scholarly journals Analisis UNCLOS 1982 Terkait Permasalahan Yurisdiksi Negara dan Penegakan Hukum Atas Kapal Berbendera Negara Asing

SASI ◽  
2021 ◽  
Vol 27 (1) ◽  
pp. 12
Author(s):  
Zainal Abdul Aziz Hadju
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Dispute Resolution ◽  
International Organizations ◽  
Water Area ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Conceptual Approach ◽  
The Law ◽  
Criminal Matters

International Law has reign most interactions between States in the sea. The practice of illegal transshipment is a serious issue as it falls within both theft mode and smuggling through the transfer of cargo from one ship to another that occurs at sea. Including a crime which committed in the territory of one state but involving parties from another state or more. Law enforcement is a major concern when an offence of some kind of illegal transshipment occurs. The study aims to determine the jurisdiction of states in enforcing laws including in criminal matters that occurred over its sea where the country has sovereign rights, especially when the involvement of 3rd states party in the law enforcement on a ship which not entered into its territory, yet indicately committed a violation of the law in some states water area, this paper also study how the responsibility of 3rd states party towards of flag states of ships who feel harmed. This article was written using normative research methods with a statutory. Historical and conceptual approach explaining efforts from international organizations in resolving the issues of accountability of countries involved in the problem of Illegal Transshipment at sea in the 1982 UNCLOS perspective especially the process of law enforcement and dispute resolution by the International Tribunal for the Law of The Sea (ITLOS).

scholarly journals The Future of Compulsory Dispute Settlement Under The Law of the Sea Convention

2005 ◽  
Vol 36 (4) ◽  
pp. 683 ◽  
Author(s):  
Rosemary Rayfuse
Keyword(s):  
United Nations ◽  
International Law ◽  
Dispute Resolution ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Rules ◽  
The Future ◽  
The Law ◽  
Or Applications

In this article Rosemary Rayfuse evaluates the dispute resolution provisions found in Part XV of the United Nations Law of the Sea Convention (UNCLOS). While the cases emerging from the International Tribunal on the Law of the Sea (ITLOS) to date have been limited in number, they can provide us with some idea of whether the Part XV machinery has been successful, and allow some predictions to be made as to its continuing role in the development of the law of the sea. Having examined this jurisprudence, she concludes that while the fears of fragmentation in the sense of inconsistent interpretations or applications of legal rules have not yet materialised, the overall role for the dispute settlement provisions in the development of international law seems rather limited.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

The International Tribunal for the Law of the Sea and General International Law

2007 ◽  
Vol 22 (3) ◽  
pp. 351-367 ◽  
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Applicable Law ◽  
The Law

AbstractAfter addressing some preliminary points, the presentation first stresses the importance of distinguishing clearly between jurisdiction and applicable law. Then it considers how a court or tribunal whose jurisdiction ratione materiae is largely con fined to the interpretation and application of a particular treaty may nevertheless refer to general international law. The author suggests six possible ways in which recourse may be had to general international law and analyzes the case-law of the International Tribunal for the Law of the Sea in that regard. He then points out the relevance of expertise in general international law for the composition of the Tribunal. By way of conclusion, the author suggests that when any court or tribunal acting under a limited conferral of jurisdiction has recourse to general international law, it should—in the interest of transparency and so as to avoid the appearance of an excess of jurisdiction— explain the basis on which it is doing so. In his view, the Tribunal has made an important contribution to the law of the sea and to certain issues of general international law while acknowledging that the law of the sea can only be properly understood within the context of international law as a whole.

scholarly journals Praktik Illegal Transhipment di Laut Lepas Berdasarkan Hukum Laut Internasional

2019 ◽  
Vol 31 (1) ◽  
pp. 75
Author(s):  
Cindy Vira Yunita
Keyword(s):  
Dispute Resolution ◽  
Organized Crime ◽  
Southeast Asian ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Transnational Organized Crime ◽  
Resolution Process ◽  
Regional Association ◽  
The Law ◽  
Criminal Groups

