135
5 Concluding Remarks
Certainly, the Advisory Opinion of 2 April 2015, rendered by the plenary of the
International Tribunal for the Law of the Sea, is too short in its motivation regarding
the important issue of its advisory jurisdiction (general and particular). This deserves
some criticism. As said by Judge Lucky in his Separate Opinion, “the Opinion does
not fully consider the submissions of the States that oppose jurisdiction. The arguments were cogent, clear and articulate, as well as considerably persuasive.
Therefore, reasons ought to be given to justify a contrary view”.
44
The determination of the general advisory jurisdiction of the Tribunal, acting as
a full court, inseparably associated to the interpretation of Art. 21 of its Statute, one
of its most important provisions, requires something more that a motivation so succinct. Several States, including some relevant maritime powers, expressed their
opinion openly against the interpretation that was finally held by ITLOS, thus entering in an intense debate with those other States, international intergovernmental
fisheries organizations (including that submitting the request), plus the IUCN, that
were in favor of such interpretation. Such debate was, doubtlessly, one of the critical
points of this case.
45
Setting that aside, I think that ITLOS’ interpretation of the wording “all matters”,
in the sense that it means something different to “all disputes and all applications”,
and that such voice (“all matters”) comprises requests for advisory opinions, is
acceptable. Rather than an extension of the inherent powers of the Tribunal (certainly linked to its accessory or incidental jurisdiction and therefore not applicable
to its main jurisdiction) or an application of the implied powers doctrine (according
to ITLOS’ position, the attribution would not be implied because it is included in
the text of Art. 21 of its Statute),
46
the stand adopted by the Tribunal’s plenary suggest, in my opinion, that this judicial institution has opted for an evolutionary interpretation of the rule. In particular, such interpretation would consist of the
determination, according to the Tribunal’s understanding, of the meaning of an
indeterminate legal concept, as contained in Art. 21 of its Statute, that is, the
afore- mentioned expression “all matters”. In this respect, as the text of Art. 21
appears, in principle, remarkably open, insofar as it refers only to “any other agreement” without further specifications, the Tribunal’s interpretation is “completed” by
itself, beforehand, in Art. 138 of its Rules, according to which such agreement must
be “an international agreement related to the purposes of the Convention” and must
44 Separate Opinion, para. 1. See also, regarding the discretionary power of ITLOS, the Declaration
of Judge Cot.
45 In fact, the debate continues, as it was evidenced, for example, during the Seminar celebrating
the Twentieth Anniversary of ITLOS (20 Years of the International Tribunal for the Law of the Sea.
The contribution of the Tribunal to the Rule of Law) (5-6 October 2016). It has been (and still is)
subject to some recent literature. In this respect, see, inter alia: Tanaka (2015), Lando (2016) and
Ruys and Soete (2016).
46 ITLOS is certainly an international intergovernmental organization. See in this respect, García
García-Revillo (2015).
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…
5 Concluding Remarks
Certainly, the Advisory Opinion of 2 April 2015, rendered by the plenary of the
International Tribunal for the Law of the Sea, is too short in its motivation regarding
the important issue of its advisory jurisdiction (general and particular). This deserves
some criticism. As said by Judge Lucky in his Separate Opinion, “the Opinion does
not fully consider the submissions of the States that oppose jurisdiction. The arguments were cogent, clear and articulate, as well as considerably persuasive.
Therefore, reasons ought to be given to justify a contrary view”.
44
The determination of the general advisory jurisdiction of the Tribunal, acting as
a full court, inseparably associated to the interpretation of Art. 21 of its Statute, one
of its most important provisions, requires something more that a motivation so succinct. Several States, including some relevant maritime powers, expressed their
opinion openly against the interpretation that was finally held by ITLOS, thus entering in an intense debate with those other States, international intergovernmental
fisheries organizations (including that submitting the request), plus the IUCN, that
were in favor of such interpretation. Such debate was, doubtlessly, one of the critical
points of this case.
45
Setting that aside, I think that ITLOS’ interpretation of the wording “all matters”,
in the sense that it means something different to “all disputes and all applications”,
and that such voice (“all matters”) comprises requests for advisory opinions, is
acceptable. Rather than an extension of the inherent powers of the Tribunal (certainly linked to its accessory or incidental jurisdiction and therefore not applicable
to its main jurisdiction) or an application of the implied powers doctrine (according
to ITLOS’ position, the attribution would not be implied because it is included in
the text of Art. 21 of its Statute),
46
the stand adopted by the Tribunal’s plenary suggest, in my opinion, that this judicial institution has opted for an evolutionary interpretation of the rule. In particular, such interpretation would consist of the
determination, according to the Tribunal’s understanding, of the meaning of an
indeterminate legal concept, as contained in Art. 21 of its Statute, that is, the
afore- mentioned expression “all matters”. In this respect, as the text of Art. 21
appears, in principle, remarkably open, insofar as it refers only to “any other agreement” without further specifications, the Tribunal’s interpretation is “completed” by
itself, beforehand, in Art. 138 of its Rules, according to which such agreement must
be “an international agreement related to the purposes of the Convention” and must
44 Separate Opinion, para. 1. See also, regarding the discretionary power of ITLOS, the Declaration
of Judge Cot.
45 In fact, the debate continues, as it was evidenced, for example, during the Seminar celebrating
the Twentieth Anniversary of ITLOS (20 Years of the International Tribunal for the Law of the Sea.
The contribution of the Tribunal to the Rule of Law) (5-6 October 2016). It has been (and still is)
subject to some recent literature. In this respect, see, inter alia: Tanaka (2015), Lando (2016) and
Ruys and Soete (2016).
46 ITLOS is certainly an international intergovernmental organization. See in this respect, García
García-Revillo (2015).
The Jurisdictional Debate in the Request for an Advisory Opinion Submitted…