1. Introduction
Over the past 20 years, the exercise by several international courts and tribunals of the advisory jurisdiction conferred on them has attracted renewed academic attention for the use (and possible abuse) of advisory proceedings. Advisory jurisdiction can count on strong believers. It has been claimed to have the ‘advantage that it does not stigmatize a government as a violator . . . . At the same time, however, it makes the abstract legal issue perfectly clear for any government wishing to avoid being held in violation of international legal obligations.’Footnote 1 It stands beyond doubt that various Opinions of the International Court of Justice (ICJ) have contributed immensely to the clarification of international law, e.g. in relation to questions of international legal personalityFootnote 2 or the permissibility of reservations to treaties.Footnote 3 On the other hand, there are also more critical sounds, with some warning against the use of advisory procedures to tackle questions that essentially touch upon contentious disputes and/or highly politicized issues.Footnote 4 It is no coincidence that in the procedures preceding the ICJ's advisory opinions on the Legality of the threat or use of nuclear weapons,Footnote 5 on the Palestinian wall,Footnote 6 and on the Unilateral declaration of independence in respect of Kosovo,Footnote 7 – which all dealt with highly sensitive issues – numerous states took the view that the Court did not have jurisdiction, or should use its discretion to dismiss the request for an advisory opinion. Accusations of ‘creeping’ jurisdiction are never far away.
History suggests that the recourse to advisory proceedings has sometimes functioned as a way to test the quality of a newly established international tribunal.Footnote 8 The experience of the International Tribunal for the Law of the Sea (ITLOS, or the Tribunal) follows a different path. Since its inception in 1996–97, the Tribunal has developed a strong track record in contentious proceedings.Footnote 9 By contrast, the Tribunal's advisory jurisdiction has come to blossom only recently. It took until May 2010 for the Tribunal to first receive a request for an advisory opinion. In particular, it received a request from the International Seabed Authority (ISA) pursuant to Article 191 of the United Nations Convention on the Law of the Sea (UNCLOS), addressed to the Tribunal's Seabed Disputes Chamber (SBDC), and requesting clarification on the legal responsibilities of states sponsoring deep seabed exploration and exploitation. The OpinionFootnote 10 followed eight months later, and was broadly welcomed throughout the international community.Footnote 11
The exercise by the full Tribunal of its advisory competence is of an even more recent nature. Contrary to what is the case for the SBDC, this competence is not expressly enshrined in UNCLOS, nor in the ITLOS Statute annexed thereto. Rather, the advisory jurisdiction of the full Tribunal was explicitly asserted and circumscribed when the Tribunal first adopted its Rules of Procedure in 1997 (Art. 138 of the ‘Rules’).Footnote 12 It was affirmed in subsequent years by several individual judges,Footnote 13 with some construing it as ‘a fallback procedure at a time when there is a lack of cases before international courts and tribunals’,Footnote 14 and ostensibly received support from a number of states parties to UNCLOS.Footnote 15 At the same time, as recently as 2013, Judge Wolfrum stressed that the conditions set by Article 138 of the Rules constituted ‘a high threshold which makes it rather unlikely that States may use this option’.Footnote 16 In June 2012, however, the seven (West-African) member states of the Sub-Regional Fisheries Commission (SRFC) adopted the ‘Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the [SRFC]’ (MCA Convention).Footnote 17 Article 33 of the MCA Convention explicitly provides that ‘[t]he Conference of Ministers of the SRFC may authorize the Permanent Secretary of the SRFC to bring a given legal matter before the [ITLOS] for advisory opinion’. Shortly after the MCA Convention's entry into force, the provision was indeed activated, and by letter of 27 March 2013 the SRFC Permanent Secretary submitted a request for an advisory opinion to the Tribunal,Footnote 18 thus triggering – for the first time – the advisory procedure before the full Tribunal (Case No. 21).
The SRFC request must be seen against the background of the global problem of ‘illegal, unreported and unregulated fishing’ (IUU fishing),Footnote 19 which creates both environmental damage by destroying fish stocks and the marine environment,Footnote 20 as well as economic harm,Footnote 21 in addition to creating food scarcity, ultimately threatening the livelihoods of coastal communities. Experts estimate that one in five fish caught is linked to illegal activity, which equates to up to US$23.5 billion in worth annually.Footnote 22 Developing countries are most plagued but lack the capabilities to effectively monitor fishing activities and enforce their fisheries regulations. West Africa in particular has been described as an ‘IUU hot spot’.Footnote 23
The SRFC request listed four questions. The first two related respectively to the obligations, and the liability, of flag states in relation to IUU fishing activities (within the EEZ of third party states) by vessels sailing their flag. The third question raised the issue of liability of a flag state or international organization for the violation of the fisheries legislation of a coastal state by a vessel holding a fishing licence issued within the framework of an international agreement with that flag state or international organization. The fourth and last question concerned the rights and obligations of the coastal state in ensuring management of shared stocks and stocks of common interest.
Inasmuch as the full Tribunal's advisory competence was explicitly asserted by the Tribunal in its Rules of Procedure, and was subsequently defended by several individual judges, it hardly comes as a surprise that the Opinion that was eventually adopted on 2 April 2015 rejected the objections to ITLOS’ jurisdiction.Footnote 24 Still, 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. The present contribution takes a closer look at the advisory jurisdiction of the full Tribunal, having regard to the experiences and approaches of other international courts and tribunals. Sections 2 to 4 deal consecutively with the legal basis of the full Tribunal's advisory jurisdiction, with the limits to that jurisdiction and with questions of judicial propriety. Section 5 briefly looks at the merits of Case No. 21 and the organization of the procedure. Section 6 spells out some concluding remarks.
