The Contribution of International and Supranational Courts to the Rule of Law

The Contribution of International and Supranational Courts to the Rule of Law

Leuven Global Governance series

Edited by Geert De Baere and Jan Wouters

International and supranational courts are increasingly central to the development of a transnational rule of law. Except for insiders, the functioning and impact of these courts remain largely unknown. Addressing this gap, this innovative book examines the manner in which and the extent to which international courts and tribunals contribute to the rule of law at the national, regional, and international levels.

Chapter 6: The contribution of the International Tribunal for the Law of the Sea to the rule of law

Philippe Gautier

Subjects: law - academic, constitutional and administrative law, public international law, regulation and governance

Extract

A distinct feature of public international law, in comparison with municipal law, is the lack of a compulsory judicial system. Recourse to international judges or arbitrators depends on the consent of the parties to the dispute. In the absence of consent, international courts or tribunals do not have jurisdiction to deal with alleged violations of international obligations. Certainly, States may accept, prior to the existence of a dispute, the jurisdiction of an international court or tribunal. Several mechanisms do exist to that effect, through general, regional, or bilateral treaties, or optional declarations under Article 36 of the Statute of the International Court of Justice (the ICJ), and with respect to a narrow, specialized or broad scope of disputes. It must be acknowledged, however, that, in practice, these mechanisms are inserted in a only limited number of treaties. In this context, a major achievement of the United Nations Convention for the Law of the Sea (the Convention) is to include in its Part XV a mechanism for largely compulsory settlement of disputes arising out of the interpretation or application of its provisions. Actually, since 1982, no other major multilateral treaty has been adopted which would provide for such a robust and comprehensive judicial mechanism. It is therefore against this background that the system for the settlement of disputes in law of the sea matters, as contained in Part XV of the Convention, should be analysed.

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