Judges Jesus and Jianjun Gao held the opinion that the term “international agreement” may well encompass interstate agreements as well as agreements between
States and international organizations, because Article 21 of the ITLOS Statute uses
the term “any other agreements” which is broad enough to extend to private
agreements or mixed State-private agreements.
91 Furthermore, Article 20 of the
ITLOS Statute gives right of access to the Tribunal to “entities other than States
Parties in any case expressly provided for in Part XI (of the Convention) or in any
other agreement conferring jurisdiction on the Tribunal which is accepted by all the
parties to that case.”
92 Under this provision, an international organization being an
entity other than a state party, can have access to the Tribunal if an agreement to
which that organization is a party, confers jurisdiction on the Tribunal and all other
parties in that case accept it.
At the Plenary of the Sixtieth Session of the UN General Assembly in 2005,
Judge Wolfrum stated in his report that states could very well have provisions
inserted in their international agreements, whether bilateral or multilateral, and
regardless of whether they are also parties to UNCLOS, giving jurisdiction to
ITLOS.
93 Notably, in Judge Wolfrum’s statement, “jurisdiction” refers to contentious jurisdiction. Clearly, the Tribunal’s aim and attitude is to encourage States and
international organizations to insert provisions giving jurisdiction to ITLOS in their
future international agreements regarding UNCLOS matters.
94 This evident from the
Advisory Opinion in which, on the issue of whether under Article 138 (1) of the
ITLOS Rules, multilateral agreements fall under the expression “international agreement”, ITLOS answered in the affirmative.
A good example is the MCA Convention
95 is an international agreement the
parties to which are seven States. Article 33 of this agreement provides that “the
Conference of Ministers of the SRFC may authorize the Permanent Secretary of the
SRFC to bring a given legal matter before the International Tribunal of the Law of
the Sea for advisory opinion”. In the view of ITLOS, this provision satisfies the
requirement under the wording “an international agreement specifically provides for
the submission to the Tribunal of a request for an advisory opinion” in Article 138 of
the ITLOS Rules.
96
However, whether it encompasses agreements entered into by and among private
parties or mixed State-private agreements remains unresolved. The answer would be
in the negative if word “international” is construed as precluding individuals from
91 Ibid, p. 393; Gao (2012), p. 96. See also Rao and Gautier (2006), p. 393.
92 Mensah (1997), p. 239.
93 See the Statement of Judge Wolfrum on agenda item 75 (a) at the Plenary of the Sixtieth Session
of the United Nations Generally Assembly, paras 8–11, https://www.itlos.org/fileadmin/itlos/docu
ments/statements_of_president/wolfrum/ga_281105_eng.pdf, available on 19 February 2019.
94 Ibid, para 10.
95 The MCA Convention refers to the “Convention on the Determination of the Minimal Conditions
for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of
the Member States of the Sub-Regional Fisheries Commission”.
96 Advisory Opinion, para. 62.
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M. Yu
States and international organizations, because Article 21 of the ITLOS Statute uses
the term “any other agreements” which is broad enough to extend to private
agreements or mixed State-private agreements.
91 Furthermore, Article 20 of the
ITLOS Statute gives right of access to the Tribunal to “entities other than States
Parties in any case expressly provided for in Part XI (of the Convention) or in any
other agreement conferring jurisdiction on the Tribunal which is accepted by all the
parties to that case.”
92 Under this provision, an international organization being an
entity other than a state party, can have access to the Tribunal if an agreement to
which that organization is a party, confers jurisdiction on the Tribunal and all other
parties in that case accept it.
At the Plenary of the Sixtieth Session of the UN General Assembly in 2005,
Judge Wolfrum stated in his report that states could very well have provisions
inserted in their international agreements, whether bilateral or multilateral, and
regardless of whether they are also parties to UNCLOS, giving jurisdiction to
ITLOS.
93 Notably, in Judge Wolfrum’s statement, “jurisdiction” refers to contentious jurisdiction. Clearly, the Tribunal’s aim and attitude is to encourage States and
international organizations to insert provisions giving jurisdiction to ITLOS in their
future international agreements regarding UNCLOS matters.
94 This evident from the
Advisory Opinion in which, on the issue of whether under Article 138 (1) of the
ITLOS Rules, multilateral agreements fall under the expression “international agreement”, ITLOS answered in the affirmative.
A good example is the MCA Convention
95 is an international agreement the
parties to which are seven States. Article 33 of this agreement provides that “the
Conference of Ministers of the SRFC may authorize the Permanent Secretary of the
SRFC to bring a given legal matter before the International Tribunal of the Law of
the Sea for advisory opinion”. In the view of ITLOS, this provision satisfies the
requirement under the wording “an international agreement specifically provides for
the submission to the Tribunal of a request for an advisory opinion” in Article 138 of
the ITLOS Rules.
96
However, whether it encompasses agreements entered into by and among private
parties or mixed State-private agreements remains unresolved. The answer would be
in the negative if word “international” is construed as precluding individuals from
91 Ibid, p. 393; Gao (2012), p. 96. See also Rao and Gautier (2006), p. 393.
92 Mensah (1997), p. 239.
93 See the Statement of Judge Wolfrum on agenda item 75 (a) at the Plenary of the Sixtieth Session
of the United Nations Generally Assembly, paras 8–11, https://www.itlos.org/fileadmin/itlos/docu
ments/statements_of_president/wolfrum/ga_281105_eng.pdf, available on 19 February 2019.
94 Ibid, para 10.
95 The MCA Convention refers to the “Convention on the Determination of the Minimal Conditions
for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of
the Member States of the Sub-Regional Fisheries Commission”.
96 Advisory Opinion, para. 62.
754
M. Yu