136
“specifically [provide] for the submission to the Tribunal of a request for such an
opinion”.
Nevertheless, the fact that ITLOS included real substantive contents to operate as
procedural prerequisites, in Art. 138(1) of its Rules, leads me to think that this international judicial institution did something more than just set out such procedural
requirements. In a somehow audacious initiative, the original composition of the
International Tribunal for the Law of the Sea anticipated, in the early years of its
existence, its own future interpretation of Art. 21 of its Statute by way of an instrument, its Rules, whose writing was entirely in its hands, according to Art. 16 of the
said Statute.
In this respect, Judge Cot recalls in its Declaration the silence of States in nearly
two decades since Art. 138 of its Rules was approved.
47
This fact is significant to
me. As explained in previous works, the Rules, drafted by the Tribunal in accordance with the project submitted by the Preparatory Commission, were approved
sans objection to this amplification by the Meeting of States Parties. Even further, it
is undeniable that the Rules of the Tribunal, as a document, are public and very wellknown, as is the information on the jurisdiction and other aspects of the Tribunal
prepared by the Registry and offered both via its website and the Yearbook of the
Tribunal.
48
A number of the States objecting the advisory jurisdiction of ITLOS full
court as provided in Art. 138 of its Rules were already States Parties to the United
Nations Convention on the Law of the Sea by the time the Tribunal officially submitted its Report for the period 1996–1997, in which it informed the Meeting of
States Parties to UNCLOS on the approval of its Rules consisting of 138 articles.
49
Instead of making any objection, the Meeting of States Parties “took note with
appreciation” of the Tribunal’s Report.
50
No objection was made, then or in the 20
years passed since its approval, to a text dealing with a point whose importance was
critical, as evidenced by Case 21 two decades later. Furthermore, there have been
additional chances to express such objections that were also ignored, like the declarations made by several of the Presidents of ITLOS before the United Nations’
General Assembly and other international fora.
51
And finally, it is also remarkable
the silence of the more than 130 States Parties to UNCLOS that have refrained
47 In Cot’s opinion: “The Tribunal would have been well advised to find, more modestly, that nothing in the Convention prohibits the Tribunal from exercising advisory jurisdiction. I add that for
two decades there has been no reaction at all from the States Parties to the language of Art. 138 of
the Rules, dating from 1997. It is for this reason that I can accept the principle of the Tribunal’s
advisory jurisdiction” (Declaration, para. 4).
48 In addition, ITLOS Rules are also subject of a Commentary, article by article, in which this topic
is explained. See Chandrasekhara Rao and Gautier (2006), pp. 393–394.
49 See Doc. SPLOS/27, of 23 April 1998, paras 42–48. This document was prepared for the eight
meeting of States Parties, held in New York on 18–22 May 1998.
50 Doc. SPLOS/31, 4 June 1998, paras 10 and 14.
51 See, in this respect, the series of official declarations made by the consecutive Presidents of
ITLOS, from the presidency of R. Wolfrum on, in which they mention this kind of advisory jurisdiction, as collected in its Statement by the Caribbean Regional Fisheries Mechanism, para. 54
(and note 51).
M. G. García-Revillo
“specifically [provide] for the submission to the Tribunal of a request for such an
opinion”.
Nevertheless, the fact that ITLOS included real substantive contents to operate as
procedural prerequisites, in Art. 138(1) of its Rules, leads me to think that this international judicial institution did something more than just set out such procedural
requirements. In a somehow audacious initiative, the original composition of the
International Tribunal for the Law of the Sea anticipated, in the early years of its
existence, its own future interpretation of Art. 21 of its Statute by way of an instrument, its Rules, whose writing was entirely in its hands, according to Art. 16 of the
said Statute.
In this respect, Judge Cot recalls in its Declaration the silence of States in nearly
two decades since Art. 138 of its Rules was approved.
47
This fact is significant to
me. As explained in previous works, the Rules, drafted by the Tribunal in accordance with the project submitted by the Preparatory Commission, were approved
sans objection to this amplification by the Meeting of States Parties. Even further, it
is undeniable that the Rules of the Tribunal, as a document, are public and very wellknown, as is the information on the jurisdiction and other aspects of the Tribunal
prepared by the Registry and offered both via its website and the Yearbook of the
Tribunal.
48
A number of the States objecting the advisory jurisdiction of ITLOS full
court as provided in Art. 138 of its Rules were already States Parties to the United
Nations Convention on the Law of the Sea by the time the Tribunal officially submitted its Report for the period 1996–1997, in which it informed the Meeting of
States Parties to UNCLOS on the approval of its Rules consisting of 138 articles.
49
Instead of making any objection, the Meeting of States Parties “took note with
appreciation” of the Tribunal’s Report.
50
No objection was made, then or in the 20
years passed since its approval, to a text dealing with a point whose importance was
critical, as evidenced by Case 21 two decades later. Furthermore, there have been
additional chances to express such objections that were also ignored, like the declarations made by several of the Presidents of ITLOS before the United Nations’
General Assembly and other international fora.
51
And finally, it is also remarkable
the silence of the more than 130 States Parties to UNCLOS that have refrained
47 In Cot’s opinion: “The Tribunal would have been well advised to find, more modestly, that nothing in the Convention prohibits the Tribunal from exercising advisory jurisdiction. I add that for
two decades there has been no reaction at all from the States Parties to the language of Art. 138 of
the Rules, dating from 1997. It is for this reason that I can accept the principle of the Tribunal’s
advisory jurisdiction” (Declaration, para. 4).
48 In addition, ITLOS Rules are also subject of a Commentary, article by article, in which this topic
is explained. See Chandrasekhara Rao and Gautier (2006), pp. 393–394.
49 See Doc. SPLOS/27, of 23 April 1998, paras 42–48. This document was prepared for the eight
meeting of States Parties, held in New York on 18–22 May 1998.
50 Doc. SPLOS/31, 4 June 1998, paras 10 and 14.
51 See, in this respect, the series of official declarations made by the consecutive Presidents of
ITLOS, from the presidency of R. Wolfrum on, in which they mention this kind of advisory jurisdiction, as collected in its Statement by the Caribbean Regional Fisheries Mechanism, para. 54
(and note 51).
M. G. García-Revillo