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‘Creeping’ Advisory Jurisdiction of International Courts and Tribunals? The case of the International Tribunal for the Law of the Sea

  • TOM RUYS and ANEMOON SOETE

Abstract

On 2 April 2015, the full International Tribunal for the Law of the Sea (ITLOS) rendered its first advisory opinion in reply to a request of the Sub-Regional Fisheries Commission regarding illegal, unreported and unregulated fishing. Unlike any other court or tribunal with advisory competence, including the Seabed Disputes Chamber, ITLOS’ advisory jurisdiction is not explicitly enshrined in its constituent instrument, but was rather asserted in the Tribunal’s, homemade, rules of procedure. In spite of strong objections from various states, ITLOS affirmed a broad advisory jurisdiction ratione materiae and personae, and found that there were no compelling reasons to exercise its discretionary power to dismiss the request. The request and the Tribunal's handling thereof raise interesting questions regarding the opportunities and risks inherent to, and the outer limits of, the advisory jurisdiction of international courts and tribunals. This contribution takes a look at the advisory jurisdiction of the full Tribunal, having regard to the experiences of other international courts and tribunals.

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References

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1 Address by Judge Thomas Buergenthal before a Special Session of the OAS Permanent Council (3 December 1986), 130, available at www.juridicas.unam.mx/publica/librev/rev/iidh/cont/4/pr/pr8.pdf.

2 E.g., Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, 11 April 1949, [1949] ICJ Rep. 174.

3 E.g., Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, [1951] ICJ Rep. 15.

4 See, e.g., Aust, A., ‘Advisory Opinions’, (2010) 1 Journal of International Dispute Settlement 123.

5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226.

6 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Rep. 136.

7 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, [2010] ICJ Rep. 403.

8 Sohn observes that the first four cases brought before the Permanent Court of International Justice were all requests for advisory opinions. Mutatis mutandis, the early years of the Inter-American Court of Human Rights and the ICJ reveal a somewhat similar picture. See: L. B. Sohn, ‘Advisory Opinions by the International Tribunal for the Law of the Sea or Its Seabed Disputes Chamber’, in M. H. Nordquist and J. N. Moore (eds.), Oceans Policy: new institutions, challenges and opportunities (1999), 61 at 61–2.

9 For an overview, see: A. Boyle, ‘UNCLOS Dispute Settlement and the Uses and Abuses of Part XV’, (2015) Revue belge de Droit international, forthcoming.

10 Responsibilities and obligations of States with respect to activities in the Area (‘Seabed Activities AO’), Advisory Opinion of 1 February 2011, Case No. 17, 2011 ITLOS Reports 10.

11 The Opinion essentially held that sponsoring states are under an obligation of ‘due diligence’, requiring them to make the best possible efforts to secure compliance by the sponsored contractors. Further, e.g., Zhang, H., ‘The Sponsoring State's “obligation to ensure” in the development of the International Seabed Area’, (2013) 28 (4)International Journal of Marine and Coastal Law 681.

12 ITLOS, ‘Rules of the Tribunal’, 17 March 2009, ITLOS/8, available at www.itlos.org/fileadmin/itlos/documents/basic_texts/Itlos_8_E_17_03_09.pdf.

13 See, e.g., Wolfrum, R., ‘Advisory Opinions: are they a suitable alternative for the settlement of international disputes?’, in Wolfrum, R. and Gätzschmann, I. (eds.), International Dispute Settlement: Room for Innovations? (2013), 35 at 54; Ndiaye, T. M., ‘The Advisory Function of the International Tribunal for the Law of the Sea’, (2010) 9 (3)Chinese Journal of International Law 565, at 580–3; Kateka, J. L., ‘Advisory Proceedings before the Seabed Disputes Chamber and before the ITLOS as a full Court’, (2013) 17 Max Planck Yearbook of United Nations Law 159. But see the more cautious position of former Judge Treves: Treves, T., ‘Advisory Opinions under the Law of the Sea Convention’, in Nordquist, M. H. and Moore, J. N. (eds.), Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (2001), 81 at 92 (‘Whether article 138 is compatible with the Convention might perhaps be debated’).

