164
6 Considerations of Humanity in the AT Order: Judiciary
Empathy or Legal Criterion?
The jurisprudence of ITLOS and of international arbitral tribunals concerning international law of the sea disputes sometimes refers to general clauses such as: respect
of international standards, respect of human rights, due process of law and considerations of humanity.
20
In our opinion their use in an indistinct manner must be avoided. The autonomous character of the considerations of humanity in the AT Order 29 April 2016 is
confirmed as the “due process” clause evoked.
21
Moreover, each of them is devoted, from time to time, to a different role.
In respect of the considerations of humanity
22
we could find their use as a manifestation of a sort of ‘judiciary empathy’: ICJ United States Diplomatic and
Consular Staff in Tehran Order 15 December 1979
23
; ICJ LaGrand Order 3 March
1999 and annexed Declaration Judge Oda.
24
In such cases legal doctrine has defined
elementary considerations of humanity as a “gap filler”.
25
In other cases considerations of humanity is a true legal criterion: ICJ Corfu
Channel, Judgment (merits) of 9 April 1949, where ‘elementary considerations of
humanity’ are quoted together with the principle of the freedom of maritime
20 On this subject see Papanicolopulu (2015, 2016).
21 See AT Order, para. 118: “As to the positions of the Parties with regard to alleged breaches of due
process, the Arbitral Tribunal notes that, in the exercise of its prima facie jurisdiction at the stage
of provisional measures, it should avoid engaging with questions of wrongfulness of past conduct
unless this is absolutely necessary. The Arbitral Tribunal concludes that, in light of its determination that Sergeant Girone’s bail conditions should be relaxed so that he may be able to return to
Italy during the pendency of these arbitral proceedings, it is not necessary to consider questions
relating to the lawfulness of his detention” (italics added).
22 On the topic see, for a very interesting analysis, Dupuy (1999).
23 ICJ, Case concerning United States Diplomatic and Consular Staff in Tehran (United States v.
Iran), Order, 15 December 1979, para. 42: “Whereas continuance of the situation the subject of the
present request exposes the human beings concerned to privation, hardship, anguish and even
danger to life and health and thus to a serious possibility of irreparable harm”. In the following
paragraphs the Court takes note of the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents, of 1973 in force between
Iran and United States of America (para. 43) and concludes that “in the light of the several considerations set out above” “the circumstances require it to indicate provisional measures … in order
to preserve the rights claimed” (para. 44).
24 ICJ, LaGrand Case (Germany v. United States), Order, 3 March 1999 and annexed Declaration
Judge Oda. In this Order the Court accepts the existence of “the greatest urgency” (para. 26)
invoked at para. 9 by Germany “in view of the extreme gravity and immediacy of the threat of
execution of a German citizen”. More explicitly, in the Declaration annexed, Judge Oda stated at
para 7. “I reiterate and emphasize that I voted in favour of the Order solely for humanitarian reasons” (italics added) and even before “I can, on humanitarian grounds, understand the plight of Mr.
Walter LaGrand and recognize that owing to the fact that Germany filed this request as late as
yesterday evening (namely, at 7.30 p.m. on 2 March 1999), his fate now, albeit unreasonably, lies
in the hands of the Court” (para. 2).
25 Cf. Zagor (2012).
A. Cannone
6 Considerations of Humanity in the AT Order: Judiciary
Empathy or Legal Criterion?
The jurisprudence of ITLOS and of international arbitral tribunals concerning international law of the sea disputes sometimes refers to general clauses such as: respect
of international standards, respect of human rights, due process of law and considerations of humanity.
20
In our opinion their use in an indistinct manner must be avoided. The autonomous character of the considerations of humanity in the AT Order 29 April 2016 is
confirmed as the “due process” clause evoked.
21
Moreover, each of them is devoted, from time to time, to a different role.
In respect of the considerations of humanity
22
we could find their use as a manifestation of a sort of ‘judiciary empathy’: ICJ United States Diplomatic and
Consular Staff in Tehran Order 15 December 1979
23
; ICJ LaGrand Order 3 March
1999 and annexed Declaration Judge Oda.
24
In such cases legal doctrine has defined
elementary considerations of humanity as a “gap filler”.
25
In other cases considerations of humanity is a true legal criterion: ICJ Corfu
Channel, Judgment (merits) of 9 April 1949, where ‘elementary considerations of
humanity’ are quoted together with the principle of the freedom of maritime
20 On this subject see Papanicolopulu (2015, 2016).
21 See AT Order, para. 118: “As to the positions of the Parties with regard to alleged breaches of due
process, the Arbitral Tribunal notes that, in the exercise of its prima facie jurisdiction at the stage
of provisional measures, it should avoid engaging with questions of wrongfulness of past conduct
unless this is absolutely necessary. The Arbitral Tribunal concludes that, in light of its determination that Sergeant Girone’s bail conditions should be relaxed so that he may be able to return to
Italy during the pendency of these arbitral proceedings, it is not necessary to consider questions
relating to the lawfulness of his detention” (italics added).
22 On the topic see, for a very interesting analysis, Dupuy (1999).
23 ICJ, Case concerning United States Diplomatic and Consular Staff in Tehran (United States v.
Iran), Order, 15 December 1979, para. 42: “Whereas continuance of the situation the subject of the
present request exposes the human beings concerned to privation, hardship, anguish and even
danger to life and health and thus to a serious possibility of irreparable harm”. In the following
paragraphs the Court takes note of the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents, of 1973 in force between
Iran and United States of America (para. 43) and concludes that “in the light of the several considerations set out above” “the circumstances require it to indicate provisional measures … in order
to preserve the rights claimed” (para. 44).
24 ICJ, LaGrand Case (Germany v. United States), Order, 3 March 1999 and annexed Declaration
Judge Oda. In this Order the Court accepts the existence of “the greatest urgency” (para. 26)
invoked at para. 9 by Germany “in view of the extreme gravity and immediacy of the threat of
execution of a German citizen”. More explicitly, in the Declaration annexed, Judge Oda stated at
para 7. “I reiterate and emphasize that I voted in favour of the Order solely for humanitarian reasons” (italics added) and even before “I can, on humanitarian grounds, understand the plight of Mr.
Walter LaGrand and recognize that owing to the fact that Germany filed this request as late as
yesterday evening (namely, at 7.30 p.m. on 2 March 1999), his fate now, albeit unreasonably, lies
in the hands of the Court” (para. 2).
25 Cf. Zagor (2012).
A. Cannone