Advisory Jurisdiction of the International Tribunal for the Law of the Sea as a Full Court: Legal Basis and Limits

Yu, Minna

doi:10.1007/978-3-030-31749-2_36

Minna Yu⁵

Part of the book series: WMU Studies in Maritime Affairs ((WMUSTUD,volume 8))

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Abstract

On 2 April 2015, the full Tribunal rendered an advisory opinion regarding questions submitted to it by the Sub-Regional Fisheries Commission (SRFC). Through this opinion, ITLOS solidly affirmed its advisory jurisdiction as a full Tribunal. But there is no provision either in UNCLOS or in the ITLOS Statute that can serve as proper legal basis for the full Tribunal’s advisory jurisdiction. Article 138 of the ITLOS Rules being procedural in nature cannot supersede the provisions of the Convention which are substantive; and therefore, cannot constitute a legal basis for the full Tribunal’s advisory jurisdiction. Such jurisdiction should only be conferred on the full Tribunal through amendments to the ITLOS Statute. It is also a matter of urgency to clarify the procedural rules governing the full Tribunal’s advisory jurisdiction and define its limits as precisely as possible.

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Notes

1.
United Nations Convention on the Law of the Sea (UNCLOS), 1833, UNTS 3. This Convention was opened for signature at Montego Bay on 10 December 1982 and it entered into force on 16 November 1994.
2.
Oyarce (2014), p. 643.
3.
Rules of the Tribunal (ITLOS Rules) was adopted on 28 October 1997. It was amended on 15 March and 21 September 2001, 17 March 2009 and 25 September 2018.
4.
See the official website of International Tribunal for the Law of the Sea, https://www.itlos.org/jurisdiction/, available on 1 January 2019.
5.
See Lando (2016), p. 441.
6.
Article 191 of UNCLOS.
7.
Section 4 of ITLOS Statute, “Sea-Bed Disputes Chamber”.
8.
See Section H of Rules of the Tribunal, “Advisory proceedings”.
9.
See Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10.
10.
You (2008), p. 360. See also Lando (2016), p. 442.
11.
The official website of ITLOS, https://www.itlos.org/en/jurisdiction/, accessed on 2 January 2019.
12.
Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, (hereafter referred to as “Advisory Opinion”). It is to be noted that the document so referred, includes both the Request and the Opinion. See ITLOS Reports 2015, para. 4. The SRFC member states are: Cape Verde, Guinea, Guinea-Bissau, Mauritania, Senegal, Sierra Leone and The Gambia.
13.
See Tanaka (2015), p. 319.
14.
Advisory Opinion, para. 37.
15.
Chile, Cuba, Germany, Japan, Micronesia, Montenegro, New Zealand, Saudi Arabia, Somalia, Sri Lanka, Switzerland supported the full Tribunal’s advisory jurisdiction. Some international organizations also expressed support, such as Caribbean Regional Fisheries Mechanism, Forum Fisheries Agency, International Union for the Conservation of Nature and Natural Resources.
16.
Argentina, Australia, China, France, Ireland, Spain, Thailand, United Kingdom, Unites States of America.
17.
Advisory Opinion, para. 40.
18.
Advisory Opinion, para 62.
19.
UNCLOS Article 191.
20.
See Ruys and Soete (2016), p. 156.
21.
See Ndiaye (2010), pp. 580–581.
22.
See Gao (2012), p. 84.
23.
Ibid, p. 20; see Wolfrum (2013), p. 54. See also Tanaka (2015), p. 323.
24.
See Ndiaye (2010), p. 565.
25.
Ibid, p. 159. See also Tanaka (2015), p. 324; You (2008), pp. 361, 362.
26.
Article 96 (2) of the UN Charter provides that “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.”
27.
Chapter IV of Statute of the International Court of Justice (ICJ Statute) provides for “Advisory Opinions”.
28.
See You (2008), pp. 361–362. See also written statement of Australia, 28 November 2013, 9, para. 19.
29.
See Lando (2016), p. 444. Judge Lucky also agree that Article 288 (2) of the Convention cannot be extended to support an argument that the Tribunal has jurisdiction to give an advisory opinion. See Separate Opinion of Judge Lucky in the Advisory Opinion, para.26.
30.
See Gao (2012), p. 88.
