advisory jurisdiction of the Tribunal is misconceived. Article 138 does not establish the
advisory jurisdiction of the Tribunal.
78
Thus, it can be said that Article 138 of ITLOS Rules cannot constitute a legal
basis for the full Tribunal’s advisory jurisdiction. The validity of Article 138 of the
ITLOS Rules depends on whether it is in conformity with the provisions in
UNCLOS and the ITLOS Statute.
79
3.4 Concluding Remarks
All in all, it is difficult to find the solid legal basis for the full Tribunal’s advisory
competence in the Convention and ITLOS Statute but the Tribunal has the last word
on whether or not it has competence with respect to any dispute submitted to it.
80
When the ITLOS Rules were adopted, the Tribunal decisively included Article
138 (1). ITLOS thus positively asserted its competence to render advisory opinions
in certain cases.
81 It may well be that the assertion of advisory jurisdiction of the full
Tribunal as ITLOS did in the Advisory Opinion is a kind of judicial innovation.
82
Incidentally, the United Kingdom being unhappy with it, expressed its concern in a
written statement saying that “it is important that the Tribunal should not stray
beyond the terms of the powers granted to it by the States Parties; otherwise there
will be a concern among States that the powers granted by them are being used in a
manner which goes beyond their terms.”
83
Like it or not, the deed is done. The voting record indicates that the ITLOS is bent
on assuming a more positive and proactive role in the interpretation and application
of UNCLOS through advisory proceedings.
84 ITLOS should pay heed to the flurry
of voices speaking against its advisory function as a full court and embark on making
amendments to the ITLOS Statute as may be needed. Advisory jurisdiction should
only be conferred on the full Tribunal under appropriate and clearly specified
conditions.
85 Thus, it is a matter of urgency to clarify the procedural rules governing
the full Tribunal’s advisory jurisdiction and define its limits as precisely as possible.
78 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, supra note
13, Paras. 42, 59.
79 Ruys and Soete (2016), p. 159.
80 Article 288 (4) of the Convention provides that “in the event of a dispute as to whether a court or
tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” See
Mensah (1998a), p. 540.
81 You (2008), p. 361.
82 Rosenne (1998), p. 507.
83 See Written Statement of the United Kingdom, 28 November 2013, para. 34.
84 Tanaka (2015), p. 333. See also You (2008), p. 361.
85 Lando (2016), p. 461.
752
M. Yu
advisory jurisdiction of the Tribunal.
78
Thus, it can be said that Article 138 of ITLOS Rules cannot constitute a legal
basis for the full Tribunal’s advisory jurisdiction. The validity of Article 138 of the
ITLOS Rules depends on whether it is in conformity with the provisions in
UNCLOS and the ITLOS Statute.
79
3.4 Concluding Remarks
All in all, it is difficult to find the solid legal basis for the full Tribunal’s advisory
competence in the Convention and ITLOS Statute but the Tribunal has the last word
on whether or not it has competence with respect to any dispute submitted to it.
80
When the ITLOS Rules were adopted, the Tribunal decisively included Article
138 (1). ITLOS thus positively asserted its competence to render advisory opinions
in certain cases.
81 It may well be that the assertion of advisory jurisdiction of the full
Tribunal as ITLOS did in the Advisory Opinion is a kind of judicial innovation.
82
Incidentally, the United Kingdom being unhappy with it, expressed its concern in a
written statement saying that “it is important that the Tribunal should not stray
beyond the terms of the powers granted to it by the States Parties; otherwise there
will be a concern among States that the powers granted by them are being used in a
manner which goes beyond their terms.”
83
Like it or not, the deed is done. The voting record indicates that the ITLOS is bent
on assuming a more positive and proactive role in the interpretation and application
of UNCLOS through advisory proceedings.
84 ITLOS should pay heed to the flurry
of voices speaking against its advisory function as a full court and embark on making
amendments to the ITLOS Statute as may be needed. Advisory jurisdiction should
only be conferred on the full Tribunal under appropriate and clearly specified
conditions.
85 Thus, it is a matter of urgency to clarify the procedural rules governing
the full Tribunal’s advisory jurisdiction and define its limits as precisely as possible.
78 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, supra note
13, Paras. 42, 59.
79 Ruys and Soete (2016), p. 159.
80 Article 288 (4) of the Convention provides that “in the event of a dispute as to whether a court or
tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” See
Mensah (1998a), p. 540.
81 You (2008), p. 361.
82 Rosenne (1998), p. 507.
83 See Written Statement of the United Kingdom, 28 November 2013, para. 34.
84 Tanaka (2015), p. 333. See also You (2008), p. 361.
85 Lando (2016), p. 461.
752
M. Yu