132
tution.
28
On this point, the United Kingdom, after underlying that “the questions put
by the SRFC are so general and vague that it is difficult to regard them as constituting a ‘legal question’, still less as complying with the requirement [of Art. 131.1] to
give a ‘precise statement of the question’”,
29
that “the Tribunal has not been given
sufficient detailed (or any) information to enable it to sensibly answer the questions
put in this case and should therefore decline to do so”,
30
considers that “in relation
to this request, the Tribunal is being asked to act as a ‘trusted adviser’, rather than a
court”.
31
On the other hand, as to the discretionary powers of the Tribunal, several States
alleged that, even in case that ITLOS found that it had advisory jurisdiction, in general and in particular, for entertaining the request, it should decline to deliver its
advisory opinion. In the opinion of China, “[e]ven assuming that the full bench of
the ITLOS did have advisory competence in Case No. 21, the Chinese Government
considers that there are factors that should sway the full bench to decline to exercise
that competence in respect of the Request. These are the factors that go to the issue
of judicial propriety of the ITLOS to accede to the Request”. In particular, according
to the Chinese Statement, these factors mostly were, on the one hand, that the questions raised in the Request could involve disputes affecting States that had not
expressed their consent to be submitted to the Tribunal by this way and, on the other,
that the Request might have raised questions to which there were already answers,
resulting in their mootness.
32
4 The Advisory Opinion of the International Tribunal
for the Law of the Sea
Finally, the debate on the jurisdiction was decided by the plenary of the International
Tribunal for the Law of the Sea in its Advisory Opinion of 2 April 2015, in which it
finds that it has jurisdiction to entertain the Request submitted to it by the SRFC. The
reasoning offered by the Tribunal in this respect could be summarized as follows.
The Hamburg Tribunal, after assuming that “[n]either the Convention nor the
Statute makes explicit reference to the advisory jurisdiction of the Tribunal” and
that the debate between those who argued against the advisory jurisdiction of the
Tribunal and also those who considered that the Tribunal had such jurisdiction was
centered on Art. 21 of its Statute,
33
bases its decision on the final sentence of this
provision.
28 See the Statement of Australia, para. 55.
29 Statement of the United Kingdom, para. 50.
30 Ibidem, para. 54.
31 Ibidem, para. 56. See also the Statements of Australia, para. 52 ff., and China, para. 88 ff.
32 Chinese Statement, para. 81 ff. See also the Statements of Australia, para. 40 ff., United Kingdom,
para. 39 ff. and Spain, para. 24 ff.
33 ITLOS, Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion, 2 April 2015, para. 53.
M. G. García-Revillo
tution.
28
On this point, the United Kingdom, after underlying that “the questions put
by the SRFC are so general and vague that it is difficult to regard them as constituting a ‘legal question’, still less as complying with the requirement [of Art. 131.1] to
give a ‘precise statement of the question’”,
29
that “the Tribunal has not been given
sufficient detailed (or any) information to enable it to sensibly answer the questions
put in this case and should therefore decline to do so”,
30
considers that “in relation
to this request, the Tribunal is being asked to act as a ‘trusted adviser’, rather than a
court”.
31
On the other hand, as to the discretionary powers of the Tribunal, several States
alleged that, even in case that ITLOS found that it had advisory jurisdiction, in general and in particular, for entertaining the request, it should decline to deliver its
advisory opinion. In the opinion of China, “[e]ven assuming that the full bench of
the ITLOS did have advisory competence in Case No. 21, the Chinese Government
considers that there are factors that should sway the full bench to decline to exercise
that competence in respect of the Request. These are the factors that go to the issue
of judicial propriety of the ITLOS to accede to the Request”. In particular, according
to the Chinese Statement, these factors mostly were, on the one hand, that the questions raised in the Request could involve disputes affecting States that had not
expressed their consent to be submitted to the Tribunal by this way and, on the other,
that the Request might have raised questions to which there were already answers,
resulting in their mootness.
32
4 The Advisory Opinion of the International Tribunal
for the Law of the Sea
Finally, the debate on the jurisdiction was decided by the plenary of the International
Tribunal for the Law of the Sea in its Advisory Opinion of 2 April 2015, in which it
finds that it has jurisdiction to entertain the Request submitted to it by the SRFC. The
reasoning offered by the Tribunal in this respect could be summarized as follows.
The Hamburg Tribunal, after assuming that “[n]either the Convention nor the
Statute makes explicit reference to the advisory jurisdiction of the Tribunal” and
that the debate between those who argued against the advisory jurisdiction of the
Tribunal and also those who considered that the Tribunal had such jurisdiction was
centered on Art. 21 of its Statute,
33
bases its decision on the final sentence of this
provision.
28 See the Statement of Australia, para. 55.
29 Statement of the United Kingdom, para. 50.
30 Ibidem, para. 54.
31 Ibidem, para. 56. See also the Statements of Australia, para. 52 ff., and China, para. 88 ff.
32 Chinese Statement, para. 81 ff. See also the Statements of Australia, para. 40 ff., United Kingdom,
para. 39 ff. and Spain, para. 24 ff.
33 ITLOS, Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion, 2 April 2015, para. 53.
M. G. García-Revillo