A Study on the Advisory Proceedings before the ITLOS as a Full Court

咨询意见在国际海洋法法庭全庭的发表程序初探

叶强(YE Qiang) ； WEI Yujia ； Hannah Elizabeth Lincoln

《中国海洋法学评论》 19期 (2014/06) Pp. 24-58

摘要

Article 138 of the Rules of the International Tribunal for the Law of the Sea (ITLOS) grants the ITLOS an advisory jurisdiction and lays out general conditions for the exercise of such jurisdiction. However, Article 138 has faced two challenges since its adoption: on one hand, the legal basis for the ITLOS to grant itself an advisory jurisdiction is unclear; on the other hand, the provisions of this article are over simplified that the ITLOS has considerable discretion over the interpretation of the legal terms therein, which in turn brings ambiguities to the procedures of requesting and rendering advisory opinions. In another paper written by this author, On the Legal Basis of Advisory Jurisdiction of ITLOS as a Full Court, 1 this author has reviewed and analyzed the legal basis for the exercise of such jurisdiction, which sheds light on the legal basis for the adoption of Article 138 of the Rules by the ITLOS. This paper intends to clarify the rules of the advisory proceedings grounded on the legal basis described above. Employing the current mainstream judicial methods in an integrated manner, the proposed rules will rest on the basic principles of international law that support the effective functioning of the international community. This structure attempts to strike a balance between the certainty of law and the flexibility of addressing international affairs. This paper covers the following issues: the scope of the provision of ＂an international agreement related to the purposes of the Convention specifically provides for＂ as envisaged by Article 138(1); the reach of Competence Ratione Personae prescribed by the expression of ＂be transmitted to the Tribunal by whatever body＂ in Article 138(2); the scope of Competence Ratione Materiae, including ＂legal question[s]＂; and the discretion of the ITLOS in accordance with the word of ＂may＂ used in Article 138(1) and the phrase of ＂apply mutatis mutandis articles 130 to 137＂ used in Article 138(3). This paper aims to provide the ITLOS an enlightening reference in its hearing of advisory cases in the future.

關鍵字

International Tribunal for the Law of the Sea ； Full court ； Advisory opinion ； Competence Ratione Personae ； Competence Ratione Materiae