being parties to an “international agreement”,
97 but such a proposition would seem
to be unsound in view of Article 288 (2) of UNCLOS and Articles 20 and 21 of the
ITLOS Statute where agreements, other than inter-state agreements are contemplated
in the circumstances mentioned in those provisions. Under those provisions, jurisdiction could be conferred on the Tribunal pursuant to agreements dealing with
disputes involving states as well as non-state entities including private corporations
engaged in commercial pursuits, inter-governmental and non-governmental organizations and private individuals, if the agreement in question provides for non-state
entities to participate in proceedings before ITLOS in matters concerning the
interpretation or application of it.
98 Incidentally, ITLOS has not yet faced a request
for an advisory opinion by the full Tribunal based on an international agreement
involving private parties. It can thus be concluded that conclusion, the term “international agreement” mentioned in Article 138 (1) of Rules of ITLOS could very well
encompass multilateral and bilateral agreements as discussed above.
However, there are limitations to the application of Article 138(1) of the ITLOS
Rules which refers to international agreement. There are several such agreements in
place,
99 and in his report at the 60th Session of the UN General Assembly, Judge
Wolfrum mentioned the existence of such international agreements. In this context,
it is notable that Article 138(1) is derived from Article 288(2) of UNCLOS where it
is stated that any dispute submitted to ITLOS must relate to the purposes of the
Convention.
100 However, it is not always easy to determine whether an international
agreement is related to the purposes of UNCLOS. In its Advisory Opinion, ITLOS
held that the MCA Convention as an international agreement is indeed related to the
purposes of UNCLOS simply because its aim and object is to implement that
Convention, in particular, “its provisions calling for the signing of regional and
sub-regional cooperation agreements in the fisheries sector as well [as] the other
relevant international treaties” and to ensure that the policies and laws of its Member
States “are more effectively harmonized with a view to a better exploitation of
fisheries resources in the maritime zones under their respective jurisdictions, for
the benefit of current and future generations”.
101
97 Noyes (2009), p. 1259.
98 Mensah (1997), p. 240. See also Mensah (1998b), p. 6.
99 According to Gao (2011), pp. 144–146. They include the 1995 United Nations Agreement for the
Implementation of the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks, the 1996 Protocol to the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, the 2000 Convention for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, the 2001
Convention on the Conservation and Management of Fishery Resources in the South East Atlantic
Ocean, and the 2001 Convention on the Protection of the Underwater Cultural Heritage, etc.
Additionally, the 1994 Agreement Relating to the Implementation of Part XI of the UNCLOS of
10 December 1982 can also be included.
100 Qiang (2014), p. 30.
101 Advisory Opinion, para. 63.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
755
97 but such a proposition would seem
to be unsound in view of Article 288 (2) of UNCLOS and Articles 20 and 21 of the
ITLOS Statute where agreements, other than inter-state agreements are contemplated
in the circumstances mentioned in those provisions. Under those provisions, jurisdiction could be conferred on the Tribunal pursuant to agreements dealing with
disputes involving states as well as non-state entities including private corporations
engaged in commercial pursuits, inter-governmental and non-governmental organizations and private individuals, if the agreement in question provides for non-state
entities to participate in proceedings before ITLOS in matters concerning the
interpretation or application of it.
98 Incidentally, ITLOS has not yet faced a request
for an advisory opinion by the full Tribunal based on an international agreement
involving private parties. It can thus be concluded that conclusion, the term “international agreement” mentioned in Article 138 (1) of Rules of ITLOS could very well
encompass multilateral and bilateral agreements as discussed above.
However, there are limitations to the application of Article 138(1) of the ITLOS
Rules which refers to international agreement. There are several such agreements in
place,
99 and in his report at the 60th Session of the UN General Assembly, Judge
Wolfrum mentioned the existence of such international agreements. In this context,
it is notable that Article 138(1) is derived from Article 288(2) of UNCLOS where it
is stated that any dispute submitted to ITLOS must relate to the purposes of the
Convention.
100 However, it is not always easy to determine whether an international
agreement is related to the purposes of UNCLOS. In its Advisory Opinion, ITLOS
held that the MCA Convention as an international agreement is indeed related to the
purposes of UNCLOS simply because its aim and object is to implement that
Convention, in particular, “its provisions calling for the signing of regional and
sub-regional cooperation agreements in the fisheries sector as well [as] the other
relevant international treaties” and to ensure that the policies and laws of its Member
States “are more effectively harmonized with a view to a better exploitation of
fisheries resources in the maritime zones under their respective jurisdictions, for
the benefit of current and future generations”.
101
97 Noyes (2009), p. 1259.
98 Mensah (1997), p. 240. See also Mensah (1998b), p. 6.
99 According to Gao (2011), pp. 144–146. They include the 1995 United Nations Agreement for the
Implementation of the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks, the 1996 Protocol to the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, the 2000 Convention for the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, the 2001
Convention on the Conservation and Management of Fishery Resources in the South East Atlantic
Ocean, and the 2001 Convention on the Protection of the Underwater Cultural Heritage, etc.
Additionally, the 1994 Agreement Relating to the Implementation of Part XI of the UNCLOS of
10 December 1982 can also be included.
100 Qiang (2014), p. 30.
101 Advisory Opinion, para. 63.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
755