433
process.
44
Again in that case ITLOS invoked the application of ‘international
standards of due process of law’. In the Juno Trader and Tomimaru cases ITLOS
highlighted the importance of respecting due process and human rights but it did not
rule in abstracto on any such violations. This is simply a consequence of the
Tribunal’s specific jurisdiction.
Furthermore, in the Louisa case
45
ITLOS made only general and formal pronouncements on the obligations of States under general international human rights
law. What is peculiar about this issue is the express reference to human rights rather
than ‘considerations of humanity’. In that case ITLOS declined to entertain jurisdiction. The Tribunal stated in paragraph 153 of its judgment that ‘[s]ince it has no
jurisdiction to entertain the Application, the Tribunal is not required to consider any
of the other objections raised to its jurisdiction or against the admissibility of the
claims of Saint Vincent and the Grenadines’.
46
Nevertheless in the following paragraph 154, it considered that it was necessary to take note in its judgment of the
issues of human rights as described in paragraphs 59, 60, 61 and 62 of the judgment.
These paragraphs refer expressly to the conditions under which the individuals were
detained, the treatment to which they were subjected after the release and the excessive delay in filing charges against some of them by the Spanish authorities.
ITLOS holds the view that States are required to fulfil their obligations under
international law, in particular human rights law and that considerations of due process of law must be applied in all circumstances. This seems unusual because the
Tribunal, even though it gave a negative ruling as to its jurisdiction,
47
went further
by ruling on the need to respect human rights that fall within the core of norms of
general international law, effecting acting as if it had jurisdiction over the matter.
But it was clearly an obiter dictum, which had no significant impact on the incidence of human rights protection in ITLOS jurisprudence.
Judge Bouguetaia also shared this belief because in his separate opinion he stated
that “the Tribunal should have gone beyond a simple ‘obiter dictum’ and mentioned
it more than ‘in passing’. The basic principles concerning the human person have
now joined the corpus of legal norms which are binding on all States. Respect for
such human rights has become an obligation erga omnes (see ICJ, Barcelona
44 ITLOS, The “Tomimaru” Case (Japan v. Russian Federation), Judgment, 6 August 2007, para.
76.
45 ITLOS, The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain),
Judgment, 28 May 2013.
46 Ibidem, para. 153.
47 Judge Jesus in his dissenting opinion pointed out that “I share the view of those who observe that
‘the principle in this respect must be […] that ‘when dealing with jurisdiction a tribunal should not
encroach on the merits’, because as Fitzmaurice observed ‘if a tribunal should decide that it is
incompetent, and should have made any pronouncement on the merits, it will have done precisely
what it found itself without jurisdiction to do’”, The M/V “Louisa” Case, Dissenting Opinion of
Judge Jesus, para. 69. See also the separate opinion of Judge Bouguetaia in which he observed as
follows: “However, once the Tribunal has ruled on its jurisdiction, the procedure is terminated and
the ‘door is closed’ to any other claim. That is the rule to be applied”, The M/V “Louisa” Case,
Separate Opinion of Judge Bouguetaia, para. 12.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
process.
44
Again in that case ITLOS invoked the application of ‘international
standards of due process of law’. In the Juno Trader and Tomimaru cases ITLOS
highlighted the importance of respecting due process and human rights but it did not
rule in abstracto on any such violations. This is simply a consequence of the
Tribunal’s specific jurisdiction.
Furthermore, in the Louisa case
45
ITLOS made only general and formal pronouncements on the obligations of States under general international human rights
law. What is peculiar about this issue is the express reference to human rights rather
than ‘considerations of humanity’. In that case ITLOS declined to entertain jurisdiction. The Tribunal stated in paragraph 153 of its judgment that ‘[s]ince it has no
jurisdiction to entertain the Application, the Tribunal is not required to consider any
of the other objections raised to its jurisdiction or against the admissibility of the
claims of Saint Vincent and the Grenadines’.
46
Nevertheless in the following paragraph 154, it considered that it was necessary to take note in its judgment of the
issues of human rights as described in paragraphs 59, 60, 61 and 62 of the judgment.
These paragraphs refer expressly to the conditions under which the individuals were
detained, the treatment to which they were subjected after the release and the excessive delay in filing charges against some of them by the Spanish authorities.
ITLOS holds the view that States are required to fulfil their obligations under
international law, in particular human rights law and that considerations of due process of law must be applied in all circumstances. This seems unusual because the
Tribunal, even though it gave a negative ruling as to its jurisdiction,
47
went further
by ruling on the need to respect human rights that fall within the core of norms of
general international law, effecting acting as if it had jurisdiction over the matter.
But it was clearly an obiter dictum, which had no significant impact on the incidence of human rights protection in ITLOS jurisprudence.
Judge Bouguetaia also shared this belief because in his separate opinion he stated
that “the Tribunal should have gone beyond a simple ‘obiter dictum’ and mentioned
it more than ‘in passing’. The basic principles concerning the human person have
now joined the corpus of legal norms which are binding on all States. Respect for
such human rights has become an obligation erga omnes (see ICJ, Barcelona
44 ITLOS, The “Tomimaru” Case (Japan v. Russian Federation), Judgment, 6 August 2007, para.
76.
45 ITLOS, The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain),
Judgment, 28 May 2013.
46 Ibidem, para. 153.
47 Judge Jesus in his dissenting opinion pointed out that “I share the view of those who observe that
‘the principle in this respect must be […] that ‘when dealing with jurisdiction a tribunal should not
encroach on the merits’, because as Fitzmaurice observed ‘if a tribunal should decide that it is
incompetent, and should have made any pronouncement on the merits, it will have done precisely
what it found itself without jurisdiction to do’”, The M/V “Louisa” Case, Dissenting Opinion of
Judge Jesus, para. 69. See also the separate opinion of Judge Bouguetaia in which he observed as
follows: “However, once the Tribunal has ruled on its jurisdiction, the procedure is terminated and
the ‘door is closed’ to any other claim. That is the rule to be applied”, The M/V “Louisa” Case,
Separate Opinion of Judge Bouguetaia, para. 12.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…