Advisory Proceedings before the International Tribunal for the Law of the Sea as an Alternative Procedure to Supplement the Dispute-Settlement Mechanism under Part XV of the United Nations Convention on the Law of the Sea

Abstract

Whereas the Seabed Disputes Chamber within the International Tribunal for the Law of the Sea (“the Tribunal”) is expressly mandated to give an advisory opinion at the request of the Assembly or Council of the International Seabed Authority under Part XI of the United Nations Convention on the Law of the Sea (“the Convention”), the advisory jurisdiction of the Tribunal in its full composition is not explicitly provided for under Part XV of the Convention or in the Statute of the Tribunal annexed to the Convention. In order to provide the Tribunal with an advisory function, a proposal was first presented when the Tribunal was preparing its Rules in 1996. This proposal was accepted and was embodied in article 138 of the Rules of the Tribunal. Paragraph 2 of article 138 provides for a body eligible to make a request to the Tribunal for an advisory opinion. Eligibility can be accorded to “whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal.” Under article 96 of the Charter of the United Nations, the eligibility to request an advisory opinion of the Court is restricted to the General Assembly, the Security Council, other organs and specialized agencies which may at any time be so authorized by the General Assembly, but there is no such express provision in the Convention or the Statute of the Tribunal restricting the organizations or bodies eligible to request an advisory opinion of the Tribunal. Accordingly, a provision in an international agreement relating to the purposes of the Convention which empowers a body to make a request for an advisory opinion to the Tribunal may be sufficient for it to entertain such a request. In view of this liberal and flexible approach with regard to the eligibility requirement under paragraph 2 of article 138 of the Rules, States may feel free to seek an advisory opinion in law of the sea matters from the Tribunal through a body, permanent or ad hoc, created by an agreement for the purpose of transmitting a request for an advisory opinion to the Tribunal. Furthermore, in light of the non-binding nature of an advisory opinion to be given by the Tribunal under article 138 of its Rules, States may also wish to use the advisory proceedings before the Tribunal, when appropriate, as a means of dispute resolution in law of the sea matters as was frequently the case before the Permanent Court of International Justice from 1922 to 1935. When States elect to use the advisory proceedings before the Tribunal for dispute settlement, these proceedings may function as an alternative means to supplement the compulsory procedures entailing binding decisions under Part XV of the Convention.