that the requirements for the prescription of provisional measures under article 290, paragraph 5, of the Convention are satisfied in respect of the rights which Ireland claims have been violated by the United Kingdom.

In considering a request for the prescription of provisional measures under article 290, this Tribunal is governed by both paragraphs 1 and 5 of that article. Paragraph 1 sets out the parameters and conditions for the prescription of provisional measures in general. As the article puts it, provisional measures may be prescribed if the court or tribunal to which a request is addressed considers that such measures are “appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision”. The jurisprudence of international judicial bodies makes it clear that provisional measures are essentially exceptional and discretionary in nature, and are only appropriate if the court or tribunal to which a request is addressed is satisfied that two conditions have been met. The first condition is that the court or tribunal must find that the rights of either one or other of the parties might be prejudiced without the prescription of such measures, i.e. if there is a credible possibility that such prejudice of rights might occur. The second condition is that the prejudice of rights would be irreparable in the sense that it would not be possible to restore the injured party materially to the situation that would have prevailed without the infraction complained of, or that the infraction “could not be made good simply by the payment of an indemnity or by compensation or restitution in some other material form” (case concerning the Denunciation of the Treaty of 2 November 1865 between China and Belgium, P.C.I.J., Series A, No. 8, p. 7). In the case of a request under article 290 of the Convention provisional measures may also be prescribed to prevent serious harm to the marine environment.