opinion, ITLOS solidly affirmed its advisory jurisdiction as a full Tribunal.
13 But the
question of the legal basis for such jurisdiction is still not free from controversy.
Indeed, opinions are sharply divided on this matter, which are discussed in detail
below.
1.2 Purpose and Structure
The principal purpose of this chapter is to attempt to clarify the legal basis and limits
of the advisory jurisdiction of the full Tribunal. The author will seek to examine the
legal basis of the full Tribunal’s advisory jurisdiction, because there is no clear
provision providing for it. Also, the limits of the full Tribunal’s advisory jurisdiction
will be discussed by interpreting Article 138 of the ITLOS Rules. Needless to say,
the Advisory Opinion being the centerpiece of this discussion, will be carefully
examined.
2 The SRFC Advisory Opinion of 2 April 2015
In March 2013, in pursuance of a resolution of its Conference of Ministers, the SRFC
communicated a request for an advisory opinion to the full Tribunal. It was aimed at
clarifying flag-state obligations involving instances of illegal, unreported and
unregulated fishing activities carried out in Exclusive Economic Zones (EEZ) of
third-party states, and the ensuing liabilities for violations of obligations relating to
such fishing activities. Before addressing the substantive issues raised by SRFC, the
first question for ITLOS to consider was whether it had jurisdiction to render an
advisory opinion as requested.
14 Numerous State Parties to UNCLOS and international organizations submitted their written statements and participated in the oral
proceedings. While some participants argued in favour of the full Tribunal’s advisory jurisdiction
15 ; others took the position that the full Tribunal is not competent to
render an advisory opinion.
16 The debate focused on the question whether it would
be ultra vires its remit under UNCLOS, if ITLOS responded to the request
13 See Tanaka (2015), p. 319.
14 Advisory Opinion, para. 37.
15 Chile, Cuba, Germany, Japan, Micronesia, Montenegro, New Zealand, Saudi Arabia, Somalia, Sri
Lanka, Switzerland supported the full Tribunal’s advisory jurisdiction. Some international organizations also expressed support, such as Caribbean Regional Fisheries Mechanism, Forum Fisheries
Agency, International Union for the Conservation of Nature and Natural Resources.
16 Argentina, Australia, China, France, Ireland, Spain, Thailand, United Kingdom, Unites States of
America.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
743
13 But the
question of the legal basis for such jurisdiction is still not free from controversy.
Indeed, opinions are sharply divided on this matter, which are discussed in detail
below.
1.2 Purpose and Structure
The principal purpose of this chapter is to attempt to clarify the legal basis and limits
of the advisory jurisdiction of the full Tribunal. The author will seek to examine the
legal basis of the full Tribunal’s advisory jurisdiction, because there is no clear
provision providing for it. Also, the limits of the full Tribunal’s advisory jurisdiction
will be discussed by interpreting Article 138 of the ITLOS Rules. Needless to say,
the Advisory Opinion being the centerpiece of this discussion, will be carefully
examined.
2 The SRFC Advisory Opinion of 2 April 2015
In March 2013, in pursuance of a resolution of its Conference of Ministers, the SRFC
communicated a request for an advisory opinion to the full Tribunal. It was aimed at
clarifying flag-state obligations involving instances of illegal, unreported and
unregulated fishing activities carried out in Exclusive Economic Zones (EEZ) of
third-party states, and the ensuing liabilities for violations of obligations relating to
such fishing activities. Before addressing the substantive issues raised by SRFC, the
first question for ITLOS to consider was whether it had jurisdiction to render an
advisory opinion as requested.
14 Numerous State Parties to UNCLOS and international organizations submitted their written statements and participated in the oral
proceedings. While some participants argued in favour of the full Tribunal’s advisory jurisdiction
15 ; others took the position that the full Tribunal is not competent to
render an advisory opinion.
16 The debate focused on the question whether it would
be ultra vires its remit under UNCLOS, if ITLOS responded to the request
13 See Tanaka (2015), p. 319.
14 Advisory Opinion, para. 37.
15 Chile, Cuba, Germany, Japan, Micronesia, Montenegro, New Zealand, Saudi Arabia, Somalia, Sri
Lanka, Switzerland supported the full Tribunal’s advisory jurisdiction. Some international organizations also expressed support, such as Caribbean Regional Fisheries Mechanism, Forum Fisheries
Agency, International Union for the Conservation of Nature and Natural Resources.
16 Argentina, Australia, China, France, Ireland, Spain, Thailand, United Kingdom, Unites States of
America.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
743