435
the Tribunal decide on the violation of customary international law, UNCLOS and
breaches of rules that are outside the scope of UNCLOS because of course the
International Covenant on Civil and Political Rights is a separate treaty from
UNCLOS. However, this is contrary to what is provided for in article 290 of the
Convention. In fact, in accordance with article 290, paragraphs 1 and 5, of the
Convention, in deciding under the circumstances on the appropriateness of prescribing any provisional measures to preserve the respective rights of the parties, ITLOS
is not supposed to rule on the merits of the dispute but it should determine whether
the tribunal which is to be established would have jurisdiction and that the urgency
of the situation so requires.
By deciding on the prescription of provisional measures it seems that the Tribunal
actually indirectly supports the position of the Netherlands. Nevertheless, the link
between the 1966 International Covenant on Civil and Political Rights and UNCLOS
was clarified on the merits by the Arbitral Tribunal established under Annex VII of
the Convention (hereinafter the “Annex VII Arbitral Tribunal”).
As can be seen from the cases reviewed, originally ‘considerations of humanity’
mainly referred to the particular procedure provided for by article 292(2)
UNCLOS. The importance of the protection of human rights in this procedure is
also highlighted by cases in which ‘considerations of humanity’ are referred to
implicitly. For instance, in the Ara Libertad case where ITLOS in its decision took
into account the position of Argentina, which claimed among other things that: “further attempts to forcibly board and move the Frigate without the consent of Argentina
would lead to the escalation of the conflict and to serious incidents in which human
lives would be at risk”.
51
However, ‘considerations of humanity’ have recently been
applied also to a highly sensitive case outside the realm of the prompt release of the
ships and crews. Specifically, in the Enrica Lexie Incident order, in 2015 ITLOS
reaffirmed “its view that the considerations of humanity must apply in the law of the
sea as they do in other areas of international law”.
52
This is a isolated case that falls
outside the prompt release of ships and crews.
The aforementioned cases, although mainly concerning the issue of the prompt
release of ships and crews, have however from time to time witnessed judges developing ‘considerations of humanity’. It is clear from the examined cases that humanity is becoming integrated into contemporary concepts such as human rights and
human security. Just as in other areas of international law basic human rights standards, such as for example due process of law, the prohibition of cruel, inhuman,
and degrading treatment, right to life are also applicable in the international law of
the sea. The most important role played by human rights principles in the law of the
sea is to guide tribunals in their interpretation and application of the provisions of
UNCLOS.
51 ITLOS, The “Ara Libertad” Case (Argentina v. Ghana), Provisional Measures, Order, 15
December 2012, para. 82.
52 ITLOS, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 24 August
2015, para. 133.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
the Tribunal decide on the violation of customary international law, UNCLOS and
breaches of rules that are outside the scope of UNCLOS because of course the
International Covenant on Civil and Political Rights is a separate treaty from
UNCLOS. However, this is contrary to what is provided for in article 290 of the
Convention. In fact, in accordance with article 290, paragraphs 1 and 5, of the
Convention, in deciding under the circumstances on the appropriateness of prescribing any provisional measures to preserve the respective rights of the parties, ITLOS
is not supposed to rule on the merits of the dispute but it should determine whether
the tribunal which is to be established would have jurisdiction and that the urgency
of the situation so requires.
By deciding on the prescription of provisional measures it seems that the Tribunal
actually indirectly supports the position of the Netherlands. Nevertheless, the link
between the 1966 International Covenant on Civil and Political Rights and UNCLOS
was clarified on the merits by the Arbitral Tribunal established under Annex VII of
the Convention (hereinafter the “Annex VII Arbitral Tribunal”).
As can be seen from the cases reviewed, originally ‘considerations of humanity’
mainly referred to the particular procedure provided for by article 292(2)
UNCLOS. The importance of the protection of human rights in this procedure is
also highlighted by cases in which ‘considerations of humanity’ are referred to
implicitly. For instance, in the Ara Libertad case where ITLOS in its decision took
into account the position of Argentina, which claimed among other things that: “further attempts to forcibly board and move the Frigate without the consent of Argentina
would lead to the escalation of the conflict and to serious incidents in which human
lives would be at risk”.
51
However, ‘considerations of humanity’ have recently been
applied also to a highly sensitive case outside the realm of the prompt release of the
ships and crews. Specifically, in the Enrica Lexie Incident order, in 2015 ITLOS
reaffirmed “its view that the considerations of humanity must apply in the law of the
sea as they do in other areas of international law”.
52
This is a isolated case that falls
outside the prompt release of ships and crews.
The aforementioned cases, although mainly concerning the issue of the prompt
release of ships and crews, have however from time to time witnessed judges developing ‘considerations of humanity’. It is clear from the examined cases that humanity is becoming integrated into contemporary concepts such as human rights and
human security. Just as in other areas of international law basic human rights standards, such as for example due process of law, the prohibition of cruel, inhuman,
and degrading treatment, right to life are also applicable in the international law of
the sea. The most important role played by human rights principles in the law of the
sea is to guide tribunals in their interpretation and application of the provisions of
UNCLOS.
51 ITLOS, The “Ara Libertad” Case (Argentina v. Ghana), Provisional Measures, Order, 15
December 2012, para. 82.
52 ITLOS, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 24 August
2015, para. 133.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…