133
Departing from the said Art. 21, according to which the jurisdiction of the
Tribunal “comprises all disputes and all applications submitted to it in accordance
with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal”, ITLOS finds that “[t]he use of the
word ‘disputes’ in Art. 21 of the Statute is an unambiguous reference to the contentious jurisdiction of the Tribunal. Similarly, the word ‘applications’ refers to applications in contentious cases submitted to the Tribunal in accordance with the
Convention”.
34
This reference, of the words “disputes” and “applications”, to the
contentious jurisdiction, is confronted by the Hamburg Tribunal with its interpretation of the expression “all matters”. In ITLOS’ words:
The words all “matters” (“toutes les fois que cela” in French) should not be interpreted as covering only “disputes”, for, if that were to be the case, Art. 21 of the
Statute would simply have used the word “disputes”. Consequently, it must mean
something more than only “disputes”. That something more must include advisory
opinions, if specifically provided for in “any other agreement which confers jurisdiction on the Tribunal”.
35
On the other hand, by reaffirming the doctrine of treaty parallelism, as used in the
MOX Plant case, ITLOS does not accept the argument that the expression “all
maters” should have the same meaning in this case as it has in the Statutes of the
Permanent Court of International Justice and the International Court of Justice, in
which the Tribunal’s Statute is inspired.
36
In the words of the Hamburg Tribunal,
recalling its Order on Provisional Measures of 3 December 2001:
the application of international law rules on interpretation of treaties to identical or similar
provisions of different treaties may not yield the same results, having regard to, inter alia,
differences in the respective contexts, objects and purposes, subsequent practice of parties
and travaux préparatoires.
37
Furthermore, ITLOS finds that “the expression ‘all matters specifically provided
for in any other agreement which confers jurisdiction on the Tribunal’ does not by
34 Ibidem, para. 55. It is interesting to note that, while for the word “disputes” ITLOS affirms that
it is an unambiguous reference to contentious jurisdiction, such quality is not affirmed in kind in
respect to the word “applications”, for which the Tribunal finds that it “similarly” refers to applications in contentious cases but without that emphasis (unambiguously). This difference might come
from the meaning of the word applications in other languages (“demande” in French; “demanda”
in Spanish). Particularly in French, this word has been used in requests for advisory opinions. For
example, Art. 191, in its French version, says that the Seabed Disputes Chamber “donne des avis
consultatifs á la demande de l’Assemblée ou du Conseil ...” (emphasis added). This word,
“demande d’avis consultatif”, also appears in the French version of ITLOS’ website for quoting
this case number 21 (Demande d’avis consultatif soumise par la Commission sous-régionale des
pêches (CSRP) (Demande d’avis consultatif soumise au Tribunal)). In any case, this would confirm
that the jurisdiction of ITLOS wouldn’t be limited to contentious cases also in respect to those
concerning UNCLOS.
35 Ibidem, para. 56.
36 Ibidem, para. 57.
37 ITLOS, Mox Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, 13
November 2001, para. 51.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…
Departing from the said Art. 21, according to which the jurisdiction of the
Tribunal “comprises all disputes and all applications submitted to it in accordance
with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal”, ITLOS finds that “[t]he use of the
word ‘disputes’ in Art. 21 of the Statute is an unambiguous reference to the contentious jurisdiction of the Tribunal. Similarly, the word ‘applications’ refers to applications in contentious cases submitted to the Tribunal in accordance with the
Convention”.
34
This reference, of the words “disputes” and “applications”, to the
contentious jurisdiction, is confronted by the Hamburg Tribunal with its interpretation of the expression “all matters”. In ITLOS’ words:
The words all “matters” (“toutes les fois que cela” in French) should not be interpreted as covering only “disputes”, for, if that were to be the case, Art. 21 of the
Statute would simply have used the word “disputes”. Consequently, it must mean
something more than only “disputes”. That something more must include advisory
opinions, if specifically provided for in “any other agreement which confers jurisdiction on the Tribunal”.
35
On the other hand, by reaffirming the doctrine of treaty parallelism, as used in the
MOX Plant case, ITLOS does not accept the argument that the expression “all
maters” should have the same meaning in this case as it has in the Statutes of the
Permanent Court of International Justice and the International Court of Justice, in
which the Tribunal’s Statute is inspired.
36
In the words of the Hamburg Tribunal,
recalling its Order on Provisional Measures of 3 December 2001:
the application of international law rules on interpretation of treaties to identical or similar
provisions of different treaties may not yield the same results, having regard to, inter alia,
differences in the respective contexts, objects and purposes, subsequent practice of parties
and travaux préparatoires.
37
Furthermore, ITLOS finds that “the expression ‘all matters specifically provided
for in any other agreement which confers jurisdiction on the Tribunal’ does not by
34 Ibidem, para. 55. It is interesting to note that, while for the word “disputes” ITLOS affirms that
it is an unambiguous reference to contentious jurisdiction, such quality is not affirmed in kind in
respect to the word “applications”, for which the Tribunal finds that it “similarly” refers to applications in contentious cases but without that emphasis (unambiguously). This difference might come
from the meaning of the word applications in other languages (“demande” in French; “demanda”
in Spanish). Particularly in French, this word has been used in requests for advisory opinions. For
example, Art. 191, in its French version, says that the Seabed Disputes Chamber “donne des avis
consultatifs á la demande de l’Assemblée ou du Conseil ...” (emphasis added). This word,
“demande d’avis consultatif”, also appears in the French version of ITLOS’ website for quoting
this case number 21 (Demande d’avis consultatif soumise par la Commission sous-régionale des
pêches (CSRP) (Demande d’avis consultatif soumise au Tribunal)). In any case, this would confirm
that the jurisdiction of ITLOS wouldn’t be limited to contentious cases also in respect to those
concerning UNCLOS.
35 Ibidem, para. 56.
36 Ibidem, para. 57.
37 ITLOS, Mox Plant Case (Ireland v. United Kingdom), Provisional Measures, Order, 13
November 2001, para. 51.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…