2. The legal basis of the full Tribunal's advisory jurisdiction
A variety of international courts and tribunals have been granted the competence to render advisory opinions. Such competence is commonly enshrined expressly in the judicial body's constituent instrument(s) (or a Protocol thereto). This is the case for the ICJ, the SBDC, the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court on Human Rights and Peoples’ Rights (AfCtHR).Footnote 25 The obvious exception to this practice is Article 138 of the Rules of the Tribunal.
In light of the ‘odd’Footnote 26 genesis of the Tribunal's advisory competence, and given that this was the first request for an Advisory Opinion addressed to the full Tribunal, the issue of jurisdiction was hotly debated during the written and oral procedures in Case No. 21. A considerable number of states, including the United States, the United Kingdom, China, Australia, France, Spain, Ireland, Thailand, and Portugal, effectively challenged the advisory competence of the Tribunal head-on.Footnote 27 The main objections can be summarized as follows. First, inasmuch as the Tribunal cannot, by adopting its Rules of Procedure, confer upon itself broader powers than do the 1982 Law of the Sea Convention and its annexes, the validity of Article 138 of the Rules depends on whether it is consistent with the provisions of the Convention and the ITLOS Statute annexed thereto (Annex VI).Footnote 28 Second, as mentioned before, neither the Convention, nor the ITLOS Statute expressly provide for advisory jurisdiction on the part of the full Tribunal. Third, neither Article 288(2) UNCLOS, nor Article 21 ITLOS Statute can be interpreted as conferring upon the full Tribunal any advisory competence.Footnote 29 The former provision deals with ‘disputes’ concerning the interpretation or application of an international agreement related to the purposes of UNCLOS, and is included in Section 2, Part XV UNCLOS, entitled ‘compulsory procedures entailing binding decisions’, thus clearly signalling that it is exclusively concerned with contentious procedures. The latter provision is admittedly phrased more broadly, inasmuch as it refers to jurisdiction, not only over ‘all disputes and all applications submitted to it in accordance with this Convention’, but also over ‘all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal’. However, it would be erroneous to interpret the word ‘matters’ as extending to requests for advisory opinions, since: (1) the French version of Article 21 ITLOS Statute suggests a more restrictive reading;Footnote 30 (2) the negotiation history of this provision and of the Convention indicates a reluctance on the part of states to confer advisory jurisdiction upon the Tribunal;Footnote 31 (3) one might have expected that, if states wished to confer advisory jurisdiction upon the full Tribunal, they would have done so expressly, and would have clearly delineated the contours of that jurisdiction, which is exactly what they did with regard to the advisory competence of the SBDC; and (4) Article 21 ITLOS Statute is mirrored after Article 36(1) ICJ Statute, where the phrase ‘all matters’ has been understood as referring to contentious procedures submitted to the Court pursuant to the consent of the parties involved.Footnote 32 Fourth, reliance on the doctrine of ‘inherent powers’ is unconvincing. Such doctrine only applies for powers/competences that are merely ‘ancillary’ in nature and that are essential to the fulfilment of the primary competences of the organization concerned. Accordingly, it cannot serve to create a new form of jurisdiction. Again, practice reveals that all major international courts and tribunals that have rendered advisory opinions have done so pursuant to express authority found in a statute or other governing legal document. Such an approach is crucial since it allows the founding states to define the advisory jurisdiction ratione personae and ratione materiae – which they have moreover done in very divergent ways (there is indeed no single blueprint for advisory jurisdiction). Nor is there support in legal doctrine that judicial tribunals can have an ‘inherent’ advisory jurisdiction absent an express grant of jurisdiction.Footnote 33
On the other hand, a number of states expressed support for the advisory competence of the full Tribunal in their written statements (albeit several refrained from elaborating on the exact legal basis).Footnote 34 Germany, for instance, the host country of the Tribunal and uncoincidentally one of the main supporters of the Tribunal's advisory competence, stressed that neither the Convention nor the Statute ‘explicitly [indicated] that such jurisdiction shall be excluded’.Footnote 35 According to Germany, these were ‘living instruments’. The reference to ‘all matters’ in Article 21 ITLOS Statute provided an ‘implicit’ legal basis for the competence of the full Tribunal to issue advisory opinions, and should be interpreted ‘[in] light of a general movement amongst states in favor of the Tribunal's jurisdiction’ to this end.Footnote 36 Germany suggested that this more favourable attitude amongst states had superseded the initial reluctance on the part of some member states to explicitly confer advisory competence to the Tribunal.
