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The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission

Published online by Cambridge University Press:  29 April 2016

MASSIMO LANDO
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Abstract

In the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, the International Tribunal for the Law of the Sea (ITLOS) was called upon to clarify the existence of its advisory jurisdiction as a full Tribunal under the UN Convention on the Law of the Sea (UNCLOS). ITLOS unanimously upheld its advisory jurisdiction, yet its reasoning is not convincing. ITLOS’s interpretation of Article 21 of its Statute appears unpersuasive. The article discusses the interpretation of Article 21 ITLOS Statute pursuant to the rules on interpretation of the Vienna Convention on the Law of Treaties (Arts. 31–33). First, the article addresses the article's textual reading, and criticizes the Tribunal's interpretation of the term ‘matters’. Second, the article considers the interpretation of Article 21 according to the subsequent practice of the parties, argued by some states but not addressed by ITLOS. Third, the travaux préparatoires of the UNCLOS are examined, with a view to understanding whether the drafters intended the Tribunal to have advisory jurisdiction. Fourth, the six authentic texts of UNCLOS are compared in order to highlight potential differences that may help understand the exact meaning of the provision. Fifth, the article discusses the relationship between advisory jurisdiction and state consent. The conclusion is that the basis for ITLOS's advisory jurisdiction under UNCLOS seems weak. Some general considerations conclude the article, together with a possible solution that takes stock of ITLOS's decision.

Keywords

ITLOSUNCLOSadvisory jurisdictiontreaty interpretationstate consent
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 29 , Issue 2 , June 2016 , pp. 441 - 461
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

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References

1 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3 (UNCLOS or the Convention).

2 Annex VI UNCLOS (ITLOS Statute).

3 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21_AdvOp_02.04.pdf (accessed 11 September 2015).

4 The SRFC member states are: Cape Verde, Guinea, Guinea-Bissau, Mauritania, Senegal, Sierra Leone and The Gambia.

5 For the four questions asked by the SRFC, see Fisheries Commission Advisory Opinion, supra note 3, para. 2.

6 Argentina, Australia, China, France, Ireland, Spain, Thailand, United Kingdom, Unites States of America. The Netherlands and Portugal did not take a clear position on jurisdiction, but argued only for a cautious approach in the exercise of such jurisdiction should the Tribunal uphold its advisory jurisdiction.

7 Chile, Cuba, Germany, Japan, Micronesia, Montenegro, New Zealand, Saudi Arabia, Somalia, Sri Lanka, Switzerland. Most international organizations supported the advisory jurisdiction of the full Tribunal (Caribbean Regional Fisheries Mechanism, Forum Fisheries Agency, International Union for the Conservation of Nature, OSPESCA, SRFC), while the UN and the FAO did not address the question of jurisdiction, but simply discussed the multilateral instruments negotiated or adopted under their auspices and relating to IUU fishing. The EU did not address the jurisdictional question: it dealt with the substance of the questions in its statements, leaving individual EU member states to argue the jurisdictional point.

8 Fisheries Commission Advisory Opinion, supra note 3, para. 69. Judge Cot alone expressed some reservations on the exercise of advisory jurisdiction in the specific instance.

9 On the advisory jurisdiction of ITLOS, see L. Marotti, ‘Sulla funzione consultiva del Tribunale internazionale del diritto del mare', (2015) 98 Rivista di Diritto Internazionale 1171; 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 159Google Scholar; Ndiaye, T.M., ‘The Advisory Function of the International Tribunal for the Law of the Sea’, (2010) 5 Chinese J. Int'l L. 565CrossRefGoogle Scholar; 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 360CrossRefGoogle Scholar; 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), 81Google Scholar; Sohn, L.B., ‘Advisory Opinions by the International Tribunal for the Law of the Sea or Its Seabed Disputes Chamber’, in Nordquist, M.H. and Moore, J.N. (eds.), Oceans Policy – New Institutions, Challenges and Opportunities (1999), 61Google Scholar. On dispute settlement under UNCLOS, see N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005); D.R. Rothwell and T. Stephens, The International Law of the Sea (2010), 439–60.

