15-17 November 2022: CIL Director Dr Nilüfer Oral was Invited to Speak at the Seventh International Conference on the Law of the Sea Hosted by Ministry of Foreign Affairs of the Republic of Korea (MOFA)

The International Conference on the Law of the Sea has served as a venue for the judiciary and academia to share their insights on ways to develop the law of the sea since 2016. In celebration of the 40th anniversary of the adoption of the UN Convention on the Law of the Sea (UNCLOS), the themed to this year’s conference was “Law of the Sea for the Next Generation: Effectiveness of UNCLOS Revisited.” It was the second of the three-year “Law of the Sea for the Next Generation” series, which was designed to take stock of the challenges presented at sea and explore what lies ahead for the law of the sea for the next generation. This year, they reviewed the judicial decisions made under the UNCLOS regime, looked into whether UNCLOS has been effective enough to ensure the rule of law in the ocean, and discussed how the law of the sea should evolve to keep the rule of law working in our oceans.

Dr Oral spoke on the topic “Reflections on the role of advisory opinions for advancing UNCLOS: The case of the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC)”

In 2015, the International Tribunal for the Law of the Sea issued its first -and to date- only en banc advisory opinion, in the Request for an Advisory Opinion Submitted by the Sub Regional Fisheries Commission (SRFC) submitted by the Sub-Regional FisheriesCommission, composed of seven Western African States. The request from SRFC presented four questions to the Tribunal. The first two questions concerned the nature of the responsibility of flag States for the activities of their ships engaged in Illegal Unregulated and Unreported Fishing (IUU fishing) conducted within the Exclusive Economic Zones of third party States, as well as the extent to which the flag State could be held liable for IUU fishing activities conducted by vessels sailing under its flag. The third question concerned the extent to which the State or international agency granting fishing licenses would be held liable for the violation of the coastal State fisheries legislation by such vessel. The fourth question was specifically focussed on the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna.

Some States raised objections to the jurisdiction of ITLOS on grounds that UNCLOS did not expressly endow the Tribunal with competence to provide advisory opinions, unlike in the case of the Seabed Dispute Chambers under Part XI. However, based on the language of the Statute of the Tribunal in Article 21 and Article 138 of its Rules, the Tribunal found it had jurisdiction. Some twenty-three States presented written Statements, along with seven international organizations and one Amicus Curiae from a non-governmental organization.

The presentation will first examine the questions surrounding the jurisdictional competence of the Tribunal to provide advisory opinions, including a comparison with the procedure for advisory opinions for the International Court of Justice. Second, it will examine in detail the contribution of the advisory opinion to the evolutive interpretation of UNCLOS, examining the example of the SRFC advisory opinion. At the time the Convention was negotiated and adopted the concept of IUU Fishing had not yet emerged. Yet, the Tribunal, in its interpretation of the relevant provisions, was able to interpret the Convention in a manner to incorporate IUU fishing within its existing provisions and provide responses to the questions. The presentation will also examine the possible influence of the advisory opinion for State activities in relation to IUU fishing.

The year 2022 marks the 40^th anniversary of the adoption of UNCLOS. Questions have been raised whether the Convention remains ‘fit for purpose’ as new issues have emerged since 1982, such as climate change. This presentation discuss how the advisory opinion process can provide an important tool for ensuring that the UNCLOS remains an upto-date, fit-for-purpose and relevant instrument to address all issues related to the law of the sea.

More about the event at the link: https://www.icls.or.kr:40188/conference/theme.php