14 Ndiaye, ibid., at paras. 1, 6.

15 See You, K.-J., ‘Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, revisited’, (2008) 39 Ocean Development & International Law 360, at 363–4; Ndiaye, supra note 13, at 582–3 (note: Ndiaye refers to various expressions of support by states in the context of the meeting of states parties and elsewhere. Some of the statements nonetheless seem to be made de lege ferenda, rather than de lege lata. Consider, for instance, the statement by Singapore that ‘[t]he ITLOS should be empowered to offer advisory opinions, like the [ICJ].’ UN Doc. A/60/PV.55 (2005), at 27).

16 Wolfrum, supra note 13, at 54.

17 Dakar, 8 June 2012.

18 Sub-Regional Fisheries Commission, ‘Request for advisory opinion’, 27 March 2013.

19 For a definition of these concepts, see: FAO, ‘International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing’, Rome, 2001, available at www.fao.org/docrep/003/y1224e/y1224e00.htm, Sections 3.1–3.3.

20 Such damage is caused not only through the direct depletion of a certain fish stocks, but also due to the use of fishing techniques which result in by-catch and cause damage to the seabed habitat.

21 Such harm occurs when low-cost pirate vessels sailing flags of convenience outcompete regulated fisheries.

22 See: www.nmfs.noaa.gov/ia/iuu/faqs.html; ‘One in five fish linked to illegal activity’, Deutsche Welle, 28 January 2015.

23 OECD, ‘Fishing for development - background paper for session 4: the challenge of combatting illegal, unreported and unregulated (IUU) fishing’, 20 March 2014, TAD/FI(2014)9, at para. 27. See also: www.nmfs.noaa.gov/ia/iuu/faqs.html (suggesting that total catches in West Africa are estimated to be 40 per cent higher than reported catches).

24 Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (‘Request for Advisory Opinion submitted to the Tribunal’), Advisory Opinion of 2 April 2015, Case No. 21. Note: already in 2008, You wrote that ‘[i]t appears that the ITLOS is ready to consider positively its advisory jurisdiction if it is challenged.’ You, supra note 15, at 361.

25 See: Art. 65 ICJ Statute, Arts. 159(1) and 191 UNCLOS, Art. 47 of the European Convention of Human Rights (ECHR) (introduced by Protocol 2 to the ECHR), Art. 64 of the American Convention on Human Rights (ACHR) and Art. 4 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. See also Art. 14 of the Covenant of the League of Nations in respect of the PCIJ.

26 Ndiaye, supra note 13, para. 60.

27 Written Statement of the United States, 27 November 2013, paras. 9ff; Written Statement of the United Kingdom, 28 November 2013, at 4–20; Written Statement of the United Kingdom, 5 March 2014; Written Statement of the People's Republic of China, 26 November 2013; Comments presented by France, 29 November 2013, at 3; Written Statement of Australia, 28 November 2013, at 5ff; Written Statement of Ireland, 28 November 2013, paras. 2.1ff; Written Statement by the Kingdom of Spain, 29 November 2013, at 4–8; Written Statement of Thailand, 14 March 2014, paras. 4ff; Written Statement of the Portuguese Republic, 27 November 2013, paras. 4–14. Consider also: Written Statement of the Argentine Republic, 28 November 2013, at 4ff.

28 Written Statement of the United States, 27 November 2013, para. 11; Written Statement of the United Kingdom, 5 March 2014, paras. 4, 6; Written Statement of Australia, 28 November 2013, para. 37.

29 Also in this sense: You, supra note 15, at 362–3.

30 The French text refers to ‘tous les différends et toutes les demandes qui lui sont soumis conformément à la Convention et toutes les fois que cela est expressément prévu dans tout autre accord conférant compétence au Tribunal.’ The phrase ‘et toutes les fois que cela. . .’ could be understood as further qualifying the Tribunal's jurisdiction over ‘différends’/’disputes’ and ‘demandes’/’applications’. In this sense: Written Statement of the United Kingdom, 28 November 2013, at 12–14. See also the Declaration of Judge Cot, at para. 3. Note: the Spanish version (‘y a todas las cuestiones expresamente previstas . . . ’) nonetheless suggests that the two phrases could be read disjunctively.

