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Article 138 ITLOS Rules
1. The Tribunal may give an advisory opinion on a legal question if an international
agreement related to the purposes of the Convention specifically provides for the
submission to the Tribunal of a request for such an opinion.
2. A request for an advisory opinion shall be transmitted to the Tribunal by
whatever body is authorized by or in accordance with the agreement to make the
request to the Tribunal.
3. The Tribunal shall apply mutatis mutandis articles 130 to 137.
2 The Jurisdictional Test and Case 17
To date, two requests have been submitted for the advisory opinion of the Hamburg
Tribunal, namely, the request concerning the Responsibilities and Obligations of
States Sponsoring Persons and Entities with respect to Activities in the Area, submitted to the Seabed Disputes Chamber (Case 17), and the Request for an Advisory
Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), submitted
to the plenary of the International Tribunal for the Law of the Sea (Case 21). As we
will see below, while the first has not been very problematic about its jurisdictional
issues, the second has been subject to an intense debate on this topic.
In dealing with its advisory jurisdiction, both the SDC and the plenary of ITLOS
follow a triple test corresponding to the most logical pathway. They check first their
jurisdiction in abstract, to be found in UNCLOS, then they check their jurisdiction
for the particular request submitted to them, in light of the appropriate provisions
applicable to the case and, finally, according to their discretionary powers, they
check whether the rendering of their advisory opinion is appropriate or not.
Certainly, the three tests are interesting in case number 21, but, for its outstanding
relevance present and future, I would like to focus myself mostly in the first one.
In dealing with jurisdictional issues, it is interesting to compare Case 17, before
the SDC, with Case 21, before ITLOS, acting as a full court.
In Case 17, there isn’t a debate on the jurisdiction of the SDC, either in abstract
terms or in particular, to deal with the questions posed to it by the Council of the
International Seabed Authority.
So as the first, no objection is made by States making statements during the advisory proceedings. For its part, the SDC itself treats this issue in a very light fashion,
both in the section of its Advisory Opinion devoted to jurisdiction and it the previous general description of its role in advisory proceedings. For the Chamber, it is
just a matter of recalling Articles 159(10) and 191 UNCLOS and the basis of its
jurisdiction in abstract terms is settled.
1
1 SDC, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to
Activities in the Area, Advisory Opinion, 1 February 2011, para. 27.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…
Article 138 ITLOS Rules
1. The Tribunal may give an advisory opinion on a legal question if an international
agreement related to the purposes of the Convention specifically provides for the
submission to the Tribunal of a request for such an opinion.
2. A request for an advisory opinion shall be transmitted to the Tribunal by
whatever body is authorized by or in accordance with the agreement to make the
request to the Tribunal.
3. The Tribunal shall apply mutatis mutandis articles 130 to 137.
2 The Jurisdictional Test and Case 17
To date, two requests have been submitted for the advisory opinion of the Hamburg
Tribunal, namely, the request concerning the Responsibilities and Obligations of
States Sponsoring Persons and Entities with respect to Activities in the Area, submitted to the Seabed Disputes Chamber (Case 17), and the Request for an Advisory
Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), submitted
to the plenary of the International Tribunal for the Law of the Sea (Case 21). As we
will see below, while the first has not been very problematic about its jurisdictional
issues, the second has been subject to an intense debate on this topic.
In dealing with its advisory jurisdiction, both the SDC and the plenary of ITLOS
follow a triple test corresponding to the most logical pathway. They check first their
jurisdiction in abstract, to be found in UNCLOS, then they check their jurisdiction
for the particular request submitted to them, in light of the appropriate provisions
applicable to the case and, finally, according to their discretionary powers, they
check whether the rendering of their advisory opinion is appropriate or not.
Certainly, the three tests are interesting in case number 21, but, for its outstanding
relevance present and future, I would like to focus myself mostly in the first one.
In dealing with jurisdictional issues, it is interesting to compare Case 17, before
the SDC, with Case 21, before ITLOS, acting as a full court.
In Case 17, there isn’t a debate on the jurisdiction of the SDC, either in abstract
terms or in particular, to deal with the questions posed to it by the Council of the
International Seabed Authority.
So as the first, no objection is made by States making statements during the advisory proceedings. For its part, the SDC itself treats this issue in a very light fashion,
both in the section of its Advisory Opinion devoted to jurisdiction and it the previous general description of its role in advisory proceedings. For the Chamber, it is
just a matter of recalling Articles 159(10) and 191 UNCLOS and the basis of its
jurisdiction in abstract terms is settled.
1
1 SDC, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to
Activities in the Area, Advisory Opinion, 1 February 2011, para. 27.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…