Document Type : Article
Authors
1 Assistant Prof., Department of International Law, Faculty of Law, University of Qom, Qom, Islamic Republic of Iran
2 Associate Professor, International Law Department, University of Qom, Qom, Islamic Republic of Iran
3 Ph.D. in International Law, Faculty of Law, University of Qom, Qom, Islamic Republic of Iran
Abstract
Following the request from the Sub-Regional Fisheries Commission (SRFC) for an advisory opinion, the International Tribunal for the Law of the Sea (ITLOS) addressed its advisory jurisdiction. This paper aims to examine this aspect of the ITLOS Advisory Opinion of 2 April 2015. The research method is descriptive – analytical and the information has been collected through library sources. The paper will explain that with a functionalist approach and an evolutionary interpretation of Article 21 of the ITLOS Statute and Article 138 of the Rules of the Tribunal, ITLOS established that the full Tribunal has jurisdiction to give the advisory opinion requested by the SRFC and this authority is not merely for the Seabed Disputes Chamber. This advisory opinion paves the way for other bodies to obtain an advisory opinion from the Tribunal as regards the international law of the sea. It can rightly be considered a new way for the Tribunal and lead to the development the law of the sea.
Keywords
- dynamism of international law
- the International Tribunal for the Law of the Sea
- international jurisdiction
- advisory opinion
- the Sub-Regional Fisheries Commission (SRFC)
Main Subjects
English
- A) Book
- Tanaka, Y. (2018). The Peaceful Settlement of International Disputes. Cambridge: Cambridge University Press.
- B) Articles
- Anton, D., Makgill, R., & Payne, C. (2011). Advisory Opinion on Responsibility & Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber. Australian National University, College of Law, Research Paper, 11-06, 1-13.
- Babu, R. (2015). “State Responsibility for Illegal, Unreported and Unrelated Fishing and Sustainable Fisheries in the EEZ: Some Reflections on the ITLOS Advisory Opinion of 2015”, Indian Journal of International Law, 55, 239-264.
- Gavouneli, M.(2015). Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS). International Legal Materials, 54(5), 890-926.
- Lando, M. (2016). The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission. Leiden Journal of International Law, 29, 441-461.
- Musto, C., & Papastavridis, E. (2021). Tackling Illegal, Unreported, and Unregulated Fishing through Port State Measures. Melbourne Journal of International Law, 22, 259-307.
- Schatz, Valentin (2016) (a). “Combatting Illegal Fishing in the Exclusive Economic Zone-Flag State Obligations in the Context of the Primary Responsibility of the Coastal State. Goettingen Journal of International Law, 7(2), 383-414.
- Schatz, V. (2016b). Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ. Ocean Development and International Law, 47(4), 327-345.
- Taghizadeh, Z. (2021). Illegal, Unreported and Unregulated Fishing under the Proceeding of the International Tribunal for Law of the Sea. International Journal of Maritime Policy, 1, 5-36.
- Tanaka, Y. (2015). Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015. Law and Practice of International Courts and Tribunals, 14(2), 318-339.
- Treves, T. (2017). Introductory Note: The Jurisprudence of International Tribunal for the Law of the Sea in 2015. In Giuliana Ziccardi Capaldo (ed.), The Global Community Yearbook of International Law and Jurisprudence 2016, Oxford Academic.
- C) Thesis
- Cuenot, S. (2013). Advisory Opinion: A Bridge Between the CLCS and the ITLOS, Thesis to get Master’s Degree, Supervised by Chie Kojima and Proshanto K. Mukherjee, Maritime law, Faculty of Law, Lund University. Open access at http://lup.lub.lu.se/student-papers/record/3811848/file/3811853.pdf
- D) Cases
- ICJ [International Court of Justice] (1996). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion.
- ITLOS [International Tribunal for the Law of the Sea] (1982). Statute of the International Tribunal for the Law of the Sea (ITLOS Statute) (Annex VI of the United Nations Convention on the Law of the Sea).
- ITLOS [International Tribunal for the Law of the Sea] (1997). Rules of the Tribunal (ITLOS Rules) (ITLOS/8), as adopted on 28 October 1997 and amended on 15 March 2001, 21 September 2001 and 17 March 2009.
- ITLOS [International Tribunal for the Law of the Sea] (2011). Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Disputes Chamber), Case No. 17, Advisory Opinion.
