134
itself establish the advisory jurisdiction of the Tribunal. In terms of Art. 21 of the
Statute, it is the ‘other agreement’ which confers such jurisdiction on the Tribunal.
When the ‘other agreement’ confers advisory jurisdiction on the Tribunal, the
Tribunal then is rendered competent to exercise such jurisdiction with regard to ‘all
matters’ specifically provided for in the ‘other agreement’”.
38
In the Tribunal’s opinion:
Article 21 and the “other agreement” conferring jurisdiction on the Tribunal are interconnected and constitute the substantive legal basis of the advisory jurisdiction of the Tribunal.
39
In addition, as to the role played by Art. 138 of its Rules, ITLOS’ plenary finds
that this provision “does not establish the advisory jurisdiction of the Tribunal. It
only furnishes the prerequisites that need to be satisfied before the Tribunal can
exercise its advisory jurisdiction”.
40
Precisely in dealing with those prerequisites (an international agreement related
to the purposes of the Convention specifically providing for the submission to the
Tribunal of a request for an advisory opinion; that the request must be transmitted
to ITLOS by a body authorized by or in accordance with the agreement mentioned
above; and that such an opinion may be given on “a legal question”), and in treating
with its jurisdiction for dealing with this particular case, the Hamburg Tribunal
finds, unanimously, that they are satisfied.
41
Finally, regarding its discretionary powers, ITLOS finds that “Article 138 of the
Rules, which provides that ‘the Tribunal may give an advisory opinion’, should be
interpreted to mean that the Tribunal has a discretionary power to refuse to give an
advisory opinion even if the conditions of jurisdiction are satisfied”. However, it
does not find any compelling reasons to use such power and deems it appropriate to
render the advisory opinion requested by the SRFC.
42
In particular, in reply to some
of the arguments mentioned above, the Tribunal clarifies that in these proceedings
“the consent of States not members of the SRFC is not relevant” and that “[t]he
advisory opinion as such has no binding force and is given only to the SRFC, which
considers it to be desirable ‘in order to obtain enlightenment as to the course of
action it should take’”, for which “[t]he object of the request by the SRFC is to seek
guidance in respect of its own actions”.
43
38 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC),
para. 58.
39 Ibidem.
40 Ibidem, para. 59.
41 Ibidem, para. 60 ff.
42 Ibidem, para. 70 ff.
43 Ibidem, para. 76.
M. G. García-Revillo
itself establish the advisory jurisdiction of the Tribunal. In terms of Art. 21 of the
Statute, it is the ‘other agreement’ which confers such jurisdiction on the Tribunal.
When the ‘other agreement’ confers advisory jurisdiction on the Tribunal, the
Tribunal then is rendered competent to exercise such jurisdiction with regard to ‘all
matters’ specifically provided for in the ‘other agreement’”.
38
In the Tribunal’s opinion:
Article 21 and the “other agreement” conferring jurisdiction on the Tribunal are interconnected and constitute the substantive legal basis of the advisory jurisdiction of the Tribunal.
39
In addition, as to the role played by Art. 138 of its Rules, ITLOS’ plenary finds
that this provision “does not establish the advisory jurisdiction of the Tribunal. It
only furnishes the prerequisites that need to be satisfied before the Tribunal can
exercise its advisory jurisdiction”.
40
Precisely in dealing with those prerequisites (an international agreement related
to the purposes of the Convention specifically providing for the submission to the
Tribunal of a request for an advisory opinion; that the request must be transmitted
to ITLOS by a body authorized by or in accordance with the agreement mentioned
above; and that such an opinion may be given on “a legal question”), and in treating
with its jurisdiction for dealing with this particular case, the Hamburg Tribunal
finds, unanimously, that they are satisfied.
41
Finally, regarding its discretionary powers, ITLOS finds that “Article 138 of the
Rules, which provides that ‘the Tribunal may give an advisory opinion’, should be
interpreted to mean that the Tribunal has a discretionary power to refuse to give an
advisory opinion even if the conditions of jurisdiction are satisfied”. However, it
does not find any compelling reasons to use such power and deems it appropriate to
render the advisory opinion requested by the SRFC.
42
In particular, in reply to some
of the arguments mentioned above, the Tribunal clarifies that in these proceedings
“the consent of States not members of the SRFC is not relevant” and that “[t]he
advisory opinion as such has no binding force and is given only to the SRFC, which
considers it to be desirable ‘in order to obtain enlightenment as to the course of
action it should take’”, for which “[t]he object of the request by the SRFC is to seek
guidance in respect of its own actions”.
43
38 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC),
para. 58.
39 Ibidem.
40 Ibidem, para. 59.
41 Ibidem, para. 60 ff.
42 Ibidem, para. 70 ff.
43 Ibidem, para. 76.
M. G. García-Revillo