Abstract
Provisional measures are critical for the capacity of international courts and tribunals to protect the natural environment. By constraining or mandating certain party behaviours in order to prevent environmental harm while often lengthy proceedings are pending, they help to ensure that international dispute resolution remains a viable option for disputes with environmental components. Nearly all international courts and tribunals have the authority to order provisional measures, but the precise scope of that authority varies. Of particular note is that some tribunals are authorized to issue provisional measures primarily, or even solely, for the protection of the environment, while others may only issue such measures to protect party rights that are at issue in the dispute. There is general agreement among international courts and tribunals regarding the fundamental prerequisites for the ordering of provisional measures: there must be a risk of prejudice (though the precise threshold varies); the measures must be urgent; they must be proportional; and, in most situations, there must be a link between the measures and the rights in dispute in the proceedings. Recent years have seen international courts and tribunals issue an increasing number of provisional measures for protection of the environment. This chapter explores the significance of those orders, and of the distinctions between the approaches of particular courts and tribunals, for future environmental disputes.
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Notes
- 1.
In national jurisdictions, provisional measures are known by other names. For instance, in the United States, interim measures are called preliminary injunctions, and they are frequently sought in environmental litigation.
- 2.
Oellers-Frahm 2011, p. 1279.
- 3.
See Sect. 15.4.5, infra.
- 4.
See Sect. 15.5, infra.
- 5.
See Bendel 2019, pp. 491–92.
- 6.
Crawford 2016.
- 7.
The practice of the ICJ is also notable as it often serves as a reference for other international courts and tribunals.
- 8.
Nuclear Tests Case (Australia v France), Provisional Measures Order, 22 June 1973, ICJ Reports 1973, p. 99; Nuclear Tests Case (New Zealand v France), Provisional Measures Order, 22 June 1973, ICJ Reports 1973, p. 135.
- 9.
ITLOS, Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), Provisional Measures, 27 August 1999, ITLOS Reports 1999, p. 268.
- 10.
ITLOS, The MOX Plant Case (Ireland v United Kingdom), Provisional Measures, 3 December 2001, ITLOS Reports 2001, p. 95; ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, 13 July 2006, ICJ Reports 2006, p. 113.
- 11.
ITLOS, The MOX Plant Case (Ireland v United Kingdom), Provisional Measures, above n 10.
- 12.
ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures, 8 October 2003, ITLOS Reports 2003, p. 10; ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, 8 March 2011, ICJ Reports 2011, p. 6; ICJ, Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), Provisional Measures Order, 13 December 2013, ICJ Reports 2013, p. 398
- 13.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12; ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional Measures, 22 November 2013, ICJ Reports 2013, p. 354.
- 14.
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12.
- 15.
ITLOS, Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’Ivoire), Provisional Measures, 25 April 2015.
- 16.
Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore),above n 12, p. 10.
- 17.
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12.
- 18.
ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, 23 January 2007, ICJ Reports 2007, p. 3.
- 19.
The ‘Arctic Sunrise’ Case (Kingdom of the Netherlands v Russian Federation), Provisional Measures, 22 November 2013, ITLOS Reports 2013, p. 230.
- 20.
In its 2018 Award in Aven v Costa Rica, for example, the tribunal accepted that a respondent state might assert a counter-claim in relation to environmental damage, while dismissing the counter-claim on procedural grounds. See Aven v Costa Rica, Award, 18 September 2018, Case No. UNCT/15/3.
- 21.
See BIICL 2019, p. 12.
- 22.
ICC 2019, para 3.8.
- 23.
ICC 2019, Annex, para 17.
- 24.
Levine 2017, p. 26.
- 25.
Miles 2017, pp. 64.
- 26.
This purpose serves not only the interests of the parties, but also to protect the legitimacy of the tribunal itself, which will be harmed if its final decisions have, during the pendency of its cases, been rendered ‘nugatory or of no effect’. Mensah 2002, p. 43.
- 27.
