Provisional Measures: International Tribunal for the Law of the Sea (ITLOS)
- Marine environment, protection — Expedited procedure — International courts and tribunals, powers — Burden of proof (and jurisdiction) — Subject matter of the dispute (and jurisdiction) — Interim and provisional measures
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 International courts or tribunals generally have the competence to issue provisional measures. The mandate of all of them, their procedures as well as competences, are all fairly similar. This is because the respective procedures have been developed from a common model, namely, the Statute of the Permanent Court of International Justice (PCIJ) (1920) (‘PCIJ Statute’). The PCIJ Statute was inspired by the work of the Institute of International Law in 1875 and by the rules of the Central American Court of Justice (1907–18). The jurisprudence of the PCIJ also played a decisive role in shaping the proceedings of provisional measures and their admissibility.
2 The distinctions between the procedures applied by the various international courts and tribunals are due to the functions such courts or tribunals exercise (Interim (Provisional) Measures of Protection). This is particularly true for the International Tribunal for the Law of the Sea (ITLOS). Some of the procedural differences concerning provisional measures vis-à-vis those of the International Court of Justice (‘ICJ’) reflect the particular mandate of ITLOS and its status under the dispute settlement system established by the United Nations Convention on the Law of the Sea (1982) (‘Convention’) as promulgated in its Part XV as well as Annexes VI (Statute of ITLOS, see Art 25) and VII thereto. Other procedural particularities set out in the Rules of the Tribunal (‘ITLOS Rules’) (Arts 89–95) and in its Resolution on the Internal Judicial Practice had the objective of expediting procedures on provisional measures (Chandrasekhara Rao and Gautier, 2006, 243–61; Chandrasekhara Rao and Gautier, 2018, 128–35).
3 The competence to issue provisional measures is usually established by the respective statutory document. It is frequently described as a power inherent to the judicial function, being applicable also in cases where the document does not expressly authorize the court to indicate provisional measures.
B. Nature and Objective of Provisional Measures
1. In general
4 Generally speaking the power of an international court or tribunal to admit and to issue provisional measures is discretionary and exceptional since provisional measures may only be issued under specific circumstances. This is also true for provisional measures concerning law of the sea disputes (see Art 290 Convention).
5 Provisional measures are commonly referred to as belonging to the incidental jurisdiction of an international court (see ITLOS Rules whose section C in its headline refers to ‘Incidental Proceedings’ encompassing provisional measures, preliminary proceedings, preliminary objectives, counter-claims, interventions, and discontinuance). This reference to incidental jurisdiction implies that a court or tribunal regularly seized with a case may take all necessary decisions for the conduct of the proceedings or the conduct of the parties in relation to the subject matter of the dispute pending a final decision. The court or tribunal must, however, remain within its prima facie jurisdiction both ratione personae and ratione materiae.
6 Decisions on provisional measures are rendered in the form of an order by ITLOS following the example of the ICJ.
7 In principle, provisional measures in international adjudication are meant to protect the object of the litigation in question and, thereby, the integrity of the decision as to the merits. Neither party to the conflict shall change the relevant situation that prevailed upon the initiation of the proceedings so as to render the proceedings meaningless by frustrating its potential result. The reference to ‘preservation of rights’ in Article 41 ICJ Statute and, following the former, Article 290 Convention attempting to cover this aspect are, if taken verbally, misleading. Rights cannot be destroyed, or at least, only in rare cases. Instead, rights are either violated or infringed; their enforcement, enjoyment, or realization may become more difficult or even impossible but they continue to exist despite their violation. Taking the term literally would, as a consequence, limit the indication or prescription of provisional measures to exceptional cases. On the other hand, a reading of the term ‘to preserve the respective rights of the parties’ (Art 290 (1) Convention) as ‘not to infringe the rights’ would widen the application of provisional measures in an unacceptable way. In particular, it would make it nearly unavoidable for provisional measures to anticipate the final decision of the respective court or tribunal.
8 Another purpose frequently referred to is the prevention of the aggravation of the dispute. This purpose has often been formulated in hortatory rather than in a mandatory language (mandatory language having been used, for example by ITLOS in the Southern Bluefin Tuna Cases, New Zealand v Japan; Australia v Japan, 1999, para 90 (1) (a)). Provisional measures may further intend to preserve the exercise by the Court of its judicial function by preventing the parties from thwarting the subsequent decision of the Court on the merits (see Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Ghana/Côte d’Ivoire, 2015).
