Complementos ortogonales Proyecciones

The Tribunal is open to States Parties to the LOSC634 and to entities other than States Parties in any case expressly provided for in Part XI of the LOSC or pursuant to any other agreement

625

Ibid 81.

626

Tafsir Malick Ndiaye, 'The Advisory Function of the International Tribunal for the Law of the Sea' (2010) 9 Chinese Journal of International Law paragraph 67.

627

Ibid paragraph 71.

628

Ibid paragraph 89.

629 _{FAO Expert Workshop, above n 612.} 630

Ibid.

631

The general consensus of the FAO Expert Workshop was that a State would have to demonstrate its standing to bring the case, or alternately, a group of States could come together as joint claimants under a declaration of common interest. See Expert Workshop on Flag State Responsibilities: Assessing Performance and Taking Action, United Nations Food and Agriculture Organisation (FAO) in cooperation with Fisheries and Oceans Canada, 25-28 March 2008, Vancouver, Canada 74.

632

FAO Expert Workshop, above n 612, 11.

633

Ibid.

634

conferring jurisdiction on the Tribunal.635 In this regard, it is clear that when considering who might have standing to bring a contentious case before the Tribunal, international organisations such as RFMOs might be included. The Tribunal has jurisdiction, ‘over any dispute concerning the interpretation or application of this Convention which is submitted to it’636 and in the event of a dispute as to whether the Tribunal has such jurisdiction, the matter can be settled by a decision of the Tribunal.637

The question of the jurisdiction of the Tribunal in regards to an advisory opinion is somewhat more complex. Advisory opinions are non-legally binding638 and they are generally utilised by States to seek clarification upon a point of law. There remain two key unanswered questions that must be addressed in considering bringing a request for an advisory opinion: 1) Does the full Tribunal have advisory jurisdiction? 2) If the Tribunal does have the sufficient advisory jurisdiction, can a State submit a request for an advisory opinion?

These questions will be addressed in order. First, it would appear on the surface that the

advisory function of the Tribunal cannot be exercised by the full chamber under article 191 of the LOSC and article 40 of the Statute of the Tribunal (the ‘Statute’).639 The advisory jurisdiction of the full Tribunal is not expressly provided for under either the LOSC or the Statute, however, at the same time, neither the LOSC nor the Statute expressly prohibits the advisory function of the Tribunal.640 However article 138, which considers the jurisdiction of the Tribunal to provide an advisory opinion of a legal question, was inserted into the Rules of the Tribunal in 1996. This provision reads as follows:

Article 138

1. The Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.

2. A request for an advisory opinion shall be transmitted to the Tribunal by whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal. 3. The Tribunal shall apply mutatis mutandis articles 130 to 137.

635 _{Ibid article 291(2).} 636

International Tribunal on the Law of the Sea, Proceedings and Judgments - Competence (2008) <http://www.itlos.org/start2_en.html> at 12 September 2009.

637

Ibid.

638 _{Ndiaye, above n 626, paragraph 62.}

639 _{Statute of the International Tribunal for the Law of the Sea, Annex VI to the United Nations Convention on the Law of the}

Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).

640

P Chandrasekhara Rao and P Gautier, Rules of the International Tribunal for the Law of the Sea: A Commentary (2006) 393.

This provision suggests that the Tribunal may hear an advisory opinion in certain circumstances and is supported by other provisions of the Statute including article 21.641 In this regard, it could be argued that an advisory opinion falls under the broad jurisdiction granted to the Tribunal.642

Mr. Doo-Young Kim, Deputy Registrar of the Tribunal, has argued that the Tribunal may issue an advisory opinion if certain requirements are met;643 an attitude in line with a general movement in favour of the advisory jurisdiction of the Tribunal.644 Indeed, Judge Ndiaye has suggested that in the past, the Tribunal has had the support of many States in asserting this jurisdiction,645

however, it appears that it will be a matter of waiting until a request is submitted on behalf of a State before this question can truly be tested.

The second question to be considered is what kind of ‘body’ may submit a request to the Tribunal for an advisory opinion. Article 138 contains certain requirements which must be met prior to an international agreement gaining sufficient standing to submit its request. These may be listed as follows:646

• there must be an international agreement;

• the agreement must be related to the purposes of the LOSC;

• there must be provision within the agreement for submitting a request for an advisory opinion to the Tribunal; and

• the request must be of a legal nature.

This provision appears to allow for international organisations such as RFMOs to submit a request for an advisory opinion before the Tribunal if they have fulfilled these requirements. Ideally, all RFMOs should have some standing arrangement for seeking advisory opinions from a suitable judicial body on legal questions arising in the course of its work.647 It remains unclear, however, whether States may submit requests for an advisory opinion in the same manner via a bilateral agreement for example.648

Mr. Kim posits that, in light of the flexible approach adopted under article 138(2) of the Rules, States may seek an advisory opinion from the Tribunal via an international organisation created

641

The Statute, above n 639, article 21.

642 _{Chandrasekhara Rao and Gautier, above n 640, 394.} 643

Doo-young Kim, 'Advisory Proceedings Before the International Tribunal for the Law of the Sea as an Alternative Procedure to Supplement the Dispute Settlement Mechanism under Part XV of the United Nations Convention on the Law of the Sea' (2010) 4 Issues in Legal Scholarship: Frontier Issues in Ocean Law 4.

644 _{Ndiaye, above n 626, paragraph 63.} 645 _{Ibid paragraph 65.}

646

Ibid paragraphs 77, 78, 79 and 80.

647

Lodge et al, above n 614, 81.

648

by an agreement for the purpose of requesting an advisory opinion before the Tribunal.649 Other commentators support this view and argue that both agreements between States or between States and international organisations would be considered ‘international agreements’ for the purposes of article 138 of the Rules.650