Reflecting on the ITLOS’s Powers to Issue an Advisory Opinion

I. Introduction

On 12th December, 2022 to the two co-chairs of the Commission of Small Island States on Climate Change and International Law (COSIS) sent a letter to the Chancellor of the International Tribunal for the Law of the Sea (ITLOS), following a decision adopted by the COSIS at the third meeting held on 26th  August, 2022. The advisory function of the Tribunal was again activated after the first opinion delivered in 2015. The request for an opinion was made on the basis of the provisions of Article 2 (2) of the COSIS Agreement (initially concluded between Antigua and Barbuda and Tuvalu and which Niue, Palau, Saint Lucia and Vanuatu subsequently joined), which authorizes it to refer the Tribunal on any legal question within the scope of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Specifically, the COSIS urged the Tribunal to clarify the obligations of the States Parties to Part XII of the UNCLOS on the Prevention, Reduction and Control of Pollution of the Marine Environment in relation to the harmful effects caused by anthropogenic greenhouse gas emissions into the atmosphere that are derived or are likely to result from climate change, including through ocean warming, sea level rise and ocean acidification.

The request is part of the renewed interest expressed by some of the states most affected by the consequences of climate change in relation to the potential of the advisory function of international courts and tribunals, further attested by the motion for a resolution of the United Nations General Assembly, circulated by Vanuatu last November, through which it would like to get the Assembly to request an opinion from the International Court of Justice.

The issue has also been the subject of increasing attention, which has generally enhanced the positive aspects of a possible advisory decision on climate change, primarily in terms of clarifying the relevant legal regime (see here and here). However, there was no shortage of some critical voices, which highlighted its limits, also because of the highly political nature of the issue (see here). In this respect, it has been argued that such initiatives will not only hardly achieve the desired objective by virtue of the intrinsic indeterminacy of the relevant rules, but could even prove counterproductive, risking, among other things, undermining both the credibility of the court involved and the authority of the opinion that may have been rendered.

II. Risks

These risks would, affect the ITLOS, because of the uncertain legal basis of its advisory competence. As is well known, the latter is not expressly provided for either by the Statute of the ITLOS or by the UNCLOS. Nevertheless, the ITLOS has regulated it in its Rules of Procedure, Article 138 of which provides in fact how it can give an advisory opinion where this is expressly provided for in an international agreement linked to the purposes of the UNCLOS, at the request of ‘whatever body’ for that purpose authorised by the same agreement. It is also just worth remembering that the ITLOS issued its first – and so far only – advisory opinion in 2015, rooting its competence in the ‘combined provision’ given by Article 21 of its Statute, which allows agreements other than the UNCLOS to give it jurisdiction over certain ‘matters’ specifically provided for by them, and by the relevant provision of the external

However, it is also known that the – succinct – arguments put forward by the ITLOS to substantiate its advisory jurisdiction have been the subject of criticism from several States, as well as by numerous authors. Consequently, on the one hand, the adoption by the ITLOS of Article 138 of its Rules of Procedure has been defined as ultra vires (see Separate Opinion of Judge Lucky); while, on the other hand, the opportunity of a conventional amendment aimed at consolidating the legal basis of the advisory competence and clarifying the gaps that currently characterize the relevant discipline (see here and here). On the other hand, to date no initiative appears to have been taken in this regard by the States parties to the Convention on the Law of the Sea and at the same time it seems unlikely that the General Court revises its position on the legal basis of its advisory competence (see here).

However, the exercise of advisory competence could nevertheless be problematic because of the uncertainties which, as mentioned above, continue to characterise its contours. Moreover, the request for an advisory opinion currently pending seems to be connoted by some peculiarities compared to the previous one, which are likely to require a further processing effort on the part of the ITLOS. Subsequent reflections will therefore focus on these aspects.

III. Advisory Jurisdiction of the ITLOS

As regards the delimitation of the advisory jurisdiction of the General Court, there are, in particular, two questions that could be raised: firstly, in what circumstances the award agreement of jurisdiction is to be understood as being related to the purposes of the Convention on the Law of the Sea and, secondly, what is the extension of the ‘matter’ of the advisory competence.