- ITLOS [International Tribunal for the Law of the Sea] (2013). Request for an Advisory Opinion to the International Tribunal for the Law of the Sea, Written Statement of the European Union.
- ITLOS [International Tribunal for the Law of the Sea] (2013). Request for an Advisory Opinion to the International Tribunal for the Law of the Sea, Written Statement of the United Nations Organization.
- ITLOS [International Tribunal for the Law of the Sea] (2013). Request for an Advisory Opinion to the International Tribunal for the Law of the Sea, Written Statement of the Permanent Secretariat of the Sub-Regional Fisheries Commission.
- ITLOS [International Tribunal for the Law of the Sea] (2013). Request for an Advisory Opinion to the International Tribunal for the Law of the Sea, Written Statement of the Germany.
- ITLOS [International Tribunal for the Law of the Sea] (2015). Press Release, Press 227, Tribunal Delivers Its Advisory Opinion Regarding Illegal, Unreported and Unregulated Fishing Activities, 02.04.2015.
- ITLOS [International Tribunal for the Law of the Sea] (2015). Adviory Opinion, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Request for Advisory Opinion Submitted to the Tribunal), Case No. 21.
- E) Documents
- Agreement Establishing a Sub-Regional Fisheries Commission (SRFC Convention) (1985).
- Amendment to the Convention of 29th March 1985 Establishing the Sub-Regional Fisheries Commission (1993).
- Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under the Jurisdiction of the Member States of the Sub-Regional Fisheries Commission (MAC Convention) (2012).
- Food and Agriculture Organization of the United Nations (2001). International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.
- United Nations Convention on the Law of the Sea (UNCLOS) (1982). 1833. UNTS. 396.27.
- F) Analytical Blogposts
- Akende, Dapo (2011). The International Tribunal for the Law of the Sea Gets Busier, EJIL Analysis, August 2. https://www.ejiltalk.org/the-international-tribunal-for-the-law-of-the-sea-gets-busier/
- Boon, Kristen (2013). New ITLOS Advisory Opinion Sought, Opinio Juris, April 10. http://opiniojuris.org/2013/04/10/new-itlos-advisory-opinion-sought/
- Freestone, David (2011). Advisory Opinion of the Seabed Disputes Chamber of International Tribunal for the Law of the Sea on Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, ASIL Insight, March 9. https://www.asil.org/insights/volume/15/issue/7/advisory-opinion-seabed-disputes-chamber-international-tribunal-law-sea-
- Romee van der Marel, Eva (2015). ITLOS Issues Its Advisory Opinion on IUU Fishing, JCLOS. http://site.uit.no/jclos/2015/04/21/itlos-issues-its-advisory-opinion-on-iuu-fishing/
- Stephens, Tim (2015). ITLOS Advisory Opinion: Coastal and Flag State Duties to Ensure Sustainable Fisheries Management, April 16. https://www.asil.org/insights/volume/19/issue/8/itlos-advisory-opinion-coastal-and-flag-state-duties-ensure#_ednref24
- G) Sites
- http://spcsrp.org/en/documents-and-institutional-resources (Last visted: 2022. 08. 26).
- https://www.itlos.org/en/main/cases/list-of-cases/case-no-17/ (Last visted: 2022. 08. 26).
References in Persian:
- A) Book
- Pournuri, M., & Habibi, M. (2005). International Law of the Sea: Convention on the Law of the Sea (adopted in 1982). Translation, Tehran: Mahde Hoghogh Publishers (In persian).
- B) Articles
- Salehi, J. (2017). Advisory Opinion of the International Tribunal for the Law of the Sea; Manifestation of Flag State Obligations on Illegal Fishing by Vessels Flying its Flag in the Exclusive Economic Zone of Third State. Journal of Oceanography, 28, 1-12 (In persian).
- Guillaume, G. (2003). L unite du droit international public est-ell aujourd hui en danger”: Translated by, Mohammad Hossein Ramazanighavamabadi, Public Law Research (Former Law and Politics Research), 13, 157-169 (In persian).
- Mohebi, M., & Azari, H.(2017). Counterclaim before the International Tribunal for the Law of the Sea in the Light of Order of 2 November 2012 in the “Virginia G” Case (the Republic of Panama and the Republic of Guinea-Bissa.”: International Law Review, 55, 31-52 (In persian).