Miles 2017, p. 64.
- 28.
E.g., ICJ Rules, Article 73(1); ITLOS Rules, Article 89(1); ICSID Arbitration Rule 39(1).
- 29.
Tomka and Hernández 2011, § C.I.
- 30.
See Sect. 15.3.1, infra.
- 31.
See Sect. 15.4.1, infra.
- 32.
See Sect. 15.4.2, infra.
- 33.
- 34.
- 35.
See, e.g., Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 21 (rejecting Nicaragua’s request for provisional measure ordering Costa Rica to transmit EIA for road project because request was ‘exactly the same as one of Nicaragua’s claims on the merits contained at the end of its Application,’ at para 51(b)).
- 36.
Use of the term ‘order’ might have been controversial in the past, when the binding nature of provisional measures was disputed. However, as discussed below in Sect. 15.6, it is now widely understood that provisional measures are legally binding on the party or parties to whom they are directed, whether the court or tribunal in question ‘indicates’, ‘prescribes’, or ‘recommends’ them.
- 37.
Oellers-Frahm 2011, pp. 1280–81.
- 38.
Statute of the International Court of Justice, 26 June 1945, entry into force 24 October 1945, Article 41(1).
- 39.
See United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, entered into force 16 November 1994 (UNCLOS), Article 290; UNCITRAL Arbitration Rules, 2013, Article 26; PCA Optional Environmental Rules, 19 June 2001, Article 26; Convention on the Settlement of Investment Disputes between States and Nationals of other States, adopted 18 March 1965, 575 UNTS 159, entered into force 14 October 1966 (ICSID Convention), Article 47.
- 40.
- 41.
A further source of authority could be the treaty or instrument under which the claim is brought. For example, in the Kishenganga Arbitration, the Indus Waters Treaty ‘contained a specific power to grant interim relief,’ which Pakistan argued ‘furnished a self-contained set of rules,’ making certain criteria generally applied by international courts and tribunals irrelevant. The tribunal ‘adopted a nuanced view, holding that the provision “functions as a kind of lex specialis prescribed by the framers of the provision that makes unnecessary the imposition of further requirements,’” but nevertheless taking note of and referring to the jurisprudence of other courts and tribunals, including the ICJ. Miles 2017, pp. 208–09.
- 42.
ICJ Statute, above n 38, Article 41(1).
- 43.
ICSID Convention, above n 39, Article 47. See also ICSID Arbitration Rule 39(1) (party may request measures ‘for the preservation of its rights’).
- 44.
A dispute under UNCLOS will only be referred to the ICJ if both parties have so designated or otherwise agree. See UNCLOS, above n 39, Articles 287(1), (3)–(5). This has yet to occur, and it may, in fact, never occur given ‘a relatively low number of states selecting the ICJ under UNCLOS Art 287(1).’ Miles 2017, p. 191 n 100. Regardless, Article 290 of UNCLOS appears to apply to any ‘court or tribunal’ to which a dispute under UNCLOS has been duly submitted, and its provisions would presumably function as the lex specialis of any UNCLOS dispute referred to the ICJ, prevailing against any conflicting provisions in the Court’s Statute or Rules. See Tomka and Hernández 2011, n 74.
- 45.
Miles 2017, p. 160.
- 46.
UNCLOS, above n 39, Article 290(1) (emphasis added).
- 47.
See Mensah 2002, pp. 45–46.
- 48.
- 49.
Tomka and Hernández 2011, Sect. B.IV.
- 50.
Ibid., n 39 (quoting Prof. Wolfrum); see also Tanaka 2014, p. 365 (‘By referring to marine environmental protection as a justification for provisional measures, this provision is thought to give explicit textual expression to the enforcement of a community interest concerning marine environmental protection.’); Miles 2017, p. 453.
- 51.
PCA Optional Environmental Rules, above n 39, Article 26(1) (emphasis added).
- 52.
- 53.
UNCITRAL Arbitration Rules, above n 39, Article 26(1).
