439
international law’”. Therefore, Malta argued that the protection of human rights
falls with the scope of article 293 UNCLOS, other rules of international law recognised by the Convention or rules of law that are peremptory in nature or of general
application.
The Arbitral Tribunal observed that article 293(1) stating that a court or tribunal
shall apply the Convention and other rules of international law that are not incompatible with the Convention itself read in conjunction with article 288(1) limiting
jurisdiction to disputes concerning the interpretation or application of the provisions
of the Convention have a precise meaning. In particular, the Arbitral Tribunal specified what had previously been clear from the Arctic Sunrise case, i.e. “the Tribunal
does not have jurisdiction to determine breaches of obligations not having their
source in the Convention (including human rights obligations) as such”, but that the
Tribunal “may have regard to other rules of international law in order to assist in the
interpretation and application of the provisions of the Convention concerning the
arrest or detention of a vessel and persons”.
65
Consequently the Arbitral Tribunal
held that it was “not competent to determine if fundamental human rights obligations were violated by Sao Tomé”.
66
It made clear that a claim as to the violation of
fundamental human rights obligations was beyond its jurisdiction.
Despite Malta’s attention to “human rights” and “humanitarian considerations”,
the Arbitral Tribunal did not even mention them but focused on delineating the
importance of article 293 in the UNCLOS system and once again stated that the said
article does not extend the jurisdiction of the Arbitral Tribunal while however ensuring that through the article in question the latter can give full effect to the provisions
of the Convention. Consequently, relying on article 293(1), the Arbitral Tribunal
concluded that when assessing the exercise of enforcement powers by a costal State
under the Convention it could have regard to the principle of reasonableness that
encompasses the principles of necessity and proportionality.
67
In that way the
Arbitral Tribunal assumed that it could determine whether São Tomé had breached
its international law obligations resulting from the principle of reasonableness as
applied to law enforcement measures by a coastal State and not instead its duties
stemming from the violation of fundamental human rights. Thus the Arbitral
Tribunal did not include the provisions that protect human rights among the other
rules of international law.
Again in the Enrica Lexie case,
68
in the provisional measure ordered by the
Arbitral Tribunal, Italy identified a link between the law of the sea and the protection of human rights, in particular arguing on the basis of the International Covenant
on Civil and Political Rights. Italy specifically cited article 9(2)
69
and article 14(3)
70
65 Ibidem, para. 207.
66 Ibidem, para. 210.
67 Ibidem, para. 209.
68 PCA, The Enrica Lexie Incident (Italy v. India), Order, Request for the prescription of provisional measures, 29 April 2016.
69 Article 9(2) provides as follows: “Anyone who is arrested shall be informed, at the time of arrest,
of the reasons for his arrest and shall be promptly informed of any charges against him”.
70 Article 14(3) provides as follows: “In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
international law’”. Therefore, Malta argued that the protection of human rights
falls with the scope of article 293 UNCLOS, other rules of international law recognised by the Convention or rules of law that are peremptory in nature or of general
application.
The Arbitral Tribunal observed that article 293(1) stating that a court or tribunal
shall apply the Convention and other rules of international law that are not incompatible with the Convention itself read in conjunction with article 288(1) limiting
jurisdiction to disputes concerning the interpretation or application of the provisions
of the Convention have a precise meaning. In particular, the Arbitral Tribunal specified what had previously been clear from the Arctic Sunrise case, i.e. “the Tribunal
does not have jurisdiction to determine breaches of obligations not having their
source in the Convention (including human rights obligations) as such”, but that the
Tribunal “may have regard to other rules of international law in order to assist in the
interpretation and application of the provisions of the Convention concerning the
arrest or detention of a vessel and persons”.
65
Consequently the Arbitral Tribunal
held that it was “not competent to determine if fundamental human rights obligations were violated by Sao Tomé”.
66
It made clear that a claim as to the violation of
fundamental human rights obligations was beyond its jurisdiction.
Despite Malta’s attention to “human rights” and “humanitarian considerations”,
the Arbitral Tribunal did not even mention them but focused on delineating the
importance of article 293 in the UNCLOS system and once again stated that the said
article does not extend the jurisdiction of the Arbitral Tribunal while however ensuring that through the article in question the latter can give full effect to the provisions
of the Convention. Consequently, relying on article 293(1), the Arbitral Tribunal
concluded that when assessing the exercise of enforcement powers by a costal State
under the Convention it could have regard to the principle of reasonableness that
encompasses the principles of necessity and proportionality.
67
In that way the
Arbitral Tribunal assumed that it could determine whether São Tomé had breached
its international law obligations resulting from the principle of reasonableness as
applied to law enforcement measures by a coastal State and not instead its duties
stemming from the violation of fundamental human rights. Thus the Arbitral
Tribunal did not include the provisions that protect human rights among the other
rules of international law.
Again in the Enrica Lexie case,
68
in the provisional measure ordered by the
Arbitral Tribunal, Italy identified a link between the law of the sea and the protection of human rights, in particular arguing on the basis of the International Covenant
on Civil and Political Rights. Italy specifically cited article 9(2)
69
and article 14(3)
70
65 Ibidem, para. 207.
66 Ibidem, para. 210.
67 Ibidem, para. 209.
68 PCA, The Enrica Lexie Incident (Italy v. India), Order, Request for the prescription of provisional measures, 29 April 2016.
69 Article 9(2) provides as follows: “Anyone who is arrested shall be informed, at the time of arrest,
of the reasons for his arrest and shall be promptly informed of any charges against him”.
70 Article 14(3) provides as follows: “In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…