130
case of the Permanent Court of International Justice,
13
the International Court of
Justice,
14
the European Court of Human Rights,
15
the Inter-American Court of
Human Rights,
16
the African Court of the Human and Peoples’ Rights,
17
the
European Union Court of Justice
18
and the Court of Justice of the Economic
Community of West African States.
19
In the United States’ view, “[t]his, along with
the Convention’s express grant of advisory functions to the Seabed Disputes
Chamber, indicates that the international community, and the LOS Convention
framers in particular, would have been aware of how to establish advisory jurisdiction clearly for the full Tribunal, had they so intended. Indeed, for the drafters of the
LOS Convention, the granting of an advisory function to the full Tribunal on matters
related to the international law of the sea would have been a momentous decision.
Had the drafters intended for such a significant function, it seems likely that they
would have expressly stated it in the Tribunal’s Statute rather than provide for such
jurisdiction in an implicit manner”.
20
In addition, some States recall the similarities between Art. 21 of the Statute of
the International Tribunal for the Law of the Sea and Art. 36(1) of the Statute of the
International Court of Justice. This provision, according to which “[t]he jurisdiction
of the Court comprises all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in treaties and conventions in
force”, unequivocally refers to the contentious jurisdiction of the ICJ.
21
As it is well
known, the advisory jurisdiction of The Hague Court is based upon Art. 96 of the
United Nations’ Charter
22
and Art. 65(1 )of the Statute of the ICJ.
23
Finally, among the most relevant arguments against the general advisory jurisdiction of ITLOS full court, we can also mention that some States pointed out the
fact that, by admitting such a broad interpretation of Art. 21 of the Tribunal’s Statute,
13 Art. 14(2) of the Covenant of the League of Nations.
14 Art. 96(2) of the Charter of the United Nations.
15 Articles 47 and 48 of the European Convention on Human Rights (The Convention for the
Protection of Human Rights and Fundamental Freedoms) and Protocol 16 to the Convention.
16 Art. 64 of the Pact of San José (American Convention on Human Rights).
17 Art. 4 of the Protocol to the African Charter of Human and Peoples’ Rights on the Establishment
of the African Court on Human and Peoples’ Rights.
18 Art. 218(11) of the Treaty on the Functioning of the European Union.
19 Art. 10 of the Protocol of the Community Court of Justice.
20 Statement of the United States, para. 15.
21 See, in this respect, inter alia, the Statement of China, para. 36. See also the Statements of
Ireland and Portugal.
22 Pursuant to Art. 96 of the Charter: “a. The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal question. b. Other organs
of the United Nations and specialized agencies, which may at any time be so authorized by the
General Assembly, may also request advisory opinions of the Court on legal questions arising
within the scope of their activities”.
23 According to Art. 65(1) of the ICJ’s Statute: “The Court may give an advisory opinion on any
legal question at the request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request”.
M. G. García-Revillo
case of the Permanent Court of International Justice,
13
the International Court of
Justice,
14
the European Court of Human Rights,
15
the Inter-American Court of
Human Rights,
16
the African Court of the Human and Peoples’ Rights,
17
the
European Union Court of Justice
18
and the Court of Justice of the Economic
Community of West African States.
19
In the United States’ view, “[t]his, along with
the Convention’s express grant of advisory functions to the Seabed Disputes
Chamber, indicates that the international community, and the LOS Convention
framers in particular, would have been aware of how to establish advisory jurisdiction clearly for the full Tribunal, had they so intended. Indeed, for the drafters of the
LOS Convention, the granting of an advisory function to the full Tribunal on matters
related to the international law of the sea would have been a momentous decision.
Had the drafters intended for such a significant function, it seems likely that they
would have expressly stated it in the Tribunal’s Statute rather than provide for such
jurisdiction in an implicit manner”.
20
In addition, some States recall the similarities between Art. 21 of the Statute of
the International Tribunal for the Law of the Sea and Art. 36(1) of the Statute of the
International Court of Justice. This provision, according to which “[t]he jurisdiction
of the Court comprises all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in treaties and conventions in
force”, unequivocally refers to the contentious jurisdiction of the ICJ.
21
As it is well
known, the advisory jurisdiction of The Hague Court is based upon Art. 96 of the
United Nations’ Charter
22
and Art. 65(1 )of the Statute of the ICJ.
23
Finally, among the most relevant arguments against the general advisory jurisdiction of ITLOS full court, we can also mention that some States pointed out the
fact that, by admitting such a broad interpretation of Art. 21 of the Tribunal’s Statute,
13 Art. 14(2) of the Covenant of the League of Nations.
14 Art. 96(2) of the Charter of the United Nations.
15 Articles 47 and 48 of the European Convention on Human Rights (The Convention for the
Protection of Human Rights and Fundamental Freedoms) and Protocol 16 to the Convention.
16 Art. 64 of the Pact of San José (American Convention on Human Rights).
17 Art. 4 of the Protocol to the African Charter of Human and Peoples’ Rights on the Establishment
of the African Court on Human and Peoples’ Rights.
18 Art. 218(11) of the Treaty on the Functioning of the European Union.
19 Art. 10 of the Protocol of the Community Court of Justice.
20 Statement of the United States, para. 15.
21 See, in this respect, inter alia, the Statement of China, para. 36. See also the Statements of
Ireland and Portugal.
22 Pursuant to Art. 96 of the Charter: “a. The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal question. b. Other organs
of the United Nations and specialized agencies, which may at any time be so authorized by the
General Assembly, may also request advisory opinions of the Court on legal questions arising
within the scope of their activities”.
23 According to Art. 65(1) of the ICJ’s Statute: “The Court may give an advisory opinion on any
legal question at the request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request”.
M. G. García-Revillo