pursuant to Article 16 of the ITLOS Statute.
3 The jurisdiction of ITLOS extends to
addressing legal questions submitted to it under the Convention, otherwise referred
to as its “advisory jurisdiction”.
4 This chapter is only concerned with the advisory
jurisdiction of the Tribunal as a full court. The raison d’etre for the choice of this
topic is the allegation in some quarters, that the relevant provisions in the Convention and its Annex VI, which provide the legal basis for the full Tribunal’s advisory
jurisdiction, are ambiguous and open to debate.
It appears that the “creeping” jurisdiction of ITLOS has become a focus of
attention for academics; and in this connection, it has been noted that a cautionary
approach should be taken with respect to the question of jurisdiction.
5 At any rate,
there are several provisions in the Convention
6 and the ITLOS Statute
7 regarding the
advisory jurisdiction of the Sea-Bed Disputes Chamber (hereafter “the Chamber”).
The Chamber has delivered an advisory opinion in line with Convention provisions
and ITLOS Rules
8 regarding obligations and responsibilities to be borne by States
purporting to sponsor entities, individuals or otherwise, regarding activities in the
Area. In fact, this was the first occasion of a request for an advisory opinion being
submitted to it, and the first such decision rendered by the Chamber.
9 However,
neither the Convention nor the ITLOS Statute has dealt clearly with the matter of
advisory jurisdiction of ITLOS sitting as a full Tribunal.
10 Article 288 (2) of the
Convention and Article 21 of the ITLOS Statute are often invoked to justify the
advisory jurisdiction of the full Tribunal and the Tribunal itself regards Article
138 of the ITLOS Rules as a possible legal basis for such jurisdiction.
11
In this regard, the most crucial point to observe and understand is that on 2 April
2015, the full Tribunal rendered an advisory opinion in response to questions
submitted to it by the Sub-Regional Fisheries Commission (SRFC).
12 Through this
3 Rules of the Tribunal (ITLOS Rules) was adopted on 28 October 1997. It was amended on
15 March and 21 September 2001, 17 March 2009 and 25 September 2018.
4 See the official website of International Tribunal for the Law of the Sea, https://www.itlos.org/
jurisdiction/, available on 1 January 2019.
5 See Lando (2016), p. 441.
6 Article 191 of UNCLOS.
7 Section 4 of ITLOS Statute, “Sea-Bed Disputes Chamber”.
8 See Section H of Rules of the Tribunal, “Advisory proceedings”.
9 See Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011, ITLOS Reports 2011, p. 10.
10 You (2008), p. 360. See also Lando (2016), p. 442.
11 The official website of ITLOS, https://www.itlos.org/en/jurisdiction/, accessed on
2 January 2019.
12 Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory
Opinion, 2 April 2015, (hereafter referred to as “Advisory Opinion”). It is to be noted that the
document so referred, includes both the Request and the Opinion. See ITLOS Reports 2015, para.
4. The SRFC member states are: Cape Verde, Guinea, Guinea-Bissau, Mauritania, Senegal, Sierra
Leone and The Gambia.
742
M. Yu
3 The jurisdiction of ITLOS extends to
addressing legal questions submitted to it under the Convention, otherwise referred
to as its “advisory jurisdiction”.
4 This chapter is only concerned with the advisory
jurisdiction of the Tribunal as a full court. The raison d’etre for the choice of this
topic is the allegation in some quarters, that the relevant provisions in the Convention and its Annex VI, which provide the legal basis for the full Tribunal’s advisory
jurisdiction, are ambiguous and open to debate.
It appears that the “creeping” jurisdiction of ITLOS has become a focus of
attention for academics; and in this connection, it has been noted that a cautionary
approach should be taken with respect to the question of jurisdiction.
5 At any rate,
there are several provisions in the Convention
6 and the ITLOS Statute
7 regarding the
advisory jurisdiction of the Sea-Bed Disputes Chamber (hereafter “the Chamber”).
The Chamber has delivered an advisory opinion in line with Convention provisions
and ITLOS Rules
8 regarding obligations and responsibilities to be borne by States
purporting to sponsor entities, individuals or otherwise, regarding activities in the
Area. In fact, this was the first occasion of a request for an advisory opinion being
submitted to it, and the first such decision rendered by the Chamber.
9 However,
neither the Convention nor the ITLOS Statute has dealt clearly with the matter of
advisory jurisdiction of ITLOS sitting as a full Tribunal.
10 Article 288 (2) of the
Convention and Article 21 of the ITLOS Statute are often invoked to justify the
advisory jurisdiction of the full Tribunal and the Tribunal itself regards Article
138 of the ITLOS Rules as a possible legal basis for such jurisdiction.
11
In this regard, the most crucial point to observe and understand is that on 2 April
2015, the full Tribunal rendered an advisory opinion in response to questions
submitted to it by the Sub-Regional Fisheries Commission (SRFC).
12 Through this
3 Rules of the Tribunal (ITLOS Rules) was adopted on 28 October 1997. It was amended on
15 March and 21 September 2001, 17 March 2009 and 25 September 2018.
4 See the official website of International Tribunal for the Law of the Sea, https://www.itlos.org/
jurisdiction/, available on 1 January 2019.
5 See Lando (2016), p. 441.
6 Article 191 of UNCLOS.
7 Section 4 of ITLOS Statute, “Sea-Bed Disputes Chamber”.
8 See Section H of Rules of the Tribunal, “Advisory proceedings”.
9 See Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011, ITLOS Reports 2011, p. 10.
10 You (2008), p. 360. See also Lando (2016), p. 442.
11 The official website of ITLOS, https://www.itlos.org/en/jurisdiction/, accessed on
2 January 2019.
12 Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory
Opinion, 2 April 2015, (hereafter referred to as “Advisory Opinion”). It is to be noted that the
document so referred, includes both the Request and the Opinion. See ITLOS Reports 2015, para.
4. The SRFC member states are: Cape Verde, Guinea, Guinea-Bissau, Mauritania, Senegal, Sierra
Leone and The Gambia.
742
M. Yu