Research Of The Provisional Measures Prescribed By The ITLOS

The provisional measures taken by the International Tribunal for the Law of the Sea(ITLOS)is part of the dispute settlement mechanism of the United Nations Convention on the Law of the Sea(UNCLOS).According to the UNCLOS,the ITLOS is more powerful in taken provisional measures than the International Court of Justice.Because of the imperfection of the provisions about provisional measures in the UNCLOS,the Rules of the International Tribunal for the Law of the Sea and the Statute of the International Tribunal for the Law of the Sea,it is necessary to research the relationship between the provisional measures of the ITLOS and the dispute settlement mechanism of the UNCLOS and the requirements for taking provisional measures by the ITLOS.Also,there are some advice for the maintenance of China’s maritime rights and interests.Chapter one discusses the relationship between the provisional measures taken by the ITLOS and the dispute settlement mechanism of the UNCLOS.On the one hand,the choice of the merit-solving institutions affects the institutions which indicate provisional measures,the conditions of the dispute settlement mechanism of the UNCLOS are also the conditions of prima facie jurisdiction of the ITLOS in taking provisional measures.On the other hand,the provisional measures guarantee the order established by the UNCLOS.Chapter two discusses the conditions of taking provisional measures.The conditions include the request made by the parties,the prima facie jurisdiction of the ITLOS and urgency of the situation.While examining the conditions of the prima facie jurisdiction,the ITLOS is inclined to support the opinion of the plaintiff.The time of occurrence of the urgency of the situation affects the institutions that taking provisional measures.The two standards of examining the urgency of the situation are whether it’s necessary to protect the rights of the parties or prevent serious harm to the marine environment.The behavior of the defendant affects extend of urgency.Chapter three discusses the context and effect of the provisional measures taken by the ITLOS.In the cases concerning the protection of maritime environment,the ITLOS emphasizes the duty of cooperation to avoid power conflicts with arbitral tribunal constituted under Annex VII of the UNCLOS.In order to fulfil the purpose of theprovisional measures,which is to protect the rights of the parties or prevent serious harm to the marine environment,the ITLOS may take provisional measures beyond the request of the parties.Meanwhile,the discretion must be exercised with prudence.The provisional measures are legally binding and the is guaranteed by the UNCLOS and the Rules of the International Tribunal for the Law of the Sea.In fact,the provisional measures taken by the ITLOS have a positive effect in solving maritime disputes.Chapter four discusses the maritime disputes of our state and the meaning of the provisional measures.There are maritime disputes in the Yellow Sea,the East China Sea and the South China Sea.The provisional measures taken by the ITLOS may provide us with a new kind of solution for solving maritime disputes between China and the neighboring countries.Except for these disputes which we have already refused to resort to the compulsory dispute settlement process under the UNCLOS,we may submit the disputes about detention of the fisherman and fishing vessels happened in other states’ Exclusive Economic Zone to the arbitral tribunal constituted under Annex VII of the UNCLOS,then we could request the arbitral tribunal or the ITLOS to take provisional measures.To prevent provisional measures against us’ we should exercise the sovereign rights and jurisdiction in our Exclusive Economic Zone with prudence.We can also make an agreement with the other party to exclude or replace the compulsory dispute settlement process under the UNCLOS.