31 E.g., Written Statement of the United Kingdom, 28 November 2013, at 5–6; Written Statement of the United Kingdom, 5 March 2014, at para. 6; Written Statement of the United States, 27 November 2013, at para. 18; Written Statement of Australia, 28 November 2013, at para. 26; Written Statement of the People's Republic of China, 26 November 2013, at para. 36. It was also observed that the well-known University of Virginia Commentary to the 1982 Convention on the Law of the Sea, finds that the Tribunal itself has no advisory jurisdiction. M. Nordquist et al. (eds.), United Nations Convention on the Law of the Sea, 1982: a Commentary, Vol. 5, at 416, Vol. 6, at 643–4. See also: Sohn, supra note 8, at 66.

32 See in this sense: S. Rosenne, The Law and Practice of the International Court, 1920–1996 (1977), 659; C. Tomuschat, ‘Article 36’, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), 633 at 641 (‘The concept of jurisdiction as employed in Art. 36, para. 1 denotes the authority of the ICJ to make binding determinations by adjudication on disputes between States’).

33 See, e.g., H. Thirlway, ‘Advisory Opinions of International Courts’ in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012), para. 4 (‘Such power is not inherent in its judicial status so that a tribunal cannot give an advisory opinion unless the power to do so is conferred on it by its constituent instrument’); C.F. Amerasinghe, Jurisdiction of International Tribunals (2002), 503.

34 E.g., Written Statement of the Federal Republic of Somalia, 27 November 2013, Section I, para. 3; Written Statement of the Federated States of Micronesia, 29 November 2013, paras. 4–7; Written Statement of the Democratic Socialist Republic of Sri Lanka, 18 December 2013, at 3; Written Statement of New Zealand, 27 November 2013, at 3ff; Written Statement of Japan, 29 November 2013, para. 5.

35 Written Statement by the Federal Republic of Germany, 18 November 2013, paras. 8–9.

36 Ibid., para. 8. Also in this sense: You, supra note 15, at 363–4. But see, e.g., Written Statement of the United Kingdom, 28 November 2013, at 16 (suggesting that statements to the effect that it might be desirable to confer upon the Tribunal a wider jurisdiction to give advisory opinions were made de lege ferenda, and did not command sufficient support).

37 In a similar vein, e.g., Written Statement of the Federal Republic of Somalia, 27 November 2013, Section I, para. 3; Written Statement of New Zealand, 27 November 2013, para. 10.

In 2013, Judge Kateka took the view that Art. 288(2) UNCLOS does not constitute a sufficient legal basis for the advisory jurisdiction of the full Tribunal. By contrast, the ‘generally accepted view – by representatives of States Parties to the Convention and by other commentators’ is said to be Art. 21 of the ITLOS Statute. See: Kateka, supra note 13, at 168–9 (no further references provided, however). Note, however, that in an article published in 2010, Judge Ndiaye had previously taken the view that neither Art. 288 UNCLOS, nor Art. 21 of the ITLOS Statute could be relied upon or interpreted as a basis for the advisory jurisdiction of the Tribunal ‘oddly’ introduced by Art. 138 of the Rules. Ndiaye, supra note 13, paras. 60–2. Judge Ndiaye ultimately accepts that the Tribunal has advisory jurisdiction. The author finds that ‘taking the agreement path as a basis for conferring jurisdiction to the Tribunal is a more effective route than seeking a legal basis that does not exists in the Convention or the [ITLOS] Statute’ (Ibid., para. 64). Emphasis is also placed on the existence of a general movement among states in favour of the advisory jurisdiction of the Tribunal (Ibid., paras. 65–9). Eventually, Judge Ndiaye voted in favour of the Tribunal's jurisdiction in Case No. 21, without elaborating on his position in an individual Declaration.

38 MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, at 106, para. 51.

39 Separate Opinion of Judge Lucky, para. 1. See also Declaration Judge Cot, para. 3.

40 See, e.g., Wolfrum, supra note 13, at 55. See also Declaration Judge Cot, para. 3 (acknowledging that the preparatory works do not support the Tribunal's interpretation of Art. 21 ITLOS Statute).