9 Given the limited guidance provided by the statutes of international courts and tribunals, attempts have been made in the pleadings of parties, as well as in the literature, to redefine and specify the objective of provisional measures with a view to either limiting or broadening the jurisdiction of the respective international court or tribunal.
2. Jurisprudence of the International Tribunal of the Law of the Sea on the Objective of Provisional Measures
10 ITLOS has frequently considered it sufficient to quote Article 290 (1) or Article 290 (5) Convention without explaining why the prescription of a provisional measure was justified in this particular situation or why the prescription of provisional measures were rejected. Only in a few cases has the Tribunal gone beyond that. For example, the Tribunal stated in the case M/V ‘Louisa’ (The M/V ‘Louisa’ Case, Saint Vincent and the Grenadines v Kingdom of Spain, 2010, para 68): ‘the Tribunal does not find that it is a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in the dispute before the Tribunal so as to warrant the prescription of provisional measures requested.’ The Special Chamber of ITLOS in Ghana/Cote d’Ivoire (Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Ghana/Côte d’Ivoire, 2015, paras 40–41) made an attempt to be more specific. It stated: ‘the Chamber must be concerned to safeguard the respective rights which may be adjudged in its Judgment on the merits to belong to either Party.’ It continued by stating: ‘the Special Chamber may not prescribe provisional measures unless it finds that there is a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute’ (at para 41). The Special Chamber finally concluded and held that ‘there is a risk of irreparable prejudice where, in particular, activities result in significant and permanent modification of the physical character of the area in dispute and where such modification cannot be fully compensated by financial reparations’ (at para 89).
3. Additional Objectives Introduced by Article 290 (1) of the Convention
11 Additional objectives for provisional measures which are different in nature have been added by particular international agreements. Article 290 (1) Convention, for example, refers to the prevention of serious harm to the marine environment as another objective justifying the prescription of provisional measures, thus reflecting the importance the Convention attaches to the protection of the marine environment. According to Article 31 (2) United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995), provisional measures may also be prescribed to prevent damage to the fish stocks in question.
12 The additional objective introduced by Article 290 (1) Convention, namely, to prevent serious harm to the marine environment, has not been truly tested yet although ITLOS has alluded to the protection of the marine environment in the Southern Bluefin Tuna Cases (Southern Bluefin Tuna Cases, New Zealand v Japan; Australia v Japan, 1999, para 67), The MOX Plant Case (The MOX Plant Case, Ireland v United Kingdom, 2001, para 64), and in the M/V ‘Louisa’ Case (The M/V ‘Louisa’ Case, Saint Vincent and the Grenadines v Kingdom of Spain, 2010, para 71). Together with the competence of the Tribunal to prescribe any provisional measure it considers appropriate (see Art 290 (1) Convention) this should become an important tool in the protection of the marine environment.
13 Referring to such justifications for provisional measures adds a new element to their objective, one which is not necessarily directly linked to the interests of the parties to the dispute and, thus, changes the jurisdictional task and procedure of the court or tribunal in question from a mechanism exclusively serving the interests of the parties involved into one also accommodating and protecting the interests and values of the community of States. This reflects, in the domain of international judicial dispute resolution, the overall development of international law from a mechanism providing for the co-ordination of States’ activities to one which also recognizes and preserves the common values of the community of States. This new objective is not reflected, though, in the provisions concerning the question of who may initiate proceedings for the issuance of provisional measures. In the two international agreements referred to, these are the parties to the dispute only, whereas the prescription of provisional measures proprio motu by the international court or tribunal would have been a matter of consequence.