31.
Ibid.
32.
For example, Germany holds that the wording “all matters” includes requests for advisory opinions, and Article 21 Statute by itself already provides an implicit legal basis for the competence of the full Tribunal to issue advisory opinions. See Written Statement of the Federal Republic of Germany, 18 November 2013, para. 8. See also Written Statement of New Zealand, 27 November 2013, para. 10. Written Statement of the Federal Republic of Somalia, 27 November 2013, para. 3.
33.
Advisory Opinion, para. 48. See Written Statement of Ireland, 28 November 2013, para. 2.6.
34.
Article 318 of the Convention provides that “The Annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention or to one of its Parts includes a reference to the Annexes relating thereto.”
35.
Advisory Opinion, para. 52.
36.
Advisory Opinion, para. 54.
37.
Advisory Opinion, para. 56.
38.
Separate opinion of Judge Lucky in the Advisory Opinion, para. 14.
39.
Advisory Opinion, para. 56.
40.
Separate opinion of Judge Lucky in the Advisory Opinion, para. 14.
41.
Advisory Opinion, para. 58.
42.
Advisory Opinion, para. 59.
43.
Declaration of Judge Cot in the Advisory Opinion, para. 3.
44.
1969 Vienna Convention on the Law of Treaties (1969 Vienna Convention), 1155 UNTS 331, entered into force on 22 May 1969.
45.
Advisory Opinion, para. 55.
46.
Article 31 of 1969 Vienna Convention provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
47.
Article 32 of 1969 Vienna Convention provides that “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
48.
See Written Statement of the United Kingdom, 28 November 2013, paras.7, 24. Written Statement of the People’s Republic of China, 26 November 2013, para.6. Written Statement of the United States of America, 27 November 2013, para. 8. See Gao (2012), p. 91; Ruys and Soete (2016), pp. 159–160.
49.
See Written Statement of the United Kingdom, 28 November 2013, para.7. Gao (2012), p. 91. See Adede (1987), pp. 33–34.
50.
The working paper on the settlement of law of the sea disputes, 27 August 1974, Third United Nations Conference on the Law of the Sea, 1973–1982, Volume III, Document of the Conference, Second Session, A/CONF.62/L.7,91.
51.
Third United Nations Conference on the Law of the Sea, 1973–1982, Volume V, Summary Records of the Plenary, Fourth Session: 58th meeting, A/CONF.62/SR.58, 5 April 1976, 12. See also the statements of the representative of Venezuela of 7 April 1976, Third United Nations Conference on the Law of the Sea, 1973–1982, Volume V, Summary Records of the Plenary, Fourth Session: 62th meeting, A/CONF.62/SR.62, 42.
52.
See Document A/CONF. 62/WP.8, Articles 33 and 62 which eventually matured into UNCLOS Article 159(10).
53.
See Written Statement of the United States of America, 27 November 2013, para. 19.
54.
Declaration of Judge Cot in the SRFC Advisory Opinion, para. 3.
55.
Advisory Opinion, para. 3. See also Ruys and Soete (2016), p. 159.
56.
French Version refers to “toutes les fois que cela”, which could be understood as further restriction on the Tribunal’s jurisdiction.
57.
Declaration of Judge Cot in SRFC Advisory Opinion, para. 3.
58.
Gao (2012), p. 90.
59.
Tanaka (2015), pp. 325, 326; Gao (2012), p. 90; You (2008), p. 362. See also Written Statement of Ireland, 28 November 2013, para. 2.6.
60.
Ruys and Soete (2016), p. 160.
61.
Rosenne (1997), p. 659.
62.
See Written Statement of the Portuguese Republic, 27 November 2013, para. 10. See also Gao (2012), p. 90.
63.
Advisory Opinion, para. 57.
64.
Tanaka (2015), p. 327.
65.
Declaration of Judge Cot in SRFC Advisory Opinion, para. 13.
66.
Advisory Opinion, para. 52.
67.
Ibid, p. 327.
68.
Written statement of Australia, 28 November 2013, 6, para. 26.
69.
Ndiaye (2010), p. 581. See also Rao and Gautier (2006), p. 393.
70.
Gao (2012), p. 94; Zou (2010), p. 142; See also Written Statement of the United Kingdom, 28 November 2013, para. 13.
71.
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, p. 182.
72.
Amerasinghe (2003), p. 503; Oellers-Frahm (2011), p. 1033; Tanaka (2015), pp. 332–333.