As far as the first aspect is concerned, the few steps contained in the 2015 opinion do not seem to be sufficiently clarifying. The Tribunal quickly concluded that there was a link between the Convention on the Determination of Minimum Conditions for Access to and Exploitation of Marine Resources within Maritime Areas under the jurisdiction of the Member States of the Subregional Commission for Fisheries and the Purposes of the Convention on the Law of the Sea, on the grounds that the purpose of the former was to apply the second, especially its provisions calling for the signing of regional of its Member States with a view to a better exploitation of fisheries resources in the maritime zones under their respective jurisdictions, for the benefit of current and future generations’ (Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, para. 63).

On the other hand, it is not clear whether the aspects valued in the present case should necessarily also be found in any other agreement with advisory competence and, more specifically, whether such an agreement should regulate one or more substantive aspects related to the purposes of the UNCLOS (see here and here). In the case of the COSIS Agreement, it will then be a question of understanding whether in order to establish the advisory jurisdiction it is sufficient that it is not intended stricto sensu to apply the UNCLOS but is aimed at favouring the correct interpretation and application by the Member States – also – of the provisions contained in the Convention imposing obligations on States with regard to the protection. Moreover, unlike the previous advisory procedure, it may be considered that COSIS was established with the main purpose of looing the General Court on an advisory basis.

Similarly, some uncertainties also feature the material scope of the advisory competence, fuelled by certain passages of the first opinion rendered. On the one hand, the General Court would appear to have excluded the need to be limited to matters relating to the interpretation and application of the international agreement which from time to time gives it an advisory jurisdiction, while recognising instead the possibility of ruling on further legal issues provided that they have a ‘sufficient connection’ with the purposes and principles of the same (SFRC, Advisory Opinion of 2 April 2015, para. 68). This would therefore seem prima facie to allow the General Court to rule on the interpretation of international treaties other than the agreement of competence, as could the same Convention on the Law of the Sea, which the request for opinion of the COSIS, as already mentioned, relates.

Moreover, the ITLOS has – at least in principle – kept its jurisdiction limited to the exclusive economic zone of the Member States of the Subregional Fisheries Commission, on the grounds that the international agreement conferring advisory competence was found to be applicable to those maritime areas (SFRC, Advisory Opinion of 2 April 2015, para. 69, 87, 154 and 179). Consequently, the ITLOS reinterpreted the first of the questions, for example, by which it was asked to clarify the obligations of the flag States if illegal, unreported and unregulated fishing activities were conducted within the EEZ of third States, limiting the latter notion to the Member States of the Commission (SFRC, Advisory Opinion of 2 April 2015, para. 87). However, it is not clear whether, and how, the ITLOS will decide to narrow its jurisdiction even if, as in the case of the COSIS Agreement, the Treaty of advisory competence did not have a defined scope ratione loci. Moreover, it does not appear that the choice made by the ITLOS in the 2015 opinion is to be to some extent related to the desire not to rule on the rights and obligations of third States in the absence of their consent. However, despite the aforementioned uncertainties, it does not seem that there are elements, both regulatory and jurisprudential, that first lead to deny the jurisdiction of the Court in the pending proceedings (for some reflections on the profiles relating to any applicable law, see here and here).

IV. Framing of Questions

Should the ITLOS have a view to be competent, the question could also be asked whether it is then in fact obliged to give the requested opinion and whether it should do so by strictly with the questions as formulated by the applicant. Although the ITLOS has recognised, at least in principle, the possibility of not giving the opinion requested for compelling reasons (SFRC, Advisory Opinion of 2 April 2015, para. 71), there are in fact considerable uncertainties as to the scope for the exercise of this option and, more broadly, its procedural powers.

Among other things, the latter aspect seems to be linked in two ways in which the Court perceives and ‘builds’ its advisory role. In this respect, its tendency to draw on the experiences of other international courts and tribunals seems to have indeed emerge from the examination of the 2015 opinion. For example, the General Court has borrowed from the case-law of the Chamber of International Marine Funds – what it would seem to be – the purpose of the advisory competence, namely to assist the applicant institution in the performance of its functions and to contribute to the application of the ITLOS (SFRC, Advisory Opinion of 2 April 2015, para. 77). Moreover, there are numerous references to the case-law of the International Court of Justice, which could therefore indicate some adherence to the model represented by the latter.