10 Fisheries Commission Advisory Opinion, supra note 3, paras. 39–51.

11 Ibid., at para. 59. Notably, Treves wrote that ‘[w]hether article 138 is compatible with the convention might perhaps be debated’, see Treves, supra note 9, at 92. According to Nelson, Art. 138 ITLOS Rules is the legal provision empowering the Tribunal to give advisory opinions, see Nelson, L.D.M., ‘The International Tribunal for the Law of the Sea: Some Issues’, in Rao, P. Chandrasekhara and Khan, R. (eds.), The International Tribunal for the Law of the Sea – Law and Practice (2001), 49 at 56–7Google Scholar.

12 Under Art. 288 UNCLOS, ‘(1) A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part. (2) A court or tribunal referred to in article 287 shall also 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. (3) The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith. (4) In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal’. For a comment on Art. 288 UNCLOS, see S. Rosenne and L.B. Sohn (eds.), United Nations Convention on the Law of the Sea – A Commentary (1989), Vol. V, at 46–8.

13 Fisheries Commission Advisory Opinion, supra note 3, para. 52.

14 Ibid.

15 Ibid., at para. 55.

16 Ibid., at para. 56.

17 Ibid., at para. 58.

18 Ibid., at para. 69.

19 Ibid.

20 The agreement in question is the Convention on the definition of the minimum access conditions and exploitation of fisheries resources within the maritime zones under the jurisdiction of SRFC Member States www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/Convention_CMA_ENG.pdf (MCA Convention) (accessed 11 September 2015).

21 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331 (VCLT).

22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, [2007] ICJ Rep. 43, at 109–10, para. 160; LaGrand (Germany v. United States of America), Judgment of 27 June 2001, [2001] ICJ Rep. 466, at 502, para. 101; Responsibilities and Obligations of States sponsoring Persons or Entities with respect to Activities in the Area, Advisory Opinion of 1 February 2011, [2011] ITLOS Rep. 10, at 28, para. 57.

23 Art. 31(1) VCLT provides: ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.

24 Treves wrote that ‘it emerges immediately that the Convention does not provide for any form of advisory jurisdiction of the Tribunal in general. The Convention entrusts, however, the Seabed Disputes Chamber with such jurisdiction’. See Treves, T., ‘The Jurisdiction of the International Tribunal for the Law of the Sea’, in Rao, P. Chandrasekhara and Khan, R. (eds.), The International Tribunal for the Law of the Sea – Law and Practice (2001), 111Google Scholar at 112. See also Oxman, B.H., ‘Courts and Tribunals: the ICJ, ITLOS, and Arbitral Tribunals’, in Rothwell, D.R.et al. (eds.), The Oxford Handbook of the Law of the Sea (2015), 394Google Scholar, at 414–15; Y. Tanaka, The International Law of the Sea (2015), 443–4.

25 See You, supra note 9, at 361–2.

26 Germany argued that Art. 21 ITLOS Statute was the ‘implicit legal basis’ for the Tribunal's advisory jurisdiction. See Written Statement of the Federal Republic of Germany www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_statements_round1/C21_3_Germany_orig_Eng.pdf, para. 8 (accessed 11 September 2015).

27 Fisheries Commission Advisory Opinion, supra note 3, para. 54.

28 Ibid., at para. 56.

29 Jesus, J.L., ‘Article 138’, in Rao, P. Chandrasekhara and Gautier, P. (eds.), The Rules of the International Tribunal for the Law of the Sea – A Commentary (2006), 393Google Scholar, at 394.

30 Fisheries Commission Advisory Opinion, Declaration of Judge Cot, para. 3 www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21_advop_decl_Cot_TR_Eng.pdf.

31 Jonas, D.S. and Saunders, T.N., ‘The Object and Purpose of a Treaty: Three Interpretive Methods’, (2010) 43 Vand. J. Transnat'l L. 565Google Scholar, at 581.

