432
a reasonable bond or other financial security. The Tribunal observed that: “article
73, para. 2, must be read in the context of article 73 as a whole. The obligation of
prompt release of vessels and crews includes elementary considerations of humanity and due process of law. The requirement that a bond or other financial security
must be reasonable indicates that a concern for fairness is one of the purposes of this
provision”.
39
In this case for the first time ITLOS linked elementary considerations
of humanity with two distinct and important principles: due process and fairness. So
the Juno Trader case marked a further development in ITLOS jurisprudence recognising that article 73(2) of the Convention is composed of ‘considerations of humanity’, ‘due process of law and fairness’, although the text itself does not explicitly
refer to these elements. In particular, that article confines itself to stating that seized
vessels and their crews must be promptly released on payment of a reasonable bond
or other financial security. In the light of the interpretation of article 73(2) given by
the Tribunal, the rights of crews that are protected by article 73(2) also includes the
protection of human rights, due process and fairness, keeping them from detention
in potentially unacceptable conditions and without prejudging the content of the
dispute. That is also confirmed by the separate opinion of some judges.
Specifically, Judge Treves in his separate opinion in the Juno Trader case
40
noted
that the unnecessary use of force and violations of the due process of law and human
rights in general have negative impacts during the procedure laid down in article
292 UNCLOS. In particular, he pointed out that there is a lack of due process,
among others things, when the defendant does not receive advance notice of the
charges or the accused is punished without an orderly and adequate procedure, or
when a domestic proceeding is concluded without seriously affording a chance for
arguments in favour of the detained vessel and crew to be heard. He added also that
“[i]n both cases the unnecessary use of force and the violations of human rights and
the procedures provided by law are elements that must be taken into account for the
establishment of a security or guarantee that can be considered reasonable”.
41
Moreover, Judge Treves has since stated in the Juno Trader case that ITLOS referred
to elementary considerations of humanity as a ‘substitute for human rights’.
42
Like Judge Treves, also Judge Mesah and Judge Wolfrum
43
in their separate
opinions in the Juno Trader case referred to human rights. In affirming that the
rights of the coastal State must be exercised in compliance with UNCLOS and the
other rules of international law not incompatible with it, the judges in question also
included the international instruments envisaged for the protection of human rights
and due process of law. In addition, in the Tomimaru case it was stated that the seizure of a ship must take place in compliance with the international standards of due
39 The “Juno Trader” Case, para. 77.
40 Ibidem, Separate Opinion of Judge Treves, para. 1.
41 Ibidem, para. 4.
42 See Treves (2010), p. 5.
43 The “Juno Trader” Case, Joint Separate Opinion of Judges Mensah and Wolfrum, paras 3–4.
F. Delfino
a reasonable bond or other financial security. The Tribunal observed that: “article
73, para. 2, must be read in the context of article 73 as a whole. The obligation of
prompt release of vessels and crews includes elementary considerations of humanity and due process of law. The requirement that a bond or other financial security
must be reasonable indicates that a concern for fairness is one of the purposes of this
provision”.
39
In this case for the first time ITLOS linked elementary considerations
of humanity with two distinct and important principles: due process and fairness. So
the Juno Trader case marked a further development in ITLOS jurisprudence recognising that article 73(2) of the Convention is composed of ‘considerations of humanity’, ‘due process of law and fairness’, although the text itself does not explicitly
refer to these elements. In particular, that article confines itself to stating that seized
vessels and their crews must be promptly released on payment of a reasonable bond
or other financial security. In the light of the interpretation of article 73(2) given by
the Tribunal, the rights of crews that are protected by article 73(2) also includes the
protection of human rights, due process and fairness, keeping them from detention
in potentially unacceptable conditions and without prejudging the content of the
dispute. That is also confirmed by the separate opinion of some judges.
Specifically, Judge Treves in his separate opinion in the Juno Trader case
40
noted
that the unnecessary use of force and violations of the due process of law and human
rights in general have negative impacts during the procedure laid down in article
292 UNCLOS. In particular, he pointed out that there is a lack of due process,
among others things, when the defendant does not receive advance notice of the
charges or the accused is punished without an orderly and adequate procedure, or
when a domestic proceeding is concluded without seriously affording a chance for
arguments in favour of the detained vessel and crew to be heard. He added also that
“[i]n both cases the unnecessary use of force and the violations of human rights and
the procedures provided by law are elements that must be taken into account for the
establishment of a security or guarantee that can be considered reasonable”.
41
Moreover, Judge Treves has since stated in the Juno Trader case that ITLOS referred
to elementary considerations of humanity as a ‘substitute for human rights’.
42
Like Judge Treves, also Judge Mesah and Judge Wolfrum
43
in their separate
opinions in the Juno Trader case referred to human rights. In affirming that the
rights of the coastal State must be exercised in compliance with UNCLOS and the
other rules of international law not incompatible with it, the judges in question also
included the international instruments envisaged for the protection of human rights
and due process of law. In addition, in the Tomimaru case it was stated that the seizure of a ship must take place in compliance with the international standards of due
39 The “Juno Trader” Case, para. 77.
40 Ibidem, Separate Opinion of Judge Treves, para. 1.
41 Ibidem, para. 4.
42 See Treves (2010), p. 5.
43 The “Juno Trader” Case, Joint Separate Opinion of Judges Mensah and Wolfrum, paras 3–4.
F. Delfino