41 Separate Opinion of Judge Lucky, paras. 18–19.

42 Ibid., at para. 21. The same argument is put forward by Judge Cot in his Declaration (para. 4).

43 Consider also: Written Statement of Thailand, 14 March 2014, para. 6.

44 You, supra note 15, at 365; Ndiyae, supra note 13, para. 81.

45 Treves, supra note 13, at 91; Wolfrum, supra note 13, at 54. In a similar vein: You, supra note 15, at 365.

46 Art. 96 of the UN Charter. Five UN organs and 16 agencies of the UN family in total can ask for an advisory opinion. The full list can be found in the International Court of Justice Handbook, 2013, 6th edition, 83, available at www.icj-cij.org/publications/en/manuel_en.pdf. The ICJ's jurisdiction ratione personae has already expanded in comparison to its predecessor: only the League Council and Assembly could request advisory opinions from the PCIJ (Art. 14 Covenant League of Nations).

47 K. Oellers-Frahm, ‘Article 96’, in B. Simma et al. (eds.), The Charter of the United Nations. A Commentary (2012), 1975, at 1979.

48 In 2004, the ECtHR dismissed a first request for an advisory opinion on the basis of Art. 47(2) ECHR. Since then, it has adopted only two advisory opinions, both related to the election of judges for the Court. Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights, Advisory Opinion, ECtHR Grand Chamber, 12 February 2008; Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights, No. 2, Advisory Opinion, ECtHR Grand Chamber, 10 January 2010.

49 Art. 64 ACHR refers to the organs listed in Chapter X of the Charter of the Organization of American States.

50 Art. 4 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights refers to the AU itself, any of its organs, or any African organization recognized by the AU.

51 Art. 64(1) ACHR refers to questions ‘[r]egarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states’. On the concept of ‘other treaties’, see also infra. Pursuant to Art. 64(2) ACHR, OAS member states may also request an opinion on the compatibility of any of their domestic laws with the aforesaid instruments.

52 Art. 4 of the Protocol to the ACHPR on the Establishment of the African Court on Human and Peoples’ Rights refers to ‘any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission’.

53 Treves, supra note 13, at 92. A similar view was expressed by Judge Ndiaye: Ndiyae, supra note 13, para. 70. Consider also the position of Judge Kateka: Kateka, supra note 13, at 170–1 (rejecting the view that the advisory jurisdiction is available to ‘individual States’ and warning that ‘the issue of bilateral agreements must be looked at with caution’).

54 J. L. Jesus, ‘Article 138’ in P. Chandrasekhara Rao and P. Gautier (eds.), The Rules of the International Tribunal for the Law of the Sea: a Commentary (2006), Part III, at 394. Also, implicitly, Wolfrum, supra note 13, at 54.

55 Consider also: Written Statement by the Federal Republic of Germany, 18 November 2013, paras. 11–12.1 (‘“[B]ody” may be any organ, entity, institution, organization or State.’).

56 In this sense: You, supra note 15, at 365. Consider also: Ndiayae, supra note 13, para. 70.

57 As Judge Ndiaye explains, the purposes of the Convention include ‘biological resources of the sea; general conservation; environment and ecosystem; marine scientific research; pollution; maritime navigation; piracy and maritime safety; maritime claims and responsibilities; shipping’. Ndiaye, supra note 13, paras. 71ff.

58 Wolfrum, supra note 13, at 54.

59 E.g., Written Statement of Ireland, 28 November 2013, para. 2.11; Written Statement of Japan, 29 November 2013, para. 12 (implicitly).

60 Answering in the affirmative: You, supra note 15, at 368.

61 See paras. 64–5 of the ITLOS Opinion, where the Tribunal confirmed that the questions were ‘framed in terms of law’. Note that the Tribunal referred to the relevant passages of the prior Advisory Opinion of the SBDC of 2011, which in turn cited the established case-law of the ICJ. Several states expressly accepted that the SRFC questions were clearly ‘legal questions’ (e.g., Written Statement by the Federal Republic of Germany, 18 November 2013, para. 10; Written Statement of New Zealand, 27 November 2013, at para. 13). But see, for a critique of the ‘legal’ nature of the questions concerned: Written Statement of the United Kingdom, 28 November 2013, paras. 48–51.

62 Taking the same view, e.g., Written Statement by the Federal Republic of Germany, 18 November 2013, at 8–9; Written Statement of New Zealand, 27 November 2013, paras. 14–15; Written Statement of Japan, 29 November 2013, para. 12.

