However, as Judge Mensah has stated, “given the very comprehensive scope of
the Law of the Sea Convention, it is not easy to envisage that any agreement dealing
with ‘marine issues’ can be excluded from the Tribunal as ‘not related to the
purposes’ of the Law of the Sea Convention.”
102 One commentator has opined
that the attitude of ITLOS is to expand its jurisdiction; thus the limitation supposedly
imposed by the expression “related to the purposes of the Convention” tends to
become a relatively less important factor.
103
The second limitation is underscored by the words “specifically provides for the
submission to the Tribunal of a request for such an opinion”. It leads to the question
whether a special agreement or compromis,
104 or jurisdiction clauses in treaties are
included in the scope of “international agreement” provided for in Article 138 (1) of
ITLOS Rules. In the Advisory Opinion, it was pointed out that Article 33 of the
MCA Convention 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.” The Conference of Ministers of the SRFC adopted a resolution in accordance with that Article in
the MCA Convention, authorizing the Permanent Secretary of the Commission to
request and obtain an advisory opinion from ITLOS.
105 In attempting to understand
the essence of that Article, the Tribunal purported to inform States and other entities,
that ITLOS may render an advisory opinion on any legal question in relation to the
Law of the Sea in accordance with a compromis or a jurisdiction clause in a treaty, as
long as it clearly refers to the advisory procedure of the full Tribunal.
In conclusion, it may be stated that the two expressions referred to above are
seemingly insignificant in terms of any contention that the scope of the term
“international agreement” is restricted. The advisory jurisdiction of an international
judicial body or tribunal is usually clearly stipulated in its Statute, and ITLOS
followed this rule in dealing with the advisory jurisdiction of the Chamber. There
is no difference between the legal basis on which a tribunal exercises advisory
jurisdiction and that on which it exercises contentious jurisdiction. Both should be
based on the consent of the states involved. The position adopted by the Tribunal is
therefore somewhat unusual.
106 It appears from the Advisory Opinion that ITLOS is
determined to exercise the full Tribunal’s advisory competence as broadly as
possible.
102 Mensah (2001), p. 30.
103 Qiang (2014), p. 31. Gao (2012), p. 96.
104 Compromis is a requisite to submit a case after a dispute arises based on consent ad hoc.
105 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, supra note
13, para. 63.
106 Qiang (2014), p. 28.
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M. Yu
the Law of the Sea Convention, it is not easy to envisage that any agreement dealing
with ‘marine issues’ can be excluded from the Tribunal as ‘not related to the
purposes’ of the Law of the Sea Convention.”
102 One commentator has opined
that the attitude of ITLOS is to expand its jurisdiction; thus the limitation supposedly
imposed by the expression “related to the purposes of the Convention” tends to
become a relatively less important factor.
103
The second limitation is underscored by the words “specifically provides for the
submission to the Tribunal of a request for such an opinion”. It leads to the question
whether a special agreement or compromis,
104 or jurisdiction clauses in treaties are
included in the scope of “international agreement” provided for in Article 138 (1) of
ITLOS Rules. In the Advisory Opinion, it was pointed out that Article 33 of the
MCA Convention 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.” The Conference of Ministers of the SRFC adopted a resolution in accordance with that Article in
the MCA Convention, authorizing the Permanent Secretary of the Commission to
request and obtain an advisory opinion from ITLOS.
105 In attempting to understand
the essence of that Article, the Tribunal purported to inform States and other entities,
that ITLOS may render an advisory opinion on any legal question in relation to the
Law of the Sea in accordance with a compromis or a jurisdiction clause in a treaty, as
long as it clearly refers to the advisory procedure of the full Tribunal.
In conclusion, it may be stated that the two expressions referred to above are
seemingly insignificant in terms of any contention that the scope of the term
“international agreement” is restricted. The advisory jurisdiction of an international
judicial body or tribunal is usually clearly stipulated in its Statute, and ITLOS
followed this rule in dealing with the advisory jurisdiction of the Chamber. There
is no difference between the legal basis on which a tribunal exercises advisory
jurisdiction and that on which it exercises contentious jurisdiction. Both should be
based on the consent of the states involved. The position adopted by the Tribunal is
therefore somewhat unusual.
106 It appears from the Advisory Opinion that ITLOS is
determined to exercise the full Tribunal’s advisory competence as broadly as
possible.
102 Mensah (2001), p. 30.
103 Qiang (2014), p. 31. Gao (2012), p. 96.
104 Compromis is a requisite to submit a case after a dispute arises based on consent ad hoc.
105 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, supra note
13, para. 63.
106 Qiang (2014), p. 28.
756
M. Yu