4. Provisional Measures under Article 290 (5) of the Convention
14 As already indicated, Article 290 Convention provides for two different types of provisional measures, those under Article 290 (1) covering the ‘normal’ situation in which provisional measures are rendered and those under Article 290 (5) which are tailored to a particular competence of ITLOS. If parties to a dispute have agreed in arbitration or arbitration is—in accordance with Article 287 (3) or (5) Convention—the means for the settling of a dispute, a party to that dispute may request the prescription of provisional measures from ITLOS. The procedural safeguards are as follows: the establishment of the arbitral tribunal must be pending; ITLOS must consider that the tribunal to be constituted would have prima facie jurisdiction; and the urgency of the situation requires the prescription of provisional measures. These procedural elements will be dealt with below under jurisdiction and urgency respectively. It is telling that six of the nine provisional measures requested from ITLOS were submitted under Article 290 (5) Convention. The objective of this type of provisional measures is identical to the one under Article 290 (1) Convention. It is meant to preserve the exercise by the still-to-be-established or not-yet-functioning arbitral tribunal. The difference vis-à-vis the procedure under Article 290 (1) Convention is that under the latter procedure ITLOS preserves the effective exercise of its own jurisprudence whereas under Article 290 (5) Convention the potential jurisprudence of the arbitral tribunal is protected. It is a matter of consequence that such arbitral tribunal is not bound by such decision of ITLOS. The arbitral tribunal in question may under Article 290 (5) Convention modify, revise, or maintain the order issued by ITLOS.
C. Requirements for the Indication or Prescription of Provisional Measures by International Courts or Tribunals
15 In principle, it is agreed that in respect of provisional measures, two different forms of jurisdiction are to be distinguished: the international court or tribunal in question must have jurisdiction to take a decision on the merits, and it must have jurisdiction to indicate or to prescribe provisional measures. The distinction between these two types of jurisdiction is not always well pronounced.
16 The jurisprudence of the ICJ concerning its jurisdiction to indicate provisional measures has been developed over time and that is from where Article 290 (1) Convention started. According to this provision, it is not necessary to establish that the courts or tribunals involved under the Convention have jurisdiction to decide upon the merits before provisional measures may be prescribed. It is sufficient and, at the same time necessary, that the party to a dispute requesting the prescription of provisional measures establishes the jurisdiction of the court or tribunal to decide on the merits prima facie. The justification for this approach lies in the consideration that decisions on provisional measures are without prejudice to the merits of the case. For that reason, it is not necessary to make a final decision on the jurisdiction concerning the merits. As will be demonstrated below there is no full agreement on how to establish prima facie that the court or tribunal in question has jurisdiction.
17 That two different forms of jurisdictions are involved becomes particularly evident considering Article 290 (5) Convention. This provision provides ITLOS with the competence to issue provisional measures ‘if it considers that prima facie the tribunal which is to be constituted would have jurisdiction’. The Seabed Disputes Chamber: International Tribunal for the Law of the Sea (ITLOS) has an identical competence (see Article 25 (1) ITLOS Statute). As indicated above, the arbitral tribunal is not bound by the order issued by ITLOS; it may even deny its own jurisdiction. This happened in the Southern Bluefin Tuna Cases where ITLOS in its Order of 27 August 1999 held that the arbitral tribunal had prima facie jurisdiction whereas the arbitral tribunal found that it had no such jurisdiction (Southern Bluefin Tuna Arbitration, New Zealand v Japan; Australia v Japan, 2000, para 72).
18 Further, Article 89 ITLOS Rules provides that the party requesting the indication or prescription of provisional measures has to provide the international court or tribunal in question with the necessary information enabling the latter to establish prima facie its jurisdiction and the necessity for prescribing provisional measures.
19 This rule should not be understood to mean that the international court or tribunal acting under the Convention shall accept its jurisdiction prima facie if the party applying for the indication or prescription of provisional measures has provided the necessary information. It falls upon the court or tribunal concerned to establish whether the information is sustainable, in particular whether the rules the party invoked for the issuing of provisional measures are sufficiently substantiated in fact and law.
2. Jurisprudence of the International Tribunal of the Law of the Sea
20 Concerning a request under Article 290 (1) Convention, ITLOS has used a standard formula since its Order of 11 March 1998 in the M/V ‘SAIGA’ (No 2) Case. It stated: ‘before prescribing provisional measures the Tribunal need not finally satisfy itself that it has jurisdiction on the merits of the case and yet it may not prescribe such measures unless the provisions invoked by the applicant appear prima facie to afford a basis on which of the jurisdiction of the Tribunal might be founded’ (The M/V ‘SAIGA’ (No. 2) Case, Saint Vincent and the Grenadines v Guinea, 1998, para 29; see also The M/V ‘Louisa’ Case, Saint Vincent and the Grenadines v Kingdom of Spain, 2010, para 39, as well as Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Ghana/Côte d’Ivoire, 2015, para 33).