- 54.
Ibid., Article 26(3)(a).
- 55.
ICC Arbitration Rules (2017), Article 28(1).
- 56.
ICC 2019, para 5.57.
- 57.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v Myanmar), Provisional Measures, 23 January 2020, para 41.
- 58.
See Robinson 2018 (‘It is realistic—not optimistic—to project that we shall witness in coming years an obligation erga omnes to safeguard Earth’s environment.’); see also Miles 2017, p. 141; Bendel 2019, p. 521 (whether measures like those granted to address serious human rights violations are also available for environmental violations poses ‘a significant question’).
- 59.
UNCITRAL Arbitration Rules, above n 39, Article 26(1) (emphasis added); see also ICC Arbitration Rules (2017), Article 28; LCIA Arbitration Rules, Article 25; ICDR International Arbitration Rules, Article 24.
- 60.
UNCLOS, above n 39, Article 290(3); PCA Optional Environmental Rules, above n 39, Article 26(1).
- 61.
ICJ Rules, Article 75(1); ICSID Arbitration Rule 39(3).
- 62.
E.g., ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10, para 78–81, 89(1) (granting measures entirely different from those requested). See Sect. 15.5, infra.
- 63.
See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 65–69; see also Miles 2017, p. 309.
- 64.
UNCLOS, above n 39, Article 25(2); ITLOS Rules, Article 91.
- 65.
Tomka and Hernández 2011, § B.IV.
- 66.
In contrast, provisions authorizing the appointment of emergency arbitrators to hear requests for provisional measures pending constitution of a full tribunal are more common in international commercial arbitration.
- 67.
Guilfoyle and Miles 2014, p. 274.
- 68.
Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), Provisional Measures, 27 August 1999, ITLOS Reports 1999, p. 268; ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10; Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12.
- 69.
Miles 2017, p. 165-66.
- 70.
Ibid., p. 205.
- 71.
Merrills 1995, pp. 91–92. Where the respondent concedes jurisdiction or fails to challenge it, the tribunal will have less need to address the issue in depth.
- 72.
Miles 2017, p. 209; see also pp. 210–12 (discussing cases).
- 73.
Ibid., p. 234. ‘There is no particular reason, as a matter of logic or principle, why this needs to be [the] precise threshold, but it is adopted nonetheless more or less automatically, the sheer weight of the jurisprudence constante being such that the contemplation of any alternative would require a very good reason indeed (i.e. a lex specialis).’ Ibid.
- 74.
- 75.
Miles 2017, p. 255.
- 76.
Ibid.
- 77.
See Sect. 15.6, infra.
- 78.
Miles 2017, p. 255.
- 79.
- 80.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, Declaration of Judge Greenwood, para 4.
- 81.
Miles 2017, p. 258.
- 82.
Ibid., pp. 259 and 262–63.
- 83.
See ibid., p. 263.
- 84.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 55; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 13, para 28. See also Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 10, para 72.
- 85.
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, paras 17–19.
- 86.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 59.
- 87.
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, paras 17–19.
- 88.
See Miles 2017, pp. 263–64.
- 89.
Miles 2017, pp. 263–64.
- 90.
- 91.
Merrills 1995, p. 100.
- 92.
See Sect. 15.3.1, supra.
- 93.
Merrills 1995, p. 100. See also 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, 8 April 1993, ICJ Reports 1993, para 35 (Court ‘ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment’).
- 94.
Miles 2017, p. 239.
- 95.
Ibid., p. 241.
- 96.
Ibid., p. 240.
- 97.
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 18, para 28.
- 98.
Miles 2017, p. 521.
- 99.
Ibid., p. 243; see also Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 60–62.
- 100.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 25, 29–33; Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 16, 20–23; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v Myanmar), above n 57, para 44, 57-63.
- 101.
Miles 2017, p. 247 (citing Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’Ivoire), above n 15, para 63).
- 102.
