ITLOS Practice of Environmental Protection by the Use of the Provisional Measures Instrument: 1997-2009
Mehmet Semih Gemalmaz
Member of the Istanbul Bar Association. Former Professor of Public Law and International Human Rights Law at the Faculty of Law, Istanbul University. He was the Director of Istanbul University Centre for Research and Practice of Human Rights Law, and was a member of the Istanbul University delegation at the European Public Law Organization (EPLO) Board of Directors
Under the UNCLOS regime the practice of the ITLOS reveals some significant cases in which provisional measures are prescribed. Those prescriptions are noteworthy in two respects. First, in general, they contribute to the development of the institution of ‘provisional measures’ in international law. Second, and more in specific, they direct and enhance the efforts aimed at an effective marine environment protection. In the period of 1997-2009, in chronological order, the provisional measures are prescribed in “The M/V ‘SAIGA’ (No. 2) Case” (Case No. 2), “New Zealand v. Japan; Australia v. Japan” (“Southern Bluefin Tuna cases”) (Cases Nos. 3 and 4), “Ireland v. the United Kingdom” (“The MOX Plant Case”) (Case No. 10) and “Malaysia v. Singapore” (Case No. 12) cases, all of which might be considered as standard setting decisions with regard to substantial and procedural aspects of provisional measures. Furthermore, in the list of four pioneering cases, the second and third ones were significant due to the establishment of arbitral tribunals under Annex VII of the UNCLOS. Briefly, it may be concluded that the prescription of provisional measures by the ITLOS in 1997-2009, which also gave an opportunity for important literature contribution, has enlightened the path that would be followed in future provisional measures practice.
Keywords: UNCLOS; ITLOS; environmental protection & provisional measures practice