The outcome of the procedure in this respect was an entirely predictable self-fulfilling prophecy – it would have been rather surprising indeed had the Tribunal suddenly made a mea culpa and acknowledged that it had acted ultra vires by adopting Article 138 of the Rules. Still, the brevity with which the Tribunal does away with the objections to its jurisdiction is regrettable. In only a handful of paragraphs (paragraphs 52–9), the Tribunal confirms that the inclusion of the phrase ‘all matters’ in Article 21 ITLOS Statute implies that it must mean something more than ‘disputes’ or ‘applications’, this something including requests for advisory opinions.Footnote 37 According to the Tribunal, Article 21 ITLOS Statute is not subordinate to Article 288 UNCLOS, but stands on its own. Furthermore, the Tribunal dismisses the suggestion that the expression ‘all matters’ in Article 21 ITLOS Statute should have the same meaning as in the relevant provisions of the PCIJ and ICJ Statutes (after which the provision was modelled). In this context, the Tribunal quotes from its Order in the Mox Plant case, where it held that:
the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires.Footnote 38
The quote rings hollow, however, as the Tribunal makes no effort whatsoever to justify its interpretation of Article 21 ITLOS Statute by reference to the preparatory works, to the context or to subsequent practice. Instead, the Tribunal merely finds that Article 21 ITLOS Statute constitutes an enabling provision which makes it possible for ‘other international agreements related to the purposes of UNCLOS’ to confer advisory jurisdiction upon it. Article 138 of the Rules in turn does not ‘establish’ the jurisdiction of the Tribunal, but ‘furnishes the prerequisites that need to be satisfied before the Tribunal can exercise’ its advisory jurisdiction (paragraph 59).
Upon reading paragraphs 52–9 of the Opinion, it is difficult to suppress a feeling of unease. This is all the more so inasmuch as several states raised a range of objections against the Tribunal's advisory competence – arguments which Judge Lucky labelled as ‘cogent, clear and articulate, as well as considerably persuasive’,Footnote 39 which the Tribunal summarizes (paragraphs 40–7), without, however responding thereto, and inasmuch as individual judges had previously acknowledged the reluctance at the time of the drafting of the Convention to endow the full Tribunal with advisory jurisdiction.Footnote 40 Judge Lucky merits praise for his effort to remedy the silence on the part of the Tribunal, by giving a more elaborate reasoning in his Separate Opinion – although the arguments put forward remain ultimately unconvincing. In essence, Judge Lucky adopts the view that the Convention and ITLOS Statute are ‘living instruments’ that can ‘grow’ and ‘adapt’ in light of changing circumstances and advances in technology.Footnote 41 Against this background, Article 21 ITLOS Statute must allegedly be interpreted having regard to the fact that no state has asked the Rules, and specifically Article 138, to be amended, since their adoption in 1997.Footnote 42 Yet, it remains difficult to see what ‘changes in circumstances’ or technological advances would justify the creation of a separate (advisory) procedure before the Tribunal which the drafters of the Convention were initially unwilling to accept. A reliance on the acquiescence of states, and the support of some, vis-à-vis Article 138 of the Rules to justify the creation of a new procedural avenue originally not foreseen is similarly hard to follow. Apart from the fact that this indeed strikes as a peculiar application of the concept of ‘subsequent practice’ as a tool for treaty interpretation (Art. 31(3)(b) Vienna Convention on the Law of Treaties), one cannot ignore that on the first occasion when Article 138 was actually applied, a considerable number of states contested the Tribunal's advisory competence.Footnote 43
3. The limits of the full Tribunal's advisory jurisdiction
Leaving aside the existential debate over the Tribunal's advisory competence, numerous states took the view that the SRFC request exceeded the boundaries of that competence and/or insisted that the request be dismissed due to considerations of judicial propriety. Article 138 of the Rules states that the Tribunal ‘may’ give an advisory opinion if the following three requirements are met: (1) there is an international agreement ‘related to the purposes of the Convention’ which specifically provides for the submission to the Tribunal of a request for an advisory opinion; (2) the request must be transmitted to the Tribunal by a ‘body’ authorized by or in accordance with the agreement mentioned above; and (3) the request must relate to one or more ‘legal’ questions. The questions should also be unrelated to the international seabed regime (which is the domaine réservé of the SBDC).Footnote 44
Several ITLOS judges have asserted that the requirements of Article 138 are ‘quite strict’.Footnote 45 When comparing it to the scope of the advisory competence of other international courts and tribunals, it may, however, be questioned whether that is correct. By way of illustration, the ICJ Statute provides for a broad advisory competence ratione materiae, which may ultimately concern any domain of international law. This is, however, counterbalanced by a crucial limitation ratione personae. Requests for advisory opinions can indeed only be brought by the UN General Assembly (UNGA) and the UN Security Council, or – subject to the speciality principle – by other UN bodies or specialized organizations duly authorized by the UNGA.Footnote 46 The possibility for states to bring requests for advisory opinions was deliberately excluded,Footnote 47 since this was perceived as a recipe for circumventing the consensual basis of contentious proceedings. In several other settings, requests for advisory opinions can be brought only by international institutions. Thus, only the Committee of Ministers can request an advisory opinion from the ECtHR, and then only on ‘legal questions concerning the interpretation of the Convention and the Protocols thereto’ (Art. 47 ECHR). Pursuant to Article 47(2) ECHR, opinions shall moreover not deal with any question relating to the content or scope of the rights and freedoms enshrined in the Convention, or with any other question which might come up in a contentious case. The result is that the ECtHR's advisory competence is essentially limited to so-called ‘housekeeping’ issues.Footnote 48 In turn, requests for an advisory opinion from the SBDC can be submitted only by (1) the Assembly and Council of the ISA, on questions arising within the scope of their activities (Art. 191 UNCLOS), or (2) the ISA Assembly, pursuant to a request sponsored by at least one fourth of the members, on the conformity with UNCLOS of a proposal before the Assembly (Art 159(1) UNCLOS). The IACtHR and the AfCtHR both have a broad advisory jurisdiction ratione personae, in that requests can be submitted not only by various organs of the Organisation of American States (OAS)Footnote 49 and the African Union (AU),Footnote 50 but also by the organizations’ respective member states. In the last two cases, however, the jurisdiction ratione materiae is generally limited to the protection of human rights in American and African states respectively. Comparing the three regional human rights courts, the IACtHR has the broadest ratione materiae scope,Footnote 51 followed by the AfCtHR,Footnote 52 with the ECtHR dangling at the bottom. Overall, a broad ratione materiae scope is rare, and will normally be hinged on limited ratione personae scope, and vice versa.