See ibid., p. 250 (citing Plama v Bulgaria) & 253–54 (discussing UNCITRAL rules and practice).
- 103.
Miles 2017, p. 65; also p. 449.
- 104.
Mensah 2002, p. 53.
- 105.
Miles 2017, p. 450.
- 106.
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 13, para 34.
- 107.
See Guilfoyle and Miles 2014, p. 275; Miles 2017, pp. 301–06; see also Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D'Ivoire in the Atlantic Ocean (Ghana/Côte D'Ivoire), above n 15, para 41–43, 74, 86–96; The ‘Enrica Lexie’ Incident (Italy v India), Provisional Measures, 24 August 2015, ITLOS Reports 2015, p. 182, para 87.
- 108.
Miles 2017, pp. 133–34, 292, 304.
- 109.
Ibid., p. 304.
- 110.
Ibid., p. 334. Miles argues the ‘perceived severity’ of the irreparable prejudice standard ‘has created a backlash of sorts within ICSID arbitration in particular, such that a break in jurisprudence is now clearly observable.’ Ibid., p. 287. In particular, he contends recent ICSID tribunals have required instead a ‘putatively lower threshold of “significant” prejudice.’ Ibid., p. 207. But there is some question about how different the two standards really are, or whether they are effectively the same. See ibid. p. 333; see also Crawford 2016.
- 111.
Miles 2017, p. 291. See, e.g., Nuclear Tests, above n 8, para 29–30; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v Myanmar), above n 57, para 70-75; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 75.
- 112.
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 10, para 4–6, 20(a), 34, 63–64 and 66.
- 113.
Ibid., para 70.
- 114.
But see ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10, Separate Opinion of Judge Treves, para 7–9 (arguing that, although Tribunal did not explicitly say so, it implicitly considered requirement of urgency satisfied only with regard to Ireland’s ‘rights of a procedural character relating to cooperation and information’ and ordered provisional measures accordingly, even where urgency had not been established regarding Ireland’s substantive right ‘not to be polluted or exposed to a risk of pollution’ or regarding a ‘risk to the marine environment’ more generally; questioning whether Tribunal’s ‘precautionary approach is appropriate as regards the preservation of procedural rights’).
- 115.
ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, 20 April 2010, ICJ Reports 2010, para 204; see also Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 19; Certain Activities/Road, Judgment (2015), para 101, 104 and 153.
- 116.
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 34. The timing of Nicaragua’s request, immediately before the hearings on Costa Rica’s second request for provisional measures in Certain Activities, cannot have helped.
- 117.
Certain Activities/Road, Judgment (2015), para 155–156 (finding threshold requiring EIA met for 160-km-long road, much of it immediately adjacent to San Juan River, due to ‘risk of significant transboundary harm’ to Nicaragua, principally ‘the possible large deposition of sediment from the road, with resulting risks to the ecology and water quality of the river, as well as morphological changes’).
- 118.
E.g., Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 10, para 72.
- 119.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 68.
- 120.
Ibid., para 80, 86(2).
- 121.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 13, para 49.
- 122.
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 10, para 73–75.
- 123.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 81–82.
- 124.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), Order on Requests for the Modification of the March 2011 Provisional Measures, 16 July 2013, ICJ Reports 2013, para 19–20, 35.
- 125.
The Court’s rationales were similar to those later expressed on the merits for rejecting Nicaragua’s claims of environmental harm, raising questions about whether the decision on provisional measures prejudged the core issue on the merits to a certain extent. Compare Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 34 and Certain Activities/Road, Judgment (2015), para 194, 196, 211, 213.
- 126.
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 34.
- 127.
Ibid.
- 128.
They also raise interesting questions in the context of a dispute like the Road case, where baseline data did not exist due at least in part to Costa Rica’s failure to prepare an EIA, in breach of international law. See Certain Activities/Road, Judgment (2015), para 162, 229(6).
- 129.
Mensah 2002, p. 46.
- 130.
E.g., ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10.
- 131.
Mensah 2002, p. 53.