63 Written Statement of Ireland, 28 November 2013, para. 2.11.

64 Written Statement by the European Commission on behalf of the European Union, 29 November 2013, paras. 8–16. In a similar vein: Written Statement of Thailand, 29 November 2013, at 3/6; Written Statement of Thailand, 14 March 2014, paras. 8–9; Written Statement of Australia, 28 November 2013, paras. 27–32; Written Statement of the Argentine Republic, 28 November 2013, paras. 17–18; Written Statement of the Kingdom of the Netherlands, 29 November 2013, paras. 2.3–2.9; Written Statement of the United States, 27 November 2013, paras. 21–8; Written Statement of the United Kingdom, 28 November 2013, para. 46; Written Statement of the People's Republic of China, 26 November 2013, paras. 77–9.

65 Written Statement by the European Commission on behalf of the European Union, 29 November 2013, para. 10.

66 See, e.g., Written Statement of the United States, 27 November 2013, paras. 24–6.

67 Ibid., at para. 26 (referring to Noyes, J. E., ‘Judicial and arbitral proceedings and the outer limits of the continental shelf’, (2009) 42 Vand. J. Transnat’l L. 1211; Song, Y.-H., ‘The International Tribunal for the Law of the Sea and the possibility of judicial settlement of disputes involving the fishing entity of Taiwan – taking CCSBT as an example’, (2006) 8 San Diego Int’l L.J. 37, at 53–4).

Remark: Judge Wolfrum has suggested that the competence of the full Tribunal to render an advisory opinion ‘is limited to the interpretation of the Convention’. Wolfrum, supra note 13, at 63.

68 See, e.g., Written Statement of the United States, 27 November 2013, para. 25.

69 Written Statement by the Federal Republic of Germany, 18 November 2013, at 9. In a similar vein: Written Statement of Japan, 29 November 2013, paras. 16–17.

70 Written Statement by the Federal Republic of Germany, 18 November 2013, at 9–10.

71 Legality of the Use by a State of nuclear weapons in armed conflict, Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 66, at 77, para. 22.

72 Declaration Judge Cot, para. 12.

73 Under the Tribunal's approach it would be sufficient (1) for the international agreement conferring advisory jurisdiction upon the Tribunal to be related to the purposes of UNCLOS; and (2) for the actual questions themselves to be connected to the (possibly multiple) purposes and principles of the former agreement.

74 See, e.g., Art. 14 of the League Covenant; Art. 65 ICJ Statute; Art. 47 ECHR; Art. 4 of the Protocol to the ACHPR; Art. 64 ACHR; Art. 159(10) UNCLOS. But see Art. 191 UNCLOS, according to which the SBDC ‘shall’ give advisory opinions at the request of the ISA Assembly or Council, and which would seem to suggest that the SBDC enjoys no discretion.

75 Nuclear Weapons, supra note 5, para. 19.

76 ‘Other Treaties’ Subject to the Consultative Jurisdiction of the Court, Advisory Opinion OC-1/82, 24 September, 1982, Inter-Am. Ct. H.R. (Ser. A) No. 1 (1982), dispositif.

77 The ICJ in particular has rejected arguments relying on the motives of the states sponsoring a request for an advisory opinion, or on the alleged harmful consequences of an Advisory Opinion. See in particular: Kosovo, supra note 7, paras. 29ff; Wall, supra note 6, paras. 59–62. It has agreed in principle that a request may be rejected where it is a contentious dispute in disguise (Western Sahara, Advisory Opinion, 16 October 1975, [1975] ICJ Rep. 12, paras. 32–3). At the same time, this exception was ostensibly interpreted narrowly in the Wall Opinion, where the Court held (somewhat circularly) that the question concerned was not of a merely ‘bilateral’ nature, since it had ‘arisen during the proceedings of the General Assembly’. Wall, supra note 6, paras. 46–50. At times, requests for an advisory opinion have, however, been dismissed. See e.g., Status of Eastern Carelia, Advisory Opinion, PCIJ Rep Series B No 5, at 27–9 (see also infra); Compatibility of Draft Legislation with Article 8(2)(h) IACHR (requested by Costa Rica), Advisory Opinion OC-12/91, 6 December 1991, Inter-Am. Ct. H.R. (Ser. A) No 12 (1991), para. 28 (where the IACtHR dismissed a request that ‘could produce, under the guise of an advisory opinion, a determination of contentious matters not yet referred to the Court. . .’).

