Preserving the Respective Rights of the Parties to the Dispute - The Ghana/Côte d’Ivoire Order for Provisional Measures - Chapter 4 - Natural Resources and the Law of the Sea - International Law Institute Series on International Law, Arbitration and Practice, Volume 2
Originally from Natural Resources and the Law of the Sea: Exploration, Allocation, Exploitation of Natural Resources in Areas under National Jurisdiction and Beyond - International Law Institute Series on International Law, Arbitration and Practice, Volume 2
The Order for Provisional Measures issued by the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) on 25 April 2015 in the Ghana/Côte d’Ivoire case offers an opportunity to revisit the requirements for provisional measures issued by international courts and tribunals, in particular pursuant to Article 290(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS or the Convention). The case demonstrates: (i) that provisional measures may be sought by either the applicant or the respondent so as to protect the rights of a particular party; (ii) that provisional measures may be ordered only after having taken into consideration the competing rights of the parties; and (iii) that the party requesting the provisional measures must prove the “plausibility” of the rights that it is seeking to protect.
Article 290 of UNCLOS provides for two different provisional measures proceedings: the first, regulated in paragraph 1, regards requests made to the same court or tribunal seized with the merits of the case; the second, regulated in paragraph 5, regards requests for provisional measures made pending the constitution of an arbitral tribunal. According to Article 290, in relevant part:
"1. 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 marine environment, pending the final decision.
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5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Sea-Bed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4."