Abstract:In the absence of explicit authorization under the United Nations Convention on the Law of the Sea (UNCLOS), the International Tribunal for the Law of the Sea (ITLOS) has exercised advisory jurisdiction in cases such as the Advisory Opinion Submitted by the Sub-Regional Fisheries Commission and the Advisory Proceedings on Climate Change and Small Island States. These proceedings have sparked debate over the existence of a full-tribunal advisory competence and the legal boundaries of ITLOS 's advisory jurisdiction. As UNCLOS does not grant the Tribunal a full-tribunal advisory competence, it follows that ITLOS does not, in principle, possess such jurisdiction. The Tribunal’s reliance on expansive interpretations in practice is insufficient to establish a solid legal basis for the jurisdiction. The exercise of advisory jurisdiction must be grounded in the provisions of UNCLOS, respect the will of the States Parties, and conform to the functional limits of the Tribunal’s role. In the context of ongoing developments in global ocean governance, if ITLOS seeks to formally establish a full-tribunal advisory function, it must follow legitimate institutional pathways. This may involve amending UNCLOS to expressly authorize such jurisdiction or establishing a specialized advisory body under the Meeting of States Parties. Furthermore, there is a need to deepen the theoretical analysis of the “non-circumvention” aspect of the principle of state consent. The Chinese concept of a Maritime Community with a Shared Future and the global governance vision of extensive consultation, joint contribution, and shared benefits align with the evolution of international law and may provide theoretical support for resolving the issue of ITLOS’s advisory jurisdiction.

Keywords: International Tribunal for the Law of the Sea; United Nations Convention on the Law of the Sea; advisory jurisdiction; state consent; maritime community with a shared future

 

Author:He Tiantian, associate research fellow, CASS Institute of International Law;

Source: 4 (2025) Wuhan University International Law Review.