434
Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports
1970, p. 32)”.
48
Judge Bouguetaia expressly cited the Barcelona Traction case
because in this decision the ICJ distinguished between obligations of a State towards
the international community as a whole, and those arising in respect of other States.
With regards to the former, the ICJ introduced the concept of ‘obligations erga
omnes’, which emphasises the legal interest of the international community in
ensuring the protection of certain fundamental human rights due to their importance. It can be said that not only in ICJ jurisprudence (and as aforesaid that of
international criminal courts and tribunals too) but also in ITLOS jurisprudence the
concepts of ‘considerations of humanity’ and ‘obligations erga omnes’ represent
the basis for the protection of human rights.
On the other hand, if the Tribunal had cited article 293 UNCLOS, it could have
identified the protection of human rights as a body of legal norms binding on all
States as a possible basis for its jurisdiction. The content of paragraph 154 of the
judgment would have to be related with the said article 293. Among other things,
article 293 also recalls the preamble of UNCLOS which states that issues not regulated by the Convention are governed by the rules and principles of international
law. However, the Tribunal preferred to follow a different logic, contrasting with the
possible development of human rights in the international law of the sea.
In the Arctic Sunrise case,
49
the Netherlands alleged a relationship between
UNCLOS and well known international human rights treaties, precisely with the
International Covenant on Civil and Political Rights. In particular, it stated in its
claim that “[t]he principal reason (emphasis added) for requesting provisional
measures is that the Russian Federation’s actions constitutes internationally wrongful acts having a continuing character. This causes injury to the rights of the
Kingdom of the Netherlands in its own rights, its right to protect a vessel flying its
flag, its right to diplomatic protection of its nationals, and its right to seek redress on
behalf of crew members of a vessel flying its flag. These rights concern the freedom
of navigation and other internationally lawful uses of the sea related to this freedom,
such as those associated with the operation of the ships, as well as the exercise of
jurisdiction under UNCLOS and customary international law. Furthermore, they
concern the rights to liberty and security of the crew members, and the right to leave
the territory and maritime areas under the jurisdiction of a coastal state under the
1966 International Covenant on Civil and Political Rights and customary international law.”
50
From the explanations given by the Netherlands with regard to what constitutes
the “primary reason” for its request for provisional measures, one can deduce that
the Netherlands effectively asked the Tribunal to rule on the merits of the dispute.
Consequently, consistent with this understanding the Netherlands demanded that
48 The M/V “Louisa” Case, Separate Opinion of Judge Bouguetaia, para. 14.
49 ITLOS, The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), Request
for the Prescription of Provisional Measures under article 290, paragraph 5, of the United Nations
Convention on the Law of the Sea, 21 October 2013.
50 Ibidem, para. 19.
F. Delfino
Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports
1970, p. 32)”.
48
Judge Bouguetaia expressly cited the Barcelona Traction case
because in this decision the ICJ distinguished between obligations of a State towards
the international community as a whole, and those arising in respect of other States.
With regards to the former, the ICJ introduced the concept of ‘obligations erga
omnes’, which emphasises the legal interest of the international community in
ensuring the protection of certain fundamental human rights due to their importance. It can be said that not only in ICJ jurisprudence (and as aforesaid that of
international criminal courts and tribunals too) but also in ITLOS jurisprudence the
concepts of ‘considerations of humanity’ and ‘obligations erga omnes’ represent
the basis for the protection of human rights.
On the other hand, if the Tribunal had cited article 293 UNCLOS, it could have
identified the protection of human rights as a body of legal norms binding on all
States as a possible basis for its jurisdiction. The content of paragraph 154 of the
judgment would have to be related with the said article 293. Among other things,
article 293 also recalls the preamble of UNCLOS which states that issues not regulated by the Convention are governed by the rules and principles of international
law. However, the Tribunal preferred to follow a different logic, contrasting with the
possible development of human rights in the international law of the sea.
In the Arctic Sunrise case,
49
the Netherlands alleged a relationship between
UNCLOS and well known international human rights treaties, precisely with the
International Covenant on Civil and Political Rights. In particular, it stated in its
claim that “[t]he principal reason (emphasis added) for requesting provisional
measures is that the Russian Federation’s actions constitutes internationally wrongful acts having a continuing character. This causes injury to the rights of the
Kingdom of the Netherlands in its own rights, its right to protect a vessel flying its
flag, its right to diplomatic protection of its nationals, and its right to seek redress on
behalf of crew members of a vessel flying its flag. These rights concern the freedom
of navigation and other internationally lawful uses of the sea related to this freedom,
such as those associated with the operation of the ships, as well as the exercise of
jurisdiction under UNCLOS and customary international law. Furthermore, they
concern the rights to liberty and security of the crew members, and the right to leave
the territory and maritime areas under the jurisdiction of a coastal state under the
1966 International Covenant on Civil and Political Rights and customary international law.”
50
From the explanations given by the Netherlands with regard to what constitutes
the “primary reason” for its request for provisional measures, one can deduce that
the Netherlands effectively asked the Tribunal to rule on the merits of the dispute.
Consequently, consistent with this understanding the Netherlands demanded that
48 The M/V “Louisa” Case, Separate Opinion of Judge Bouguetaia, para. 14.
49 ITLOS, The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), Request
for the Prescription of Provisional Measures under article 290, paragraph 5, of the United Nations
Convention on the Law of the Sea, 21 October 2013.
50 Ibidem, para. 19.
F. Delfino