128
In addition, as to the second issue, that is, the jurisdiction of the SDC for dealing
with the particular questions posed to it, no debate is held either. Similarly, no
express objections are raised by participants and the few making statements on this
point, quite in the opposite direction, explicitly affirm that the Chamber has such
jurisdiction. In this respect, the SDC satisfies itself that it has jurisdiction to answer
the questions by verifying that the requirements of Art. 191 are met. In particular,
the Chamber affirms that “[a]s regards the present proceedings, the conditions to be
met are: (a) that there is a request from the Council; (b) that the request concerns
legal questions; and (c) that these legal questions have arisen within the scope of the
Council’s activities”.
2
And then, in the following paragraphs,
3
it confirms that these
conditions are met to reach the conclusion that “it has jurisdiction to entertain the
request for an advisory opinion submitted to it by the Council”.
4
3 The Debate in Case 21
In contrast to Case 17 before the SDC, the Request for an Advisory Opinion
Submitted by the Sub-Regional Fisheries Commission (SRFC) before the plenary of
the Hamburg Tribunal was subject to an intense debate. In fact, the discussion on the
jurisdiction of ITLOS as a full court to deal with such request, in abstract and in
particular terms, became one of the crucial points of the argument.
Among States and international organizations making statements before the
Tribunal, five of them didn’t express their opinion on the jurisdiction, thus implicitly admitting it. They were Chile, Cuba, Montenegro, Saudi Arabia and Switzerland.
As to the remaining, they appear matched those in favor and against the jurisdiction
of ITLOS. Among those in favor, in addition to the requesting intergovernmental
organization (the Sub Regional Fisheries Commission), we can mention the
Federated States of Micronesia, Germany, Japan, the Netherlands, New Zealand,
Somalia, Sri Lanka and the European Union, to which we can sum up the Pacific
Islands Forum Fisheries Agency, the Caribbean Regional Fisheries Mechanism and
the International Union for the Conservation of Nature and Natural Resources
(IUCN). On the other hand, among those opposing the jurisdiction of the plenary of
ITLOS for dealing with the request, we can mention Argentina, Australia, China,
France, Ireland, Portugal, Spain, Thailand and the United Kingdom, to which we
can add the United States, that participated in the proceedings as a State Party in the
afore-mentioned 1995 Agreement on Straddling Fish Stocks and Highly Migratory
Fish Stocks.
During the proceedings, the jurisdictional debate touched on the three issues
mentioned before, that is, the jurisdiction of ITLOS as such to deal in abstract (and
in general) with requests for advisory opinions, its jurisdiction for this particular
2 Ibidem, para. 32.
3 Ibidem, paras 33–44.
4 Ibidem, para. 45.
M. G. García-Revillo
In addition, as to the second issue, that is, the jurisdiction of the SDC for dealing
with the particular questions posed to it, no debate is held either. Similarly, no
express objections are raised by participants and the few making statements on this
point, quite in the opposite direction, explicitly affirm that the Chamber has such
jurisdiction. In this respect, the SDC satisfies itself that it has jurisdiction to answer
the questions by verifying that the requirements of Art. 191 are met. In particular,
the Chamber affirms that “[a]s regards the present proceedings, the conditions to be
met are: (a) that there is a request from the Council; (b) that the request concerns
legal questions; and (c) that these legal questions have arisen within the scope of the
Council’s activities”.
2
And then, in the following paragraphs,
3
it confirms that these
conditions are met to reach the conclusion that “it has jurisdiction to entertain the
request for an advisory opinion submitted to it by the Council”.
4
3 The Debate in Case 21
In contrast to Case 17 before the SDC, the Request for an Advisory Opinion
Submitted by the Sub-Regional Fisheries Commission (SRFC) before the plenary of
the Hamburg Tribunal was subject to an intense debate. In fact, the discussion on the
jurisdiction of ITLOS as a full court to deal with such request, in abstract and in
particular terms, became one of the crucial points of the argument.
Among States and international organizations making statements before the
Tribunal, five of them didn’t express their opinion on the jurisdiction, thus implicitly admitting it. They were Chile, Cuba, Montenegro, Saudi Arabia and Switzerland.
As to the remaining, they appear matched those in favor and against the jurisdiction
of ITLOS. Among those in favor, in addition to the requesting intergovernmental
organization (the Sub Regional Fisheries Commission), we can mention the
Federated States of Micronesia, Germany, Japan, the Netherlands, New Zealand,
Somalia, Sri Lanka and the European Union, to which we can sum up the Pacific
Islands Forum Fisheries Agency, the Caribbean Regional Fisheries Mechanism and
the International Union for the Conservation of Nature and Natural Resources
(IUCN). On the other hand, among those opposing the jurisdiction of the plenary of
ITLOS for dealing with the request, we can mention Argentina, Australia, China,
France, Ireland, Portugal, Spain, Thailand and the United Kingdom, to which we
can add the United States, that participated in the proceedings as a State Party in the
afore-mentioned 1995 Agreement on Straddling Fish Stocks and Highly Migratory
Fish Stocks.
During the proceedings, the jurisdictional debate touched on the three issues
mentioned before, that is, the jurisdiction of ITLOS as such to deal in abstract (and
in general) with requests for advisory opinions, its jurisdiction for this particular
2 Ibidem, para. 32.
3 Ibidem, paras 33–44.
4 Ibidem, para. 45.
M. G. García-Revillo