By contrast, Article 138 of the Rules does not impose stringent limitations to the full Tribunal's advisory jurisdiction whether ratione personae or ratione materiae. On the one hand, the provision does not pre-determine ‘who’ can request an advisory opinion. Some, such as (former) Judge Treves, have suggested that the reference to a ‘body’ in Article 138 of the Rules indicates that advisory opinions are an instrument at the disposal of international organizations, and not of states.Footnote 53 Others, including Judge Jesus, have suggested that whoever is indicated in an ‘agreement related to the purposes of UNCLOS’ as being empowered to request an advisory opinion would qualify as a ‘body’ in the meaning of said provision.Footnote 54 This would imply that any agreement related to the purposes of UNCLOS concluded between at least two parties having the requisite international legal personality (e.g. two states, or a state and an international organization), and specifically providing for it, could serve as the jurisdictional basis for the advisory competence of the Tribunal.Footnote 55 The latter interpretation is arguably more convincing: if one accepts a broad interpretation of Article 21 ITLOS Statute to serve as the enabling provision underlying the full Tribunal's advisory competence, it seems illogical and legally dubious to subsequently curtail the scope of Article 21 ITLOS Statute (in fine) via a (restrictive reading of) the subordinate rule enshrined in Article 138 of the Rules. The Tribunal's Advisory Opinion of 2 April 2015 does not give any further indications in this context. Yet, the Opinion does confirm that, even upon a restrictive reading of the word ‘body’, it remains possible for states (in casu a group of seven African states) to indirectly seek an advisory opinion by making use, through an agreement (whether multilateral or bilateral), of an existing ‘body’.Footnote 56
On the other hand, Article 138 of the Rules does not impose express limitations on the Tribunal's advisory jurisdiction ratione materiae, other than the fact that the international agreement conferring jurisdiction should be ‘related to’ one or more of the manifold ‘purposes of UNCLOS’.Footnote 57 Two scenarios can be discerned. First, states might well conclude an agreement with no other aim but to trigger an advisory procedure before the full Tribunal and identifying the questions to be raised. As long as the questions themselves are related to UNCLOS, one might argue that it meets the requirement of Article 138 of the Rules. Judge Wolfrum for one seems to accept that a request pursuant to such agreement would be admissibleFootnote 58 – although several states criticized this possibility in their written statements to the Tribunal.Footnote 59 The second scenario is that where states have concluded an agreement setting forth certain rights and obligations related (inter alia?) to the scope of UNCLOS – consider e.g., a maritime delimitation agreement, or a fisheries agreement – and containing a clause providing for the possibility to request an advisory opinion to the full Tribunal. In this scenario – which is also the one the Tribunal was confronted with pursuant to the SRFC request – the separate question arises whether the legal questions themselves must relate to UNCLOSFootnote 60 and/or to the interpretation and application of the provisions of the international agreement conferring advisory jurisdiction upon the full Tribunal. This sensitive issue finds no explicit answer in Article 138 of the Rules, and, as will be seen below, proved a source of much debate in the context of Case No. 21.
Having a closer look at the SRFC request, it is obvious that the four questions submitted to the Tribunal qualified as ‘legal questions’ – especially when considering the flexible interpretation of that concept in the case law of the ICJ (see supra).Footnote 61 By the same token, there is no reason why the SRFC Conference of Ministers should not qualify as a ‘body’ in the sense of Article 138 of the Rules. It is also hard to disagree with the Tribunal's finding (paragraph 63) that the MCA Convention constitutes an international agreement ‘closely related to the purposes of the Convention’.Footnote 62 Indeed, as stated in its preamble, the objective of the MCA Convention is especially to implement the UNCLOS provisions calling for the signing of regional and sub-regional cooperation agreements in the fisheries sector, and to ensure that the policies and legislation of its member states are more effectively harmonized with a view to a better exploitation of fisheries resources in the maritime zones under their respective jurisdictions.