78 Consider, e.g., Written Statement of the United States, 27 November 2013, at 9, footnote 22, where the US ‘assumed’ that Art. 138 is a valid interpretation of Art. 21 ITLOS Statute to the extent that it states that the Tribunal ‘may’ use an advisory opinion, without being obliged thereto.

79 Written Statement of the Argentine Republic, 28 November 2013, paras. 24ff; Written Statement by the European Commission on behalf of the European Union, 29 November 2013, para. 13; Written Statement of the United Kingdom, 28 November 2013, paras. 52, 57; Written Statement of Australia, 28 November 2013, para. 59.

80 Written Statement of the Argentine Republic, 28 November 2013, paras. 20–3; Written Statement by the European Commission on behalf of the European Union, 29 November 2013, paras. 9–12; Written Statement of Australia, 28 November 2013, para. 54.

81 E.g., Written Statement of Thailand, 29 November 2013, at 3–5/6; Written Statement of Australia, 28 November 2013, paras. 43ff. But see: Written Statement by the Federal Republic of Germany, 18 November 2013, at 10–11.

82 E.g., Written Statement of the United States, 27 November 2013, para. 31; Written Statement of the United Kingdom, 28 November 2013, para. 53.

83 Eastern Carelia, supra note 77, at 27–9.

84 Western Sahara, supra note 77, paras. 32–3.

85 Written Statement of the United States, 27 November 2013, at 11.

86 Ibid., para. 38.

87 This position is understandable, since it is not so much the acceptance of the request for an Advisory Opinion, but rather the way in which the questions are tackled that ultimately determines whether or not a judicial body remains within the boundaries of its judicial function. Consider in this context: Written Statement of New Zealand, 27 November 2013, paras. 19–20.

88 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, 30 March 1950, [1950] ICJ Rep. 65, at 71–2.

89 Still, some states suggested that the questions posed by the SRFC involved issues more appropriate for settlement by means of a case under contentious jurisdiction. E.g., Written Statement of Thailand, 29 November 2013, at 4/6; Written Statement by the Kingdom of Spain, 29 November 2013, at 13–14 (holding that the questions posed were ‘of a wide enough nature as to give rise to controversies between States’).

90 This argument is also criticized by Judge Cot, para. 11.

91 E.g., Interpretation of Peace Treaties, supra note 88, at 71.

92 Declaration of Judge Cot, paras. 5–9.

93 Note: The advisory jurisdiction of the African Court on Human and Peoples’ Rights similarly extends to ‘any legal matter relating to the Charter or any other relevant human rights instruments’ (emphasis added). See supra, note 52.

94 Other Treaties, supra note 76.

95 See: The right to information on consular assistance in the framework of guarantees of the due process of law, Advisory Opinion OC-16/99, 1 October, 1999, Inter-Am. Ct. H.R. (Ser. A) No 16 (1999); Juridical status and human rights of the Child, Advisory Opinion OC-17/2002, 28 August, 2002, Inter-Am. Ct. H.R. (Ser. A) No. 17 (2002).

96 Other Treaties, supra note 76, para. 25.

97 Note that the Court's advisory competence not only with regard to states parties to the Convention, but also with regard to OAS and all of its member states, was confirmed by the OAS General Assembly when it adopted the Statute of the Court. Buergenthal, T., ‘The Advisory Practice of the Inter-American Human Rights Court’, (1985) 79 (1)American Journal of International Law 1, at 2. General Assembly of the Organization of American States, Statute of the I/A Court, Resolution No. 448, La Paz, October 1979, Art. 2.

98 See, e.g., Other Treaties, supra note 76, paras. 15–17; The right to information on consular assistance in the framework of guarantees of the due process of law, supra note 95, para. 64; Juridical status and human rights of the Child’, supra note 95, para. 34.

99 See, Other Treaties, supra note 76, paras. 20ff.

100 Ibid., para. 38.

101 Ibid., dispositif. See also paras. 21, 38, 49 (‘if a request for an advisory opinion has as its principal purpose the determination of the scope of, or compliance with, international commitments assumed by States outside the inter-American system’). To this end, the Court indicated that it was necessary to verify the purpose of each request for an advisory opinion on a case-by-case basis.