21 As far as requests under Article 290 (5) Convention are concerned, ITLOS has mostly repeated the wording of the provision. In its Order of 24 August 2015 on the ‘Enrica Lexie’ incident the Tribunal added thereto ‘and that the urgency of the situation so requires’ (The ‘Enrica Lexie’ Incident, Italy v India, 2015, para 33). It further added ‘the Tribunal needs to satisfy itself that there is a dispute between the Parties’ (at para 34). It further added in para 35 that ‘Before prescribing provisional measures under Article 290 (5) Convention, the Tribunal must first satisfy itself that a dispute between the Parties relates to the interpretation or application of the Convention and that prima facie the Annex VII arbitral tribunal would have jurisdiction.’ From this last sentence, it becomes evident that the Tribunal also considered whether it had jurisdiction to entertain the request.
3. Request for the Prescription of Provisional Measures
22 Under Article 290 (1) and (5) Convention, provisional measures may be applied for by either party to the dispute. This reflects the equality of parties to a dispute. However, it is most likely that the applicant will apply for the issuance of provisional measures. In the case Ghana/Côte d’Ivoire it was the respondent though.
23 There is controversy as to whether international courts or tribunals may indicate or prescribe provisional measures only if so requested by a party to the dispute, or whether they may also do so proprio motu. One has to distinguish between who may request provisional measures and the measures the court or tribunal may prescribe. According to Article 290 (3) Convention, only parties to a dispute may request the prescription of provisional measures.
24 As already indicated, the competence under Article 290 (1) Convention to prescribe provisional measures to prevent serious harm to the marine environment would have suggested a different approach, namely that the tribunal (ITLOS or an arbitral tribunal) may act proprio motu. The drafters of the Convention did not take that step although it would have been logical. In comparison thereto under Article 75 (1) ICJ Rules, the Court may at any time decide to examine proprio motu whether the circumstances require the indication of provisional measures. ITLOS does not have that right under Article 290 (1) nor 290 (5) Convention. As stated in Article 90 (5) ITLOS Rules, it can only assume the function entrusted to it concerning the protection of the marine environment if a request for the prescription of provisional measures has been submitted. If such a request has been made, ITLOS can prescribe provisional measures for the protection of the marine environment without being so requested.
4. Provisions Invoked by the Applicant
25 ITLOS has frequently had to deal with the question of whether the provisions invoked by the applicant were sustainable. In the ‘ARA Libertad’ Case, ITLOS stated: ‘at this stage of the proceedings, the Tribunal does not need to establish definitively the existence of the rights claimed by Argentina and yet, before prescribing provisional measures, the Tribunal must satisfy itself that the provisions invoked by the Applicant appear prima facie to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal might be founded.’ (The ‘ARA Libertad’ Case, Argentina v Ghana, 2012, para 60). There is no clear line to be seen in the jurisprudence of ITLOS when this threshold is being met (see The M/V ‘Louisa’ Case, Saint Vincent and the Grenadines v Kingdom of Spain, Order (Dissenting Opinion of Judge Wolfrum), 2010, paras 8–26).
5. Urgency/Exceptional Situation
26 Although neither the ICJ Statute nor the ICJ Rules explicitly indicate that the indication of provisional measures may be requested in cases of urgency only, it is the underlying presumption of the rules on provisional measures that they shall be invoked only in case of urgency. This is reflected in the permanent jurisprudence of the ICJ (see, for example, Pulp Mills on the River Uruguay, Argentina v Uruguay, 2006, paras 62 and 73).
27 The situation in respect of law of the sea disputes is more complex. Whereas Article 290 (1) Convention does not contain a reference to urgency, Article 290 (5) Convention, dealing with provisional measures pending the establishment of an arbitral tribunal, does (see also Art 89 (4) ITLOS Rules). Nevertheless, the inherent presumption that the issuance of provisional measures under Article 290 (1) Convention requires urgency is well established. It is reflected in the procedure of ITLOS (see Art 90 ITLOS Rules; Art 11 (2) Resolution on the Internal Judicial Practice of the Tribunal).
