Advisory Opinions and Jurisdiction of the International Tribunal for the Law of the Sea

2011 ◽  
Author(s):  
Carlos Espósito
Keyword(s):  
Law Of The Sea ◽  
International Tribunal ◽  
The Law ◽  
Advisory Opinions

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.

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.

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.

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.

The International Tribunal for the Law of the Sea

1998 ◽  
Vol 11 (3) ◽  
pp. 527-546 ◽  
Author(s):  
Thomas A. Mensah
Keyword(s):  
Deep Sea ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Questions ◽  
First Case ◽  
Organizational Work ◽  
The Law ◽  
International Seabed Authority ◽  
Judicial Procedure ◽  
Advisory Opinions

The International Tribunal for the Law of the Sea is one of the “compulsory procedures entailing binding decisions” provided for in Article 287 of the Convention. The Tribunal is established by Annex VI to the Convention which is its Statute. Within the Tribunal is established the Seabed Disputes Chamber which has jurisdiction to deal with respect to deep-sea mining activities covered by Part XI of the Convention.The Tribunal performs three different but closely related functions. The first is to offer a forum of choice for states parties to the Convention to settle disputes concerning the interpretation or application of the provisions of the Convention. The second function is to provide a special, and largely mandatory, procedure for dealing with disputes in connection with the interpretation and application of the provisions of Part XI of the Convention. This is the function of the Seabed Disputes Chamber. The Chamber also has competence to give advisory opinions on legal questions arising within the scope of the activities of the Assembly and Council of the International Seabed Authority. Thirdly, the Tribunal serves as a residual and compulsory mechanism for the settlement of certain disputes identified by the Convention as requiring expeditious decision, such as applications for the prompt release of arrested vessels and crew or requests for the prescription of provisional measures pending final decisions in cases. The Tribunal may also deal with disputes arising under other maritime agreements, if the agreements so provide.The Tribunal commenced operations in October 1996. It has completed organizational work for its administrative judicial functions. It has adopted its Rules, the Resolution on the Internal Judicial Procedure and Guidelines to assist parties appearing before it. It has also established special Chambers. The Tribunal has already dealt with one application for the prompt release of a vessel and crew arrested in a foreign port and one request for provisional measures. Proceedings are in progress on the merits of the first case submitted to it.

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