442
its concern for ‘considerations of humanity’ which represent the foundation for the
protection of human rights.
However, in recent years a new trend has been developing, whereby ‘considerations of humanity’ now play an important role outside international human rights
law and international humanitarian law. As noted in this work, many references to
‘considerations of humanity’ appear in the jurisprudence of both ITLOS itself and
arbitral tribunals established under Annex VII off UNCLOS. That is because the
influence of other international courts tribunals on the said jurisprudence has been
an incentive to stake out innovative positions. As explained above there is an ever
more frequent use of ‘considerations of humanity’ also by judges who deal with the
international law of the sea. From analysing the relevant case law, it is clear how
‘considerations of humanity’ have often been brought to the attention of judges in
cases concerning the special procedure for the prompt release of ships and crews.
But not just those types of cases. Despite some caution and ambiguity, it seems that
‘considerations of humanity’ are the key instrument that have allowed protection of
human rights to make their way into cases relating to international law of the sea.
Moreover, they can be viewed as rules that are part of international general law
and consequently bind the whole international community. This fact demonstrates
that the framework within which arbitral tribunals established for the settlement of
disputes concerning the law of the sea operate is not in itself exhaustive and therefore impermeable to general international law. As we have seen, it cannot be considered complete precisely because it also does not include the protection of persons at
sea and human rights. It is for this very reason that recourse must be made under
article 293 UNCLOS other rules of international law that are not incompatible with
the Convention itself. The rules of customary international law which provide for
the protection of fundamental rights are certainly compatible with UNCLOS and
the same can be said for both the customary rules and the principles contained in the
human rights treaties.
The main purpose of human rights principles is to guide courts and tribunals in
the interpretation and application of the law. That way UNCLOS can be interpreted
and implemented in accordance with general international law, including international human rights standards. Just as in other areas of international law basic human
rights standards, such as for example due process of law, the prohibition of cruel,
inhuman, and degrading treatment, and right to life are also applicable to the international law of the sea.
Therefore, from an examination of the practice of ITLOS and arbitral tribunals
one can assume the common intent of judges and arbitrators, through reference to
article 293 UNCLOS, is a desire to give a systematic interpretation to the rules governing the cases submitted to their decisions, in such a way as to allow an analysis
in the light of the whole system which binds the parties and which allows conventional rules to be coordinated with the customary ones. This has undoubted advantages because this interpretation allows UNCLOS to be transformed into a living,
dynamic instrument taking into account changes in the international community.
Undoubtedly, UNCLOS as a living instrument has the capacity to address major
new challenges that were not foreseen at the time it was negotiated. Furthermore,
F. Delfino
its concern for ‘considerations of humanity’ which represent the foundation for the
protection of human rights.
However, in recent years a new trend has been developing, whereby ‘considerations of humanity’ now play an important role outside international human rights
law and international humanitarian law. As noted in this work, many references to
‘considerations of humanity’ appear in the jurisprudence of both ITLOS itself and
arbitral tribunals established under Annex VII off UNCLOS. That is because the
influence of other international courts tribunals on the said jurisprudence has been
an incentive to stake out innovative positions. As explained above there is an ever
more frequent use of ‘considerations of humanity’ also by judges who deal with the
international law of the sea. From analysing the relevant case law, it is clear how
‘considerations of humanity’ have often been brought to the attention of judges in
cases concerning the special procedure for the prompt release of ships and crews.
But not just those types of cases. Despite some caution and ambiguity, it seems that
‘considerations of humanity’ are the key instrument that have allowed protection of
human rights to make their way into cases relating to international law of the sea.
Moreover, they can be viewed as rules that are part of international general law
and consequently bind the whole international community. This fact demonstrates
that the framework within which arbitral tribunals established for the settlement of
disputes concerning the law of the sea operate is not in itself exhaustive and therefore impermeable to general international law. As we have seen, it cannot be considered complete precisely because it also does not include the protection of persons at
sea and human rights. It is for this very reason that recourse must be made under
article 293 UNCLOS other rules of international law that are not incompatible with
the Convention itself. The rules of customary international law which provide for
the protection of fundamental rights are certainly compatible with UNCLOS and
the same can be said for both the customary rules and the principles contained in the
human rights treaties.
The main purpose of human rights principles is to guide courts and tribunals in
the interpretation and application of the law. That way UNCLOS can be interpreted
and implemented in accordance with general international law, including international human rights standards. Just as in other areas of international law basic human
rights standards, such as for example due process of law, the prohibition of cruel,
inhuman, and degrading treatment, and right to life are also applicable to the international law of the sea.
Therefore, from an examination of the practice of ITLOS and arbitral tribunals
one can assume the common intent of judges and arbitrators, through reference to
article 293 UNCLOS, is a desire to give a systematic interpretation to the rules governing the cases submitted to their decisions, in such a way as to allow an analysis
in the light of the whole system which binds the parties and which allows conventional rules to be coordinated with the customary ones. This has undoubted advantages because this interpretation allows UNCLOS to be transformed into a living,
dynamic instrument taking into account changes in the international community.
Undoubtedly, UNCLOS as a living instrument has the capacity to address major
new challenges that were not foreseen at the time it was negotiated. Furthermore,
F. Delfino