incompatible. Furthermore, what is not legally binding cannot serve as binding
precedent.
24 Arguably, therefore, no notion of advisory jurisdiction in respect of
the full Tribunal is covered in this Section.
25 Second, Article 288 (2) encapsulates
ITLOS and the International Court of Justice (ICJ) as well as arbitral tribunals
referred to in Article 287. The ICJ already has advisory jurisdiction based on Article
96 of the UN Charter
26 and the Statute of the International Court of Justice.
27
Accordingly, one might wonder why Article 288 (2) purports to grant advisory
jurisdiction to ITLOS but not extend the same to the ICJ.
28
Unsurprisingly, in the Advisory Opinion, ITLOS made no reference to Article
288(2) as a legal basis for its advisory jurisdiction. This may be viewed as an
indication of implicit recognition by the Tribunal that Article 288 of UNCLOS
does not provide for any advisory jurisdiction vested in it,
29 and no assumption to
the contrary should be made. Thirdly, as opined by one commentator, application of
the literal rule of interpretation to Article 288(2) for construing that provision can
lead to it being the legal basis for the Tribunal’s consensual but not its advisory
jurisdiction.
30 In sum, therefore, Article 288 (2) cannot be treated as providing the
legal basis for conferment of advisory jurisdiction on the full Tribunal.
3.2 Article 21 of the ITLOS Statute
There is little doubt that the interpretation of Article 21 of the ITLOS Statute is
germane to our inquiry regarding the advisory jurisdiction of the Tribunal. It, bearing
the title “Jurisdiction”, provides that “the jurisdiction of the Tribunal comprises all
disputes and all applications submitted to it in accordance with this Convention and
all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” This Article warrants careful analytical examination as it is
prone to serious debate.
31 In the SRFC proceedings, some States took the position
that this provision is adequate legal basis for the proposition that the full bench of
24 See Ndiaye (2010), p. 565.
25 Ibid, p. 159. See also Tanaka (2015), p. 324; You (2008), pp. 361, 362.
26 Article 96 (2) of the UN Charter provides that “Other organs of the United Nations and specialized
agencies, which may at any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope of their activities.”
27 Chapter IV of Statute of the International Court of Justice (ICJ Statute) provides for “Advisory
Opinions”.
28 See You (2008), pp. 361–362. See also written statement of Australia, 28 November 2013,
9, para. 19.
29 See Lando (2016), p. 444. Judge Lucky also agree that Article 288 (2) of the Convention cannot
be extended to support an argument that the Tribunal has jurisdiction to give an advisory opinion.
See Separate Opinion of Judge Lucky in the Advisory Opinion, para.26.
30 See Gao (2012), p. 88.
31 Ibid.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
745
precedent.
24 Arguably, therefore, no notion of advisory jurisdiction in respect of
the full Tribunal is covered in this Section.
25 Second, Article 288 (2) encapsulates
ITLOS and the International Court of Justice (ICJ) as well as arbitral tribunals
referred to in Article 287. The ICJ already has advisory jurisdiction based on Article
96 of the UN Charter
26 and the Statute of the International Court of Justice.
27
Accordingly, one might wonder why Article 288 (2) purports to grant advisory
jurisdiction to ITLOS but not extend the same to the ICJ.
28
Unsurprisingly, in the Advisory Opinion, ITLOS made no reference to Article
288(2) as a legal basis for its advisory jurisdiction. This may be viewed as an
indication of implicit recognition by the Tribunal that Article 288 of UNCLOS
does not provide for any advisory jurisdiction vested in it,
29 and no assumption to
the contrary should be made. Thirdly, as opined by one commentator, application of
the literal rule of interpretation to Article 288(2) for construing that provision can
lead to it being the legal basis for the Tribunal’s consensual but not its advisory
jurisdiction.
30 In sum, therefore, Article 288 (2) cannot be treated as providing the
legal basis for conferment of advisory jurisdiction on the full Tribunal.
3.2 Article 21 of the ITLOS Statute
There is little doubt that the interpretation of Article 21 of the ITLOS Statute is
germane to our inquiry regarding the advisory jurisdiction of the Tribunal. It, bearing
the title “Jurisdiction”, provides that “the jurisdiction of the Tribunal comprises all
disputes and all applications submitted to it in accordance with this Convention and
all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” This Article warrants careful analytical examination as it is
prone to serious debate.
31 In the SRFC proceedings, some States took the position
that this provision is adequate legal basis for the proposition that the full bench of
24 See Ndiaye (2010), p. 565.
25 Ibid, p. 159. See also Tanaka (2015), p. 324; You (2008), pp. 361, 362.
26 Article 96 (2) of the UN Charter provides that “Other organs of the United Nations and specialized
agencies, which may at any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope of their activities.”
27 Chapter IV of Statute of the International Court of Justice (ICJ Statute) provides for “Advisory
Opinions”.
28 See You (2008), pp. 361–362. See also written statement of Australia, 28 November 2013,
9, para. 19.
29 See Lando (2016), p. 444. Judge Lucky also agree that Article 288 (2) of the Convention cannot
be extended to support an argument that the Tribunal has jurisdiction to give an advisory opinion.
See Separate Opinion of Judge Lucky in the Advisory Opinion, para.26.
30 See Gao (2012), p. 88.
31 Ibid.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
745