Thus, for example, in recognising the right not to give the requested opinion, the ITLOS at the same time referred to the fact that this should only be done if compelling reasons were to occur, taking up this concept from the case-law of the International Court of Justice (SFRC, Advisory Opinion of 2 April 2015, para. 71). In this sense, it is only appropriate to recall how, by virtue of – also – the organic link of the Court with the United Nations, the aforementioned notion has taken on a peculiar connotation in this context and how the Court has never recognised in practice the existence of these reasons, so much so commentationscommentators have mentioned an ‘underused tool’ (see here).

Alternatively, the ITLOS could to some extent be inspired by the Inter-American Court of Human Rights. Although the latter also referred to the concept of ‘compelling reasons’, it has nevertheless not only progressively systematised the circumstances suitable for grounds for a refusal, but has also on several occasions resorted to these reasons to refuse to give the requested opinion (see here and here). Although they are heterogeneous, the reasons given by the Inter-American Court all converge in the ultimate aim of protecting the proper functioning of the inter-American human rights system, also through the peculiar role which, in this context, is recognised in its advisory competence.

At least in principle, the ITLOS would therefore not seem to be precluded from effectively making use of its power to refuse to give the requested opinion, in order to protect – at least – the integrity of its advisory function. Among other things, the ITLOS could take this opportunity to rule on the specific reasons suitable to justify a refusal for reasons of ownership, even regardless of any application in casu.

On the other hand, the identification of ‘decisive’ reasons proves to be an undoubtedly complex operation, for which it seems appropriate for the ITLO:PS to take due account of the specificities of its advisory function. Then, even a possible reference, by the ITLOS, to the case-law of other international courts or tribunals must be exercised with caution and only to the extent that this proves to be effectively functional to safeguard the integrity of its judicial function.

For example, it was suggested the possibility that the Court decides not to rule if a request relates mainly to international obligations assumed by third States with respect to the agreement that confers it jurisdiction, drawing inspiration from the Inter-American Court, which in its case-law would have recognized among the compelling reasons that could lead it not to make the opinion solicited the possibility that the request mainly.

Nevertheless, this explanatory statement does not seem to have so far been applied by the Inter-American Court to reject a request for an opinion, but only to reinterpret or rephrase certain questions (see Advisory Opinion OC-25/18 of 30 May 2018, para. 29-31). For example, if the ITLOS were to recognise such a reason as ‘decisive’, it is unclear whether, and to what extent, it is likely to be applied in the pending proceedings, given that all the States parties to the COSIS Agreement are also State parties to the UNCLOS.

But more generally, any refusal to the contrary for the aforementioned reason, or for any other reasons, if on the one hand it allows the ITLOS to protect the integrity of its judicial function, on the other hand obviously entails the failure to adopt the requested opinion. Alternatively, the General Court could perhaps make additional use of its power to rephrase the questions contained in the request for an opinion. Moreover, it was said that already in the course of the first advisory proceedings the Court reinterpreted – or reformulated – the request to delimit its ‘spatial’ scope. Similarly, it could decide to reformulate the questions submitted by COSIS, possibly limiting their scope – at least formally – to the obligations on the COSIS’s Member States.

A re-wording of the questions in this sense leads, on the other hand, to question its compliance with respect to any limits to the more general power of reformulation. Yet, an exercise of the latter in the envisaged sense could perhaps find a ‘functional’ justification. In other words, if the nature of power inherent in the activity of the General Court is accepted (for example, see this advisory opinion by the Inter-American Court of Human Rights, para. 55), it could possibly be accepted to allow its exercise where it is intended to safeguard the integrity and effectiveness of the advisory function (on ‘functional justification’ see here, p. 841).

V. Concluding Remarks

A – more – clear articulation, by the General Court, of the purposes of its advisory competence proves to be preparatory to an exercise of the power of reformulation and, more generally, of its procedural powers aimed at preserving the effectiveness of the advisory function, while at the same time reducing the risks of its distorted use. The advisory procedure currently pending is therefore a second and interesting test case, which is likely to be an important part of the content of any opinion delivered and the prospects of the advisory function of the ITLOS.

Ahan Gadkari is a 5th year B.A. LLB (Hons.) student at Jindal Global Law School.

Image: ITLOS