32 J. Crawford, Brownlie's Principles of Public International Law (2012), 379.

33 Waldock, H., ‘The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights’, in Mélanges offerts à Paul Reuter – Le droit international: unité et diversité (1981), 535Google Scholar, 541. See also Bjorge, E., ‘The Vienna Rules, Evolutionary Interpretation, and the Intentions of the Parties’, in Bianchi, A.et al. (eds.), Interpretation in International Law (2015), 189CrossRefGoogle Scholar.

34 See Kateka, supra note 9, at 167.

35 On subsequent practice, see Cot, J.-P., ‘La conduite subséquente des parties à un traité’, (1966) 70 RGDIP 632Google Scholar. On the relationship between subsequent practice and evolutionary interpretation of treaties, see E. Bjorge, The Evolutionary Interpretation of Treaties (2014), 76–83. ITLOS did not address the argument, having already decided the jurisdictional point on a different basis. Tanaka appears to make two contradictory points concerning the advisory jurisdiction of ITLOS as a full tribunal and Art. 138 ITLOS rules: while in one instance he wrote that ‘[a]rticle 138 of the ITLOS Rules confers advisory jurisdiction on ITLOS itself’ (see Tanaka, supra note 24, at 444), soon after he argued that ‘[a]rticle 138 of the Rules of the Tribunal does not provide a basis for the advisory jurisdiction of ITLOS as a full court’ (Tanaka, Y., ‘Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: the ITLOS Advisory Opinion of 2015’, (2015) 14 Law and Practice of International Courts and Tribunals 318CrossRefGoogle Scholar, at 324).

36 ITLOS/PV.14/C21/3, at 20 (United Kingdom).

37 Third report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur, 1964 YILC, Vol. 16 II, at 61, para. 32. Arato argued that ‘[t]his requirement is broad, and applies to the application of the treaty as a whole – it need not be limited to the application of the particular provision being interpreted’, but recognized that this is not necessarily the case in all instances. See Arato, J., ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences’, (2010) 9 Law and Practice of International Court and Tribunals 443CrossRefGoogle Scholar, at 459.

38 See Arato, supra note 37, at 444.

39 Sixth report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur, 1966 YILC, Vol. 18 II, at 99, para. 18. See also Feldman, A., ‘Evolving Treaty Obligations: A Proposal for Analyzing Subsequent Practice Derived from WTO Dispute Settlement’, (2008–2009) 41 New York University J. Int'l L. & Pol. 655Google Scholar, at 663.

40 Villiger, M., ‘The 1969 Vienna Convention on the Law of Treaties: 40 Years After’, (2009) 344 RCADI 9Google Scholar, at 122. See also T. Treves, Diritto Internazionale – Problemi Fondamentali (2005), 387.

41 Third report on the law of treaties, supra note 37, at 60, para. 25.

42 Report of the International Law Commission on the work of its eighteenth session, 1966 YILC, Vol. 18 II, at 236, para. 1; M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), 432; Treves, supra note 40, at 388; Arato, supra note 37, at 461.

43 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16, at 22, para. 22.

44 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 149–50, para. 27.

45 Thirlway, H., ‘The law and procedure of the International Court of Justice 1960-1989’, (2006) 77 BYIL 1Google Scholar, at 65. The ICJ used subsequent practice in interpreting treaties on multiple occasions, inter alia: Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 66, at 75, para. 19; Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 December 1999, [1999] ICJ Rep. 1045, at 1075, para. 47; Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep. 6, at 32–3.

46 Dispute concerning Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, [2009] ICJ Rep. 213, at 242, para. 64. See also Nolte, G., ‘Between Contemporaneous and Evolutive Interpretation: the use of “Subsequent Practice” in the Judgment of the International Court of Justice concerning the Case of Costa Rica v. Nicaragua (2009)’, in Hestermeyer, H.et al. (eds.), Coexistence, Cooperation and Solidarity – Liber Amicorum Rüdiger Wolfrum (2012), Vol. II, 1675 at 1676–7Google Scholar.