AbstractIllegal transhipment practice is a serious problem because it is included in the theft mode of fish, which is by transferring the cargo of fish that occurs in the middle of the high seas from one ship to foreign ships without reporting the catch. It categorized as one form of the criteria for Transnational Organized Crime/TOC, includes crimes committed in one country, but involves organized criminal groups from more than one country. This paper will construct how the dispute resolution process must be carried out if it consists of UN procedures, UNCLOS 1982 by "International Tribunals for the Law of the Sea (ITLOS)" and the Association of Southeast Asian Nations (ASEAN) Regional. The type of research used is normative juridical.  IntisariPraktik illegal transhipment merupakan suatu permasalahan yang serius karena termasuk dalam modus pencurian ikan, yaitu melalui pemindahan muatan ikan yang terjadi di tengah laut lepas dari satu kapal ke kapal asing tanpa melaporkan hasil tangkapannya tersebut. Dikategorikan sebagai salah satu bentuk kriteria Transnational Organized Crime/TOC, meliputi kejahatan yang dilakukan di satu negara, akan tetapi melibatkan kelompok kriminal terorganisasi yang berasal lebih dari satu negara. Tulisan ini akan mengonstruksikan bagaimana proses penyelesaian sengketa yang harus dilakukan bilamana terdiri atas prosedur PBB, UNCLOS 1982 oleh “International Tribunal for the Law of the Sea (ITLOS)”, dan Regional Association of Southeast Asian Nations (ASEAN). Jenis penelitian yang digunakan ialah yuridis normatif. 

Part I Assessing the UN Institutional Structure for Global Ocean Governance: The UN’s Role in Global Ocean Governance, 5 The Role of International Tribunal for the Law of the Sea (ITLOS) in Global Ocean Governance

2018 ◽  
Author(s):  
Golitsyn Vladimir
Keyword(s):  
International Law ◽  
Global Ocean ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Progressive Development ◽  
Ocean Governance ◽  
United Nations Convention ◽  
The Law ◽  
Advisory Opinions

This chapter focuses on the role of the International Tribunal for the Law of the Sea (ITLOS) in global ocean governance. Established under the United Nations Convention on the Law of the Sea (UNCLOS), the jurisdiction of the ITLOS comprises all disputes and all applications concerning interpretation or application of the Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. In the performance of its responsibilities, ITLOS has accumulated a body of jurisprudence which constitutes its contribution to the progressive development of international law of the sea and thus global ocean governance. The chapter discusses the most important examples of the ITLOS's contribution to the global ocean governance, such as dealing with contentious cases, requests for provisional measures, and prompt release cases as well as providing advisory opinions.

Reflections on the M/V “Norstar” Case Before the International Tribunal for the Law of the Sea

2020 ◽  
pp. 291-316
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
International Law ◽  
Good Faith ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Basic Concepts ◽  
The Law ◽  
Insight Into ◽  
Freedom Of Navigation

The M/V “Norstar” case deserves serious consideration for four reasons. First, the M/V “Norstar” judgment of 2016 is the first judgment on preliminary objections in the jurisprudence of the International Tribunal for the Law of the Sea (ITLOS). The judgment shed some light on procedural issues concerning preliminary objections. Second, ITLOS, in its judgment of 2019, addressed the interpretation and application of Article 87 of the UN Convention on the Law of the Sea. In light of the paramount importance of the freedom of navigation, the Tribunal’s view on this matter merits particular attention. Third, the M/V “Norstar” case provides an insight into basic concepts of international law, such as acquiescence, estoppel, good faith, and abuse of rights. Fourth, the M/V “Norstar” case furnishes a precedent regarding reparation in international law. Thus, this chapter examines the M/V “Norstar” judgments on preliminary objections and the merits, respectively.

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