agreement which confers jurisdiction on the Tribunal” does not by itself establish the
advisory jurisdiction of the Tribunal. It is the “other agreement” which confers such
jurisdiction on the Tribunal. The Tribunal then is rendered competent to exercise
such jurisdiction regarding “all matters” specifically provided for in the “other
agreement”. In summary, Article 21 and the “other agreement” conferring jurisdiction on the full bench of the Tribunal are correlated; together they provide the
substantive legal basis for the advisory jurisdiction of ITLOS.
41 It also held that
Article 138 of the ITLOS Rules sets out certain prerequisites that must be met before
the Tribunal can exercise its advisory jurisdiction.
42 In the opinion of this author,
however, the Tribunal’s reasons are not persuasive.
3.2.1 Interpretation of “Matters”
Judge Cot, although a member of the Tribunal, pointedly stated in a declaration that
the interpretation of Article 21, including the meaning of “matters”, was ambiguous,
and that the interpretation given by the Tribunal was “misguided”
43 and contrary to
the rules of treaty interpretation in the Vienna Convention of 1969.
44
The word “matters” is ambiguous
45 and obscure in terms of Article 31 of the 1969
Vienna Convention,
46 and therefore, recourse to supplementary means of interpretation as per Article 32 of that Convention was needed to construe that term.
47 Quite
a number of States argued that the full Tribunal is not competent to give an advisory
opinion from the perspective of the negotiating history of UNCLOS.
48 Whether or
not ITLOS should be empowered to render advisory opinions requested by national
judicial tribunals was raised during the early stages of the Third UN Conference on
41 Advisory Opinion, para. 58.
42 Advisory Opinion, para. 59.
43 Declaration of Judge Cot in the Advisory Opinion, para. 3.
44 1969 Vienna Convention on the Law of Treaties (1969 Vienna Convention), 1155 UNTS
331, entered into force on 22 May 1969.
45 Advisory Opinion, para. 55.
46 Article 31 of 1969 Vienna Convention provides that “a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.”
47 Article 32 of 1969 Vienna Convention provides that “Recourse may be had to supplementary
means of interpretation, including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
48 See Written Statement of the United Kingdom, 28 November 2013, paras.7, 24. Written Statement of the People’s Republic of China, 26 November 2013, para.6. Written Statement of the
United States of America, 27 November 2013, para. 8. See Gao (2012), p. 91; Ruys and Soete
(2016), pp. 159–160.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
747
advisory jurisdiction of the Tribunal. It is the “other agreement” which confers such
jurisdiction on the Tribunal. The Tribunal then is rendered competent to exercise
such jurisdiction regarding “all matters” specifically provided for in the “other
agreement”. In summary, Article 21 and the “other agreement” conferring jurisdiction on the full bench of the Tribunal are correlated; together they provide the
substantive legal basis for the advisory jurisdiction of ITLOS.
41 It also held that
Article 138 of the ITLOS Rules sets out certain prerequisites that must be met before
the Tribunal can exercise its advisory jurisdiction.
42 In the opinion of this author,
however, the Tribunal’s reasons are not persuasive.
3.2.1 Interpretation of “Matters”
Judge Cot, although a member of the Tribunal, pointedly stated in a declaration that
the interpretation of Article 21, including the meaning of “matters”, was ambiguous,
and that the interpretation given by the Tribunal was “misguided”
43 and contrary to
the rules of treaty interpretation in the Vienna Convention of 1969.
44
The word “matters” is ambiguous
45 and obscure in terms of Article 31 of the 1969
Vienna Convention,
46 and therefore, recourse to supplementary means of interpretation as per Article 32 of that Convention was needed to construe that term.
47 Quite
a number of States argued that the full Tribunal is not competent to give an advisory
opinion from the perspective of the negotiating history of UNCLOS.
48 Whether or
not ITLOS should be empowered to render advisory opinions requested by national
judicial tribunals was raised during the early stages of the Third UN Conference on
41 Advisory Opinion, para. 58.
42 Advisory Opinion, para. 59.
43 Declaration of Judge Cot in the Advisory Opinion, para. 3.
44 1969 Vienna Convention on the Law of Treaties (1969 Vienna Convention), 1155 UNTS
331, entered into force on 22 May 1969.
45 Advisory Opinion, para. 55.
46 Article 31 of 1969 Vienna Convention provides that “a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.”
47 Article 32 of 1969 Vienna Convention provides that “Recourse may be had to supplementary
means of interpretation, including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
48 See Written Statement of the United Kingdom, 28 November 2013, paras.7, 24. Written Statement of the People’s Republic of China, 26 November 2013, para.6. Written Statement of the
United States of America, 27 November 2013, para. 8. See Gao (2012), p. 91; Ruys and Soete
(2016), pp. 159–160.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
747