Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC)

2015 ◽  
Vol 109 (4) ◽  
pp. 851-858 ◽  
Author(s):  
Michael A. Becker
Keyword(s):  
Sustainable Management ◽  
Law Of The Sea ◽  
Advisory Opinion ◽  
Due Diligence ◽  
Migratory Species ◽  
Iuu Fishing ◽  
United Nations Convention ◽  
The Law ◽  
Advisory Opinions ◽  
Flag State

On April 2, 2015, the International Tribunal for the Law of the Sea (ITLOS or Tribunal) rendered an advisory opinion on the rights and obligations of flag states and coastal states regarding illegal, unreported, and unregulated (IUU) fishing within the exclusive economic zone (EEZ). ITLOS confirmed that the full Tribunal—not just its Seabed Disputes Chamber—has jurisdiction to render advisory opinions, a matter of controversy that had previously been untested. The Tribunal also held that under the 1982 United Nations Convention on the Law of the Sea (UNCLOS or Convention), flag states have a “due diligence” obligation to ensure that vessels flying their flag do not engage in IUU fishing activities, and that the flag state may be held liable if that obligation of due diligence is breached. In addition, the Tribunal clarified that where fisheries competence has been transferred from a state to an international organization, it is the organization, not the flag state, that may face liability for a failure to have taken adequate measures to prevent IUU fishing. Finally, the Tribunal confirmed that coastal states have a duty to consult and cooperate with each other in the sustainable management of shared stocks and highly migratory species.

Due Diligence in the Law of the Sea

2020 ◽  
pp. 147-162
Author(s):  
Irini Papanicolopulu
Keyword(s):  
United Nations ◽  
Law Of The Sea ◽  
Due Diligence ◽  
International Tribunal ◽  
Technical Standards ◽  
Secondary Character ◽  
Legal Nature ◽  
United Nations Convention ◽  
The Law ◽  
Advisory Opinions

This chapter analyses due diligence obligations in law of the sea instruments, particularly in the 1982 United Nations Convention on the Law of the Sea. It demonstrates the linkage between general principles, their application to non-state actors via the due diligence obligations of states, and their eventual transformation into binding detailed technical standards, such as the ones incorporated in maritime safety conventions. The chapter advances an integrated reading of due diligence rules in the law of the sea and argues that increased reference to technical standards would facilitate their application in practice. Following a review of two advisory opinions—one of the International Tribunal for the Law of Sea and one of its Seabed Disputes Chamber—the chapter finally contextualises its core findings within the broader debate on the legal nature of due diligence and its primary or secondary character.

The Sponsoring State’s ‘Obligation to Ensure’ in the Development of the International Seabed Area

2013 ◽  
Vol 28 (4) ◽  
pp. 681-699 ◽  
Author(s):  
Hui Zhang
Keyword(s):  
Strict Liability ◽  
East Asian ◽  
Law Of The Sea ◽  
Advisory Opinion ◽  
Due Diligence ◽  
International Tribunal ◽  
New Development ◽  
United Nations Convention ◽  
The Law ◽  
International Seabed Authority

Abstract At the request of the International Seabed Authority, in 2011 the Seabed Dispute Chamber of the International Tribunal for the Law of the Sea rendered its first Advisory Opinion: to clarify the ambiguous rules of the United Nations Convention on the Law of the Sea concerning the obligations and liabilities of a sponsoring State in the development of the international seabed area. According to the Opinion, the sponsoring State’s ‘obligation to ensure’ is an obligation of conduct and due diligence; the sponsoring State should take necessary and appropriate measures to fulfill the obligation under its domestic legal system; obligations and liabilities shall apply equally to the developed and developing States; the sponsoring State could avoid strict liability and compensation when fulfilling its ‘obligation to ensure’ due to the due diligence nature of the obligation. In light of this new development in the law concerning the international seabed area, East Asian States should take measures to improve their legislation and administration accordingly.

Regulatory Coherence

2021 ◽  
pp. 51-88
Author(s):  
Caroline E. Foster
Keyword(s):  
United Nations ◽  
Law Of The Sea ◽  
Legitimate Authority ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
United Nations Convention ◽  
The Law ◽  
Advisory Opinions

Part II comprises two chapters, Chapter Three and Chapter Four. These chapters together investigate the decisions and advisory opinions of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and United Nations Convention on the Law of the Sea (UNCLOS) Annex VII tribunals, as well as other Permanent Court of Arbitration (PCA) cases. The courts and tribunals studied in these chapters make use of a broad range of interpretive methodologies in identifying emerging global regulatory standards, including reliance on the inbuilt logic of the regulatory schemes they are applying. The standards articulated make relatively minimal demands on domestic legal systems compared with more demanding standards that could have been developed. In this respect the standards appear to enhance traditional procedural justifications for international law’s claim to legitimate authority. Chapter Three focuses on tests for ‘regulatory coherence’.

