ITLOS possesses the competence to accept a request for rendering an advisory
opinion.
32 They pointed out that the ITLOS Statute, including Article 21, is complementary to Article 288 of UNCLOS.
33 The Tribunal explained in the course of
the proceedings that the ITLOS Statute, being an integral part UNCLOS housed in
Annex VI of the Convention, its status was no different from that of the Convention
in terms of statutory hierarchy by reason of Article 318 of the Convention.
34 Thus,
Article 21 of the ITLOS Statute was not inferior or subject to Article 288 of
UNCLOS but held an independent status.
35
As such, ITLOS based its jurisdiction for rendering an advisory opinion on
Article 21 of the ITLOS Statute. The words “disputes”, “applications” and “matters”
in Article 21 needed interpretation.
36 In respect of “disputes”, ITLOS held that it
relates to the jurisdiction of the Tribunal to deal with contentious issue, and “applications” meant applications submitted to it under the Convention in respect of
contentious cases.”
37 These would comprise, inter alia, applications for prompt
release of vessels, requests for provisional measures and determination of cases on
the merits.
38 Regarding the word “matters”, ITLOS observed that:
The words all ‘matters’ (“toutes les fois que cela” in French) should not be interpreted as
covering only ‘disputes’, for, if that were to be the case, article 21 of the Statute would
simply have used the word ‘disputes’. Consequently, it must mean something more than
only ‘disputes’. That something more must include advisory opinions, if specifically provided for in ‘any other agreement which confers jurisdiction on the Tribunal’.”
39
At the seventy-third session of the UN General Assembly held in 2018, President
Paik stated in his report in reference to Article 21 of the ITLOS Statute that “it might
also be useful to consider the possibility of requesting the Tribunal for an advisory
opinion in the new instrument” based on “all matters specifically provided for in any
other agreement which confers jurisdiction on the Tribunal”. Thus, in the opinion of
one judge, “matters” is to be construed as a generic and all-encompassing word,
wide enough to cover advisory opinions provided for in any other agreement.
40 In
this regard, ITLOS held that “all matters specifically provided for in any other
32 For example, Germany holds that the wording “all matters” includes requests for advisory
opinions, and Article 21 Statute by itself already provides an implicit legal basis for the competence
of the full Tribunal to issue advisory opinions. See Written Statement of the Federal Republic of
Germany, 18 November 2013, para. 8. See also Written Statement of New Zealand, 27 November
2013, para. 10. Written Statement of the Federal Republic of Somalia, 27 November 2013, para. 3.
33 Advisory Opinion, para. 48. See Written Statement of Ireland, 28 November 2013, para. 2.6.
34 Article 318 of the Convention provides that “The Annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention or to one of its Parts
includes a reference to the Annexes relating thereto.”
35 Advisory Opinion, para. 52.
36 Advisory Opinion, para. 54.
37 Advisory Opinion, para. 56.
38 Separate opinion of Judge Lucky in the Advisory Opinion, para. 14.
39 Advisory Opinion, para. 56.
40 Separate opinion of Judge Lucky in the Advisory Opinion, para. 14.
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M. Yu
opinion.
32 They pointed out that the ITLOS Statute, including Article 21, is complementary to Article 288 of UNCLOS.
33 The Tribunal explained in the course of
the proceedings that the ITLOS Statute, being an integral part UNCLOS housed in
Annex VI of the Convention, its status was no different from that of the Convention
in terms of statutory hierarchy by reason of Article 318 of the Convention.
34 Thus,
Article 21 of the ITLOS Statute was not inferior or subject to Article 288 of
UNCLOS but held an independent status.
35
As such, ITLOS based its jurisdiction for rendering an advisory opinion on
Article 21 of the ITLOS Statute. The words “disputes”, “applications” and “matters”
in Article 21 needed interpretation.
36 In respect of “disputes”, ITLOS held that it
relates to the jurisdiction of the Tribunal to deal with contentious issue, and “applications” meant applications submitted to it under the Convention in respect of
contentious cases.”
37 These would comprise, inter alia, applications for prompt
release of vessels, requests for provisional measures and determination of cases on
the merits.
38 Regarding the word “matters”, ITLOS observed that:
The words all ‘matters’ (“toutes les fois que cela” in French) should not be interpreted as
covering only ‘disputes’, for, if that were to be the case, article 21 of the Statute would
simply have used the word ‘disputes’. Consequently, it must mean something more than
only ‘disputes’. That something more must include advisory opinions, if specifically provided for in ‘any other agreement which confers jurisdiction on the Tribunal’.”
39
At the seventy-third session of the UN General Assembly held in 2018, President
Paik stated in his report in reference to Article 21 of the ITLOS Statute that “it might
also be useful to consider the possibility of requesting the Tribunal for an advisory
opinion in the new instrument” based on “all matters specifically provided for in any
other agreement which confers jurisdiction on the Tribunal”. Thus, in the opinion of
one judge, “matters” is to be construed as a generic and all-encompassing word,
wide enough to cover advisory opinions provided for in any other agreement.
40 In
this regard, ITLOS held that “all matters specifically provided for in any other
32 For example, Germany holds that the wording “all matters” includes requests for advisory
opinions, and Article 21 Statute by itself already provides an implicit legal basis for the competence
of the full Tribunal to issue advisory opinions. See Written Statement of the Federal Republic of
Germany, 18 November 2013, para. 8. See also Written Statement of New Zealand, 27 November
2013, para. 10. Written Statement of the Federal Republic of Somalia, 27 November 2013, para. 3.
33 Advisory Opinion, para. 48. See Written Statement of Ireland, 28 November 2013, para. 2.6.
34 Article 318 of the Convention provides that “The Annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention or to one of its Parts
includes a reference to the Annexes relating thereto.”
35 Advisory Opinion, para. 52.
36 Advisory Opinion, para. 54.
37 Advisory Opinion, para. 56.
38 Separate opinion of Judge Lucky in the Advisory Opinion, para. 14.
39 Advisory Opinion, para. 56.
40 Separate opinion of Judge Lucky in the Advisory Opinion, para. 14.
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