102 See, e.g., Wolfrum, supra note 13, at 66 (‘The legitimate interests of a State in the outcome of an advisory opinion proceeding are adequately protected . . . by the opportunity accorded it [sic] under the Rules of Procedure of the Court to participate fully in those proceedings and to make known to the Court its views regarding the legal norms to be interpreted and any jurisdictional objections it might have . . .’). Consider also: You, supra note 15, at 367.

103 Request for an advisory opinion submitted by the sub-regional fisheries commission, Order 2013/2, 24 May 2013.

104 See, e.g., Written Statements of Spain and Germany.

105 Advisory Opinion, paras. 87 (‘the first question in terms of geographical scope relates only to the exclusive economic zones of the SRFC Member States. . .’), 89, 179. Consider also: Written Statement by the Federal Republic of Germany, 18 November 2013, para. 18.

106 Thus, referring to the Opinion of the SBDC of 2011 as well as the ICJ judgment in the Pulp Mills case (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, [2010] ICJ Rep. 14, at 79, para. 197), the Tribunal concludes that flag states have a ‘due diligence obligation’ to take all necessary measures to prevent IUU fishing by fishing vessels flying its flag (paras. 129–30). Conversely, states will be liable (only) when they fail to comply with this obligation of ‘due diligence’ (paras. 146–8). In cases where an international organization (such as the EU), in the exercise of its exclusive competence in fisheries matters, concludes a fisheries access agreement, which provides for access by vessels flying the flag of its member states to fish in the EEZ of that state, the obligations of the flag state become the obligations of the international organization (para. 172). It follows that, in such a scenario, it will be the international organization that may be held liable for any breach of its ‘due diligence’ obligations, and not its member states (para. 173). In relation to the fourth question, the Tribunal concludes, inter alia, that the obligations ‘to seek to agree’ on measures for the conservation and management of fish stocks under Arts. 63(1) and 64(1) UNCLOS are ‘due diligence’ obligations which require the states concerned to consult with one another in good faith (para. 210).

107 Stephens, T., ‘ITLOS Advisory Opinion: coastal and flag state duties to ensure sustainable fisheries management’, (2015) 19 (8)ASIL Insights, 16 April 2015, available at www.asil.org/insights/volume/19/issue/8/itlos-advisory-opinion-coastal-and-flag-state-duties-ensure.

108 Separate Opinion of Judge Lucky, para. 1.

109 Wolfrum, supra note 13, at 54 (‘The probably most convincing answer . . . is that Art. 138 of the Rules establishes a consensual solution. If the jurisdiction of international courts and tribunals is based upon the consensus of the parties concerned there is no reason to deny them to establish an additional jurisdiction.’). See also in this sense: Ndiaye, supra note 13, paras. 63–4 (referring to ‘the agreement path’). But see: Written Statement of the United Kingdom, 28 November 2013, paras. 25–8.

110 H. Lauterpacht, The development of international law by the International Court (1958), 357–8.

111 Oellers-Frahm, supra note 47, at 1979.

112 Other Treaties, supra note 76, paras. 21, 38, 49.

113 Cf. Australia, Written Statement of 28 November 2013, at 20: ‘[W]ith the exception of Article 33 of the MCA Agreement, Australia is not aware of any international agreement that purports to confer advisory jurisdiction on the Tribunal’.

114 Ndiaye, supra note 13, para. 79.

115 See, e.g., Written Statement of the People's Republic of China, 26 November 2013, para. 64.

116 Ndiaye, supra note 13, para. 88. Consider also the statement by (then) ITLOS President Jesus before the UN General Assembly in 2008, at para. 9, available at www.itlos.org/fileadmin/itlos/documents/statements_of_president/jesus/general_assembly_051208_eng.pdf.

117 Wolfrum, supra note 13, at 63; Kateka, supra note 13, at 163.

118 E.g., Written Statement of the Argentine Republic, 28 November 2013, para. 31. More neutral: Written Statement of the People's Republic of China, 26 November 2013, paras. 64–5.

119 Separate Opinion of Judge Lucky, para. 28.

* Assistant Professor of international law, Ghent University, Ghent Rolin-Jaequemyns International Law Institute (GRILI) [].

** Assistant and PhD candidate, Ghent University, Ghent Rolin-Jaequemyns International Law Institute (GRILI) [].

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