'Creeping' Advisory Jurisdiction of International Courts and Tribunals? The Troublesome Case of the International Tribunal for the Law of the Sea

Abstract

On 2 April 2015, the full International Tribunal for the Law of the Sea rendered its first advisory opinion in reply to a request made by the Sub-Regional Fisheries Commission regarding illegal, unreported and unregulated fishing. Unlike any other major court or tribunal with advisory competence, and unlike what is the case for the Seabed Disputes Chamber, ITLOS’ advisory jurisdiction is not explicitly enshrined in its constituent instrument, but was rather asserted and circumscribed in the Tribunal’s very own, homemade, rules of procedure. In spite of strong objections from various States, ITLOS swiftly set aside all counterarguments, affirming a broad advisory jurisdiction ratione materiae and personae, and indicating that there were no compelling reasons to exercise its discretionary power to dismiss the request. The request and the Tribunal’s handling thereof raises 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.