In spite of the foregoing, several states argued that the SRFC request should nonetheless be deemed inadmissible because the questions were not related to the interpretation or application of the MCA Convention itself. Rather, these questions, concerning the obligations and liability of flag states in relation to IUU fishing and the corresponding rights and obligations of coastal states, were of a much more general nature, touching upon a variety of international instruments, such as the 1995 Fish Stocks Agreement or the 2009 Port State Measures Agreement. Ireland, for instance, took the view that a request for an advisory opinion pursuant to an international agreement related to the purposes of UNCLOS should necessarily be limited to the interpretation of the terms of that agreement, or to the application between the parties inter se, or to the consistency of that agreement with the terms of UNCLOS.Footnote 63 A similar position was voiced by the EU, as well as by many other states.Footnote 64 Such limitation was deemed to be the expression of a general principle of law governing judicial functions, pertinent also to advisory opinions.Footnote 65 It was reflected in Article 288(2) UNCLOS, which refers to jurisdiction over any dispute ‘concerning the interpretation or application of an international agreement related to the purposes of this Convention’.Footnote 66 This interpretation was also said to find support in academic scholarship.Footnote 67 If, by contrast, Article 21 ITLOS Statute were interpreted as imposing no restrictions ratione materiae, this would lead to the absurd result that the Tribunal could theoretically have jurisdiction over questions completely unrelated to the international law of the sea (e.g. questions of human rights law, or law of armed conflict etc.).Footnote 68
On the other hand, Germany, for instance, while noting that ‘the Tribunal by its very nature would only deal with questions arising from the Law of the Sea’, stressed that there were no grounds to demand that questions be ‘directly derived’ from the international agreement allowing for the request to the Tribunal.Footnote 69 At the same time, it stressed that the questions raised by the SRFC were ‘not formulated solely with regard to international instruments other than the MCA Convention . . . but [were] connected to the MCA Convention as well as to the [UNCLOS] Convention’.Footnote 70
The Tribunal eventually held that the SRFC request satisfied all requirements of Article 138 of the Rules (paragraph 61). It asserted that the questions posed should constitute matters ‘which fall within the framework of’ the international agreement conferring jurisdiction upon the Tribunal (here the MCA Convention) (paragraph 67). On the other hand, it unequivocally dismissed the suggestion that the questions should ‘necessarily be limited to the interpretation or application of any specific provision of’ the MCA Convention. Instead, it was ‘enough if these questions have . . . a “sufficient connection” . . . with the purposes and principles of the MCA Convention’ (paragraph 68). This approach was ostensibly borrowed from the ICJ advisory opinion Legality of the use by a State of nuclear weapons in armed conflict, where the Court held inadmissible the request for an advisory opinion of the World Health Organization (WHO) because the questions raised, did not have ‘a sufficient connection with’ the WHO's functions.Footnote 71 In the latter case, the ‘sufficient connection’ test was, however, used in a rather different context, notably to verify whether the particular request brought by the WHO was compatible with the principle of speciality. In spite of the rather different setting in the case brought before it, the Tribunal's Opinion does not further explain its relatively flexible – or ‘generous’ as Judge Cot would have itFootnote 72 – approach ratione materiae. In extremis, this approach does not exclude the submission of a request for an advisory opinion that is as such unrelated to the law of the sea.Footnote 73 Yet one may assume that in a such unlikely scenario the Tribunal would wisely insist that questions themselves must also have a ‘sufficient connection’ to the law of the sea.
4. Considerations of judicial propriety
Most international judicial bodies that have been granted the competence to render advisory opinions also enjoy a discretionary power to dismiss requests for an advisory opinion as a matter of judicial proprietyFootnote 74 if there are ‘compelling’Footnote 75 or ‘specific’Footnote 76 reasons. States have frequently invoked a variety of arguments, such as the lack of factual elements, the alleged harmful consequences of an advisory opinion, or the existence of an underlying contentious dispute, to secure the dismissal of the request – albeit such attempts have mostly been unsuccessful.Footnote 77
Article 138 of the Rules similarly states that the (full) ‘Tribunal may give an advisory opinion’ (emphasis added) when so requested.Footnote 78 In light thereof, several states appealed to the Tribunal's discretionary powers, to urge (in vain) that it decline the SRFC request. Various arguments were raised, including, for instance, the SRFC's alleged failure to substantiate its request with the requisite documents and factual elements,Footnote 79 or the fact that the request would allegedly place ITLOS in the role of international legislator.Footnote 80 The central argument related to the erga omnes character of the SRFC's questions, in that they undeniably touched upon the rights and obligations of third states not members of the SRFC.Footnote 81 Reference was madeFootnote 82 inevitably to the Eastern Carelia case, where the PCIJ essentially found that the Council of the League of Nations was not competent to request an advisory opinion, since the questions bore on an actual dispute between Finland and the Soviet Union, and the Soviet Union was not a member of the League.Footnote 83 Others referred to the Western Sahara case, where the ICJ affirmed that ‘the lack of consent of an interested state may render the giving of an advisory opinion incompatible with the Court's judicial character’, in particular when this would have ‘the effect of circumventing the principle that a state is not obliged to allow its disputes to be submitted to judicial settlement without its consent’.Footnote 84 It was also observed that the SRFC request obliged the Tribunal to look at a variety of legal instruments, such as the 2009 Port State Measures Agreement, which did not themselves provide for any form of advisory jurisdiction.Footnote 85 Some explicitly warned that if the Tribunal did not dismiss the SRFC request, this might serve as an incentive for states to enter into new (bilateral or multilateral) agreements, with the sole purpose of conferring advisory jurisdiction to the Tribunal ‘over a matter under another agreement that does not confer such jurisdiction’.Footnote 86
The Advisory Opinion gives short shrift to the abovementioned pleas. Citing the case-law of the ICJ, the Tribunal first asserts that a request for an advisory opinion should not be refused except for ‘compelling reasons’ (paragraph 71). Objections that the SRFC request would force the Tribunal into a ‘lawmaking’ role are dismissed.Footnote 87 As far as the relevance of third-state consent is concerned, the Tribunal confines itself to referring to the ICJ's 1950 Peace Treaties advisory opinion.Footnote 88 By reference to the latter opinion, it is concluded that the consent of states not members of the SRFC is not required, since the advisory opinion ‘has no binding force’ for the latter, but merely seeks to offer guidance to the SRFC in respect of the performance of its own activities and the implementation of the MCA Convention (paragraphs 76–7).
