As noted in previous reporting, incidental proceedings arose in The “Zheng He” Case (Luxembourg v. Mexico) following a request from Luxembourg for provisional measures. On 27 July 2024 the International Tribunal for the Law of the Sea (ITLOS) delivered its Order of 27 July 2024 in The “Zheng He” Case (Luxembourg v. Mexico), Provisional Measures.
As the dispute on the merits is before ITLOS, and consistent with Article 290(1) of UNCLOS, the Tribunal first considered that prima facie it does have jurisdiction over the dispute regarding the “Zheng He” vessel (paras. 52-106). Concerning the applicability and/or fulfilment of Article 295 of UNCLOS, in light of the circumstances of the case, the Tribunal decided “the issue of exhaustion of local remedies should be examined at a future stage of the proceedings” (para. 105).
Following previous precedents, the ‘preservation’ of rights (UNCLOS, Article 290(1)) was interpreted by the Tribunal to include a requirement that the rights claimed must be plausible. On the plausibility of the rights the applicant seeks to protect –and given the prima facie jurisdiction finding concerning Article 131 of UNCLOS– the Tribunal found that the rights claimed by Luxembourg on the basis of Article 131 are plausible (paras. 107-125).
Likewise, while ‘urgency’ is not explicitly mentioned as a requirement under Article 290(1) of UNCLOS (in contrast to Article 290(5)-based proceedings), previous interpretations and application of Article 290 have suggested urgency as an important element in considering all requests for provisional measures. The Order of 27 July 2024 adopts this approach whereby “The Tribunal may prescribe provisional measures if the urgency of the situation so requires. Urgency implies that there is a real and imminent risk that irreparable prejudice may be caused to the rights of the parties to the dispute, pending the final decision” (para. 126). However, “[o]n the basis of the factual information and legal arguments presented by the Parties, the Tribunal considers that there is at present no urgency, in the sense that there is no real and imminent risk of irreparable prejudice to the rights claimed by Luxembourg” (para. 143). This finding was made in the context of assurances given by Mexico during the oral hearings to which the Tribunal “takes note” (paras. 144-145). Thus, the operative paragraph provides:
The Tribunal
Order of 27 July 2024, para. 149
By 22 votes to 1 ,
Finds that the circumstances, as they now present themselves to the Tribunal, are not such as to require the exercise of its powers to prescribe provisional measures under article 290, paragraph 1, of the Convention.
Appended to the Order of 27 July 2024, one will find a Declaration of Judge Kittichaisaree; Joint declaration of Judges Infante Caffi and Kamga; Separate opinion of Judge Kulyk; and Dissenting opinion of Judge ad hoc Kohen.
De Maribus 