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The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems

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image of The International Journal of Marine and Coastal Law

This presentation describes the system of provisional measures by the International Tribunal for the Law of the Sea under Article 290 of the 1982 Convention on the Law of the Sea. By pointing towards the binding legal nature of provisional measures and the introduction of a duty to report on compliance efforts, he begins his article stressing the system's efficiency. The author then comments on the various prerequisites while drawing comparisons with the prescription of provisional measures by the International Court of Justice. He finally turns towards the problems of the application of Article 290 by focusing on the requirement of a specific demand by a State party for a provisional measure. While admitting the Tribunal's authorization to issue provisional measures with a view to the marine environment and the increasing influence of the precautionary principle in public international law, he also advises against the temptations to exceed the limits of provisional measures in international law. The interplay with other treaties which refer to the Convention's dispute settlement system (especially the Agreement on Straddling and Highly Migratory Fish Stocks) even adds to this danger in the author's eyes. He closes with an appeal for due process, prudence and impartiality.

Affiliations: 1: Professor of International Law, Institute of International Studies and Law School of the University of Chile, Santiago; Président de l'Institut de Droit International


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