- 132.
Miles 2017, p. 305.
- 133.
- 134.
Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), above n 68.
- 135.
See The ‘Arctic Sunrise’ Case (Kingdom of the Netherlands v Russian Federation), above n 19, para 87 (fuel oil releases); Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’Ivoire), above n 15, para 65 (oil extraction activities).
- 136.
See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 22(3)(c)(d).
- 137.
See Miles 2017, p. 311.
- 138.
Miles 2017, p. 317.
- 139.
Ibid., p. 314; see also Mensah 2002, p. 45 (evidence that serious harm ‘might occur’ sufficient).
- 140.
Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), above n 68, para 77–80 (noting scientific uncertainty, party disagreement, and Tribunal’s inability to ‘conclusively assess the scientific evidence presented by the parties’).
- 141.
ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10, para 84, Joint Declaration (noting ‘almost total lack of agreement on the scientific evidence with respect to the possible consequences’ of plant operation), and Separate Opinion of Judge Treves, para 8–9 (scientific evidence ‘not substantial and focused enough’ to conclusively establish causal relationship between plant and risk to marine environment).
- 142.
Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 96, 99 (adverse effects to marine environment ‘cannot be excluded’ and ‘possible implication’ of works on environment sufficient to justify measures).
- 143.
Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’Ivoire), above n 15, para 67–69, 72, 108(1)(c)–(d) (ordering measures even where evidence insufficient to prove imminent risk of serious harm to marine environment).
- 144.
ICJ Rules, Article 74(1)–(2).
- 145.
ITLOS Rules, Article 90(1)-(2).
- 146.
See Sect. 15.3.3, supra.
- 147.
ICSID Arbitration Rule 39(2), (5).
- 148.
- 149.
Miles 2017, p. 295.
- 150.
See ibid.
- 151.
Mensah 2002, p. 47.
- 152.
Miles 2017, p. 308. It was formerly understood that the relevant time frame was constitution of the tribunal, but in Land Reclamation, ITLOS found urgency and ordered relief ‘noting that the question to be asked was not when the Annex VII [tribunal] would be constituted, but rather when it would be in a position—having met, heard the arguments of the parties and allowed due time for deliberation—to ‘modify, revoke or affirm those provisional measures,”’ which may not be possible until well after the constitution of the tribunal. Ibid., p. 309.
- 153.
Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), above n 68; ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10; Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12,; The ‘Arctic Sunrise’ Case (Kingdom of the Netherlands v Russian Federation), above n 19.
- 154.
E.g., Nuclear Tests, above n 8, para 25–26 (France’s official pronouncements); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 72, 75 (Nicaragua’s statements as indicating intent); Artic Sunrise and nonappearance of Russia, as discussed in Guilfoyle and Miles 2014, pp. 276–77.
- 155.
Miles 2017, p. 296.
- 156.
ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10, para 79–80 (UK’s assurance that no transport of fuel would occur until October 2002); Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 10, para 46, 75 (finding persuasive Uruguay’s assurance that mills ‘would not be operational before August and June 2008 respectively, and that a number of further conditions would have to be met before that stage was reached,’ including issuance of environmental permits); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 33 (Costa Rica’s assurances works would not resume until ‘late 2014 or early 2015’).
- 157.
E.g., Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 71–74 (rejecting request based on Nicaragua’s assurances); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 12, para 37 (noting Costa Rica’s assurances).
- 158.
Miles 2017, pp. 310–11; see also ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10, para 78–81, 89(1); The M/V ‘Louisa” Case (Saint Vincent and the Grenadines v Spain), Provisional Measures, 23 December 2010, ITLOS Reports 2008–2010, para 74–75, 78 (crediting Spanish assurances regarding environmental monitoring).
- 159.
Boyle 2007, p. 379.
- 160.
Ibid., pp. 379–80.
- 161.
Ibid., p. 380.
- 162.
E.g., Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 13, para 40, 50; see also Miles 2017, pp. 311–12, 474 (discussing Arctic Sunrise).
