Booming Advisory Jurisdiction of the International Tribunal for the Law of the Sea?

45 Pages Posted: 13 Mar 2023

Date Written: March 6, 2023

Abstract

On December 12th, 2022, the Commission of Small Island States submitted a request for an advisory opinion to the International Tribunal for the Law of the Sea (“Tribunal”). The request was registered as case number 31 in the List of Cases of the Tribunal and is the third advisory opinion ever to be requested from the Tribunal. In its last advisory opinion in 2015, it was especially contentious, whether the full Tribunal even possessed jurisdiction to entertain this request, as none of the jurisdictional provisions in the United Nations Convention for the Law of the Sea (“UNCLOS”) and its annexes expressly stipulate a special advisory competence to this end. While the Tribunal affirmed its jurisdiction, some States argued against this competence, which was supported by a few critical articles in the aftermath.

At this time of the United Nations Ocean Decade, a noticeable upswing of requests for advisory opinions from regional and international judicial bodies is in the air – potentially promising an effective tool to develop and inform the Law of the Sea, if ultimately utilised. Especially in the light of new challenges in environmental law, such as climate change and sea level rise, advisory opinions ought to provide an elegant way for States to seek clarification of legal questions, without needing to threaten one’s political relationships by suing another State. Bearing in mind the special competence of the Tribunal in Law of the Sea matters it surprises, however, that States still aim to address their advisory opinions i.e. regarding sea level rise to the general Court of Justice in The Hague,1 rather than to the specialised Tribunal in Hamburg – despite its previously confirmed advisory jurisdiction. Whether the utilisation of advisory opinions and potential development of the Law of the Sea through the Tribunal will experience a boom, first and foremost depends on elucidating any concerns regarding its jurisdiction. This article thus investigates the debate regarding the Tribunal’s advisory jurisdiction, aiming to facilitate a more progressive approach of invoking the Tribunal’s special competence to contribute to the development of the Law of the Sea matters.

Keywords: Advisory Opinion, ITLOS, Law of the Sea, Advisory Jurisdiction, Climate Change

Suggested Citation

von Rebay, Anna and Oberle, Chiara, Booming Advisory Jurisdiction of the International Tribunal for the Law of the Sea? (March 6, 2023). Available at SSRN: https://ssrn.com/abstract=4380353 or http://dx.doi.org/10.2139/ssrn.4380353

Anna Von Rebay (Contact Author)

Ocean Vision Legal ( email )

Germany

HOME PAGE: http://www.oceanvisionlegal.com

Chiara Oberle

Gallifrey Foundation

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