عنوان مقاله [English]
Mandate of provisional measures in international courts is necessity of fair trial and of means to realize human rights considerations in favor of accused. Provisional measures in the ITLOS's Procedure, is used to observe the accused's human rights and his provisional release until competent authority dealt and the final verdict and execution of sentence. But the Italian flag state's case against India's coastal state at the ITLOS shows human rights considerations is in favor of victims who lost their lives as a result of the accused's action. This situation is favorable and achievements of victimology science, but undermines the defendant's standing and rights in future criminal proceedings at domestic level. While there is a proportionate criminal mechanism to serve the interests of the victim and to prevent the accused escaping. Critical analysis and comparative achievements of this approach is the subject of this paper which has been done by descriptive-analytic method and has originality and innovation. The research question is: What is the position of the defendant's human rights considerations in the ITLOS's judicial procedure in issuing provisional measures? Findings of this study show that human rights considerations in favor of the victim in the ITLOS's judicial procedure are influenced by damage to the marine environment and its living resources are affected in most cases and its preference over the defendant for the protection of the interests of the human community. But in this case, both the accused and the victim are human, and the interests of one another do not take precedence over other by the above formula. Therefore, the Court's usual practice of safeguarding the victim's material (marine environment), should not ignore the human rights considerations of the accused in favor of the victim (human) at the time of his provisional release.
But in this case, it is thought that the consideration of human rights requirements in favor of the defendant in the interim measures of the ITLOS also has a negative impact on the process of dealing with the dispute. Therefore, the Court has chosen a moderate approach to avoid this situation, namely the suspension of the coastal state's criminal investigation and prosecution, without mentioning the temporary release of the accused for the benefit of the victims' families. But human rights considerations in favor of crime victims' families continue to appear in the ITLOS's approach to the accused. However, the minimalist approach of some judges of the ITLOS has attracted the attention and necessity of realizing human rights considerations in the interim measures in favor of the accused. The reasoning of the ITLOS justices has ignored the human rights requirements of the accused, while observing the human rights requirements of procedure is prioritized when ordering interim measures. Therefore, the temporary release of Italian nationals, even though it has a negative impact on the principle of settlement of the dispute between the flag state and the coastal state, is more preferable. Disclaimer that the ITLOS does not deal solely with the mechanisms provided for in the Convention on the Law of the Sea in dealing with this case. This approach is influenced by the incorporation of human rights documents in addition to the provisions of the Convention on the Law of the Sea, if necessary, even though the main dispute between the parties is limited to the interpretation of the provisions of the Convention on the Law of the Sea.
The interpretation of the provisions of the Convention on the Law of the Sea, in accordance with other international documents, is therefore appropriate for the realization of international criminal justice. Therefore, the interpretation and application of the provisions of the Convention on the Law of the Sea on the basis of the teachings of international law and international human rights standards have been difficult in this case. In interpreting the provisions of the Convention on the Law of the Sea and observing the principles of necessity and proportionality in the exercise of coastal state jurisdiction over the seizure of ship and detention of its crew, it is still bound by the application of other international law rules deriving from international human rights instruments. Of course, human rights considerations in favor of victimization in the ITLOS case law are affected by the fact that the marine environment and its living resources are affected in most cases, and its preference over the defendant for the protection of the interests of human society. But all the cases before the ITLOS are not same condition. Disclaimer that there is no difference between human beings and the marine environment as a victim and in both cases the position of the defendant's interpretation must be respected. Protecting the interests of the victim (marine environment) should not neglect the human rights considerations of the defendant in favor of the victim at the time of temporary release until commencement, trial and executive sentencing. In such circumstances, it is essential to consider the human rights requirements in interpreting each of the provisions of the Convention on the Law of the Sea with a view to balancing and protecting the rights of the parties. However, subject to the provisions of the Convention, only compensation, confiscation of property and fines are subject to the detention and punishment of imprisonment of crew or personnel. In this case, both the accused and the victim are human, and the interests of one another are not prioritized. The court's approach to the victimization of the victim, therefore, is not justified, arguing that the defendant's liberty adversely affects the judicial process, while there is no basis for this argument and not provided.