Published online by Cambridge University Press: 20 January 2017
On April 2, 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered its first ever advisory opinion by the full Tribunal in response to a request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), a regional fisheries organization comprised of seven West-African States. The Tribunal was asked to address four substantive questions relating to the obligations of the flag and coastal states regarding fisheries management and the ensuing responsibility of both states and competent organizations for illegal, unreported, and unregulated (IUU) fishing. In doing so, it also had occasion to clarify whether ITLOS indeed has plenary advisory jurisdiction.
* This text was reproduced and reformatted from the text available at the International Tribunal for the Law of the Sea website (visited October 12, 2015), https://www.itlos.org/en/cases/list-of-cases/case-no-21/.
1 The only other advisory opinion rendered by the Tribunal was issued by the Seabed Disputes Chamber. 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 of Feb. 1, 2011, https://www.itlos.org/cases/list-of-cases/case-no-17/ [hereinafter Seabed Advisory Opinion]. See also David, Freestone, 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” , 105 AJIL 755 (2011)Google Scholar.
2 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Case No. 21, Advisory Opinion of Apr. 2, 2105, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21_AdvOp_02.04.pdf [hereinafter Advisory Opinion].
3 They are Guinea, Cape Verde, Gambia, Guinea Bissau, Mauritania, Senegal, and Sierra Leone.
4 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, June 8, 2012, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/Convention_CMA_ENG.pdf.
5 Id. art. 33.
6 Under Article 3(d) of the Treaty on the Functioning of the European Union, the Union has exclusive competence on “the conservation of marine biological resources under the common fisheries policy.” Consolidated Version of the Treaty on the Functioning of the European Union, Oct. 10, 2012, 2012 O.J. (C 326) 45, 51 [hereinafter TFEU]. See also Allan, Rosas, Exclusive, Shared and National Competence in the Context of EU External Relations: Do Such Distinctions Matter? , in The European Union in the World: Essays in honour of Professor Marc Maresceau 17 (Inge, Govaere, Erwan, Lannon, Peter Van, Elsuwege & Stanislas, Adam eds., 2014)Google Scholar.
7 Advisory Opinion, supra note 2, ¶ 24; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stock and Highly Migratory Fish Stocks, Nov. 12, 2001, 2617 U.N.T.S. 88, 34 I.L.M. 1542.
8 Argentina, Australia, China, Ireland, Spain, Thailand, United Kingdom, and the United States. The European Union concurred while addressing the admissibility of the case.
9 Advisory Opinion, supra note 2, ¶ 56.
10 Id. ¶ 58.
11 Id. ¶¶ 59–66.
12 Id. ¶¶ 71–78.
13 Id. ¶ 106.
14 Id. ¶¶ 110, 124.
15 See Seabed Advisory Opinion, supra note 1; Ilias, Plakokefalos, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area Advisory Opinion , 24 J. Envtl. L. 133 (2012)Google Scholar. See also Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. Rep. 14, ¶ 197 (Apr. 20).
16 Advisory Opinion, supra note 2, ¶ 129.
17 See Seabed Advisory Opinion, supra note 1, ¶ 146.
18 G.A. Res. 56/83 (2001).
19 Advisory Opinion, supra note 2, ¶ 150.
20 Id. ¶¶ 168–69.
21 Id. ¶ 172.
22 Id. ¶¶ 190–91.
23 See also Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), Case No. 3 & 4, Provisional Measures, Order of Aug. 27, 1999, ITLOS Reports 280, 295 (“[T]he conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.”).
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