438
The Netherlands in particular referred to a link between UNCLOS and international human rights law and in particular the International Covenant on Political and
Social Rights. The Netherlands requested a decision on whether there had been a
violation by Russia of articles 9 and 12(2) of the Covenant on Political and Social
Rights, to which both States are bound.
The Arbitral Tribunal ruled that it had no jurisdiction to consider a claim of
breach of a treaty outside the context of UNCLOS but that it could take into account
other treaty obligations, such as those relating to the protection of human rights, as
part of interpreting UNCLOS obligations. This is understandable if one takes into
account that, as has been pointed out by authoritative legal scholars,
62
the content of
certain international provisions on human rights is broadly in line with the Universal
Declaration of Human Rights of 1948 whose provisions are of universal scope and
are therefore mandatory for all the subjects of international law.
Moreover, also human rights principles are elaborated by ordinary sources of
international law, human rights treaties. The main purpose of human rights principles is to guide courts and tribunals in the interpretation and application of the law.
Indeed UNCLOS can be interpreted and implemented in accordance with general
international law, including international human rights standards.
The Tribunal affirmed its lack of jurisdiction to apply directly articles 9 and 12
ICCPR regarding respectively the freedom of expression and the right to liberty or
to determine the breaches of such provisions, as requested by the Netherlands. The
ICCPR has its own framework and consequently a UNCLOS tribunal cannot act as
a substitute for that regime.
63
This approach was partially confirmed by another Annex VII Tribunal in a further important award issued on 5 September 2016 concerning the dispute between
Malta and São Tomé and Príncipe (Duzgit Integrity Arbitration).
64
Malta claimed
that São Tomé, in the exercise of its sovereignty, had not respected fundamental
human rights obligation contained in domestic and international instruments in relation to a vessel flying the Malta flag. Malta alleged that there had been a violation
of the human rights of the Captain of the ship and of the crew based on “human
rights and humanitarian considerations”. In particular, in support of its application
Malta referred to all of the decisions of arbitral tribunals and ITLOS in which the
words “human rights”, “humanitarian concerns”, “due process of law” and “civil
rights” are present. In other words, it took into account all the strand of jurisprudence that dealt with the protection of human rights at sea, basically all of the cases
that thus far have been mentioned in the course of this paper to analyse from time to
time the concept of ‘considerations of humanity’, recognised and recalled by international judges and arbitrators in the M / V Saiga, Juno Trader, Tomimaru, M / V
Louisa, M / V Virginia G and Enrica Lexie Incident cases. In particular, Malta
claimed that “fundamental human rights … fall within the scope of ‘other rules of
62 Capotosti (2000), p. 90. See also Del Vecchio (2016).
63 The Arctic Sunrise Arbitration, para. 198.
64 PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), Award, 5 September
2016.
F. Delfino
The Netherlands in particular referred to a link between UNCLOS and international human rights law and in particular the International Covenant on Political and
Social Rights. The Netherlands requested a decision on whether there had been a
violation by Russia of articles 9 and 12(2) of the Covenant on Political and Social
Rights, to which both States are bound.
The Arbitral Tribunal ruled that it had no jurisdiction to consider a claim of
breach of a treaty outside the context of UNCLOS but that it could take into account
other treaty obligations, such as those relating to the protection of human rights, as
part of interpreting UNCLOS obligations. This is understandable if one takes into
account that, as has been pointed out by authoritative legal scholars,
62
the content of
certain international provisions on human rights is broadly in line with the Universal
Declaration of Human Rights of 1948 whose provisions are of universal scope and
are therefore mandatory for all the subjects of international law.
Moreover, also human rights principles are elaborated by ordinary sources of
international law, human rights treaties. The main purpose of human rights principles is to guide courts and tribunals in the interpretation and application of the law.
Indeed UNCLOS can be interpreted and implemented in accordance with general
international law, including international human rights standards.
The Tribunal affirmed its lack of jurisdiction to apply directly articles 9 and 12
ICCPR regarding respectively the freedom of expression and the right to liberty or
to determine the breaches of such provisions, as requested by the Netherlands. The
ICCPR has its own framework and consequently a UNCLOS tribunal cannot act as
a substitute for that regime.
63
This approach was partially confirmed by another Annex VII Tribunal in a further important award issued on 5 September 2016 concerning the dispute between
Malta and São Tomé and Príncipe (Duzgit Integrity Arbitration).
64
Malta claimed
that São Tomé, in the exercise of its sovereignty, had not respected fundamental
human rights obligation contained in domestic and international instruments in relation to a vessel flying the Malta flag. Malta alleged that there had been a violation
of the human rights of the Captain of the ship and of the crew based on “human
rights and humanitarian considerations”. In particular, in support of its application
Malta referred to all of the decisions of arbitral tribunals and ITLOS in which the
words “human rights”, “humanitarian concerns”, “due process of law” and “civil
rights” are present. In other words, it took into account all the strand of jurisprudence that dealt with the protection of human rights at sea, basically all of the cases
that thus far have been mentioned in the course of this paper to analyse from time to
time the concept of ‘considerations of humanity’, recognised and recalled by international judges and arbitrators in the M / V Saiga, Juno Trader, Tomimaru, M / V
Louisa, M / V Virginia G and Enrica Lexie Incident cases. In particular, Malta
claimed that “fundamental human rights … fall within the scope of ‘other rules of
62 Capotosti (2000), p. 90. See also Del Vecchio (2016).
63 The Arctic Sunrise Arbitration, para. 198.
64 PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), Award, 5 September
2016.
F. Delfino