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.

Some Developments and Issues after the Adoption of UNCLOS

2021 ◽  
Vol 9 (1) ◽  
pp. 35-59
Author(s):  
Helmut Tuerk
Keyword(s):  
South China Sea ◽  
Law Of The Sea ◽  
International Tribunal ◽  
State Practice ◽  
National Jurisdiction ◽  
United Nations Convention ◽  
Heavy Workload ◽  
The Law ◽  
Advisory Opinions ◽  
Complex Question

Abstract The United Nations Convention on the Law of the Sea (UNCLOS) is a framework treaty and a number of its provisions lend themselves to divergent interpretations. There are developments that had not been foreseen at the time of its adoption. The International Tribunal for the Law of the Sea (ITLOS) has made a substantive contribution to the development of the law of the sea by its jurisprudence, including advisory opinions. The issue of the regime of islands, which has in particular arisen in the South China Sea, is still highly controversial and no consistent State practice exists. A largely unresolved and complex question is that of the limits of the international seabed Area as the Commission on the Limits of the Continental Shelf (CLCS) is overburdened by a tremendous and unforeseen heavy workload. The issue of Marine Genetic Resources (MGRs) in Areas Beyond National Jurisdiction (ABNJ), of which there was no knowledge at the time of the elaboration of UNCLOS, remains to be resolved by a further implementation agreement to UNCLOS currently under negotiation.

scholarly journals Observations on Vessel Release under the United Nations Convention on the Law of the Sea

1996 ◽  
Vol 11 (2) ◽  
pp. 201-215 ◽  
Author(s):  
Bernard H. Oxman
Keyword(s):  
United Nations ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
International Tribunal ◽  
German Government ◽  
International Obligations ◽  
Additional Procedure ◽  
United Nations Convention ◽  
The Law ◽  
Flag State

AbstractIf a foreign ship is detained by a coastal or port state, the flag state may contest the legality of the detention and submit the case to a court or tribunal having jurisdiction under the general dispute settlement provisions of the Convention. Article 292 sets up a more circumscribed, additional procedure for vessel release. It does not entail the submission of a dispute on the merits to a court or tribunal for judgment. The matter must be dealt with "without delay". Articles 294 and 295 are arguably not relevant. Local proceedings are unaffected and local remedies need not be exhausted. Application can be made "by or on behalf" of the flag state. The text provides an alternative. The words "on behalf of" present an option that is not already provided by the word "by". Therefore, these words should be understood to permit the flag state to dispense with the need for official communication from its government in connection with each application for release, such as is necessary for an application "by" the flag state. Instead, the state may designate in advance natural or judicial persons (e.g. owners or operators), who are authorized to bring applications for release on its behalf. Since no application for release "on behalf of the flag State" may be made against its will, the flag state may change, qualify or withdraw its designations at any time. While there is no doubt that the German Government will permit parties before the Tribunal to be represented by counsel of their choice, without regard to the country in which counsel is licensed to practise law, the question remains whether foreign counsel will be permitted to maintain an office in Hamburg even when they are not working on a case before the International Tribunal for the Law of the Sea. This is, however, less a question of Germany's international obligations, than a question of whether Germany wishes to promote the idea that Hamburg is a global centre for legal activity related to the Law of the Sea.

14 Flag States

2015 ◽  
Author(s):  
Barnes Richard A
Keyword(s):  
United Nations ◽  
Law Of The Sea ◽  
United Nations Convention ◽  
The Law ◽  
State Rights ◽  
Flag State

This chapter discusses flag state jurisdiction as set forth in the 1982 United Nations Convention on the Law of the Sea (LOSC). It covers the development of flag state jurisdiction; registration and nationality; the operation of flag state jurisdiction; and flag state rights and duties.

4 Advisory Opinions by ITLOS

2021 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
Law Of The Sea ◽  
Legal Basis ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Legal Questions ◽  
International Court ◽  
United Nations Convention ◽  
The Law ◽  
International Seabed Authority ◽  
Advisory Opinions

This chapter focuses on advisory opinions by the International Tribunal for the Law of the Sea (ITLOS). Like the International Court of Justice, ITLOS may render and has rendered advisory opinions on legal questions within its areas of competence. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) expressly provides for the advisory jurisdiction of the Seabed Disputes Chamber of ITLOS, but not the full bench of ITLOS itself. According to Article 191 of UNCLOS, the Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council of the International Seabed Authority on legal questions arising within the scope of their activities, and such opinions shall be given as a matter of urgency. The full bench of ITLOS has held that the substantive legal basis of the full-bench ITLOS’ advisory jurisdiction is Article 21 of its Statute stipulating that ITLOS’ jurisdiction comprises all disputes and all applications submitted to it in accordance with UNCLOS and all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS. The ITLOS Rules elaborate the procedure in this respect.

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