428
2 ‘Considerations of Humanity’ in ITLOS Jurisprudence
We have seen that after all it is normal that in ICJ jurisprudence as well as that of
various criminal courts, in particular that of the ICTY, there are many references to
‘considerations of humanity’. In the former case because the ICJ has universal jurisdiction ratione matariae and in the latter case because international criminal justice
and human rights are significantly intermingled with each other. What is remarkable
however is that ‘considerations of humanity’ are present in ITLOS jurisprudence.
This trend is particularly significant because provisions regarding ‘considerations of humanity’ are not present in the text of UNCLOS itself. Moreover
UNCLOS does not contain explicit references to human rights and it cannot even be
considered ‘a human right instrument’.
28
In this regard, the protection of people at
sea and the protection of human rights were not the subjects of discussion during the
third United Nations Conference on the Law of the Sea. This is demonstrated by the
fact that only very few provisions of the Convention implicitly refer to the protection of human rights. Provisions that nevertheless give rights and obligations to
States and not to people.
29
In this respect, the protection of persons derives implicitly from the duties and rights attributed to the States. For example, positive and
general obligations on State Parties of the Convention to protect individuals at sea
are laid down in article 98 UNCLOS, which establishes the duty to render assistance
to any person in danger at sea, and in article 99 of UNCLOS, which requires that
every State take effective measures to prevent and punish the transport of slaves in
ships flying their flag and also affirms with reference to exclusive economic zones
and the high seas that a slave taking refuge on board a ship—whatever its flag—
shall ipso facto be free. Or article 146 UNCLOS, which requires the adoption of the
necessary measures in the course of the activities carried out in the Area to ensure
effective protection of human life. Instead, sometimes people constitute simply a
tool by which the Convention confers rights and obligations on States. For instance,
article 18(2) allows ships to stop and anchor in the territorial sea of a third State if
they have to provide assistance to people, ships or aircraft in distress or in difficulty
during the harmless passage.
Consequently, in the absence of provisions in the Convention that have direct
effect on them, the protection at sea of individuals is a matter for States. However in
most cases the fulfilment of obligations by the States is not always effective. To
overcome this situation of restrained protection of individuals, a praetorian right is
developing. Indeed, ITLOS judges usually refer in their judgments and/or opinions
to ‘considerations of humanity’. From a careful examination of ITLOS jurisprudence, it is possible to detect many references to those considerations. To that end
humanity has become an important yardstick especially in the international law of
the sea when there are human rights elements at stake. Although UNCLOS cannot
be considered an instrument for the protection of human rights, it must nevertheless
28 See Treves (2010), p. 2.
29 See Papanicolopulu (2012).
F. Delfino
2 ‘Considerations of Humanity’ in ITLOS Jurisprudence
We have seen that after all it is normal that in ICJ jurisprudence as well as that of
various criminal courts, in particular that of the ICTY, there are many references to
‘considerations of humanity’. In the former case because the ICJ has universal jurisdiction ratione matariae and in the latter case because international criminal justice
and human rights are significantly intermingled with each other. What is remarkable
however is that ‘considerations of humanity’ are present in ITLOS jurisprudence.
This trend is particularly significant because provisions regarding ‘considerations of humanity’ are not present in the text of UNCLOS itself. Moreover
UNCLOS does not contain explicit references to human rights and it cannot even be
considered ‘a human right instrument’.
28
In this regard, the protection of people at
sea and the protection of human rights were not the subjects of discussion during the
third United Nations Conference on the Law of the Sea. This is demonstrated by the
fact that only very few provisions of the Convention implicitly refer to the protection of human rights. Provisions that nevertheless give rights and obligations to
States and not to people.
29
In this respect, the protection of persons derives implicitly from the duties and rights attributed to the States. For example, positive and
general obligations on State Parties of the Convention to protect individuals at sea
are laid down in article 98 UNCLOS, which establishes the duty to render assistance
to any person in danger at sea, and in article 99 of UNCLOS, which requires that
every State take effective measures to prevent and punish the transport of slaves in
ships flying their flag and also affirms with reference to exclusive economic zones
and the high seas that a slave taking refuge on board a ship—whatever its flag—
shall ipso facto be free. Or article 146 UNCLOS, which requires the adoption of the
necessary measures in the course of the activities carried out in the Area to ensure
effective protection of human life. Instead, sometimes people constitute simply a
tool by which the Convention confers rights and obligations on States. For instance,
article 18(2) allows ships to stop and anchor in the territorial sea of a third State if
they have to provide assistance to people, ships or aircraft in distress or in difficulty
during the harmless passage.
Consequently, in the absence of provisions in the Convention that have direct
effect on them, the protection at sea of individuals is a matter for States. However in
most cases the fulfilment of obligations by the States is not always effective. To
overcome this situation of restrained protection of individuals, a praetorian right is
developing. Indeed, ITLOS judges usually refer in their judgments and/or opinions
to ‘considerations of humanity’. From a careful examination of ITLOS jurisprudence, it is possible to detect many references to those considerations. To that end
humanity has become an important yardstick especially in the international law of
the sea when there are human rights elements at stake. Although UNCLOS cannot
be considered an instrument for the protection of human rights, it must nevertheless
28 See Treves (2010), p. 2.
29 See Papanicolopulu (2012).
F. Delfino