47 G. Nolte, Second report on subsequent agreements and subsequent practice in relation to the interpretation of treaties, UN Doc. A/CN.4/671 (2014), at 50, para. 115.

48 Ibid., at 55, para. 129.

49 Under Art. 32 VCLT ‘[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to . . . determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure . . .’.

50 Revised Single Negotiating Text, Document A/CONF.62/WP.8/Rev.1, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. V, 125 at 136.

51 Rosenne and Sohn, supra note 12, at 378–9.

52 Informal Single Negotiating Text, Document A/CONF.62/WP.9, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. V, 111 at 119.

53 Revised Single Negotiating Text, Document A/CONF.62/WP.9/Rev.2, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. VI, 144 at 152.

54 Informal Composite Negotiating Text, Document A/CONF.62/WP.10, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. VIII, 1 at 59.

55 Art. 20(2) ITLOS Statute states that ‘[t]he Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case’.

56 Rosenne and Sohn, supra note 12, at 378.

57 Ibid., at 376.

58 See Informal Single Negotiating Text, supra note 52, at 119 (Art. 20); Informal Single Negotiating Text, Document A/CONF.62/WP.9/Rev.1, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. V, 185 at 196 (Art. 20); Revised Single Negotiating Text, supra note 53, at 152 (Art. 20); Informal Composite Negotiating Text, supra note 54, at 59 (Art. 21).

59 Informal Composite Negotiating Text, supra note 54, at 59 (Art. 21).

60 You, supra note 9, at 362.

61 Memorandum of the President of the Conference on document A/CONF.62/WP.9, Document A/CONF.62/WP.9/Add.1, Official Records of the Third United Nations Conference on the Law of the Sea, Vol. V, 122, at 124.

62 ITLOS/PV.14/C21/3, at 22 (United Kingdom).

63 Fisheries Commission Advisory Opinion, Declaration of Judge Cot, supra note 30, para. 3.

64 Mavrommatis Palestine Concession (Greece v. United Kingdom), Judgment of 30 August 1924, PCIJ Rep Series A No 2, at 19.

65 Report of the International Law Commission, supra note 42, at 225, para. 7. For some comments on the interpretation of UNCLOS in its various authentic languages, see R.R. Churchill and A.V. Lowe, The Law of the Sea (1999), 460–1. Referring to Fisheries Commission Advisory Opinion, Churchill suggested that ITLOS would ‘need to take into account that some of the other authentic language versions of Article 21 do not appear to carry quite the same sense as the English text’, see Churchill, R.R., ‘Dispute Settlement in the Law of the Sea: Survey for 2013’, (2015) 30 International Journal of Marine and Coastal Law 1CrossRefGoogle Scholar, at 14.

66 ITLOS/PV.14/C21/3, at 23 (United Kingdom).

67 Written Statement of the United States America www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_statements_round1/C21_statement_USA_orig_Eng.pdf, para. 24 (accessed 11 September 2015).

68 Fisheries Commission Advisory Opinion, supra note 3, para. 52.

69 Ibid., at para. 48.

70 On the interpretation of treaties authenticated in different languages, see Treves, supra note 40, at 393–7.

71 Contra, see Fisheries Commission Advisory Opinion, Declaration of Judge Cot, supra note 30, para. 3.

72 See Villiger, supra note 42, 459–60.

73 LaGrand, supra note 22, at 502, para. 102.

74 Art. 40 ITLOS Statute.

75 Interpretation of the Treaty of Lausanne, Advisory Opinion of 21 November 1925, PCIJ Rep Series B No 12, at 25.

76 J.G. Merrills, International Dispute Settlement (2011), 132–4.

77 H. Lauterpacht, The Development of International Law by the International Court (1982), 250.

78 See, with respect to the ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, [2006] ICJ Rep. 6, at 32, para. 64. With respect to ITLOS, see Dispute concerning the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, [2012] ITLOS Rep. 4, at 22–3, paras. 46–50. See also V. Lowe, International Law (2007), 130; Crawford, supra note 32, at 693; Merrills, supra note 76, at 122–3.

