436
3 ‘Considerations of Humanity’ in the Jurisprudence
of UNCLOS Arbitral Tribunals
Although the above mentioned cases before ITLOS have mainly concerned the
issue of the prompt release of ships and crews, they do however reveal the great
attention that judges pay to ‘considerations of humanity’.
The same attention is dedicated to ‘considerations of humanity’ in the jurisprudence of the arbitral tribunals established under Annex VII of UNCLOS.
53
In the Guyana v. Suriname case,
54
the Arbitral Tribunal recalled the ITLOS decision in the Saiga No. 2 case to identify the rules applicable at sea in case of violation
of the use of force. In particular, after having established its jurisdiction based on
the preamble to UNCLOS stating that the rules or general principles of international
law may apply to matters not regulated by the Convention, as read in conjunction
with article 293 as interpreted by ITLOS in the Saiga No. 2 case, the Arbitral
Tribunal found that Suriname bore international responsibility for the threat of use
of force perpetrated against Guyana. In general, law enforcement measures against
private actors may lawfully involve the use of force and international law does not
absolutely prohibit recourse to military force. However, the exercise of force is subjected to the legal limits of unavoidability, reasonability and necessity set also by
the Arbitral Tribunal in this case,
55
limits that are required by international human
rights and are expected to protect the human rights of people involved in enforcement activities. Limits that ITLOS in the Saiga No. 2 case referred to as considerations of humanity.
As in the Saiga No. 2 case the Arbitral Tribunal ruled that a breach of the prohibition on the threat of use of force was committed in the Guyana v. Suriname case.
Indeed, the Arbitral Tribunal recognised that “the action mounted by Suriname on 3
June 2000 seemed more akin to a threat of military action rather than a mere law
enforcement activity … Suriname’s action therefore constituted a threat of the use
of force in contravention of the Convention, the U.N. Charter and general international law”.
56
In effect, the Arbitral Tribunal relied on other rules of international
law outside of UNCLOS by holding that Suriname had breached the UN Charter
and general international law. Therefore, this implies that the use of force is not
53 Only sporadically have Member States invoked Annex VII of UNCLOS to settle their disputes,
an annex that provides for the establishment of an arbitral tribunal organised by the Permanent
Court of Arbitration. This is evidenced by the fact that from 2001 to 2008 only 4 requests were
submitted by States in accordance with Annex VII of UNCLOS. However, from 2009 onwards we
can witness the emergence of a new trend in the international community whereby arbitration
under Annex VII is gaining more acceptance. In particular, from 2009 to 2015 there were eight
such requests for the establishment of arbitral tribunals organised by the Permanent Court of
Arbitration, of which four alone in 2013. Of the applications made under Annex VII, from 2001
onwards four of them have referred to “considerations of humanity”.
54 PCA, Guyana v. Suriname, Award, 17 September 2007.
55 Ibidem, para. 445.
56 Ibidem.
F. Delfino
3 ‘Considerations of Humanity’ in the Jurisprudence
of UNCLOS Arbitral Tribunals
Although the above mentioned cases before ITLOS have mainly concerned the
issue of the prompt release of ships and crews, they do however reveal the great
attention that judges pay to ‘considerations of humanity’.
The same attention is dedicated to ‘considerations of humanity’ in the jurisprudence of the arbitral tribunals established under Annex VII of UNCLOS.
53
In the Guyana v. Suriname case,
54
the Arbitral Tribunal recalled the ITLOS decision in the Saiga No. 2 case to identify the rules applicable at sea in case of violation
of the use of force. In particular, after having established its jurisdiction based on
the preamble to UNCLOS stating that the rules or general principles of international
law may apply to matters not regulated by the Convention, as read in conjunction
with article 293 as interpreted by ITLOS in the Saiga No. 2 case, the Arbitral
Tribunal found that Suriname bore international responsibility for the threat of use
of force perpetrated against Guyana. In general, law enforcement measures against
private actors may lawfully involve the use of force and international law does not
absolutely prohibit recourse to military force. However, the exercise of force is subjected to the legal limits of unavoidability, reasonability and necessity set also by
the Arbitral Tribunal in this case,
55
limits that are required by international human
rights and are expected to protect the human rights of people involved in enforcement activities. Limits that ITLOS in the Saiga No. 2 case referred to as considerations of humanity.
As in the Saiga No. 2 case the Arbitral Tribunal ruled that a breach of the prohibition on the threat of use of force was committed in the Guyana v. Suriname case.
Indeed, the Arbitral Tribunal recognised that “the action mounted by Suriname on 3
June 2000 seemed more akin to a threat of military action rather than a mere law
enforcement activity … Suriname’s action therefore constituted a threat of the use
of force in contravention of the Convention, the U.N. Charter and general international law”.
56
In effect, the Arbitral Tribunal relied on other rules of international
law outside of UNCLOS by holding that Suriname had breached the UN Charter
and general international law. Therefore, this implies that the use of force is not
53 Only sporadically have Member States invoked Annex VII of UNCLOS to settle their disputes,
an annex that provides for the establishment of an arbitral tribunal organised by the Permanent
Court of Arbitration. This is evidenced by the fact that from 2001 to 2008 only 4 requests were
submitted by States in accordance with Annex VII of UNCLOS. However, from 2009 onwards we
can witness the emergence of a new trend in the international community whereby arbitration
under Annex VII is gaining more acceptance. In particular, from 2009 to 2015 there were eight
such requests for the establishment of arbitral tribunals organised by the Permanent Court of
Arbitration, of which four alone in 2013. Of the applications made under Annex VII, from 2001
onwards four of them have referred to “considerations of humanity”.
54 PCA, Guyana v. Suriname, Award, 17 September 2007.
55 Ibidem, para. 445.
56 Ibidem.
F. Delfino