the Law of the Sea (Third Conference).
49 In 1974, the United States, along with
some other states, submitted a Working Paper on the settlement of law of the sea
disputes Article 9 of which provided as follows:
if a court of a Contracting Party has been authorized by the domestic law of the Party to
request the Law of the Sea Tribunal to give an advisory opinion [a ruling] on any question
relating to the interpretation or application of this Convention, the Law of the Sea Tribunal
may [shall] give such an opinion [ruling].
50
This was, however, not accepted by the Conference. In 1976, it was mentioned by
the German representative that an arbitral tribunal should be able to ask ITLOS for
an advisory opinion on questions of general international law or interpretation of
UNCLOS provisions which may have a bearing on a case. This would ensure
continuity of jurisprudence in law of the sea matters which was highly desirable.
51
However, in the Informal Single Negotiating Text (ISNT) of 1975 and since that
time, it has been settled that only the Chamber is the body empowered to render
advisory opinions, and only at the request of the Authority which may request
them.
52 At the Third Conference the advisory jurisdiction of the Chamber was
articulated.
Several states continue to espouse the view that the efforts of the drafters of
UNCLOS would be undermined if, pursuant to an international agreement among
two or more states, could confer advisory jurisdiction of the full Tribunal on “any
legal question if an international agreement related to the purposes of the Convention
specifically provides for the submission to the Tribunal of a request for such an
opinion,”
53 as per Article 138 of the ITLOS Rules. Judge Cot stated in his Declaration that the travaux préparatoires of UNCLOS Convention should have been
referred to, in which there is no support for the interpretation adopted by the
Tribunal.
54 In conclusion, there is no indication anywhere to suggest that Article
21 was intended by the drafters to confer advisory jurisdiction on the full Tribunal
pursuant to any international agreements.
49 See Written Statement of the United Kingdom, 28 November 2013, para.7. Gao (2012), p. 91. See
Adede (1987), pp. 33–34.
50 The working paper on the settlement of law of the sea disputes, 27 August 1974, Third United
Nations Conference on the Law of the Sea, 1973–1982, Volume III, Document of the Conference,
Second Session, A/CONF.62/L.7,91.
51 Third United Nations Conference on the Law of the Sea, 1973–1982, Volume V, Summary
Records of the Plenary, Fourth Session: 58th meeting, A/CONF.62/SR.58, 5 April 1976, 12. See
also the statements of the representative of Venezuela of 7 April 1976, Third United Nations
Conference on the Law of the Sea, 1973–1982, Volume V, Summary Records of the Plenary,
Fourth Session: 62th meeting, A/CONF.62/SR.62, 42.
52 See Document A/CONF. 62/WP.8, Articles 33 and 62 which eventually matured into UNCLOS
Article 159(10).
53 See Written Statement of the United States of America, 27 November 2013, para. 19.
54 Declaration of Judge Cot in the SRFC Advisory Opinion, para. 3.
748
M. Yu
49 In 1974, the United States, along with
some other states, submitted a Working Paper on the settlement of law of the sea
disputes Article 9 of which provided as follows:
if a court of a Contracting Party has been authorized by the domestic law of the Party to
request the Law of the Sea Tribunal to give an advisory opinion [a ruling] on any question
relating to the interpretation or application of this Convention, the Law of the Sea Tribunal
may [shall] give such an opinion [ruling].
50
This was, however, not accepted by the Conference. In 1976, it was mentioned by
the German representative that an arbitral tribunal should be able to ask ITLOS for
an advisory opinion on questions of general international law or interpretation of
UNCLOS provisions which may have a bearing on a case. This would ensure
continuity of jurisprudence in law of the sea matters which was highly desirable.
51
However, in the Informal Single Negotiating Text (ISNT) of 1975 and since that
time, it has been settled that only the Chamber is the body empowered to render
advisory opinions, and only at the request of the Authority which may request
them.
52 At the Third Conference the advisory jurisdiction of the Chamber was
articulated.
Several states continue to espouse the view that the efforts of the drafters of
UNCLOS would be undermined if, pursuant to an international agreement among
two or more states, could confer advisory jurisdiction of the full Tribunal on “any
legal question if an international agreement related to the purposes of the Convention
specifically provides for the submission to the Tribunal of a request for such an
opinion,”
53 as per Article 138 of the ITLOS Rules. Judge Cot stated in his Declaration that the travaux préparatoires of UNCLOS Convention should have been
referred to, in which there is no support for the interpretation adopted by the
Tribunal.
54 In conclusion, there is no indication anywhere to suggest that Article
21 was intended by the drafters to confer advisory jurisdiction on the full Tribunal
pursuant to any international agreements.
49 See Written Statement of the United Kingdom, 28 November 2013, para.7. Gao (2012), p. 91. See
Adede (1987), pp. 33–34.
50 The working paper on the settlement of law of the sea disputes, 27 August 1974, Third United
Nations Conference on the Law of the Sea, 1973–1982, Volume III, Document of the Conference,
Second Session, A/CONF.62/L.7,91.
51 Third United Nations Conference on the Law of the Sea, 1973–1982, Volume V, Summary
Records of the Plenary, Fourth Session: 58th meeting, A/CONF.62/SR.58, 5 April 1976, 12. See
also the statements of the representative of Venezuela of 7 April 1976, Third United Nations
Conference on the Law of the Sea, 1973–1982, Volume V, Summary Records of the Plenary,
Fourth Session: 62th meeting, A/CONF.62/SR.62, 42.
52 See Document A/CONF. 62/WP.8, Articles 33 and 62 which eventually matured into UNCLOS
Article 159(10).
53 See Written Statement of the United States of America, 27 November 2013, para. 19.
54 Declaration of Judge Cot in the SRFC Advisory Opinion, para. 3.
748
M. Yu