429
be conceded that human rights are relevant when the humanitarian dimension of the
special procedure for the prompt release of a ship and its crew is to be taken into
account, or when there are alleged violations of UNCLOS provisions on the special
procedure for the prompt release of a ship and its crew that affect the human rights
sphere of the parties involved or when there is an unnecessary use of force that puts
human lives at risk in the procedure laid down by article 292 UNCLOS.
The expression ‘considerations of humanity’ was used for the first time in 1991 in
the Saiga No. 2 case.
30
In this case, the Saiga oil tanker flying the flag of the State of
Saint Vincent and the Grenadines was, with part of its crew, first subjected to arrest
during which two members of the crew were injured, after which it was subsequently seized by the authorities of the Republic of Guinea for refuelling three vessels in the Guinean exclusive economic zone. In order to obtain the immediate
release of the Saiga, Saint Vincent instituted proceedings pursuant to article 292 of
the Montego Bay Convention, arguing inter alia that the use of force employed by
Guinea against the oil tanker in order to detain it had been excessive and unmotivated, as the ship had been proceeding at a maximum speed of ten knots, had a large
load and there were no armed men on board who had resisted. For its part, Guinea
claimed that the use of force was necessary due to the crew’s conduct and because
the oil tanker had refused to stop after repeated radio signals. ITLOS concluded that
Guinea had used excessive force putting human lives at risk before and after boarding the Saiga.
It is worth emphasising that UNCLOS does not contain any provision that bans
the excessive use of force in the case of a ship arrest. Article 301 UNCLOS effectively prohibits only the threat or use of force “against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the
principles of international law embodied in the United Nations”. Therefore, ITLOS
analysed the arrest of the ship in the light of the rules of international law referring
to article 293 UNCLOS, which requires the application of the other rules of international law that are not incompatible with the Convention itself. Consequently,
ITLOS exercised its jurisdiction and relied on article 293 to apply the prohibition on
the use of excessive force.
The Tribunal observed as follows: “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”.
31
It follows from the above that the use of force in enforcement activities at sea
is not generally prohibited although that is, of course, always the last resort. All
efforts should be made to ensure that the lives of people involved in activities at sea
are not put in danger. When the threat or use of force is not permitted by law it is
30 ITLOS, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment,
1 July 1999.
31 Ibidem, para. 155.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
be conceded that human rights are relevant when the humanitarian dimension of the
special procedure for the prompt release of a ship and its crew is to be taken into
account, or when there are alleged violations of UNCLOS provisions on the special
procedure for the prompt release of a ship and its crew that affect the human rights
sphere of the parties involved or when there is an unnecessary use of force that puts
human lives at risk in the procedure laid down by article 292 UNCLOS.
The expression ‘considerations of humanity’ was used for the first time in 1991 in
the Saiga No. 2 case.
30
In this case, the Saiga oil tanker flying the flag of the State of
Saint Vincent and the Grenadines was, with part of its crew, first subjected to arrest
during which two members of the crew were injured, after which it was subsequently seized by the authorities of the Republic of Guinea for refuelling three vessels in the Guinean exclusive economic zone. In order to obtain the immediate
release of the Saiga, Saint Vincent instituted proceedings pursuant to article 292 of
the Montego Bay Convention, arguing inter alia that the use of force employed by
Guinea against the oil tanker in order to detain it had been excessive and unmotivated, as the ship had been proceeding at a maximum speed of ten knots, had a large
load and there were no armed men on board who had resisted. For its part, Guinea
claimed that the use of force was necessary due to the crew’s conduct and because
the oil tanker had refused to stop after repeated radio signals. ITLOS concluded that
Guinea had used excessive force putting human lives at risk before and after boarding the Saiga.
It is worth emphasising that UNCLOS does not contain any provision that bans
the excessive use of force in the case of a ship arrest. Article 301 UNCLOS effectively prohibits only the threat or use of force “against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the
principles of international law embodied in the United Nations”. Therefore, ITLOS
analysed the arrest of the ship in the light of the rules of international law referring
to article 293 UNCLOS, which requires the application of the other rules of international law that are not incompatible with the Convention itself. Consequently,
ITLOS exercised its jurisdiction and relied on article 293 to apply the prohibition on
the use of excessive force.
The Tribunal observed as follows: “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”.
31
It follows from the above that the use of force in enforcement activities at sea
is not generally prohibited although that is, of course, always the last resort. All
efforts should be made to ensure that the lives of people involved in activities at sea
are not put in danger. When the threat or use of force is not permitted by law it is
30 ITLOS, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment,
1 July 1999.
31 Ibidem, para. 155.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…