131
as intended, the advisory jurisdiction of ITLOS would be open even outside the
margins of UNCLOS. In this respect, they considered that, in case that the Tribunal
found that such provision of its Statute served as its basis, its expression “all matters” should not be interpreted in a way that surpassed the limits of Art. 288 of the
Convention, namely, that the “other agreement” mentioned in Art. 21 of the Statute
necessarily should be understood as equivalent to an international agreement related
to the purposes of the Convention (Art. 288(2)).
24
In this respect, the limits for the
agreement other than UNCLOS that confers jurisdiction to ITLOS, for dealing with
an advisory opinion, would also flow from the more general law concerning inter se
rights and responsibilities of States parties to treaties. According to Australia, “it
would not be consistent with inter se rights and responsibilities of States parties to
the 1982 Convention if, pursuant to an agreement other than [UNCLOS], certain
States parties to the 1982 Convention could ask for an advisory opinion from the
Tribunal which touches upon the provisions of [such treaty (UNCLOS)] with the
likely consequence of having an effect upon the interpretation of the treaty obligations of all States parties to the said 1982 Convention”.
25
In the Australian’s view,
“[i]t would be very odd if, pursuant to an agreement other than the 1982 Convention,
the parties of a regional agreement could ask for an advisory opinion from the
Tribunal touching on the provisions of the 1982 Convention, when the meeting of
States parties to the 1982 Convention cannot request such an opinion”.
26
Apart from that, in addition to the main debate on the abstract (and general)
advisory jurisdiction of ITLOS full court, it was also subject to discussion the jurisdiction of this international judicial body for the particular request posed to it by the
Sub-Regional Fisheries Commission, on the one hand, and that regarding the appropriateness (or not) for the Tribunal to use its discretionary powers to decline, as
requested by some States, the delivery of its advisory opinion, on the other.
27
Regarding the first, the debate was focused on the compliance or noncompliance
of the requirements established in Art. 138 of ITLOS Rules. In this respect, it was
argued, among other things, that the questions posed to the Tribunal were phrased
in such general terms that they were incapable of a clear legal answer by that insti24 See the Statement of Australia, paras 24–27.
25 Ibidem, para. 27.
26 Ibidem, para. 28.
27 In particular, according to Art. 33 of 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 (SRFC), the
Conference of Ministers of the SRFC authorized its Permanent Secretary to bring before ITLOS
the following questions: “1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic
Zones of third party States? 2. To what extent shall the flag State be held liable for IUU fishing
activities conducted by vessels sailing under its flag? 3. Where a fishing license is issued to a vessel
within the framework of an international agreement with the flag State or with an international
agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the
coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?”.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…
as intended, the advisory jurisdiction of ITLOS would be open even outside the
margins of UNCLOS. In this respect, they considered that, in case that the Tribunal
found that such provision of its Statute served as its basis, its expression “all matters” should not be interpreted in a way that surpassed the limits of Art. 288 of the
Convention, namely, that the “other agreement” mentioned in Art. 21 of the Statute
necessarily should be understood as equivalent to an international agreement related
to the purposes of the Convention (Art. 288(2)).
24
In this respect, the limits for the
agreement other than UNCLOS that confers jurisdiction to ITLOS, for dealing with
an advisory opinion, would also flow from the more general law concerning inter se
rights and responsibilities of States parties to treaties. According to Australia, “it
would not be consistent with inter se rights and responsibilities of States parties to
the 1982 Convention if, pursuant to an agreement other than [UNCLOS], certain
States parties to the 1982 Convention could ask for an advisory opinion from the
Tribunal which touches upon the provisions of [such treaty (UNCLOS)] with the
likely consequence of having an effect upon the interpretation of the treaty obligations of all States parties to the said 1982 Convention”.
25
In the Australian’s view,
“[i]t would be very odd if, pursuant to an agreement other than the 1982 Convention,
the parties of a regional agreement could ask for an advisory opinion from the
Tribunal touching on the provisions of the 1982 Convention, when the meeting of
States parties to the 1982 Convention cannot request such an opinion”.
26
Apart from that, in addition to the main debate on the abstract (and general)
advisory jurisdiction of ITLOS full court, it was also subject to discussion the jurisdiction of this international judicial body for the particular request posed to it by the
Sub-Regional Fisheries Commission, on the one hand, and that regarding the appropriateness (or not) for the Tribunal to use its discretionary powers to decline, as
requested by some States, the delivery of its advisory opinion, on the other.
27
Regarding the first, the debate was focused on the compliance or noncompliance
of the requirements established in Art. 138 of ITLOS Rules. In this respect, it was
argued, among other things, that the questions posed to the Tribunal were phrased
in such general terms that they were incapable of a clear legal answer by that insti24 See the Statement of Australia, paras 24–27.
25 Ibidem, para. 27.
26 Ibidem, para. 28.
27 In particular, according to Art. 33 of 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 (SRFC), the
Conference of Ministers of the SRFC authorized its Permanent Secretary to bring before ITLOS
the following questions: “1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic
Zones of third party States? 2. To what extent shall the flag State be held liable for IUU fishing
activities conducted by vessels sailing under its flag? 3. Where a fishing license is issued to a vessel
within the framework of an international agreement with the flag State or with an international
agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the
coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?”.
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…