431
a simple principle, an interest of States and to borrow a phrase from ICJ jurisprudence a ‘sacred trust of civilization’ that inspires the creation of legal norms. And in
order for them to acquire a compulsory nature, they need something more than a
“moral or humanitarian ideal”, that is to say they must have legal value, actual legal
expression and be cloaked in legal form. The restrictive approach espoused by the
judge is perhaps justifiable because the Saiga No. 2 case was the first occasion on
which judges concerned with the international law of the sea introduced the notion
of ‘considerations of humanity’. Even after the Saiga No. 2 case, ITLOS and individually some judges in their dissenting or separate opinions continued to refer to
‘considerations of humanity’ in subsequent cases mainly concerning the prompt
release of ships and crews. Thus the judgment in the Saiga No. 2 case paved the way
for the Tribunal’s later jurisprudence, in which it refers to ‘considerations of
humanity’.
The issue of ‘considerations of humanity’ arose also in M/Virginia G case, which
concerned an oil tanker flying the flag of Panama. It was arrested by the authorities
of Guinea-Bissau on 21 August 2009 for allegedly carrying out unauthorised bunkering activities in support of foreign vessels fishing in Guinea-Bissau’s exclusive
economic zone. In the M/V Virginia G case ITLOS faced a situation very similar to
that in the M/V Saiga case. Like St Vincent in the M/V Saiga case, Panama claimed
inter alia that Guinea-Bissau had violated the prohibition on the use of excessive
force against the oil tanker. The Tribunal cited the Saiga No. 2 case to decide if it
could exercise jurisdiction over the claim. It relied once again on article 293
UNCLOS and it found that Guinea-Bissau had not used “excessive force leading to
physical injuries or endangering human life during the boarding and sailing of the
M/V Virginia G to the port of Bissau”.
37
This case highlights again how, through
relying on considerations of humanity, ITLOS judges are concerned with verifying
the possible consequences that any excessive exercise of the use of force can have
on the rights of the persons involved in the prompt release of ships and crews.
The interconnection between the remedy of prompt release of vessels and crews
and ‘elementary considerations of humanity’ is also outlined in the Juno Trader
case.
38
In this case the Tribunal examined the relevant factor for determining a reasonable bond, which is a recurrent issue in prompt release cases. It found that
the Republic of Guinea-Bissau had not complied with the provision of article 73(2)
UNCLOS for the prompt release of the Juno Trader and its crew upon the posting of
p. 52. However, there are conflicting opinions in the literature. Indeed, there are also those who, for
example, believe that ‘considerations of humanity’ constitute general principles of international
law that would not amount to customary or treaty provisions. See Carpanelli (2015). By contrast, according to others the principle of humanity is part of customary law and article 38 (1) (b)
and (c) may be seen as a single corpus of law. See in this regard for instance Waldock (1962),
pp. 62–63. Or those who recognize that ‘considerations of humanity’ constitute soft law, for example, Francioni (1996), p. 169.
37 ITLOS, The M/V “Virginia G” Case (Panama v. Guinea-Bissau), Judgment, 14 April 2014, para.
362.
38 ITLOS, The “Juno Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau),
Judgment, 18 December 2004.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
a simple principle, an interest of States and to borrow a phrase from ICJ jurisprudence a ‘sacred trust of civilization’ that inspires the creation of legal norms. And in
order for them to acquire a compulsory nature, they need something more than a
“moral or humanitarian ideal”, that is to say they must have legal value, actual legal
expression and be cloaked in legal form. The restrictive approach espoused by the
judge is perhaps justifiable because the Saiga No. 2 case was the first occasion on
which judges concerned with the international law of the sea introduced the notion
of ‘considerations of humanity’. Even after the Saiga No. 2 case, ITLOS and individually some judges in their dissenting or separate opinions continued to refer to
‘considerations of humanity’ in subsequent cases mainly concerning the prompt
release of ships and crews. Thus the judgment in the Saiga No. 2 case paved the way
for the Tribunal’s later jurisprudence, in which it refers to ‘considerations of
humanity’.
The issue of ‘considerations of humanity’ arose also in M/Virginia G case, which
concerned an oil tanker flying the flag of Panama. It was arrested by the authorities
of Guinea-Bissau on 21 August 2009 for allegedly carrying out unauthorised bunkering activities in support of foreign vessels fishing in Guinea-Bissau’s exclusive
economic zone. In the M/V Virginia G case ITLOS faced a situation very similar to
that in the M/V Saiga case. Like St Vincent in the M/V Saiga case, Panama claimed
inter alia that Guinea-Bissau had violated the prohibition on the use of excessive
force against the oil tanker. The Tribunal cited the Saiga No. 2 case to decide if it
could exercise jurisdiction over the claim. It relied once again on article 293
UNCLOS and it found that Guinea-Bissau had not used “excessive force leading to
physical injuries or endangering human life during the boarding and sailing of the
M/V Virginia G to the port of Bissau”.
37
This case highlights again how, through
relying on considerations of humanity, ITLOS judges are concerned with verifying
the possible consequences that any excessive exercise of the use of force can have
on the rights of the persons involved in the prompt release of ships and crews.
The interconnection between the remedy of prompt release of vessels and crews
and ‘elementary considerations of humanity’ is also outlined in the Juno Trader
case.
38
In this case the Tribunal examined the relevant factor for determining a reasonable bond, which is a recurrent issue in prompt release cases. It found that
the Republic of Guinea-Bissau had not complied with the provision of article 73(2)
UNCLOS for the prompt release of the Juno Trader and its crew upon the posting of
p. 52. However, there are conflicting opinions in the literature. Indeed, there are also those who, for
example, believe that ‘considerations of humanity’ constitute general principles of international
law that would not amount to customary or treaty provisions. See Carpanelli (2015). By contrast, according to others the principle of humanity is part of customary law and article 38 (1) (b)
and (c) may be seen as a single corpus of law. See in this regard for instance Waldock (1962),
pp. 62–63. Or those who recognize that ‘considerations of humanity’ constitute soft law, for example, Francioni (1996), p. 169.
37 ITLOS, The M/V “Virginia G” Case (Panama v. Guinea-Bissau), Judgment, 14 April 2014, para.
362.
38 ITLOS, The “Juno Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau),
Judgment, 18 December 2004.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…