Court.
73 By contrast, there Articles 159 and 191 of UNCLOS expressly provide for
advisory jurisdiction of the Seabed Chamber. However, such express provisions do
not imply that the full Tribunal has inherent power to render advisory opinions in all
matters pertaining to ITLOS. Indeed, the contrary is true.
74 Apart from that, Article
40 (2) of the ITLOS Statute provides for the procedural requirements for invoking
the advisory jurisdiction of the Chamber, but there are no provisions with respect to
such jurisdiction being afforded to the full Tribunal. It would therefore be reasonable
to conclude that there is no implied power vested in ITLOS giving it jurisdiction to
hand down advisory opinions.
For the reasons set out above, it is submitted that Article 21 of the ITLOS Statute
cannot serve as a legal basis for the advisory jurisdiction of the Tribunal as a full
court. Notably, Judge Lucky expressed in his separate opinion that UNCLOS has
often been referred to as the constitution of the oceans, and a constitution is organic,
like a “growing tree”. Its provisions must therefore be broadly construed. While he
encourages the Tribunal to make robust interpretation of Article 21, especially the
word “matters”,
75 he seems to ignore the potential danger of abuse and manipulation
if too much wideness were to prevail. The learned judge also subscribes to the view
that the Tribunal should apply lex lata, the law as it currently exists, and not lex
ferenda, the law that should be according to some.
76
3.3 Article 138 of ITLOS Rules
Whether Article 138 of the ITLOS Rules can serve as a legal basis for the full
Tribunal’s advisory jurisdiction is debatable to say the least. Arguably, the Rules
being procedural in nature cannot supersede provisions of the Convention which are
substantive. It would be ultra vires the Tribunal to confer on itself, powers that are
wider than what is provided by UNCLOS and its Annexes.
77 In the Advisory
Opinion, the Tribunal also answered this question in the negative when it held:
The argument that it is Article 138 of the Rules which establishes the advisory jurisdiction of
the Tribunal and that, being a procedural provision, article 138 cannot form a basis for the
73 Rome Statute of the International Criminal Court was adopted on 17 July 1998, modified by the
procés-verbaux of 10 November 1998 and 12 July 1999, and entered into force on 1 July 2002,
U.N. Doc. A/CONF.183/9. See Gao (2012), p. 94.
74 See Written Statement of the United Kingdom, 28 November 2013, para. 13 and Written
Statement of the United States of America, 27 November 2013, para. 13.
75 Separate opinion of Judge Lucky in Advisory Opinion, para. 12.
76 Ibid, para. 18.
77 Ibid, para 42. See Ruys and Soete (2016), p. 159. See also Written Statement of the United States
of America, 27 November 2013, para. 11.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
751
73 By contrast, there Articles 159 and 191 of UNCLOS expressly provide for
advisory jurisdiction of the Seabed Chamber. However, such express provisions do
not imply that the full Tribunal has inherent power to render advisory opinions in all
matters pertaining to ITLOS. Indeed, the contrary is true.
74 Apart from that, Article
40 (2) of the ITLOS Statute provides for the procedural requirements for invoking
the advisory jurisdiction of the Chamber, but there are no provisions with respect to
such jurisdiction being afforded to the full Tribunal. It would therefore be reasonable
to conclude that there is no implied power vested in ITLOS giving it jurisdiction to
hand down advisory opinions.
For the reasons set out above, it is submitted that Article 21 of the ITLOS Statute
cannot serve as a legal basis for the advisory jurisdiction of the Tribunal as a full
court. Notably, Judge Lucky expressed in his separate opinion that UNCLOS has
often been referred to as the constitution of the oceans, and a constitution is organic,
like a “growing tree”. Its provisions must therefore be broadly construed. While he
encourages the Tribunal to make robust interpretation of Article 21, especially the
word “matters”,
75 he seems to ignore the potential danger of abuse and manipulation
if too much wideness were to prevail. The learned judge also subscribes to the view
that the Tribunal should apply lex lata, the law as it currently exists, and not lex
ferenda, the law that should be according to some.
76
3.3 Article 138 of ITLOS Rules
Whether Article 138 of the ITLOS Rules can serve as a legal basis for the full
Tribunal’s advisory jurisdiction is debatable to say the least. Arguably, the Rules
being procedural in nature cannot supersede provisions of the Convention which are
substantive. It would be ultra vires the Tribunal to confer on itself, powers that are
wider than what is provided by UNCLOS and its Annexes.
77 In the Advisory
Opinion, the Tribunal also answered this question in the negative when it held:
The argument that it is Article 138 of the Rules which establishes the advisory jurisdiction of
the Tribunal and that, being a procedural provision, article 138 cannot form a basis for the
73 Rome Statute of the International Criminal Court was adopted on 17 July 1998, modified by the
procés-verbaux of 10 November 1998 and 12 July 1999, and entered into force on 1 July 2002,
U.N. Doc. A/CONF.183/9. See Gao (2012), p. 94.
74 See Written Statement of the United Kingdom, 28 November 2013, para. 13 and Written
Statement of the United States of America, 27 November 2013, para. 13.
75 Separate opinion of Judge Lucky in Advisory Opinion, para. 12.
76 Ibid, para. 18.
77 Ibid, para 42. See Ruys and Soete (2016), p. 159. See also Written Statement of the United States
of America, 27 November 2013, para. 11.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
751