4 Limits on the Advisory Proceedings of ITLOS as a Full
Court
In the Advisory Opinion, the full Tribunal released an advisory opinion based on
Article 21 of its Statute and “other agreement”.
86 Article 138 of ITLOS Rules
provides the prerequisites that must be met before ITLOS can proceed to exercise
its advisory jurisdiction.
87 As stated by ITLOS, in the Advisory Opinion, these
prerequisites are: (1) an international agreement related to the purposes of the
Convention specifically provides for the submission to the Tribunal of a request
for an advisory opinion; (2) the request must be transmitted to the Tribunal by a body
authorized by or in accordance with the agreement mentioned above; (3) such an
opinion may be given on “a legal question”.
88 These prerequisites need to be
analytically examined to determine the extent to which the full Tribunal’s advisory
jurisdiction is circumscribed.
4.1 “International Agreement Related to the Purposes
of the Convention Specifically Provides For”
Under Article 138 (1) of the ITLOS Rules, the Tribunal is authorized to provide an
advisory opinion in accordance with “an international agreement”, which must be
“related to the purposes of the Convention” and must “specifically provide[s] for the
submission to the Tribunal of a request for such an opinion”. However, there are
different views regarding the definition of “international agreement” and the two
conditions mentioned above, giving rise to a variety of possible interpretations.
The first question is the scope of the term “international agreement”. Some
scholars hold the opinion that “an international agreement” refers to a treaty as
envisaged in Article 2 (1) (a) of 1969 Vienna Convention on the Law of Treaties.
89
There, the definition of “treaty” excludes agreements between international organizations and States, or between international organizations. Such an opinion would,
for example, preclude the European Union, an international organization and a party
to UNCLOS, from invoking Article 138(1) of the ITLOS Rules. This is surely
contrary to the Convention.
90
In the Advisory Opinion, the Tribunal considered Article 21 of the ITLOS Statute
as the legal basis for its advisory jurisdiction and was of the opinion that Article
138 of the ITLOS Rules provide a legitimate interpretation of Article 21. Both
86 Advisory Opinion, para. 58.
87 Ibid, para. 59.
88 Ibid, para. 60.
89 115 UNTS 331. See You (2008), p. 365; See also Ndiaye (2010), p. 585.
90 Qiang (2014), p. 29. See also You (2008), p. 367.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
753
Court
In the Advisory Opinion, the full Tribunal released an advisory opinion based on
Article 21 of its Statute and “other agreement”.
86 Article 138 of ITLOS Rules
provides the prerequisites that must be met before ITLOS can proceed to exercise
its advisory jurisdiction.
87 As stated by ITLOS, in the Advisory Opinion, these
prerequisites are: (1) an international agreement related to the purposes of the
Convention specifically provides for the submission to the Tribunal of a request
for an advisory opinion; (2) the request must be transmitted to the Tribunal by a body
authorized by or in accordance with the agreement mentioned above; (3) such an
opinion may be given on “a legal question”.
88 These prerequisites need to be
analytically examined to determine the extent to which the full Tribunal’s advisory
jurisdiction is circumscribed.
4.1 “International Agreement Related to the Purposes
of the Convention Specifically Provides For”
Under Article 138 (1) of the ITLOS Rules, the Tribunal is authorized to provide an
advisory opinion in accordance with “an international agreement”, which must be
“related to the purposes of the Convention” and must “specifically provide[s] for the
submission to the Tribunal of a request for such an opinion”. However, there are
different views regarding the definition of “international agreement” and the two
conditions mentioned above, giving rise to a variety of possible interpretations.
The first question is the scope of the term “international agreement”. Some
scholars hold the opinion that “an international agreement” refers to a treaty as
envisaged in Article 2 (1) (a) of 1969 Vienna Convention on the Law of Treaties.
89
There, the definition of “treaty” excludes agreements between international organizations and States, or between international organizations. Such an opinion would,
for example, preclude the European Union, an international organization and a party
to UNCLOS, from invoking Article 138(1) of the ITLOS Rules. This is surely
contrary to the Convention.
90
In the Advisory Opinion, the Tribunal considered Article 21 of the ITLOS Statute
as the legal basis for its advisory jurisdiction and was of the opinion that Article
138 of the ITLOS Rules provide a legitimate interpretation of Article 21. Both
86 Advisory Opinion, para. 58.
87 Ibid, para. 59.
88 Ibid, para. 60.
89 115 UNTS 331. See You (2008), p. 365; See also Ndiaye (2010), p. 585.
90 Qiang (2014), p. 29. See also You (2008), p. 367.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
753