441
Sergeant Girone’s current conditions”.
75
In this regard, the Arbitral Tribunal reiterated that, as stated by ITLOS in its order of 24 August 2015 “considerations of
humanity must apply in the law of the sea, as they do in other areas of international
law”.
76
The Arbitral Tribunal held in particular that the rights of the other side could
be suitably protected by allowing Sergeant Girone to spend his time in Italy pending
a final decision on the case allied to Italy’s binding commitment to guarantee the
return of Sergeant Girone to New Delhi if the Arbitral Tribunal ruled on jurisdiction
in favour of India. Therefore, the Arbitral Tribunal balanced the interests of both
parties.
The recent decision of the Arbitral Tribunal in the Enrica Lexie case is the one
that best reveals an undoubted evolution in the concept of ‘considerations of humanity’. It is also the first case in which ‘considerations of humanity’ have been applied,
even if they were outside the procedure for the prompt release of ships and crews.
The Arbitral Tribunal achieved in concrete terms the same objectives that ITLOS
has sought to pursue: to give actual effect to the concept of ‘considerations of
humanity’ in the Enrica Lexie case while preserving the parties’ respective rights.
The Arbitral Tribunal established on the basis of Annex VII of UNCLOS applied
the ‘considerations of humanity’ which are provided for by the international law of
the sea and other branches of international public law. This case has clearly demonstrated how ‘considerations of humanity’ have introduced human rights protection
into the international law of the sea.
77
As in the earlier Arctic Sunrise case, in the
Enrica Lexie case the Arbitral Tribunal did not address the matter of the alleged
violation of the articles of the International Covenant on Civil and Political Rights.
This is further confirmation of the separation of the regimes governing the international law of the sea and international human rights law.
In view of the cases examined above, the expression ‘considerations of humanity’ seems to include in the jurisprudence of Arbitral Tribunals—except for the
Duzgit Integrity Arbitration case—all those customary norms and general principles
of international law underpinning existing standards for the protection of human
rights.
4 Final Considerations
From the foregoing it is clear that previously ‘considerations of humanity’ was
a notion pertaining exclusively to the field of international humanitarian law and
human rights law. Indeed, those branches are two bodies of international law that
are closely related to humanity. In particular, their main concern is respect for and
the protection of human dignity which is one of the essential minimum standards of
humanity. Consequently, the leitmotiv of humanitarian law and human rights law is
75 PCA, The Enrica Lexie Incident, Order, para. 104.
76 Ibidem.
77 See Papanicolopulu (2016), Virzo (2016) p. 12, and (2017).
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
Sergeant Girone’s current conditions”.
75
In this regard, the Arbitral Tribunal reiterated that, as stated by ITLOS in its order of 24 August 2015 “considerations of
humanity must apply in the law of the sea, as they do in other areas of international
law”.
76
The Arbitral Tribunal held in particular that the rights of the other side could
be suitably protected by allowing Sergeant Girone to spend his time in Italy pending
a final decision on the case allied to Italy’s binding commitment to guarantee the
return of Sergeant Girone to New Delhi if the Arbitral Tribunal ruled on jurisdiction
in favour of India. Therefore, the Arbitral Tribunal balanced the interests of both
parties.
The recent decision of the Arbitral Tribunal in the Enrica Lexie case is the one
that best reveals an undoubted evolution in the concept of ‘considerations of humanity’. It is also the first case in which ‘considerations of humanity’ have been applied,
even if they were outside the procedure for the prompt release of ships and crews.
The Arbitral Tribunal achieved in concrete terms the same objectives that ITLOS
has sought to pursue: to give actual effect to the concept of ‘considerations of
humanity’ in the Enrica Lexie case while preserving the parties’ respective rights.
The Arbitral Tribunal established on the basis of Annex VII of UNCLOS applied
the ‘considerations of humanity’ which are provided for by the international law of
the sea and other branches of international public law. This case has clearly demonstrated how ‘considerations of humanity’ have introduced human rights protection
into the international law of the sea.
77
As in the earlier Arctic Sunrise case, in the
Enrica Lexie case the Arbitral Tribunal did not address the matter of the alleged
violation of the articles of the International Covenant on Civil and Political Rights.
This is further confirmation of the separation of the regimes governing the international law of the sea and international human rights law.
In view of the cases examined above, the expression ‘considerations of humanity’ seems to include in the jurisprudence of Arbitral Tribunals—except for the
Duzgit Integrity Arbitration case—all those customary norms and general principles
of international law underpinning existing standards for the protection of human
rights.
4 Final Considerations
From the foregoing it is clear that previously ‘considerations of humanity’ was
a notion pertaining exclusively to the field of international humanitarian law and
human rights law. Indeed, those branches are two bodies of international law that
are closely related to humanity. In particular, their main concern is respect for and
the protection of human dignity which is one of the essential minimum standards of
humanity. Consequently, the leitmotiv of humanitarian law and human rights law is
75 PCA, The Enrica Lexie Incident, Order, para. 104.
76 Ibidem.
77 See Papanicolopulu (2016), Virzo (2016) p. 12, and (2017).
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…