Advisory Jurisdiction of the International
Tribunal for the Law of the Sea as a Full
Court: Legal Basis and Limits
Minna Yu
Abstract On 2 April 2015, the full Tribunal rendered an advisory opinion regarding
questions submitted to it by the Sub-Regional Fisheries Commission (SRFC).
Through this opinion, ITLOS solidly affirmed its advisory jurisdiction as a full
Tribunal. But there is no provision either in UNCLOS or in the ITLOS Statute that
can serve as proper legal basis for the full Tribunal’s advisory jurisdiction. Article
138 of the ITLOS Rules being procedural in nature cannot supersede the provisions
of the Convention which are substantive; and therefore, cannot constitute a legal
basis for the full Tribunal’s advisory jurisdiction. Such jurisdiction should only be
conferred on the full Tribunal through amendments to the ITLOS Statute. It is also a
matter of urgency to clarify the procedural rules governing the full Tribunal’s
advisory jurisdiction and define its limits as precisely as possible.
1 Introduction
1.1 Background
The International Tribunal for the Law of the Sea (hereafter “ITLOS” or “the
Tribunal”) was established pursuant to the United Nations Convention on the Law
of the Sea, 1982 (hereafter “UNCLOS” or “the Convention”)
1 as a forum for
settlement of disputes under Part XV of the Convention and the ITLOS Statute. It
started to function as an international judicial body on 1 October 1996.
2 On
28 October 1997, it adopted Rules of the Tribunal (hereafter “ITLOS Rules”)
M. Yu (*)
School of Law, Wuhan University, Wuhan, China
1 United Nations Convention on the Law of the Sea (UNCLOS), 1833, UNTS 3. This Convention
was opened for signature at Montego Bay on 10 December 1982 and it entered into force on
16 November 1994.
2 Oyarce (2014), p. 643.
© Springer Nature Switzerland AG 2020
P. K. Mukherjee et al. (eds.), Maritime Law in Motion, WMU Studies in Maritime
Affairs 8, https://doi.org/10.1007/978-3-030-31749-2_36
741
Tribunal for the Law of the Sea as a Full
Court: Legal Basis and Limits
Minna Yu
Abstract On 2 April 2015, the full Tribunal rendered an advisory opinion regarding
questions submitted to it by the Sub-Regional Fisheries Commission (SRFC).
Through this opinion, ITLOS solidly affirmed its advisory jurisdiction as a full
Tribunal. But there is no provision either in UNCLOS or in the ITLOS Statute that
can serve as proper legal basis for the full Tribunal’s advisory jurisdiction. Article
138 of the ITLOS Rules being procedural in nature cannot supersede the provisions
of the Convention which are substantive; and therefore, cannot constitute a legal
basis for the full Tribunal’s advisory jurisdiction. Such jurisdiction should only be
conferred on the full Tribunal through amendments to the ITLOS Statute. It is also a
matter of urgency to clarify the procedural rules governing the full Tribunal’s
advisory jurisdiction and define its limits as precisely as possible.
1 Introduction
1.1 Background
The International Tribunal for the Law of the Sea (hereafter “ITLOS” or “the
Tribunal”) was established pursuant to the United Nations Convention on the Law
of the Sea, 1982 (hereafter “UNCLOS” or “the Convention”)
1 as a forum for
settlement of disputes under Part XV of the Convention and the ITLOS Statute. It
started to function as an international judicial body on 1 October 1996.
2 On
28 October 1997, it adopted Rules of the Tribunal (hereafter “ITLOS Rules”)
M. Yu (*)
School of Law, Wuhan University, Wuhan, China
1 United Nations Convention on the Law of the Sea (UNCLOS), 1833, UNTS 3. This Convention
was opened for signature at Montego Bay on 10 December 1982 and it entered into force on
16 November 1994.
2 Oyarce (2014), p. 643.
© Springer Nature Switzerland AG 2020
P. K. Mukherjee et al. (eds.), Maritime Law in Motion, WMU Studies in Maritime
Affairs 8, https://doi.org/10.1007/978-3-030-31749-2_36
741