Even though the boundary between the abstract and the concrete is not clear-cut and is always subjective to some extent, the questions in the SRFC request are arguably legal questions of a more abstract and general nature, rather than questions related to, or inspired by, a concrete and actual dispute between individual states. Put differently, the SRFC request can hardly be regarded as an attempt to circumvent the limits of contentious jurisdiction (in the sense of the Western Sahara opinion).Footnote 89 On the other hand, the Tribunal's observation that its Advisory Opinion has no ‘binding force’, and is ‘given only to the SRFC’ is not entirely persuasive (paragraph 76).Footnote 90 Such argument – which admittedly has also been invoked by the ICJFootnote 91 – ignores that advisory opinions may carry significant legal weight and offer an authoritative interpretation of (sometimes vague or divergently interpreted) norms of international law – especially when the court or tribunal is not ‘regional’ but truly ‘global’ in nature – and thus undeniably carry a legal effect that reverberates beyond the author of the request.
What is more, the Tribunal's reliance on the ICJ case-law overlooks two important differences between the advisory competence of the ICJ, on the one hand, and that of ITLOS, on the other hand. First, in the case of the ICJ, advisory jurisdiction is conferred directly by the UN Charter, i.e., a multilateral instrument all UN member states have consented to be bound by. Acceptance of the ICJ's broad advisory competence thus follows directly from the ratification of the UN Charter and the ICJ Statute. By contrast, if one follows the Tribunal's own reasoning, its advisory competence does not directly originate from Article 21 ITLOS Statute (which is only an enabling provision), but rather from the other ‘international agreement related to the purposes of UNCLOS’, which may well be accepted by a far lower number of states parties than UNCLOS itself (as in the case of the MCA Convention). Second, one should not ignore that a request for an advisory opinion from the ICJ must stem from the UN General Assembly or UN Security Council, or a duly authorized UN specialized organization. In other words, requests necessarily stem from an organization with quasi-universal membership and which carries a certain international legitimacy (within the confines of the competences it holds). These requests must be adopted with the requisite majority within the organization, pursuant to a procedure in which all interested parties in principle have an opportunity to be heard and weigh in. No such legitimacy or involvement of interested states is guaranteed in the context of requests for an advisory opinion to the full Tribunal under Article 138 of the Rules. This point was also emphasized by Judge Cot, who was the only member of the bench to hold that the Tribunal should not have taken up the SRFC request.Footnote 92
One might object that, in the end, the Tribunal's approach is no different from the one adopted by the IACtHR. Indeed, pursuant to Article 64 IACHR, the Inter-American Court can issue advisory opinions pursuant to requests thereto from either OAS member states or OAS organs (see supra). Such requests may relate not only to the interpretation of the ACHR, but also to the interpretation of ‘other treaties concerning the protection of human rights in the American States’.Footnote 93 In an Advisory Opinion from 1982, the Court affirmed that it could exercise its advisory jurisdiction:
with regard to any provision dealing with the protection of human rights set forth in any international treaty applicable in the American States, regardless of whether it be bilateral or multilateral, whatever the principal purpose of such a treaty, and whether or not non-Member States of the inter-American system are or have the right to become parties thereto.Footnote 94
In subsequent opinions, the Inter-American Court has effectively proceeded to interpreting multilateral instruments to which numerous non-American states are parties, but that were deemed to ‘concern the protection of human rights in the American States’. Examples include the Vienna Convention on Consular Relations and the Convention on the Rights of the Child.Footnote 95 This broad approach ratione materiae has been justified in a manner echoing the ICJ's case-law. Thus, it was stressed that advisory opinions are ‘intended to assist the American States in fulfilling their international human rights obligations and to assist the different organs of the inter-American system to carry out the functions assigned to them in this field’.Footnote 96 Against this background, the Inter-American Court's approach could be seen as supporting that of ITLOS in its Opinion of 2015.
Again, however, two reservations are due. First, the broad jurisdiction ratione materiae of the Inter-American Court is explicitly enshrined in Article 64 IACHR.Footnote 97 The Inter-American Court has moreover consistently emphasized that, in contrast to the advisory competence of other international tribunals, Article 64 was framed in a uniquely broad manner, and that the preparatory work of the Convention indicates that this was done deliberately.Footnote 98 It is clear that the same cannot be said for Article 21 ITLOS Statute. Secondly, the Inter-American Court accepts that there may be ‘specific reasons’ why it may decline to comply with a request for an advisory opinion.Footnote 99 In particular, it has stressed that the principal purpose of a request for an advisory opinion ought to relate to the implementation or scope of international obligations assumed by a member state of the inter-American system.Footnote 100 Conversely, the Court held that it lacks jurisdiction to render an opinion ‘if the issues raised deal mainly with international obligations assumed by a non-American state or with the structure or operation of international organs or bodies outside the inter-American system’.Footnote 101 There have so far been no cases where the IACtHR has dismissed a request for an advisory opinion on the grounds that it essentially dealt with the international obligations of non-American states. Still, if one were to transplant the Court's reasoning to the SRFC request, one may wonder if at least some of the questions were not related primarily to the international obligations of non-SRFC members, rather than to assisting the SRFC to carry out its functions.
