437
regulated exclusively by article 2(4) of the UN Charter, which represents a
“cornerstone”
57
that regulates the conduct of States in international relations, but it
goes beyond the aim of prohibition contained in that article.
By contrast, in the Arctic Sunrise
58
case, in the award on the merits rendered by
the Annex VII Arbitral Tribunal, there is a specific reference to the duty to comply
with international human rights provisions also in the interpretation and application
of the provisions of UNCLOS. In that case the Arbitral Tribunal referred to article
293(1) UNCLOS outlining two important functions of this article. Firstly, the
Arbitral Tribunal could rely on foundational or secondary rules of international law,
such as the law of the treaties or state responsibility to interpret and apply provisions
of UNCLOS.
59
Secondly, the Arbitral Tribunal could rely on other primary rules of
international law, outside UNCLOS to interpret and apply some broadly worded or
general provisions of UNCLOS.
60
Moreover, the Arbitral Tribunal stated that it was not extending its jurisdiction
but rather was ensuring that, in its exercise the Tribunal could guarantee the full
effectiveness of the provisions of the Convention, referring to all the rules of customary law including those that are an expression of the highest international standards on human rights provided of course that they are not incompatible with the
Convention itself.
The interpretation and the application of UNCLOS provisions must nevertheless be accomplished in accordance with the compatibility clause set forth in article
311(2) thereof. It specifies that the Convention shall not alter the rights and obligations of States Parties that arise from other agreements, provided that they are compatible with the Convention and do not affect the application of its basic principles.
It is interesting to underline also that in this case the Arbitral Tribunal showed
that article 293 UNCLOS has made it possible for both arbitral tribunals and ITLOS
to interpret the Convention in such a way as to guarantee the application of the relevant rules of the international law. However, as was pointed out by the Arbitral
Tribunal, article 293 is not an instrument enabling ITLOS to determine whether a
treaty other than UNCLOS has been violated unless the treaty grants such jurisdiction or unless the treaty applies directly as a result of UNCLOS. In this regard, an
arbitral tribunal instituted under Annex VII has jurisdiction over any dispute relating
to the interpretation and application of the Montego Bay Convention and other
international agreements connected with the Convention that makes provision for
such jurisdiction and provides for the implementation of specific rules of the
Convention.
61
57 See ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, 19 December 2005, para. 148; ICJ, Oil Platforms (Islamic Republic of Iran v.
United States of America), Judgment, 6 November 2003, Dissenting Opinion of Judge Elaraby,
para. 1.1.
58 PCA, The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, 14 August
2015.
59 Ibidem, para. 190.
60 Ibidem, para. 191.
61 On the law applicable in arbitration proceedings, see Caligiuri (2018), p. 187 ff.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
regulated exclusively by article 2(4) of the UN Charter, which represents a
“cornerstone”
57
that regulates the conduct of States in international relations, but it
goes beyond the aim of prohibition contained in that article.
By contrast, in the Arctic Sunrise
58
case, in the award on the merits rendered by
the Annex VII Arbitral Tribunal, there is a specific reference to the duty to comply
with international human rights provisions also in the interpretation and application
of the provisions of UNCLOS. In that case the Arbitral Tribunal referred to article
293(1) UNCLOS outlining two important functions of this article. Firstly, the
Arbitral Tribunal could rely on foundational or secondary rules of international law,
such as the law of the treaties or state responsibility to interpret and apply provisions
of UNCLOS.
59
Secondly, the Arbitral Tribunal could rely on other primary rules of
international law, outside UNCLOS to interpret and apply some broadly worded or
general provisions of UNCLOS.
60
Moreover, the Arbitral Tribunal stated that it was not extending its jurisdiction
but rather was ensuring that, in its exercise the Tribunal could guarantee the full
effectiveness of the provisions of the Convention, referring to all the rules of customary law including those that are an expression of the highest international standards on human rights provided of course that they are not incompatible with the
Convention itself.
The interpretation and the application of UNCLOS provisions must nevertheless be accomplished in accordance with the compatibility clause set forth in article
311(2) thereof. It specifies that the Convention shall not alter the rights and obligations of States Parties that arise from other agreements, provided that they are compatible with the Convention and do not affect the application of its basic principles.
It is interesting to underline also that in this case the Arbitral Tribunal showed
that article 293 UNCLOS has made it possible for both arbitral tribunals and ITLOS
to interpret the Convention in such a way as to guarantee the application of the relevant rules of the international law. However, as was pointed out by the Arbitral
Tribunal, article 293 is not an instrument enabling ITLOS to determine whether a
treaty other than UNCLOS has been violated unless the treaty grants such jurisdiction or unless the treaty applies directly as a result of UNCLOS. In this regard, an
arbitral tribunal instituted under Annex VII has jurisdiction over any dispute relating
to the interpretation and application of the Montego Bay Convention and other
international agreements connected with the Convention that makes provision for
such jurisdiction and provides for the implementation of specific rules of the
Convention.
61
57 See ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, 19 December 2005, para. 148; ICJ, Oil Platforms (Islamic Republic of Iran v.
United States of America), Judgment, 6 November 2003, Dissenting Opinion of Judge Elaraby,
para. 1.1.
58 PCA, The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, 14 August
2015.
59 Ibidem, para. 190.
60 Ibidem, para. 191.
61 On the law applicable in arbitration proceedings, see Caligiuri (2018), p. 187 ff.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…