STUDY ON PROVISIONAL MEASURE OF INTERNATIONAL FOR THE LAW OF THE SEA FROM THE ARCTIC SUNRISE CASE BETWEEN NETHERLAND AND RUSSIA

Abstract

This research aims to: 1. analyze the provisional measures ordered in the Arctic Sunrise case, and 2. provide clear recommendations on the issuance of provisional measures under Article 290 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The findings indicate that the Arctic Sunrise case serves as an important precedent in clarifying the meaning of the phrase urgency of the situation as required for the issuance of provisional measures. By examining various cases in which the International Tribunal for the Law of the Sea (ITLOS) granted provisional measures including earlier cases like the ARA Libertad case and subsequent ones like the detention of the three Ukrainian naval vessels the study finds that the Tribunal typically considers whether there is a need to protect the rights and safety of the crew. However, the presence of serious physical harm is not necessarily a prerequisite. When compared with the MT San Padre Pio case, which came after Arctic Sunrise, the study finds that the Tribunal’s assessment of urgency has evolved. In the San Padre Pio case, the Tribunal focused more strongly on the presence of force, restriction of liberty, and actual harm to human life and property on board the detained vessel as indicators of urgency. Therefore, this research contributes to a clearer understanding for states intending to request provisional measures. It outlines the types of conduct that may constitute an urgent situation and the contextual suitability necessary for such measures. It emphasizes that flag states or respondent states must demonstrate specific events or acts that involve the restriction of rights and freedoms, leading to real or potential harm to human life or property. These elements can be critical in persuading the Tribunal to issue provisional protection under international maritime law.