4.3 Interpretation of “Legal Question”
As one author commentator has stated, any request for an advisory opinion based on
Article 138 (1) of the ITLOS Rules must be one that is purely in relation to a legal
issue
114 However, it is often difficult to make a distinction between a legal and a
political question. It is notable in this vein that in some cases, the ICJ has not
hesitated to exercise its advisory jurisdiction on a political question even if, strictly
speaking, its mandate is circumscribed by opinions to be rendered on legal issues.
115
Considering the specialized character of ITLOS, legal questions given to it should
pertain to the law of the sea. Furthermore, there are implicit restrictions on the scope
of what is a legal question in a particular context. For example, the Chamber has
exclusive jurisdiction only over matters in connection with the international sea bed
regime. As such, Article 138 of the ITLOS Rules should not apply to such matters.
5 Conclusion
ITLOS, as one of the institutions established under UNCLOS, is expanding its
jurisdiction to render advisory opinions. In this chapter, an attempt has been made
to examine the alleged legal basis for the full Tribunal’s advisory jurisdiction;
namely, Article 288 (2) of UNCLOS, Article 21 of the ITLOS Statute and Article
138 of the ITLOS Rules. ITLOS has based its advisory jurisdiction on a wide
interpretation of Article 21 of the ITLOS Statute. In Article 138 of the ITLOS
Rules are prerequisites that must be met before the Tribunal can exercise any
advisory jurisdiction. In this context, critics from academia and the international
community have voiced their views against the Tribunal’s allegedly arbitrary assertion of its advisory jurisdiction by the Tribunal. They contend that ITLOS has been
unable to establish the legal basis for its advisory jurisdiction in any persuasive
manner. Some State Parties to UNCLOS have expressed the view that a wide
interpretation of any relevant provision relating to the advisory jurisdiction of the
full Tribunal can lead to dangers of manipulation and abuse.
The question remains as to the extent and way in which ITLOS may exercise
advisory jurisdiction. In this chapter, an attempt has been made to analytically
examine Article 138 of the ITLOS Rules in light of the Advisory Opinion. The
conclusion of this author, by reference to the interpretation of the term “international
agreement”, the scope of the term “body”, and questions that form the basis of a
request for an advisory opinion, is that the advisory competence of the full Tribunal
is limited. There are several other factors that are not addressed in this chapter
including the relative positions of the states involved in the particular circumstances
under which the advisory opinion of the Tribunal is sought and the limits of the full
114 Ndiaye (2010), p. 585.
115 Rosenne (1998), pp. 999–1012.
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M. Yu
As one author commentator has stated, any request for an advisory opinion based on
Article 138 (1) of the ITLOS Rules must be one that is purely in relation to a legal
issue
114 However, it is often difficult to make a distinction between a legal and a
political question. It is notable in this vein that in some cases, the ICJ has not
hesitated to exercise its advisory jurisdiction on a political question even if, strictly
speaking, its mandate is circumscribed by opinions to be rendered on legal issues.
115
Considering the specialized character of ITLOS, legal questions given to it should
pertain to the law of the sea. Furthermore, there are implicit restrictions on the scope
of what is a legal question in a particular context. For example, the Chamber has
exclusive jurisdiction only over matters in connection with the international sea bed
regime. As such, Article 138 of the ITLOS Rules should not apply to such matters.
5 Conclusion
ITLOS, as one of the institutions established under UNCLOS, is expanding its
jurisdiction to render advisory opinions. In this chapter, an attempt has been made
to examine the alleged legal basis for the full Tribunal’s advisory jurisdiction;
namely, Article 288 (2) of UNCLOS, Article 21 of the ITLOS Statute and Article
138 of the ITLOS Rules. ITLOS has based its advisory jurisdiction on a wide
interpretation of Article 21 of the ITLOS Statute. In Article 138 of the ITLOS
Rules are prerequisites that must be met before the Tribunal can exercise any
advisory jurisdiction. In this context, critics from academia and the international
community have voiced their views against the Tribunal’s allegedly arbitrary assertion of its advisory jurisdiction by the Tribunal. They contend that ITLOS has been
unable to establish the legal basis for its advisory jurisdiction in any persuasive
manner. Some State Parties to UNCLOS have expressed the view that a wide
interpretation of any relevant provision relating to the advisory jurisdiction of the
full Tribunal can lead to dangers of manipulation and abuse.
The question remains as to the extent and way in which ITLOS may exercise
advisory jurisdiction. In this chapter, an attempt has been made to analytically
examine Article 138 of the ITLOS Rules in light of the Advisory Opinion. The
conclusion of this author, by reference to the interpretation of the term “international
agreement”, the scope of the term “body”, and questions that form the basis of a
request for an advisory opinion, is that the advisory competence of the full Tribunal
is limited. There are several other factors that are not addressed in this chapter
including the relative positions of the states involved in the particular circumstances
under which the advisory opinion of the Tribunal is sought and the limits of the full
114 Ndiaye (2010), p. 585.
115 Rosenne (1998), pp. 999–1012.
758
M. Yu