4.2 Scope of “Body”
The question of who all are entitled to request an advisory opinion from ITLOS, is
addressed in Article 138 (2) of the ITLOS Rules. The answer is that a body which is
authorized by or in accordance with “the agreement” mentioned in that Article can
make a request to ITLOS. Be that as it may, the scope of the term “body” is
ambiguous; there are two opposing views. Judges Treves and Ndiaye hold the
opinion that “body” only refers to an organ of an international organization, as in
the PCIJ or ICJ.
107 This view is consistent with Article 65 of the ICJ Statute.
108
Judge Jesus and others are of the opinion that States should be allowed to request an
advisory opinion even if by definition it is not an organ of an international organization, that is, by the use of some other means.
109
It is submitted that the latter interpretation is more persuasive. The situation in
Article 138 (2) of the ITLOS Rules is different from that of the ICJ. Article 65 of the
ICJ Statute provides that the Court may give an advisory opinion on any legal
question if so requested, by “whatever body may be authorized by or in accordance
with the Charter of the United Nations to make such a request.” Under Article 96 of
the UN Charter, such a body would include the General Assembly, Security Council,
other organs of the United Nations and specialized agencies authorized by the
General Assembly. But in Article 138(2) of the ITLOS Rules, nothing is stated
about the nature of the “body” contemplated in Article 138 (2) of the ITLOS
Rules.
110 In the Advisory Opinion, the Tribunal recognized that the Permanent
Secretary of the Commission, as an organ of an international organization, is the
qualified body to request an advisory opinion from ITLOS based on the MCA
Convention.
111 Notably, some scholars have paid attention to the meaning of the
word “transmit”. Since such body is only the “messenger”, that is, the one who
conveys the request, perhaps its nature is of less relevance to the central issue of the
advisory jurisdiction of ITLOS. The legitimacy of such body to convey the request is
obviously based on the authority it derives from the agreement in question and has
little to do with its nature or character or any other consideration.
112
Therefore, it appears that any state or other entity such as an organization or organ
thereof, provided for in an international agreement as having the authority to request
an advisory opinion of the full Tribunal, can make such a request.
113 In other words,
it would qualify as “body” within the meaning of Article 138 (2) of the ITLOS Rules
provided it accords with the terms of the agreement in question.
107 Treves (2001), p. 92. See also Ndiaye (2010), pp. 583–584.
108 You (2008), p. 364.
109 Rao and Gautier (2006), p. 394. See also Gao (2012), p. 96; You (2008), p. 365; Gautier (2006),
pp. 392–393.
110 Gao (2012), p. 96.
111 Advisory Opinion, para. 62.
112 Rao and Gautier (2006), p. 394.
113 Ibid.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
757
The question of who all are entitled to request an advisory opinion from ITLOS, is
addressed in Article 138 (2) of the ITLOS Rules. The answer is that a body which is
authorized by or in accordance with “the agreement” mentioned in that Article can
make a request to ITLOS. Be that as it may, the scope of the term “body” is
ambiguous; there are two opposing views. Judges Treves and Ndiaye hold the
opinion that “body” only refers to an organ of an international organization, as in
the PCIJ or ICJ.
107 This view is consistent with Article 65 of the ICJ Statute.
108
Judge Jesus and others are of the opinion that States should be allowed to request an
advisory opinion even if by definition it is not an organ of an international organization, that is, by the use of some other means.
109
It is submitted that the latter interpretation is more persuasive. The situation in
Article 138 (2) of the ITLOS Rules is different from that of the ICJ. Article 65 of the
ICJ Statute provides that the Court may give an advisory opinion on any legal
question if so requested, by “whatever body may be authorized by or in accordance
with the Charter of the United Nations to make such a request.” Under Article 96 of
the UN Charter, such a body would include the General Assembly, Security Council,
other organs of the United Nations and specialized agencies authorized by the
General Assembly. But in Article 138(2) of the ITLOS Rules, nothing is stated
about the nature of the “body” contemplated in Article 138 (2) of the ITLOS
Rules.
110 In the Advisory Opinion, the Tribunal recognized that the Permanent
Secretary of the Commission, as an organ of an international organization, is the
qualified body to request an advisory opinion from ITLOS based on the MCA
Convention.
111 Notably, some scholars have paid attention to the meaning of the
word “transmit”. Since such body is only the “messenger”, that is, the one who
conveys the request, perhaps its nature is of less relevance to the central issue of the
advisory jurisdiction of ITLOS. The legitimacy of such body to convey the request is
obviously based on the authority it derives from the agreement in question and has
little to do with its nature or character or any other consideration.
112
Therefore, it appears that any state or other entity such as an organization or organ
thereof, provided for in an international agreement as having the authority to request
an advisory opinion of the full Tribunal, can make such a request.
113 In other words,
it would qualify as “body” within the meaning of Article 138 (2) of the ITLOS Rules
provided it accords with the terms of the agreement in question.
107 Treves (2001), p. 92. See also Ndiaye (2010), pp. 583–584.
108 You (2008), p. 364.
109 Rao and Gautier (2006), p. 394. See also Gao (2012), p. 96; You (2008), p. 365; Gautier (2006),
pp. 392–393.
110 Gao (2012), p. 96.
111 Advisory Opinion, para. 62.
112 Rao and Gautier (2006), p. 394.
113 Ibid.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
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