International Tribunal For the Law Of the Sea

ITLOS – International Tribunal for the Law of the Sea

International Tribunal for the Law of the Sea in 2013

United States views on international law [1] in relation to International Tribunal for the Law of the Sea: On November 27, 2013, the United States submitted a written statement to the International Tribunal for the Law of the Sea (“ITLOS,” or “Tribunal”) regarding Case No. 21, “Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (“SRFC”).” In March 2013, the Conference of Ministers of the SRFC adopted a resolution in which it authorized the Permanent Secretary of the SRFC to obtain an advisory opinion from ITLOS on a range of fisheries-related questions. The request is the first ever submitted to the full Tribunal for an advisory opinion. The United States submitted the statement in response to the invitation of the Tribunal for written statements on the issues presented in the request for an advisory opinion. While recognizing the legitimacy of the concerns which motivated SRFC’s request for an advisory opinion, the U.S. written statement presents its view that the full Tribunal lacks jurisdiction in this instance and that ITLOS should deny the request, either on legal or prudential grounds. The U.S. statement is excerpted below (with footnotes omitted) and available in full at (Secretary of State website) state.gov/s/l/c8183.htm.

Some Aspects of International Tribunal for the Law of the Sea

4. With this being the first advisory opinion request to the full Tribunal, ITLOS is presented with a unique and important opportunity to consider the scope of its jurisdiction and the exercise of its related discretionary powers.

Developments

7. While recognizing the legitimacy of the concerns which motivated SRFC’s request for an advisory opinion, the United States believes that there are important legal and prudential considerations outlined in this written statement that militate against the Tribunal granting an advisory opinion in response to the SRFC request. Section I of this statement addresses jurisdictional considerations and explains why jurisdiction is lacking or, at a minimum, is limited to matters of interpretation or application of any agreement that confers jurisdiction upon ITLOS. Section II considers the discretionary authority of the Tribunal, including the concern of the United States that the SRFC’s request invites the Tribunal to interpret and apply customary international law and other international agreements under which other States have not consented to advisory jurisdiction. Accordingly, the United States concludes that the request should not be granted, either on legal or prudential grounds.

I. Jurisdictional Considerations

Details

1. Advisory Jurisdiction of the Full Tribunal

9. The LOS Convention contains only two provisions that refer to the advisory jurisdiction of ITLOS: Article 159(10) and Article 191. These provisions appear in Part XI of the Convention and expressly establish advisory opinion jurisdiction with respect to the Seabed Disputes Chamber of the Tribunal on matters relating to deep seabed mining. The Statute of ITLOS, contained in Annex VI of the Convention, contains just one provision referencing advisory opinions. This provision, like those in Part XI of the Convention, refers only to the Seabed Disputes Chamber.

10. Article 21 of the ITLOS Statute also contains a more general description of the Tribunal’s jurisdiction. While not referring to advisory jurisdiction expressly, Article 21 states: “The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” (Emphasis added.)

11. Article 138 of the Tribunal’s Rules of Procedure (Rules) partially tracks the second part of Article 21 of the Statute and addresses the issue of advisory opinions. Specifically, Article 138 of the Rules states: “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.” Thus, according to the Tribunal’s Rules, the full Tribunal has advisory jurisdiction, under the circumstances described in Article 138. Because the Rules cannot confer broader jurisdiction upon the Tribunal than does the Convention, the validity of Article 138 depends on whether it is consistent with the powers conferred upon the Tribunal by the Convention, including the ITLOS Statute.

Resources

Notes

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

International Tribunal for the Law of the Sea

International Tribunal For the Law Of the Sea

ITLOS – International Tribunal for the Law of the Sea

Further Reading