국제해양법재판소와 국제사법재판소의 잠정조치에 관한 비교 연구

This article studies the provisional measure of the International Tribunal for the Law of the Sea(hereafter ‘ITLOS’) comparing with that of the International Court of Justice(hereafter ‘ICJ’). It has been already known that the provisional measure of the ITLOS follows the provisional measure of ICJ’s case law, so to speak, prima facie jurisdiction, contents,procedures and effects. But the provision of the United Nations Convention on the Law of the Sea(hereafter ‘Law of the Sea’) makes some differences of the provisional measure of the ITLOS from the ICJ’s in its system and its operation. The provisional measure of the ITLOS has next three characteristics. First, the ITLOS can order provisional measure in order not only to preserve the right of the parties of a suit but also to protect the marine environment. Secondly, the ITLOS’s case law has been conforming the different shape of the provisional measure according to the Law of the Sea, which has it’s own dispute settlement mechanism. Thirdly, the ITLOS has the capacity of developing the provisional measure by complimenting the weak point of it. But we must bear it mind that when innovating the provisional measure, harming to the elementary framework of the provisional measure formed by the ICJ with long lasting accumulation of the practice and case law should be avoided.