79 Interpretation of Peace Treaties, Advisory Opinion of 30 March 1950, [1950] ICJ Rep. 65, at 71; Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12, at 24, para. 31. See also Oda, S., ‘The International Court of Justice viewed from the Bench (1976-1993)’, (1993) 24 RCADI 9Google Scholar, at 101.

80 ITLOS/PV.14/C21/2, at 5 (Germany). See also Ibid., at 25 (Chile); ITLOS/PV.14/C21/3, at 5 (Micronesia).

81 This argument is clear in Germany's oral statement, see ITLOS/PV.14/C21/2, at 5 (Germany).

82 Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ Rep Series B No 5, at 28–9.

83 ITLOS/PV.14/C21/2, at 5–6 (Germany).

84 On the Eastern Carelia principle, see S. Rosenne, The Law and Practice of the International Court – 1920-2005 (2006), Vol. II, at 977–8.

85 Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151.

86 Uniting for Peace, UNGA Res. 377(V) (1950), UN Doc. A/1775, at 10. See C. Gray, International Law and the Use of Force (2008), 259–60.

87 Reservations to the Convention on Genocide, Advisory Opinion of 28 May 1951, [1951] ICJ Rep. 15. On the influence of the advisory opinion on reservations, see Simma, B. and Hernández, G.I., ‘Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where do We Stand?’, in Cannizzaro, E. (ed.), The Law of Treaties beyond the Vienna Convention (2011), 60Google Scholar at 64.

88 Continental Shelf (Libya/Malta), Application to Intervene, Judgment of 21 March 1984, [1984] ICJ Rep. 3, at 158, para. 28 (Judge Jennings, Dissenting Opinion).

89 R. Kolb, The International Court of Justice (2013), 1097–9. Lauterpacht suggested that ‘[i]n certain respects an Advisory Opinion does not differ from a declaratory judgment’, see H. Lauterpacht, The Function of Law in the International Community (2011), 343.

90 Referring to the European Commission of the Danube, the PCIJ held that ‘[a]s the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it’. See Jurisdiction of the European Commission of the Danube, Advisory Opinion of 8 December 1927, PCIJ Rep Series B No 14, at 64. See also Legality of the Use by a State of Nuclear Weapons in Armed Conflict, supra note 45, at 78, para. 25.

91 Golitsyn, V., ‘Interrelation of the Institutions under the Law of the Sea Convention with other International Institutions’, in Vidas, D. (ed.), Order for the Oceans at the Turn of the Century (1999), 133Google Scholar, at 138; García-Revillo, M.G., ‘The Juridical Personality and Nature of the International Tribunal for the Law of the Sea’, in del Castillo, L. (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea – Liber Amicorum Judge Hugo Caminos (2015), 608Google Scholar at 618.

92 For instance, Micronesia argued that ‘the issuance of an advisory opinion is essential to the Tribunal's performance of its duties’, see ITLOS/PV.14/C21/3, at 4 (Micronesia). The Tribunal mentioned implied powers in its advisory opinion, but did not comment further on it, see Fisheries Commission Advisory Opinion, supra note 3, para. 41.

93 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174, at 182. See also Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion of 13 July 1954, [1954] ICJ Rep. 47, at 57.

94 M. Shaw, International Law (2014), 946–8. For a more liberal test, see Akande, D., ‘International Organizations’, in Evans, M.D. (ed.), International Law (2010), 248Google Scholar at 260–1.

95 ITLOS/PV.14/C21/2, at 13 (Australia).

96 T. Bingham, The Rule of Law (2010), 63.

97 On inherent powers of international courts and tribunals, see Brown, C., ‘The Inherent Powers of International Courts and Tribunals’, (2005) 76 BYIL 196Google Scholar; Brown, C., ‘Inherent Powers in International Adjudication’, in Romano, C.et al. (eds.), The Oxford Handbook of International Adjudication (2014), 828Google Scholar; Gaeta, P., ‘Inherent Powers of International Courts and Tribunals’, in Vohrah, L. Chandet al. (eds.), Man's Inhumanity to Man – Essays on International Law in Honour of Antonio Cassese (2003), 353Google Scholar; G.I. Hernández, The International Court of Justice and the Judicial Function (2014), 54–6.