28 Thus, two different types of urgency have to be distinguished: the urgency which requires the issuance of provisional measures under Article 290 (1) Convention and the urgency required under Article 290 (5) Convention. Under Article 290 (1) Convention, ITLOS (or with respect to activities in the area, the Seabed Disputes Chamber) has to decide whether the issuance of provisional measures is justified, taking into consideration the time before an arbitral tribunal may be established or may become operational. Urgency will have to be denied if the measures requested could, without prejudice to the alleged rights, be taken by the arbitral tribunal once constituted (see Southern Bluefin Tuna Cases, New Zealand v Japan; Australia v Japan, 1999, para 63). In the Land Reclamation Case, ITLOS confirmed its interpretation of the notion of urgency, pointing out that the establishment of the arbitral tribunal was not the essential factor for affirming or denying urgency but rather its becoming operative. It also affirmed that the arbitral tribunal had the competence, once constituted, to modify, revoke, or affirm the provisional measure (Land Reclamation by Singapore in and around the Straits of Johor, Malaysia v Singapore, 2003, paras 68–69 ('Land Reclamation Case')).
D. Content and Effect of Provisional Measures
(a) In General
29 In general, if the request is affirmed, provisional measures will suspend the act challenged. However, it is well established in international jurisprudence that provisional measures must not constitute an interim judgment since the measures are only meant to be of a conservatory nature. Additionally, provisional measures must avoid prejudging the merits of the case.
30 However, by prescribing provisional measures, an international court or tribunal cannot avoid prejudging its decision on jurisdiction, admissibility of the application, or on some issues of substance for the period until the final judgment is rendered. The justification for doing so is rooted in the two procedures existing in parallel, namely, the procedure on provisional measures and the one on the merits. The parallelism of these two procedures comes to an end with the final decision on the merits since provisional measures are indicated or prescribed only pending the final decision. Any infringement of the rights of either party to the conflict caused by provisional measures is, therefore, only a temporary one and is justified by entrusting the international court or tribunal in question to issue provisional measures.
31 As already indicated according to Article 290 (1) Convention, international courts and tribunals acting under Part XV of the Convention are not bound by the request of a party to the dispute (see also as far as ITLOS is concerned Article 90 (5) ITLOS Rules). This is a deviation from the established judicial principle ne ultra petita.
(b) Jurisprudence of ITLOS
32 ITLOS has used its power to deviate from the request submitted frequently but with great caution. In its Order in the M/V ‘SAIGA’ (No 2) Case, the Tribunal recommended—rather than prescribed—that both parties to the conflict ‘endeavor to find an arrangement to be applied pending the final decision’ (The M/V ‘SAIGA’ (No 2) Case, Saint Vincent and the Grenadines v Guinea, 1998, para 43) and it prescribed that ‘Guinea shall refrain from taking or enforcing any judicial or administrative decision against the M/V Saiga’ (para 52 (1)). Both went beyond what was applied for. Equally, in the Southern Bluefin Tuna Cases, the Tribunal prescribed provisional measures beyond what was requested by ordering that ‘Australia, Japan and New Zealand shall each ensure that no action is taken which might aggravate or extend the disputes submitted in the arbitral tribunal’ whereas provisional measures had been requested by Australia and New Zealand against Japan only (Southern Bluefin Tuna Cases, New Zealand v Japan; Australia v Japan, 1999, para 90).
33 The general rule to be derived from the cited decisions is that, despite the fact that provisional measures can go beyond the respective request, they have to be related to the application made in the case in general. Such limitation derives from the fact that provisional measures are only an accessory element of the main procedure.
