129
request (in case it find that it had the said general advisory jurisdiction in abstract)
and (assuming that it had jurisdiction in both facets, that is, in abstract and in particular for this case) the appropriateness (or not) of using such jurisdiction in this
specific case, in light of its discretionary powers. Nevertheless, due to its outstanding relevance, the main of the debate was focused on the first, that is, on its jurisdiction in abstract (and in general) to deal with requests for advisory opinions acting as
a full court.
The main argument posed by those in favor of ITLOS’ plenary’s advisory jurisdiction relies upon the expression “all matters”, as used in Art. 21 in fine of the
Tribunal’s Statute.
5
As explained by the Somalian representation, “in relation to the
terms disputes and applications, matters is significantly broader”.
6
In this respect,
according to this interpretation, “matters” as such can be “disputes” or “applications”, but they are not limited to these terms.
7
Against those States and organizations in favor, States contrary to the advisory
jurisdiction of ITLOS’ plenary raise several arguments. The main one would rely
upon the absence of a provision that, in precise and express terms, confers advisory
jurisdiction to the Tribunal as such. This fact is interpreted by the opposing States as
a lack of a real will, in UNCLOS drafters, to make such conferral. In their view, this
argument can be verified in the preparatory work of the Convention. Yet it also can
be confirmed in the fact that, when the authors of Convention wanted to confer such
advisory jurisdiction, precisely to the Seabed Disputes Chamber, they did so in clear
terms, as it evidently appears in Articles 191 and 159(10).
8
This lack of an express
attribution, in the view of some States, like Spain, would be contrary to the principle
of conferral of competences, applicable to international organizations and institutions, including ITLOS, and could not be completed by the application of the doctrine of implied powers because the exercise of an advisory jurisdiction is not
essential for the Tribunal to perform its duties.
9
On the other hand, in the opinion of
this and other States, such advisory jurisdiction cannot be among the inherent powers of this tribunal insofar as “any inherent jurisdiction must be ancillary in nature
and incidental to the primary jurisdiction of ITLOS over the merits of a pending
case”.
10
Another argument raised by States opposing to the advisory jurisdiction of
ITLOS full court is the lack of precedents in the practice of States regarding other
international courts or tribunals, whose advisory jurisdiction has been always conferred upon them expressly.
11
As alleged by Spain,
12
this would be, inter alia, the
5 See Statements by SRFC, Germany, Japan, the Netherlands, New Zealand and Somalia.
6 Written Statement of the Federal Republic of Somalia, para. 3.
7 Ibidem.
8 See, in this respect, the extensive analysis made by China and the United Kingdom.
9 See the Statement of Spain, para. 5.
10 See the Statement of Thailand (14 March 2014), para. 7.
11 See, for example, the Statements of Spain and the United States.
12 See the Statement of Spain, para. 6.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…
request (in case it find that it had the said general advisory jurisdiction in abstract)
and (assuming that it had jurisdiction in both facets, that is, in abstract and in particular for this case) the appropriateness (or not) of using such jurisdiction in this
specific case, in light of its discretionary powers. Nevertheless, due to its outstanding relevance, the main of the debate was focused on the first, that is, on its jurisdiction in abstract (and in general) to deal with requests for advisory opinions acting as
a full court.
The main argument posed by those in favor of ITLOS’ plenary’s advisory jurisdiction relies upon the expression “all matters”, as used in Art. 21 in fine of the
Tribunal’s Statute.
5
As explained by the Somalian representation, “in relation to the
terms disputes and applications, matters is significantly broader”.
6
In this respect,
according to this interpretation, “matters” as such can be “disputes” or “applications”, but they are not limited to these terms.
7
Against those States and organizations in favor, States contrary to the advisory
jurisdiction of ITLOS’ plenary raise several arguments. The main one would rely
upon the absence of a provision that, in precise and express terms, confers advisory
jurisdiction to the Tribunal as such. This fact is interpreted by the opposing States as
a lack of a real will, in UNCLOS drafters, to make such conferral. In their view, this
argument can be verified in the preparatory work of the Convention. Yet it also can
be confirmed in the fact that, when the authors of Convention wanted to confer such
advisory jurisdiction, precisely to the Seabed Disputes Chamber, they did so in clear
terms, as it evidently appears in Articles 191 and 159(10).
8
This lack of an express
attribution, in the view of some States, like Spain, would be contrary to the principle
of conferral of competences, applicable to international organizations and institutions, including ITLOS, and could not be completed by the application of the doctrine of implied powers because the exercise of an advisory jurisdiction is not
essential for the Tribunal to perform its duties.
9
On the other hand, in the opinion of
this and other States, such advisory jurisdiction cannot be among the inherent powers of this tribunal insofar as “any inherent jurisdiction must be ancillary in nature
and incidental to the primary jurisdiction of ITLOS over the merits of a pending
case”.
10
Another argument raised by States opposing to the advisory jurisdiction of
ITLOS full court is the lack of precedents in the practice of States regarding other
international courts or tribunals, whose advisory jurisdiction has been always conferred upon them expressly.
11
As alleged by Spain,
12
this would be, inter alia, the
5 See Statements by SRFC, Germany, Japan, the Netherlands, New Zealand and Somalia.
6 Written Statement of the Federal Republic of Somalia, para. 3.
7 Ibidem.
8 See, in this respect, the extensive analysis made by China and the United Kingdom.
9 See the Statement of Spain, para. 5.
10 See the Statement of Thailand (14 March 2014), para. 7.
11 See, for example, the Statements of Spain and the United States.
12 See the Statement of Spain, para. 6.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…