430
illegal and consequently it can be considered as a violation of the dignity of the
victims. Actually, it is easy understandable that the use of force gives rise to human
rights consideration. Hence, as pointed out by the former President of ITLOS
Dolliver M. Nelson, the Tribunal’s dictum in the Saiga No. 2 case has the goal “to
protect the human rights of the members of the crew”.
32
It should also be noted that in the Saiga No. 2 case two different positions were
taken on the concept of ‘considerations of humanity’. According to Judge Mensah,
‘considerations of humanity’ refer to the matter of human rights and this statement
implicitly implies the intention of the judge to refer to the obligation to respect a
fundamental and inalienable core of human rights. In this respect the President
Mensah in his separate opinion observed that “the Judgment has found to be serious
violations of the Convention and other rules of international law committed by
Guinea in this case. The violations do not only affect commercial interests but also
relate to fundamental human rights and the dignity of the person”.
33
By contrast, in explaining the meaning of ‘considerations of humanity’, Judge
Ndiaye
34
refers to the South West Africa (Ethiopia against South Africa) case presented to the ICJ in 1966.
35
The mention of this judgment by the judge not only
makes his position better understood in relation to ‘considerations of humanity’, but
highlights that in general wide reference is made to ICJ jurisprudence through the
individual and dissenting opinions of the members of the ITLOS.
The approach used by the ICJ in the judgment of 1966 and recalled by Judge
Ndiaye in his opinion is significant. By citing the judgment of the ICJ, he attributes
a completely moral value to ‘considerations of humanity’.
36
They are, in his opinion,
32 ITLOS, Statement by Mr. L. Dolliver M. Nelson, President of the International Tribunal for the
Law of the Sea, on the commemoration of the 20th anniversary of the opening of the signature of
the 1982 United Nations Convention of the Law of the Sea at the plenary of the 57th session of the
United Nations General Assembly, 9 December 2002.
33 The M/V “SAIGA” (No. 2) Case, Separate Opinion of President Mensah, para. 20.
34 The M/V “SAIGA” (No. 2) Case, Dissenting Opinion of Judge Ndiaye, para. 90.
35 In this judgment the ICJ stated as follows: “Humanitarian considerations may constitute the
inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations
Charter constitute the moral and political basis for the specific legal provisions thereafter set out.
Such considerations do not, however, in themselves amount to rules of law. All States have an
interest-in such matters. But the existence of an ‘interest’ does not of itself entail that this interest
is specifically juridical in character. It is in the light of these considerations that the Court must
examine what is perhaps the most important contention of a general character that has been
advanced in connection with this aspect of the case, namely the contention by which it is sought to
derive a legal right or interest in the conduct of the mandate from the simple existence, or principle,
of the ‘sacred trust’. The sacred trust, it is said, is a ‘sacred trust of civilization’. Hence all civilized
nations have an interest in seeing that it is carried out. An interest, no doubt; but in order that this
interest may take on a specifically legal character, the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it
must be given juridical expression and be clothed in legal form”. ICJ, South West Africa (Ethiopia
v. South Africa; Liberia v. South Africa) (Second Phase), Judgment, 18 July 1966, paras 50–51.
36 Even among legal scholars there are those who argue that the notion of ‘considerations of humanity’ ‘rather than amounting to a rule of law, appears to be a moral principle, which should guide a
State towards the adoption of appropriate maritime enforcement measures’. See Noto (2016),
F. Delfino
illegal and consequently it can be considered as a violation of the dignity of the
victims. Actually, it is easy understandable that the use of force gives rise to human
rights consideration. Hence, as pointed out by the former President of ITLOS
Dolliver M. Nelson, the Tribunal’s dictum in the Saiga No. 2 case has the goal “to
protect the human rights of the members of the crew”.
32
It should also be noted that in the Saiga No. 2 case two different positions were
taken on the concept of ‘considerations of humanity’. According to Judge Mensah,
‘considerations of humanity’ refer to the matter of human rights and this statement
implicitly implies the intention of the judge to refer to the obligation to respect a
fundamental and inalienable core of human rights. In this respect the President
Mensah in his separate opinion observed that “the Judgment has found to be serious
violations of the Convention and other rules of international law committed by
Guinea in this case. The violations do not only affect commercial interests but also
relate to fundamental human rights and the dignity of the person”.
33
By contrast, in explaining the meaning of ‘considerations of humanity’, Judge
Ndiaye
34
refers to the South West Africa (Ethiopia against South Africa) case presented to the ICJ in 1966.
35
The mention of this judgment by the judge not only
makes his position better understood in relation to ‘considerations of humanity’, but
highlights that in general wide reference is made to ICJ jurisprudence through the
individual and dissenting opinions of the members of the ITLOS.
The approach used by the ICJ in the judgment of 1966 and recalled by Judge
Ndiaye in his opinion is significant. By citing the judgment of the ICJ, he attributes
a completely moral value to ‘considerations of humanity’.
36
They are, in his opinion,
32 ITLOS, Statement by Mr. L. Dolliver M. Nelson, President of the International Tribunal for the
Law of the Sea, on the commemoration of the 20th anniversary of the opening of the signature of
the 1982 United Nations Convention of the Law of the Sea at the plenary of the 57th session of the
United Nations General Assembly, 9 December 2002.
33 The M/V “SAIGA” (No. 2) Case, Separate Opinion of President Mensah, para. 20.
34 The M/V “SAIGA” (No. 2) Case, Dissenting Opinion of Judge Ndiaye, para. 90.
35 In this judgment the ICJ stated as follows: “Humanitarian considerations may constitute the
inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations
Charter constitute the moral and political basis for the specific legal provisions thereafter set out.
Such considerations do not, however, in themselves amount to rules of law. All States have an
interest-in such matters. But the existence of an ‘interest’ does not of itself entail that this interest
is specifically juridical in character. It is in the light of these considerations that the Court must
examine what is perhaps the most important contention of a general character that has been
advanced in connection with this aspect of the case, namely the contention by which it is sought to
derive a legal right or interest in the conduct of the mandate from the simple existence, or principle,
of the ‘sacred trust’. The sacred trust, it is said, is a ‘sacred trust of civilization’. Hence all civilized
nations have an interest in seeing that it is carried out. An interest, no doubt; but in order that this
interest may take on a specifically legal character, the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it
must be given juridical expression and be clothed in legal form”. ICJ, South West Africa (Ethiopia
v. South Africa; Liberia v. South Africa) (Second Phase), Judgment, 18 July 1966, paras 50–51.
36 Even among legal scholars there are those who argue that the notion of ‘considerations of humanity’ ‘rather than amounting to a rule of law, appears to be a moral principle, which should guide a
State towards the adoption of appropriate maritime enforcement measures’. See Noto (2016),
F. Delfino