34 The wording of Article 290 Convention avoids the terminological uncertainty created by the ICJ Statute since Article 290 speaks of ‘prescribe’ where Article 41 ICJ Statute uses the word ‘indicate’ (Provisional measures: International Court of Justice (ICJ)). Considering the then ongoing dispute on the binding or non-binding nature of provisional measures, one cannot but conclude that with the different choice of wording in Article 290 Convention, the drafters of that provision wanted to improve the powers of courts and tribunals having jurisdiction over law of the sea disputes. Their provisional measures have a binding effect upon parties to a dispute. This is clearly reflected in Articles 290 (6) and 296 Convention as well as in the ITLOS Rules. Article 89 (5) ITLOS Rules states that the parties are under an obligation to comply with the measures prescribed. This also applies to a party not having participated in the proceedings. In the Arctic Sunrise Arbitration it was stated in para 401 (dispositif) D of the Merits that ‘the Russian Federation breached its obligations to the Netherlands under Articles 290(6) and 296(1) of the Convention’.
35 Neither ITLOS (or any tribunal acting under the Convention’s dispute settlement system) having prescribed provisional measures under Article 290 (1) Convention nor an arbitral tribunal is bound by a provisional measure issued by ITLOS under Article 290 (5) Convention. ITLOS may modify or revoke provisional measures if circumstances so justify. If a provisional measure was prescribed under Article 290 (5) Convention, the arbitral tribunal after having been established may modify, revoke, or affirm provisional measures. This possibility was used by the arbitral tribunal in the Southern Bluefin Tuna Arbitration in the Award of 4 August 2000. The arbitral tribunal held that it had no jurisdiction (and equally that ITLOS had had no jurisdiction; Southern Bluefin Tuna Arbitration, New Zealand v Japan; Australia v Japan, 2000, para 66) but it confirmed the substance of the Order issued by ITLOS (para 67—a procedurally unorthodox decision; see also the arbitral tribunal in The ‘Enrica Lexie’ Incident, Italy v India, which by Order of 29 April 2016 modified the Order of ITLOS of 24 August 2015).
36 As a general rule, applications for provisional measures are dealt with expeditiously; such applications have priority over all other proceedings. Article 90 (3) ITLOS Rules relaxes the formality of written proceedings in provisional measures cases and places greater emphasis on the hearing. In cases where the respondent does not appear—as in the Arctic Sunrise Case—ITLOS has considered it its responsibility that the views of the Respondent were taken into account.
37 The hearings in proceedings for provisional measures in ITLOS basically follow the rules for hearings on the merits.
38 ITLOS will normally sit in its full complement of available judges. Judges ad hoc have been appointed in proceedings on provisional measures (Land Reclamation Case). If ITLOS is not in session or a sufficient number of members are not available to constitute a quorum, provisional measures shall be prescribed by the chamber of summary procedure established in accordance with Article 15 (3) ITLOS Statute. Such chamber consists of five members of the Tribunal: the President and the Vice-President acting ex officio, and three other members selected by the Tribunal upon the proposal of its President. Such provisional measures are subject to review and revision by the Tribunal. This means that the Tribunal acts in respect of provisional measures prescribed by the chamber of summary procedure as a kind of appeal body. This procedure, meant to accelerate proceedings for provisional measures, has not been tested yet.
4. Implementation of Provisional Measures
39 Traditionally, international courts and tribunals lack the competence to oversee the implementation of the prescribed provisional measures. Article 95 ITLOS Rules obliges each party to submit an initial report regarding the steps it has taken in order to ensure prompt compliance with the measures prescribed. The Tribunal may—and has done so in the past—entrust the President to take follow-up measures (see The MOX Plant Case, Ireland v United Kingdom).
40 Provisional measures have undergone a significant development in recent years in the jurisprudence of international courts or tribunals.
41 It is the Convention which has added an additional element to the objective of provisional measures, namely, the protection of the marine environment. This new objective may change the nature of provisional measures. It is to be hoped that the ITLOS will make prudent use of such competence and, in doing so, contribute to the interest of the community of States in a more efficient protection of the marine environment.
42 The creation of a chamber for summary proceedings is to be seen as a contribution to a faster and more efficient procedure which can more easily respond to the requests of the parties to the conflict and, if appropriate, the needs of the international community.
43 Although provisional measures are not meant to prejudge decisions on the merits, a tendency may develop that de facto decisions on provisional measures may substitute those on the merits. This tendency is apparent in particular in the Order of the ITLOS in the Land Reclamation Case. If such a tendency is to prevail, it would have to depend upon the quick procedure and the summary assessment of the facts and law by ITLOS.
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