427
dignity of the human person (…)”.
22
“It is these very principles that the ICJ considered as giving expression to fundamental standards of humanity applicable in all
circumstances”.
23
The Trial Chamber in the Aleksovski case also noted that “[t]he International
Court of Justice held, in the Nicaragua [C]ase, that [C]ommon Article 3, though
conventional in origin, has crystallised into customary international law and sets out
the mandatory minimum rules applicable in armed conflicts of any kind, constituting as they are ‘elementary considerations of humanity’”.
24
Thus far, therefore, the
ICTY had relied on the Nicaragua case to reaffirm the customary international law
nature of common article 3. The principle of humanity as formulated in common
article 3 of the Geneva Conventions of 1949 was summarised by the ICTY in the
Aleksovski case in terms of protecting the individual qua human being.
25
Instead, in the Kupreskic case, where departing from its previous decisions and
from ICJ jurisprudence, the ICTY found that elementary considerations of humanity are illustrative of a general principal of international law which determines the
field of international humanitarian law and its formation. In that case the ICTY suggests that considerations of humanity should be used in the application and interpretation of customary or treaty norms that are loose, meaning therefore that the role
attributed by the Court to considerations of humanity is merely interpretative.
26
As can we see from the case law referred to briefly above, the leitmotiv of
humanitarian law and human rights law is its concern for ‘considerations of humanity’ which represent the foundation for the protection of human rights. However, in
recent years a new trend has been developing, according to which ‘considerations of
humanity’ play an important role outside international human rights law and international humanitarian law. Sure enough, there are also numerous references to ‘considerations of humanity’ in the jurisprudence of international tribunals that do not
deal with human rights. In particular, it is surprising that they are taken into account
by the International Tribunal for the Law of the Sea (ITLOS) whose jurisdiction
concerns only the interpretation and application of the United Nations Convention
on the Law of the Sea (UNCLOS). This demonstrates the mutual influence that is
exercised in the current international arena, affected by the process of globalisation
that enables various courts and tribunals to adopt, in some sectors, similar interpretations to one other.
27
22 Celebici Case, para. 143.
23 Ibidem, para. 144.
24 ICTY, Prosecutor v. Zlatko Aleksovski, Judgement, 25 June 1999, para. 49.
25 Ibidem.
26 ICTY, Prosecutor v. Kupreskic et al, Judgment, 14 January 2000, para. 524.
27 On the mutual influence of the jurisprudence of international courts and tribunals, see Del
Vecchio (2015), pp. 337–346.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
dignity of the human person (…)”.
22
“It is these very principles that the ICJ considered as giving expression to fundamental standards of humanity applicable in all
circumstances”.
23
The Trial Chamber in the Aleksovski case also noted that “[t]he International
Court of Justice held, in the Nicaragua [C]ase, that [C]ommon Article 3, though
conventional in origin, has crystallised into customary international law and sets out
the mandatory minimum rules applicable in armed conflicts of any kind, constituting as they are ‘elementary considerations of humanity’”.
24
Thus far, therefore, the
ICTY had relied on the Nicaragua case to reaffirm the customary international law
nature of common article 3. The principle of humanity as formulated in common
article 3 of the Geneva Conventions of 1949 was summarised by the ICTY in the
Aleksovski case in terms of protecting the individual qua human being.
25
Instead, in the Kupreskic case, where departing from its previous decisions and
from ICJ jurisprudence, the ICTY found that elementary considerations of humanity are illustrative of a general principal of international law which determines the
field of international humanitarian law and its formation. In that case the ICTY suggests that considerations of humanity should be used in the application and interpretation of customary or treaty norms that are loose, meaning therefore that the role
attributed by the Court to considerations of humanity is merely interpretative.
26
As can we see from the case law referred to briefly above, the leitmotiv of
humanitarian law and human rights law is its concern for ‘considerations of humanity’ which represent the foundation for the protection of human rights. However, in
recent years a new trend has been developing, according to which ‘considerations of
humanity’ play an important role outside international human rights law and international humanitarian law. Sure enough, there are also numerous references to ‘considerations of humanity’ in the jurisprudence of international tribunals that do not
deal with human rights. In particular, it is surprising that they are taken into account
by the International Tribunal for the Law of the Sea (ITLOS) whose jurisdiction
concerns only the interpretation and application of the United Nations Convention
on the Law of the Sea (UNCLOS). This demonstrates the mutual influence that is
exercised in the current international arena, affected by the process of globalisation
that enables various courts and tribunals to adopt, in some sectors, similar interpretations to one other.
27
22 Celebici Case, para. 143.
23 Ibidem, para. 144.
24 ICTY, Prosecutor v. Zlatko Aleksovski, Judgement, 25 June 1999, para. 49.
25 Ibidem.
26 ICTY, Prosecutor v. Kupreskic et al, Judgment, 14 January 2000, para. 524.
27 On the mutual influence of the jurisprudence of international courts and tribunals, see Del
Vecchio (2015), pp. 337–346.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…