Dr. Suzette V. Suarez, Solicitor, Lebuhn & Puchta, Hamburg, 26 March 2015
The Special Chamber of the International Tribunal for the Law of the Sea (ITLOS Special Chamber) formed to deal with the maritime delimitation dispute between Ghana and Côte d’Ivoire in the Atlantic Ocean received a request on 27 February 2015 from Côte d’Ivoire for the prescription of provisional measures.
This will be the 7th time ITLOS will deal with a request for provisional measures. But this will only be the second time wherein a request is brought under article 290 (1) of UNCLOS. The first request under article 290(1) of UNCLOS was the first request for provisional measures case, the M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea). This means that the merits of the case are also dealt with by the same ITLOS Special Chamber dealing with the request for provisional measures. The other requests for the prescription of provisional measures were brought under article 290(5) which meant that the merits of the cases were dealt with by another court or tribunal. In these 5 previous requests, the merits were brought to an Annex VII Tribunal.
Priority over all other proceedings at the Tribunal
Except for prompt release proceedings, a request for provisional measures has priority over all other proceedings before the Tribunal under the Rules of the Tribunal. Following the request, the President of the ITLOS Special Chamber established for the particular dispute is under the duty to fix the earliest possible date for a hearing. Seven days after the application for prescription of provisional measures was made, and there being no pending request for prompt release of vessel and crew, the President of the ITLOS Special Chamber has fixed the dates of the hearing in a public sitting from 29 to 30 March 2015.
Grounds for making the request for provisional measures
A request for provisional measures is one of the incidental proceedings that parties may avail of pending final decision of the merits of a case.
Under article 290(1) of UNCLOS, pending the final decision, a party may request for the prescription of provisional measures in order to:
- To preserve the respective rights of the parties to the dispute; or
- To prevent serious harm to the marine environment.
Côte d‘Ivoire´s request of 27 February 2015 asks the ITLOS Special Chamber to provisionally prescribe that Ghana shall:
- take all steps to suspend all oil exploration and exploitation operations under way in the disputed area;
- refrain from granting any new permit for oil exploration and exploitation in the disputed area;
- take all steps necessary to prevent information resulting from past, present or future exploration operations in the disputed area conducted by Ghana, or with its authorization, from being used in any way whatsoever to the detriment of Côte d’Ivoire; and,
- generally, take all necessary steps to preserve the continental shelf, the waters superjacent to it, and its subsoil; and
- suspend, and refrain from, any unilateral activity entailing a risk of prejudice to the rights of Côte d’Ivoire and from any unilateral action which could lead to aggravating the dispute.
Is Côte d’Ivoire required to prove urgency in the situation?
Article 290 (5) of UNCLOS explicitly requires that ITLOS prescribes provisional measures 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.
Article 290 (1) of UNCLOS, in contrast, does not explicitly specify that the party requesting for provisional measures in the same court or tribunal that has jurisdiction of the merits of the case must prove urgency of the situation.
Must Côte d‘Ivoire present to the ITLOS Special Chamber evidence of the urgency of the situation in order to succeed in its request for the prescription of provisional measures?
In the Request for the prescription of provisional measures in the M/V Saiga (No. 2) Case, ITLOS did not refer to the requirement of urgency in its Order of 11 March 1998. Nevertheless, both Applicant and Respondent in that case referred to the existence or lack thereof urgency in making their arguments for or against the prescription of provisional measures.
The separate opinion of the late Judge Laing to the Order of 11 March 1998 highlighted the differences between procedural urgency and substantive urgency and attempted to shed light on the debate concerning the requirement of urgency.
Any request for the prescription of provisional measures is treated by ITLOS as an urgent matter and indeed has scheduling priority over all other cases. However, procedural urgency according to Judge Laing is different from substantive urgency. Judge Laing pointed to the unclear bases of urgency in the decisions of the International Court of Justice and some individual opinions of judges and that there seemed to be a confusion between substantive and procedural urgency. J Laing was of the view that a better approach towards the issue is to remember that the power of ITLOS to prescribe provisional measures is discretionary and equitable in nature. Thus, according to him, “urgency” is not required to be proven in all cases but rather it could be one of the aspects or circumstances that will determine the appropriateness of prescribing a provisional measure.
In a Separate Opinion to the Order of 27 August 1999 of ITLOS in the Requests of Australia and New Zealand for the Prescription of Provisional Measures, Judge Treves underscored that urgency under article 290 paragraph 1 of UNCLOS “is part of the very nature of provisional measures, as these measures are meant to preserve the rights of the parties pending the final decision.” He elaborated that “urgency” is indeed relevant in light of the fact that under article 290 paragraph 1, provisional measures may be prescribed not only to protect the rights of the parties but also to prevent serious harm to the marine environment. Judge Treves appeared to qualify the application of the requirement of “urgency” when the purpose for doing so is to prevent serious harm to the marine environment. The prevention of serious harm to the marine environment could be one of those situations referred to by Judge Lain where the requirement of “urgency” must be proven.
It may be recalled the Requests of Australia and New Zealand concerned with what they alleged as Japan´s failure to conserve, and cooperate in the conservation of the Southern Blue Fin Tuna and their fears of the deterioration and collapse of the SBT stock.
In the list of provisional measures which Côte d‘Ivoire is requesting the ITLOS Special Chamber to prescribe against Ghana, except for measure no. 4, all other measures are for the preservation and protection of the rights of Côte d‘Ivoire. Measure no. 4 hints at the protection of the marine environment because the ITLOS Special Chamber is requested to prescribe “necessary steps to preserve the continental shelf, the waters superjacent to it, and its subsoil.” Measure no. 4 is however framed in general terms and it is not clear whether Côte d‘Ivoire indeed will allege serious harm to the marine environment in the maritime areas mentioned.
Regardless of whether there is a need to provide evidence of “urgency in the situation” or not in a request under article 290 (1) of UNCLOS, I expect that the two Parties will argue on this issue. Indeed, I expect that both Parties will make “urgency” or the absence thereof, one of the bases for arguing whether provisional measures are indeed necessary pending final decision of the dispute between them.