5. Cursory observations on the merits and procedure in Case No. 21
An in-depth assessment of the substantive aspects of the SRFC request and the Advisory Opinion is beyond the remit of the present contribution. Instead, we will confine ourselves to three observations.
First, insofar as the participation of interested parties in the oral and written procedure is sometimes considered to compensate for the absence of consent on the part of third states to the initiation of an advisory procedure,Footnote 102 the balance in Case No. 21 is rather positive. In its Order of 24 May 2013, the Tribunal identified no less than 48 intergovernmental organizations which it thought could contribute valuable information.Footnote 103 All were invited to submit written statements, along with the SRFC and all UNCLOS states parties. All in all, some 22 UNCLOS states parties (including the EU) submitted written statements, as did the United States (as a state party to the 1995 Straddling Fish Stocks Agreement) as well as seven intergovernmental organizations (albeit that a number of states commented only on the Tribunal's jurisdiction, but not on the meritsFootnote 104). In this context, the case illustrates the potential of advisory proceedings as a useful tool to tackle abstract legal questions through a participatory process in which interested actors are given the opportunity to present and exchange their legal views, in a setting (largely) removed from the caprices of political negotiations.
Second, while the Tribunal did not regard the absence of consent of third states as an obstacle to take on the case, it took care of construing the questions restrictively as relating only to the rights and obligations of coastal and flag states with regard to IUU fishing within the EEZ of the SRFC member states.Footnote 105 This is a sensible approach. Still, it does not hide the obvious fact that the answers given are of a general nature and can be taken to reflect the Tribunal's views on the rights and obligations of states in relation to IUU fishing tout court. As such, the impact of the Opinion reverberates well beyond the EEZs of the SRFC member states.
Third, and last, fears that the Tribunal might engage in judicial law-making have proven unfounded. While the Advisory Opinion refers, for instance, to the definition of IUU fishing in the Plan of Action of the Food and Agriculture Organization (FAO) to prevent, deter and eliminate IUU fishing (paragraph 91), it refrains from making bold statements on this or other instruments. Instead, the Opinion largely confines itself to restating the relevant provisions of the UNCLOS, and to interpreting these provisions in light of general international law (specifically the law of state responsibility).Footnote 106 In all, the Advisory Opinion clarifies the provisions of the UNCLOS in relation to IUU fishing, without fundamentally breaking new (legal) ground.
6. Concluding observations
ITLOS’ Opinion of 2 April 2015 provides useful guidance in relation to the rights and obligations of coastal and flag states with regard to IUU fishing. It deals with a global problem that threatens ocean ecosystems and sustainable fisheries, and which has proven particularly harmful to the members of the SRFC. It offers a sensible and reasoned interpretation of the relevant UNCLOS provisions, and ‘may allow SRFC member states, and other states affected by IUU fishing, to exert greater pressure on flag states, particularly flag states of convenience, that do not live up to their responsibilities under UNCLOS’.Footnote 107 Numerous states and international organizations participated in the proceedings, sharing their legal positions with one another and with the Tribunal. As such, the Opinion attests to the value of advisory proceedings as a highly useful tool to tackle legal questions and increase legal certainty. At the same time, however, the Opinion illustrates the risks of ‘creeping’ advisory jurisdiction of international courts and tribunals.
In spite of careful cherry-picking from the ICJ's case-law, the Tribunal's handling of the questions of jurisdiction, admissibility and judicial propriety, is not fully persuasive. The Tribunal's affirmation of its advisory jurisdiction on the basis of Article 21 ITLOS Statute is regrettably succinct, and does not substantively engage with the ‘cogent, clear and articulate’ (dixit Judge Lucky)Footnote 108 objections of several states. It cannot hide that the advisory competence of the full Tribunal was essentially created out of the blue by the Tribunal itself through the introduction of Article 138 of the Rules, 15 years after the signing ceremony in Montego Bay. One might object that, regardless of the interpretation of Article 288 UNCLOS or Article 21 ITLOS Statute, no fundamental problems arise, since the advisory jurisdiction of the full Tribunal is in any case ‘based upon the consensus of the parties’ to the ‘international agreement related to the purposes of UNCLOS’ (Wolfrum speaks of a ‘consensual solution’),Footnote 109 and since the procedure in Case No. 21 illustrates that interested third states have ample opportunity to participate in the oral and written proceedings. Yet, this suggestion is difficult to reconcile with the Tribunal's position that it need not limit itself to the interpretation and application of the international agreement conferring jurisdiction, but may directly pronounce on the rights and obligations of third states.