73.
Rome Statute of the International Criminal Court was adopted on 17 July 1998, modified by the procés-verbaux of 10 November 1998 and 12 July 1999, and entered into force on 1 July 2002, U.N. Doc. A/CONF.183/9. See Gao (2012), p. 94.
74.
See Written Statement of the United Kingdom, 28 November 2013, para. 13 and Written Statement of the United States of America, 27 November 2013, para. 13.
75.
Separate opinion of Judge Lucky in Advisory Opinion, para. 12.
76.
Ibid, para. 18.
77.
Ibid, para 42. See Ruys and Soete (2016), p. 159. See also Written Statement of the United States of America, 27 November 2013, para. 11.
78.
Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, supra note 13, Paras. 42, 59.
79.
Ruys and Soete (2016), p. 159.
80.
Article 288 (4) of the Convention provides that “in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” See Mensah (1998a), p. 540.
81.
You (2008), p. 361.
82.
Rosenne (1998), p. 507.
83.
See Written Statement of the United Kingdom, 28 November 2013, para. 34.
84.
Tanaka (2015), p. 333. See also You (2008), p. 361.
85.
Lando (2016), p. 461.
86.
Advisory Opinion, para. 58.
87.
Ibid, para. 59.
88.
Ibid, para. 60.
89.
115 UNTS 331. See You (2008), p. 365; See also Ndiaye (2010), p. 585.
90.
Qiang (2014), p. 29. See also You (2008), p. 367.
91.
Ibid, p. 393; Gao (2012), p. 96. See also Rao and Gautier (2006), p. 393.
92.
Mensah (1997), p. 239.
93.
See the Statement of Judge Wolfrum on agenda item 75 (a) at the Plenary of the Sixtieth Session of the United Nations Generally Assembly, paras 8–11, https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/wolfrum/ga_281105_eng.pdf, available on 19 February 2019.
94.
Ibid, para 10.
95.
The MCA Convention refers to the “Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission”.
96.
Advisory Opinion, para. 62.
97.
Noyes (2009), p. 1259.
98.
Mensah (1997), p. 240. See also Mensah (1998b), p. 6.
99.
According to Gao (2011), pp. 144–146. They include the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, the 2000 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, the 2001 Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, and the 2001 Convention on the Protection of the Underwater Cultural Heritage, etc. Additionally, the 1994 Agreement Relating to the Implementation of Part XI of the UNCLOS of 10 December 1982 can also be included.
100.
Qiang (2014), p. 30.
101.
Advisory Opinion, para. 63.
102.
Mensah (2001), p. 30.
103.
Qiang (2014), p. 31. Gao (2012), p. 96.
104.
Compromis is a requisite to submit a case after a dispute arises based on consent ad hoc.
105.
Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, supra note 13, para. 63.
106.
Qiang (2014), p. 28.
107.
Treves (2001), p. 92. See also Ndiaye (2010), pp. 583–584.
108.
You (2008), p. 364.
109.
Rao and Gautier (2006), p. 394. See also Gao (2012), p. 96; You (2008), p. 365; Gautier (2006), pp. 392–393.
110.
Gao (2012), p. 96.
111.
Advisory Opinion, para. 62.
112.
Rao and Gautier (2006), p. 394.
113.
Ibid.
114.
Ndiaye (2010), p. 585.
115.
Rosenne (1998), pp. 999–1012.

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School of Law, Wuhan University, Wuhan, China
Minna Yu

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Minna Yu
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Faculty of Law, Dalian Maritime University, Dalian, China
Proshanto K. Mukherjee
Maritime Law and Policy, World Maritime University, Malmö, Sweden
Maximo Q. Mejia Jr.
Plymouth Business School, University of Plymouth, Plymouth, UK
Jingjing Xu

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Yu, M. (2020). Advisory Jurisdiction of the International Tribunal for the Law of the Sea as a Full Court: Legal Basis and Limits. In: Mukherjee, P.K., Mejia, M.Q., Xu, J. (eds) Maritime Law in Motion. WMU Studies in Maritime Affairs, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-030-31749-2_36

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DOI: https://doi.org/10.1007/978-3-030-31749-2_36
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