89
making available the necessary resources, states parties may make it very difficult
or even impossible for the Tribunal to perform its judicial functions. As mentioned,
this has never happened. Rao and Gautier conclude that “[t]here is a consensus of
opinion at the level of [the UNGA and SPLOS] that the Tribunal has been functioning efficiently”.
25
To what extent is ITLOS accountable as far as the exercise of its judicial functions are concerned? The way in which this often happens is for courts and tribunals
to present an annual report to their INJUGOVINS. At the end of the presentation,
the INJUGOVINS do not ‘approve’ the report, but may ‘take note’ of it. ‘Take note’
is a neutral expression—so that it is clear that the INJUGOVIN concerned does not
review the judicial work of the court. This is, for example, what the General
Assembly will do after the report of the ICJ has been presented by the Court’s
President.
26
The same is true for the ASP, in relation to the report of the ICC.
27
Of
course, while the governance institution as such must respect the full independence
of the court or tribunal, individual state parties may have their views on judgments
or interpretations by the court or tribunal.
When reviewing the performance of SPLOS in this regard, it appears that it has
generally found a fair balance. Each year the President of ITLOS presents an annual
report, of which SPLOS ‘takes note’ (before 2011,
28
SPLOS even took note of the
report “with appreciation”).
29
In this report, a summary is given of the judgments
and advisory opinions of the tribunal during the past year, and of some further relevant activities of the Tribunal. Following this summary, individual state parties and
observers give their comments. These comments concern both the judicial activities
of the Tribunal and administrative/financial issues. Comments concerning the judicial activities may be either positive or critical. For example: in June 2016 “several
delegations commended the Tribunal for the advisory opinion of 2 April 2015 concerning the request submitted by the Sub-Regional Fisheries Commission, particularly noting that it had confirmed the jurisdiction of the Tribunal to deliver advisory
opinions if an international agreement related to the purposes of the Convention
provided for the submission to the Tribunal of a request for such an opinion”.
30
It
was also noted “that the opinion provided helpful clarifications regarding due diligence obligations of flag States under the Convention […]”.
31
On the other hand,
“[a]n observer delegation expressed the view that the Convention, including the
25 Rao and Gautier (2018), p. 335.
26 E.g. see UNGA Decision 67/510 (1 November 2012; UN Doc A/67/49 (Vol II), Resolutions and
Decision adopted by the General Assembly during its 67th session, p. 15); decision adopted by the
General Assembly on 5 November 2015 (UN Doc. GA/11719 (GA meetings coverage)).
27 E.g. see ASP, 2nd session, Official Records, ICC-ASP/2/10, at p. 6 (para. 22) and ASP, 13th session, Official Records Volume I, ICC-ASP/13/20, at p. 9 (para. 36).
28 E.g. in 2010: Doc. SPLOS/218, at p. 6 (para. 33).
29 E.g. in 2017: Doc. SPLOS/316, at p. 6 (para. 29). It is unclear why the appreciation has been
lacking since 2011.
30 Doc. SPLOS/303, p. 5.
31 Ibidem.
Governance of the International Tribunal of the Law of the Sea: The Role…
making available the necessary resources, states parties may make it very difficult
or even impossible for the Tribunal to perform its judicial functions. As mentioned,
this has never happened. Rao and Gautier conclude that “[t]here is a consensus of
opinion at the level of [the UNGA and SPLOS] that the Tribunal has been functioning efficiently”.
25
To what extent is ITLOS accountable as far as the exercise of its judicial functions are concerned? The way in which this often happens is for courts and tribunals
to present an annual report to their INJUGOVINS. At the end of the presentation,
the INJUGOVINS do not ‘approve’ the report, but may ‘take note’ of it. ‘Take note’
is a neutral expression—so that it is clear that the INJUGOVIN concerned does not
review the judicial work of the court. This is, for example, what the General
Assembly will do after the report of the ICJ has been presented by the Court’s
President.
26
The same is true for the ASP, in relation to the report of the ICC.
27
Of
course, while the governance institution as such must respect the full independence
of the court or tribunal, individual state parties may have their views on judgments
or interpretations by the court or tribunal.
When reviewing the performance of SPLOS in this regard, it appears that it has
generally found a fair balance. Each year the President of ITLOS presents an annual
report, of which SPLOS ‘takes note’ (before 2011,
28
SPLOS even took note of the
report “with appreciation”).
29
In this report, a summary is given of the judgments
and advisory opinions of the tribunal during the past year, and of some further relevant activities of the Tribunal. Following this summary, individual state parties and
observers give their comments. These comments concern both the judicial activities
of the Tribunal and administrative/financial issues. Comments concerning the judicial activities may be either positive or critical. For example: in June 2016 “several
delegations commended the Tribunal for the advisory opinion of 2 April 2015 concerning the request submitted by the Sub-Regional Fisheries Commission, particularly noting that it had confirmed the jurisdiction of the Tribunal to deliver advisory
opinions if an international agreement related to the purposes of the Convention
provided for the submission to the Tribunal of a request for such an opinion”.
30
It
was also noted “that the opinion provided helpful clarifications regarding due diligence obligations of flag States under the Convention […]”.
31
On the other hand,
“[a]n observer delegation expressed the view that the Convention, including the
25 Rao and Gautier (2018), p. 335.
26 E.g. see UNGA Decision 67/510 (1 November 2012; UN Doc A/67/49 (Vol II), Resolutions and
Decision adopted by the General Assembly during its 67th session, p. 15); decision adopted by the
General Assembly on 5 November 2015 (UN Doc. GA/11719 (GA meetings coverage)).
27 E.g. see ASP, 2nd session, Official Records, ICC-ASP/2/10, at p. 6 (para. 22) and ASP, 13th session, Official Records Volume I, ICC-ASP/13/20, at p. 9 (para. 36).
28 E.g. in 2010: Doc. SPLOS/218, at p. 6 (para. 33).
29 E.g. in 2017: Doc. SPLOS/316, at p. 6 (para. 29). It is unclear why the appreciation has been
lacking since 2011.
30 Doc. SPLOS/303, p. 5.
31 Ibidem.
Governance of the International Tribunal of the Law of the Sea: The Role…