Provisional Measures in the “Enrica Lexie” Case

Abstract “Enrica Lexie” is yet another landmark case under the United Nations Convention on the Law of the Sea (unclos). The provisional measures prescribed by the International Tribunal for the Law of the Sea (itlos) and the Annex vii Arbitral Tribunal share a discernibly significant commonality of result, if not a demonstrably identical approach to the issues contested between the flag state and the coastal state. There was no express finding by itlos on urgency other than in terms of prejudice to the rights of the parties. Whether the Arbitral Tribunal’s Order preserved the parties’ rights would depend in no small measure upon the nature and effectiveness of its decision on the merits. Perhaps the most important common legal development is the appreciation of human rights considerations. While their application might remain a matter of contestation, it would be difficult to characterize the Orders as unfair both for provisional measures as a temporary remedy and for their perceived bearings on the merits of the case.