- 163.
Mensah 2002, p. 44.
- 164.
ICJ Rules, Article 74(3); UNCLOS, above n 39, Article 290(3); ICSID Arbitration Rule 39(4). Whether or not a party makes use of this opportunity is a separate question.
- 165.
Mensah 2002, p. 44.
- 166.
Miles 2017, p. 366. See, e.g., Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 10, para 48 (considering likely impacts to Uruguayan economy of measures requested) & 80 (balancing); Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’Ivoire), above n 15, para 99–102 (considering financial costs to Ghana and environmental implications of measures requested).
- 167.
Miles 2017, p. 366.
- 168.
E.g., ICJ Rules, Article 75(2); ITLOS Rules, Article 89(5); ICSID Arbitration Rule 39(3).
- 169.
Oellers-Frahm 2011, p. 1281.
- 170.
Bendel 2019, p. 493.
- 171.
Nuclear Tests, above n 8, dispositif.
- 172.
Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 106(2).
- 173.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 53.
- 174.
Dispute Concerning Delimitations of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’Ivoire), above n 15, para 108(1)(a), (c).
- 175.
The ‘Arctic Sunrise’ Case (Kingdom of the Netherlands v Russian Federation), above n 19, para 105(1).
- 176.
E.g., Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), above n 68, para 90(1)(c)–(d) (ordering all parties to cease exceeding catch allocations and experimental fishing programs, when only Japan was engaged in one, prompting New Zealand and Australia to initiate the case).
- 177.
Southern Bluefin Tuna Cases (New Zealand and Australia v Japan), above n 68, para 90(1)(e); see also Boyle 2007, p. 378.
- 178.
Boyle 2007, p. 378.
- 179.
- 180.
The MOX Plant case (Ireland v United Kingdom), Order No 3: Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, 24 June 2003, dispositif, para 2.
- 181.
Miles 2017, pp. 19 and 450.
- 182.
In Certain Activities, the Court did order Costa Rica to ‘use its best endeavours to find common solutions with Nicaragua’ for prevention of irreparable harm to the wetland, but this was an order without much substance. Order (2011), para 80 and 86(2). See also Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 124, para 14, 21 and 25–29 (rejecting Nicaragua’s request that earlier measure be modified to allow for collaborative protection of wetland by environmental personnel of both parties).
- 183.
ITLOS, The MOX Plant Case (Ireland v United Kingdom), above n 10, para 82; see also Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 92.
- 184.
- 185.
E.g., Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 95, 106(1) (ordering EIA-type measures where Singapore had not undertaken assessment of impact of its works on Malaysian waters).
- 186.
Boyle 2007, p. 378.
- 187.
See Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), above n 115, para 205.
- 188.
Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 162, para 106(1)-(2).
- 189.
Miles 2017, p. 452.
- 190.
Ibid., p. 458.
- 191.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12, para 86(2); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 13, para 54, 59(E).
- 192.
See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 12: Declaration of Judge Skotnikov, para 4–13; Declaration of Judge Xue; Separate Opinion of Judge Sepúlveda-Amor, para 4, 29–34; and Declaration of Judge ad hoc Guillaume, para 17–21. In 2013, only Guillaume voiced concern, declaring his continued preference for a more collaborative approach.
- 193.
- 194.
See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), above n 12, para 86.
- 195.
Miles 2017, p. 65; see also p. 274.
- 196.
See ibid., pp. 274–85.
- 197.
Miles 2017, p. 286.
- 198.
ITLOS Rules, Article 95(1).
- 199.
ICJ Rules, Article 78.
- 200.
Tomka and Hernández 2011, n. 24.
- 201.
Tanaka 2014, pp. 366–367.
- 202.
See ibid., p. 367.
- 203.
UNCLOS, above n 39, Article 290(3).
- 204.
ICJ Rules, Article 76(1).
- 205.
Ibid.; see also UNCLOS, above n 39, Article 290(2).