98 Fisheries Commission Advisory Opinion, Declaration of Judge Cot, supra note 30, para. 4.

99 Thirlway, H., ‘Advisory Opinions’, in Wolfrum, R. (ed.), Max Planck Encyclopedia of Public International Law (2012), Vol. I, 97Google Scholar at 98, para. 4; Oellers-Frahm, K., ‘Lawmaking Through Advisory Opinions?’, (2011) 12 German Law Journal 1033Google Scholar; C.F. Amerasinghe, Jurisdiction of International Tribunals (2003), 503.

100 Rosenne, S., ‘Permanent Court of International Justice (PCIJ)’, in Wolfrum, R. (ed.), Max Planck Encyclopedia of Public International Law (2012), Vol. VIII, 259Google Scholar, at 267.

101 Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice, (1945) 39 AJIL Supplement 1, at 20, para. 65. See also Frowein, J.A. and Oellers-Frahm, K., ‘Article 65’, in Zimmermann, A.et al. (eds.), The Statute of the International Court of Justice – A Commentary (2012), 1605Google Scholar, at 1610.

102 Treves wrote that the Convention does not confer advisory jurisdiction on the full Tribunal, while it expressly confer it on the Seabed Disputes Chamber. See T. Treves, Le controversie internazionali – Nuove tendenze, nuovi tribunali (1999), 107–8.

103 1945 Charter of the United Nations, XV UNCIO 335.

104 1950 European Convention on Human Rights and Fundamental Freedoms, CETS No. 005.

105 1979 Statute of the Inter-American Court of Human Rights, adopted by the General Assembly of the Organization of American States at its Ninth Regular Session, held in La Paz Bolivia, October 1979 (Resolution No. 448).

106 1998 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III).

107 Written Statement of the United States of America, supra note 67, para. 14.

108 Fisheries Commission Advisory Opinion, supra note 3, para. 69.

109 Ibid., at para. 88.

110 In his 2013 Hague Lectures, Judge James Crawford used these words when referring to the judgment of the European Court of Human Rights in Hirsi Jamaa & Others v. Italy, [2012] ECHR 1845. See Crawford, J., ‘Chance, Order, Change: The Course of International Law’, (2013) 365 RCADI 9Google Scholar, at 210.

111 Report of the UN Secretary-General on Oceans and the Law of the Sea, UN Doc. A/66/70 (2011), at 13, para. 33.

112 Under Art. 41(1) and (3) ITLOS Statute, ‘(1) [a]mendments to this Annex, other than amendments to section 4, may be adopted only in accordance with article 313 or by consensus at a conference convened in accordance with this Convention. . . . (3) The Tribunal may propose such amendments to this Statute as it may consider necessary, by written communications to the States Parties for their consideration in conformity with paragraphs 1 and 2’.

113 Art. 313 UNCLOS provides that ‘(1) [a] State Party may, by written communication addressed to the Secretary-General of the United Nations, propose an amendment to this Convention, other than an amendment relating to activities in the Area, to be adopted by the simplified procedure set forth in this article without convening a conference. The Secretary-General shall circulate the communication to all States Parties. (2) If, within a period of 12 months from the date of the circulation of the communication, a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. The Secretary-General shall immediately notify all States Parties accordingly. (3) If, 12 months from the date of the circulation of the communication, no State Party has objected to the proposed amendment or to the proposal for its adoption by the simplified procedure, the proposed amendment shall be considered adopted. The Secretary-General shall notify all States Parties that the proposed amendment has been adopted’.

114 67th Plenary Meeting of the UN General Assembly of 9 December 2014, Sixty-ninth Session of the UN General Assembly, UN Doc. A/69/PV.67 (2014), at 19.