International Tribunal for the Law of the Sea Issues

International Tribunal for the Law of the Sea in 2013 (Continuation)

United States views on international law [1] in relation to International Tribunal for the Law of the Sea: 12. In deciding how broadly to interpret and apply Article 21 of the Tribunal's Statute, the Tribunal should consider the overall content and purpose of the Convention's dispute settlement provisions as well as the intent of the Convention's drafters. It may likewise be helpful to consider the governing legal documents of other international courts and tribunals. When these factors are considered, the United States believes that the best reading of Article 21 of the ITLOS Statute is that this provision does not provide for an advisory opinion function for the full Tribunal pursuant to other international agreements.

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2. Jurisdictional Limitations of Article 288

21. If ITLOS decides that the LOS Convention and its Statute authorize the full Tribunal to issue an advisory opinion pursuant to another agreement, that jurisdiction is nevertheless limited by Article 288 of the Convention, which requires the jurisdiction conferred must concern the interpretation or application of the international agreement that is conferring the advisory jurisdiction upon the Tribunal. In this instance, the request made by the SRFC does not call for an interpretation or application of the MCA Convention, which would be the instrument conferring advisory jurisdiction upon the Tribunal in this case. Accordingly, there is no advisory jurisdiction with respect to this specific request.

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22. Requests to ITLOS for advisory opinions are authorized by Article 33 of the MCA Convention, as follows: “The Conference of Ministers of the SRFC may authorize the Permanent Secretary of the SRFC to bring a given legal matter before the International Tribunal of the Law of the Sea for advisory opinion.” The record before the Tribunal indicates that the Conference of Ministers adopted a resolution during its fourteenth session in March 2013 authorizing the SRFC Permanent Secretary to “seize” ITLOS to obtain an advisory opinion on the questions reproduced in paragraph 1 of this written statement.

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23. The questions submitted by the SRFC, however, do not call for an interpretation or application of the MCA Convention. Instead, the request invites the Tribunal to interpret and apply other international agreements and customary international law. This goes beyond what is contemplated in the LOS Convention and the ITLOS Statute.

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24. Although Article 21 of the ITLOS Statute is worded broadly (referring to “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.”), to the extent it is read to encompass advisory jurisdiction, it should still be read in light of Article 288 of the LOS Convention, which provides that the jurisdiction conferred upon ITLOS by another agreement must pertain to that agreement. Specifically, Article 288(2) of the LOS Convention provides that ITLOS (as well as other relevant courts and tribunals) have “jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement” (emphases added). Thus, the jurisdiction conferred upon ITLOS must “concern the interpretation or application” of the agreement conferring jurisdiction.

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Notes

1. International Tribunal for the Law of the Sea in the Digest of United States Practice in International Law