But then why should the Tribunal impose limitations on its own advisory jurisdiction ratione materiae if the ICJ has not done so either? As mentioned earlier, the reason is twofold. First, in the case of the ICJ, the broad advisory jurisdiction was directly accepted by all UN member states through the adoption of the UN Charter and the ICJ Statute. In the words of Lauterpacht: ‘There seems to be no decisive reason why the sovereignty of States should be protected from a procedure, to which they have consented in advance as Members of the United Nations . . .’.Footnote 110 No such direct consent can be distilled from Article 21 ITLOS Statute (which, in the view of ITLOS, only constitutes an enabling provision). Second, the broad advisory jurisdiction of the ICJ ratione materiae can only be triggered by an international organization with quasi-universal membership. Let us assume, for the sake of argument, that the ICJ had similarly interpreted the reference to ‘all matters specifically provided for . . . in treaties and conventions in force’ in Article 36 ICJ Statute as a legal basis conferring a broad advisory jurisdiction ratione personae. This would imply that any two states concluding an agreement between them could ask for an advisory opinion from the primary judicial organ of the UN on essentially any question of international law. This may seem a state of affairs devoutly to be wished for from a scholarly perspective, as it would theoretically make it possible to clear legal uncertainties in numerous domains of international law. Yet, this is not necessarily how the actual members of the international community want it. When negotiating new treaties, states frequently hold conflicting interpretations of the provisions introduced, and may choose to keep matters deliberately vague, possibly leaving the exact meaning of the respective rights and obligations to be clarified through subsequent practice. They may not necessarily be willing to accept the prospect of an international court or tribunal pronouncing in an authoritative manner on the interpretation and application of the agreements concerned (save as a by-product of a consensual contentious procedure). Furthermore, inasmuch as there is no clear-cut line between legal questions of an abstract and general nature, and questions more closely related to contentious disputes between states, this poses the risk of highly politicized requests for advisory opinions. It is one thing to accept such requests from one of the two main political bodies of the UN (which, by their nature and membership, are endowed with an unparalleled international legitimacy). It is quite another to accept that such requests can be made by only a handful of states – and in fact the travaux of the ICJ Statute make clear that states were not ready to accept this.Footnote 111 The foregoing should not be read as a plea against the advisory jurisdiction of international courts and tribunals, the value of which is not in dispute. Rather, it is a notice of caution against a broad advisory jurisdiction that rests on a murky base.
Against this background, it is perhaps regrettable that the Tribunal did not further define the contours of its advisory competence. It remains to be seen whether it will do so in future cases. A comparison to the case-law of other international courts and tribunals endowed with advisory competence does not provide unequivocal answers, since the nature of these bodies, and the scope of their jurisdiction, are so diverse. Still, one might expect the Tribunal to limit its advisory competence to questions related to the law of the sea (sensu lato). On a different note, the Tribunal could find inspiration in the case-law of the IACtHR to exclude advisory jurisdiction in relation to requests dealing ‘mainly with international obligations assumed by’Footnote 112 third states (not parties to the international agreement conferring jurisdiction).
In the end, the affirmation by the full Tribunal of its advisory jurisdiction has let the genie out of the bottle. This does not mean that one should expect an abundance of requests for advisory opinions from the full Tribunal – certainly not in the near future. With the exception of the MCA Convention, there seem to be no agreements specifically providing for advisory jurisdiction on the part of the full Tribunal at present.Footnote 113 In the words of Judge Ndiaye, this is ‘because the agreements existed prior to the establishment of the Rules of the Tribunal, or because states could not foresee that the advisory jurisdiction clause would be introduced by an organ they established’.Footnote 114 Nevertheless, the Tribunal's Opinion may serve as an inspiration for the inclusion in other bilateral or multilateral agreements of provisions similar to Article 33 of the MCA Convention. It is worth recalling in this context that the questions posed by the SRFC were not particularly sensitive or politically controversial. It is telling that several states that objected to the full Tribunal's advisory competence, recognized the challenges posed by IUU fishing and expressed sympathy for the SRFC request.Footnote 115 Yet, future requests may well deal with more politically sensitive issues and/or with questions that are more closely related to actual inter-state disputes (think, for instance, of questions concerning controversial shipping interdiction practices, military activities in the EEZ, the obligations of states with regard to persons in distress at sea, or with regard to the exercise of sovereignty over contested waters). Judge Ndiaye, for one, has hinted at the possibility of an advisory opinion on the legal status of islands and rocks under Article 121(3) UNCLOS, which has ‘become one of the main sources of maritime disputes between States’.Footnote 116 Other judges have ostensibly expressed sympathy for the use of advisory proceedings as a means to directly or indirectly settle disputes among states.Footnote 117 Future requests may thus prove a more severe test for the Tribunal's frail advisory jurisdiction and the scope thereof.
On a final note, it is worth observing that a number of states contesting the advisory jurisdiction of the full Tribunal in Case No. 21 expressed themselves favourably over a possible amendment of UNCLOS with a view to explicitly incorporating, and defining, an advisory competence for the full Tribunal.Footnote 118 A similar suggestion was made by Judge Lucky.Footnote 119 An amendment of the Convention would be a useful way to clear the fog over the full Tribunal's ‘creeping’ advisory jurisdiction. It could moreover provide an opportunity to clearly empower the UNCLOS meeting of states parties, but also, for instance, the FAO, the International Maritime Organization (IMO) and/or the Commission on the Limits of the Continental Shelf (CLCS), to submit requests for an advisory opinion to the full Tribunal. This would remedy the current anomaly whereby a group of seven states can trigger the full Tribunal's advisory competence, but relevant international bodies such as the IMO or the CLCS cannot.