- 206.
Miles 2017, p. 154.
- 207.
Ibid., p. 500.
- 208.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 124.
- 209.
- 210.
- 211.
ICJ, LaGrand Case (Germany v United States of America), Judgment, 27 June 2001, ICJ Reports 2001, para 109. In its subsequent orders, ‘the Court has invariably cited LaGrand as standing for the proposition that interim relief ordered pursuant to Article 41 is binding on the parties to a dispute.’ Miles 2017, p. 357.
- 212.
Miles 2017, p. 357 (citing Emilio Agustín Mafezzini v Spain, Decision on Request for Provisional Measures, 28 October 1999, ICSID Case No. ARB/97/7).
- 213.
See Tanaka 2014, p. 365.
- 214.
Miles 2017, p. 506.
- 215.
Ibid., p. 506.
- 216.
- 217.
Merrills 1995, pp. 138–39.
- 218.
Miles 2017, pp. 374-75.
- 219.
Oellers-Frahm 2011, p. 1293.
- 220.
Miles 2017, p. 390.
- 221.
Oellers-Frahm 2011, p. 1293.
- 222.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), Judgment, 16 December 2015, ICJ Reports 2015, p 665, para 129.
- 223.
See ICJ Statute, above n 38, Article 64; ICJ Rules, Article 97.
- 224.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), above n 222, para 49(3)(c), (f), 143–44, 229(5). Four judges voted to award Costa Rica costs, ‘the first occasion on which members of the Court reached such a conclusion.’ Miles 2017, pp. 396–97; see Joint Declaration (‘exceptional circumstances’ warranting Court’s first exercise of Article 64 power).
- 225.
- 226.
See Sect. 15.5, supra.
- 227.
Bendel 2019, p. 493.
- 228.
Ibid., p. 520.
- 229.
See Sect. 15.3.1, supra.
- 230.
See Sect. 15.4.3, supra.
- 231.
See Sect. 15.3.2, supra.
- 232.
- 233.
Tanaka 2014, p. 365.
- 234.
See Sect. 15.4.4, supra. It has been argued that provisional measures under UNCLOS to prevent serious harm to the marine environment ‘possess a sui generis character within the wider regime of provisional measures in international law. They do not need to comply with the link test, the contemplated harm must be merely ‘serious’ and not ‘irreparable,’ and ITLOS has implied a willingness to consider the precautionary principle as relevant to the assessment of urgency.’ Miles 2017, pp. 452–53.
- 235.
See Sect. 15.5.
- 236.
Boyle 2007, p. 380. It is interesting, however, that all three of the cases Professor Boyle references in this regard involved orders issued by ITLOS under Article 290(5), pending the constitution of another tribunal. Is ITLOS more willing to grant broader measures in part because such measures may remain in place for a shorter period of time?
- 237.
Bendel 2019, p. 492.
- 238.
With respect, Bendel’s effort to locate such ‘space for the operalisation of provisional measures that go beyond the protection of the rights of the parties’ in phrases such as ‘protection of the object of the dispute’, ‘maintenance of the status quo’, and ‘ensuring the situation is not aggravated’ stretches the intended meaning of these phrases as used in legal instruments and jurisprudence, where they are understood as relating to the dispute and relationship between the parties, not to broader considerations. See Bendel 2019, pp. 496–97, 523. We cannot agree that ‘the prevention of serious harm to the marine environment’—a basis for provisional measures that is understood to be unique to UNLOS, stemming from the treaty’s express provisions in Part XII regarding the protection of the marine environment, see Tomka and Hernández 2011, § B.IV—somehow ‘falls into the ICJ’s interpretation of the avoidance of any aggravation or extension of the dispute’. Ibid., p. 498. See Miles 2017, pp. 450–53.
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Parseghian, C.O., Guthrie, B.K. (2022). Provisional Measures. In: Sobenes, E., Mead, S., Samson, B. (eds) The Environment Through the Lens of International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-507-2_15
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