165
communication and the duty of each State not to allow its territory knowingly to be
used for acts contrary to the rights of other States,
26
ITLOS M/V Saiga (2) Judgment
1 July 1999, although as an obiter dictum it generically states that considerations of
humanity must apply in the law of the sea
27
and finally in The “Enrica Lexie”
Incident case AT Order 29 April 2016 where considerations of humanity truly
belong to the ratio decidendi given that they also appear in the operative
provisions.
28
26 ICJ, Corfu Channel Case (United Kingdom v. Albania), Judgment, 9 April 1949: “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in
general, the existence of a minefield in Albanian territorial waters and in warning the approaching
British warships of the imminent danger to which the minefield exposed them. Such obligations
are based, not on the Hague Convention of 1907, No.VIII, which is applicable in time of war, but
on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary
to the rights of other States” (p. 22) (italics added). See amplius for the ICJ’s case-law on this
subject Dupuy (1999), p. 129, also for the final characterization of the considerations of humanity
as a general principle of international law.
27 ITLOS, M/V “Saiga” (2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
1999: “In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take
into account the circumstances of the arrest in the context of the applicable rules of international
law. Although the Convention does not contain express provisions on the use of force in the arrest
of ships, international law, which is applicable by virtue of article 293 of the Convention, requires
that the use of force must be avoided as far as possible and, where force is unavoidable, it must not
go beyond what is reasonable and necessary in the circumstances. Considerations of humanity
must apply in the law of the sea, as they do in other areas of international law” (para. 155) (italics
added).
28 See AT Order, para. 124: “In light of the Arbitral Tribunal’s conclusion regarding Sergeant
Girone’s bail conditions, and taking into account the above statements by India, the Arbitral
Tribunal considers it appropriate that Italy and India cooperate, including in proceedings before
the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as
to give effect to the concept of considerations of humanity, so that Sergeant Girone may return to
Italy during the present Annex VII arbitration. As the Arbitral Tribunal has noted above, Sergeant
Girone would remain, during all this period, under the authority of the Supreme Court of India”
(italics added). Precisely the final statement of the Agent of India was worded in the following
terms: “India does not seek anything more onerous than the benchmark set by the Supreme Court
of India, and some of these conditions were indicated by Italy’s counsel yesterday. India needs to
be assured that in case the Tribunal finds that India has jurisdiction, the presence of Sergeant
Girone would be ensured. Towards that end, India would deem it necessary that the Tribunal itself
fix these guarantees”. In the operative provisions the arbitral tribunal prescribes that “a) Italy and
India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a
relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme
Court of India, may return to Italy during the present Annex VII arbitration …” (para. 132). In this
respect see Dupuy (1999), p. 125: “D’une façon générale, en effet, les ‘considerations’ sont bel et
bien toujours traitées [by the ICJ] comme des sources d’obligations juridiques. Elles incorporent
elles-mêmes des règles de droit international général dont le dénominateur commun est l’obligation
de respecter la dignité de la personne humaine, mais dont les implications concrètes, généralement
définies en relation avec d’autres règles de droit international général (principes ou coutumes),
peuvent être définies cas par cas, en fonction des circonstances de chaque espèce”.
The Provisional Measures in The “Enrica Lexie” Incident Case
communication and the duty of each State not to allow its territory knowingly to be
used for acts contrary to the rights of other States,
26
ITLOS M/V Saiga (2) Judgment
1 July 1999, although as an obiter dictum it generically states that considerations of
humanity must apply in the law of the sea
27
and finally in The “Enrica Lexie”
Incident case AT Order 29 April 2016 where considerations of humanity truly
belong to the ratio decidendi given that they also appear in the operative
provisions.
28
26 ICJ, Corfu Channel Case (United Kingdom v. Albania), Judgment, 9 April 1949: “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in
general, the existence of a minefield in Albanian territorial waters and in warning the approaching
British warships of the imminent danger to which the minefield exposed them. Such obligations
are based, not on the Hague Convention of 1907, No.VIII, which is applicable in time of war, but
on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary
to the rights of other States” (p. 22) (italics added). See amplius for the ICJ’s case-law on this
subject Dupuy (1999), p. 129, also for the final characterization of the considerations of humanity
as a general principle of international law.
27 ITLOS, M/V “Saiga” (2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
1999: “In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take
into account the circumstances of the arrest in the context of the applicable rules of international
law. Although the Convention does not contain express provisions on the use of force in the arrest
of ships, international law, which is applicable by virtue of article 293 of the Convention, requires
that the use of force must be avoided as far as possible and, where force is unavoidable, it must not
go beyond what is reasonable and necessary in the circumstances. Considerations of humanity
must apply in the law of the sea, as they do in other areas of international law” (para. 155) (italics
added).
28 See AT Order, para. 124: “In light of the Arbitral Tribunal’s conclusion regarding Sergeant
Girone’s bail conditions, and taking into account the above statements by India, the Arbitral
Tribunal considers it appropriate that Italy and India cooperate, including in proceedings before
the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as
to give effect to the concept of considerations of humanity, so that Sergeant Girone may return to
Italy during the present Annex VII arbitration. As the Arbitral Tribunal has noted above, Sergeant
Girone would remain, during all this period, under the authority of the Supreme Court of India”
(italics added). Precisely the final statement of the Agent of India was worded in the following
terms: “India does not seek anything more onerous than the benchmark set by the Supreme Court
of India, and some of these conditions were indicated by Italy’s counsel yesterday. India needs to
be assured that in case the Tribunal finds that India has jurisdiction, the presence of Sergeant
Girone would be ensured. Towards that end, India would deem it necessary that the Tribunal itself
fix these guarantees”. In the operative provisions the arbitral tribunal prescribes that “a) Italy and
India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a
relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme
Court of India, may return to Italy during the present Annex VII arbitration …” (para. 132). In this
respect see Dupuy (1999), p. 125: “D’une façon générale, en effet, les ‘considerations’ sont bel et
bien toujours traitées [by the ICJ] comme des sources d’obligations juridiques. Elles incorporent
elles-mêmes des règles de droit international général dont le dénominateur commun est l’obligation
de respecter la dignité de la personne humaine, mais dont les implications concrètes, généralement
définies en relation avec d’autres règles de droit international général (principes ou coutumes),
peuvent être définies cas par cas, en fonction des circonstances de chaque espèce”.
The Provisional Measures in The “Enrica Lexie” Incident Case