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The International Tribunal of the Law of the Sea and Human Rights
Editor(s)
Scheinin, Martin
Book title
Human Rights Norms in 'Other' International Courts
Publisher
Cambridge University Press
Place of publication
Cambridge
Pages
353-411
ISSN/ISBN
978-1-108-49973-6 ; 978-1-108-58462-3
Series title
Studies on international courts and tribunals
Keywords
law of the sea, International Tribunal for the Law of the Sea (ITLOS), human rights, individual rights, considerations of humanity, prompt release, provisional measures, merits, systematic integration, Article 293 UNCLOS, applicable law
Abstract
Discussion on human rights before the International Tribunal for the Law of the Sea ITLOS or Tribunal) often refers to its 'considerations of humanity' dictum. Yet this is just one way the Tribunal takes into account the interests and rights of individuals affected by law of the sea disputes. This chapter uncovers multiple modes of engagement of ITLOS with human rights - some subtle, some bold - across three types of procedure: prompt release, provisional measures and merits cases. It illustrates how ITLOS has achieved a 'humanisation' of the obligation of prompt release through its context- and purpose-based interpretation; likewise, parties increasingly invoke, and ITLOS tacitly relies upon, human rights as a basis for provisional measures. While the Tribunal's reliance on individual rights in merits decisions remains limited to date, it may consider human rights on the basis of 'reference provisions' within UNCLOS, the 'considerations of humanity' dictum and the prohibition on abuse of rights. The analysis reveals that ITLOS has paved the way for human rights to be taken into account in law of the sea disputes and that UNCLOS provides a legal framework for it.
