3.2.2 Other Arguments
First, ITLOS ruled that Annex VI of UNCLOS enjoys the same status as the
Convention proper, and that Article 21 of the ITLOS Statute stands on its own.
66
However, connection between UNCLOS Article 288 and Article 21 of the ITLOS
Statute cannot be ignored or discounted.
67 Article 1 (4) of the ITLOS Statute provides that “reference of a dispute to the Tribunal shall be governed by the provisions
of Parts XI and XV”. Logically, therefore, Article 21 must be read together with Part
XV of the Convention, particularly, Article 288; and needless to say, Article 21 of
the ITLOS Statute and Article 288 (2) of the Convention must be interpreted
consistently and compatibly. Article 288 (2) cannot be a sole legal basis for the
exercising of advisory jurisdiction by the full Tribunal. Therefore, whether Article
21 of the ITLOS Statute was intended to confer a broader jurisdictional basis than
that provided by Article 288(2) of UNCLOS is a valid field of inquiry.
68
Second, there is a perception that the implied power doctrine enables the full
Tribunal to assert jurisdiction to give advisory opinions. Some scholars have perhaps
rightly argued that what is not expressly prohibited can be said to be legally
permitted. While not explicitly providing for the full Tribunal’s advisory jurisdiction, neither UNCLOS nor the ITLOS Statute expressly exclude or reject such
jurisdiction. As such, “it is possible for an organ with a judicial role such as the
Tribunal to render an opinion on a point of law.”
69 But the corollary is that the
ITLOS functions on the basis of authority granted affirmatively by UNCLOS and the
ITLOS Statute, and not pursuant to any notion of non-exclusion. If that were not so,
the powers of ITLOS will be without limitation.
70 Surely, that is not desirable.
The doctrine of implied dictates that “under international law the organization
must be deemed to have those powers which, though not expressly provided in the
charter, are conferred upon it by necessary implication as being essential to the
performance of its duties.”
71 It means that advisory competence is essential for the
fulfilment of the judicial organ’s functions. Several academics and scholars have
opined that a judicial Tribunal does not possess any inherent advisory jurisdiction
unless such jurisdiction is expressly given to it by its constitutive legal instruments.
72
For instance, there is no advisory jurisdiction vested in the International Criminal
66 Advisory Opinion, para. 52.
67 Ibid, p. 327.
68 Written statement of Australia, 28 November 2013, 6, para. 26.
69 Ndiaye (2010), p. 581. See also Rao and Gautier (2006), p. 393.
70 Gao (2012), p. 94; Zou (2010), p. 142; See also Written Statement of the United Kingdom,
28 November 2013, para. 13.
71 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of
11 April 1949, ICJ Reports 1949, p. 182.
72 Amerasinghe (2003), p. 503; Oellers-Frahm (2011), p. 1033; Tanaka (2015), pp. 332–333.
750
M. Yu
First, ITLOS ruled that Annex VI of UNCLOS enjoys the same status as the
Convention proper, and that Article 21 of the ITLOS Statute stands on its own.
66
However, connection between UNCLOS Article 288 and Article 21 of the ITLOS
Statute cannot be ignored or discounted.
67 Article 1 (4) of the ITLOS Statute provides that “reference of a dispute to the Tribunal shall be governed by the provisions
of Parts XI and XV”. Logically, therefore, Article 21 must be read together with Part
XV of the Convention, particularly, Article 288; and needless to say, Article 21 of
the ITLOS Statute and Article 288 (2) of the Convention must be interpreted
consistently and compatibly. Article 288 (2) cannot be a sole legal basis for the
exercising of advisory jurisdiction by the full Tribunal. Therefore, whether Article
21 of the ITLOS Statute was intended to confer a broader jurisdictional basis than
that provided by Article 288(2) of UNCLOS is a valid field of inquiry.
68
Second, there is a perception that the implied power doctrine enables the full
Tribunal to assert jurisdiction to give advisory opinions. Some scholars have perhaps
rightly argued that what is not expressly prohibited can be said to be legally
permitted. While not explicitly providing for the full Tribunal’s advisory jurisdiction, neither UNCLOS nor the ITLOS Statute expressly exclude or reject such
jurisdiction. As such, “it is possible for an organ with a judicial role such as the
Tribunal to render an opinion on a point of law.”
69 But the corollary is that the
ITLOS functions on the basis of authority granted affirmatively by UNCLOS and the
ITLOS Statute, and not pursuant to any notion of non-exclusion. If that were not so,
the powers of ITLOS will be without limitation.
70 Surely, that is not desirable.
The doctrine of implied dictates that “under international law the organization
must be deemed to have those powers which, though not expressly provided in the
charter, are conferred upon it by necessary implication as being essential to the
performance of its duties.”
71 It means that advisory competence is essential for the
fulfilment of the judicial organ’s functions. Several academics and scholars have
opined that a judicial Tribunal does not possess any inherent advisory jurisdiction
unless such jurisdiction is expressly given to it by its constitutive legal instruments.
72
For instance, there is no advisory jurisdiction vested in the International Criminal
66 Advisory Opinion, para. 52.
67 Ibid, p. 327.
68 Written statement of Australia, 28 November 2013, 6, para. 26.
69 Ndiaye (2010), p. 581. See also Rao and Gautier (2006), p. 393.
70 Gao (2012), p. 94; Zou (2010), p. 142; See also Written Statement of the United Kingdom,
28 November 2013, para. 13.
71 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of
11 April 1949, ICJ Reports 1949, p. 182.
72 Amerasinghe (2003), p. 503; Oellers-Frahm (2011), p. 1033; Tanaka (2015), pp. 332–333.
750
M. Yu