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

Published online by Cambridge University Press:  20 January 2017

Michael A. Becker
Michael A. Becker*
Affiliation:
University of Cambridge
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Extract

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.

Keywords

Un Convention on the Law of the Seaadvisory jurisdictionillegal, unreported, and unregulated fishing in the exclusive economic zoneConvention on Minimal Conditions for Accessflag state liabilitydue diligenceduty to cooperate
Type
International Decisions
Information
American Journal of International Law , Volume 109 , Issue 4 , October 2015 , pp. 851 - 858
Copyright
Copyright © American Society of International Law 2015

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References

1 Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC), Case No. 21, Advisory Opinion (ITLOS Apr. 2, 2015), at http://www.itlos.org [hereinafter SRFC Opinion]. Documents relating to the case cited below can be accessed at http://www.itlos.org/cases/list-of-cases/case-no-21/ [hereinafter Case No. 21].

2 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter UNCLOS], available at http://www.un.org/depts/los/.

3 The SRFC member states are Cape Verde, the Gambia, Guinea, 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 Jurisdiction of the Member States of the Sub-regional Fisheries Commission (SRFC), June 8, 2012 [hereinafter MCA Convention], at Case No. 21.

5 A memorial submitted by the World Wildlife Federation was not included in the case file, but was circulated to participating entities and posted on the Tribunal’s website, at id., Statement from an Ngo (Nov. 29, 2013).

6 Written Statement of the United States, para. 3, Id., Written Proceedings First Round (Nov. 27, 2013).

7 Argentina, Australia, China, Ireland, Spain, Thailand, the United Kingdom, and the United States argued that the full Tribunal has no advisory jurisdiction, and several other states expressed skepticism (e.g., France, Portugal) or urged that any advisory opinion be limited to interpreting the Mca Convention (e.g., Japan, the Netherlands).

8 See UNCLOS, supra note 2, Arts. 159(10), 191; Statute of the International Tribunal for the Law of the Sea, Id., Annex VI, Art. 40(2). The Seabed Disputes Chamber has issued one advisory opinion to date. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, 11 ITLOS Rep. 10 [hereinafter Area Opinion].

9 Rules of the Tribunal, as amended, Art. 138(1), UN Doc. ITLOS/8 (Mar. 17, 2009).

10 In this context, the Tribunal referred extensively to the Area Opinion, supra note 8, which addressed the due diligence obligation of states regarding entities involved in deep seabed exploitation. SRFC Opinion, paras. 125–29.

11 Written Statement of Australia, para. 26, Case No. 21, Written Proceedings First Round (Nov. 28, 2013).

12 Written Statement of the United States, supra note 6, para. 13; see also Written Statement of Australia, supra note 12, para. 13; Written Statement of the People’s Republic of China, paras. 24–28, Written Proceedings First Round (Nov. 26, 2013).

13 Written Statement of the United Kingdom, para. 24, Written Proceedings First Round (Nov. 28, 2013).

14 Final Draft Rules of the Tribunal, Working Paper by the Secretariat, in Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea, Report Containing Recommendations for Submission to the Meeting of States Parties at 26, Un Doc. LOS/PCN/152 (Vol.I) (Apr. 28, 1995).

15 Declaration of Judge Cot, SRFC Opinion, paras. 2,3. The French text of statute Article 21 reads: “Le Tribunal est compétent pour tous les différends et toutes les demandes qui lui sont soumis conformément à la Convention et toutes les fois que cela est expressément prévu dans tout autre accord conférant compétence au Tribunal.” It does not refer to “matters” (i.e., matiéres) in the second clause, which instead appears to restrict the jurisdiction conferred upon the Tribunal by other agreements to the “disputes” and “applications” mentioned in the first clause.

16 Id., para. 4; see also Separate Opinion of Judge Lucky, SRFC Opinion, para. 21.

17 The ICJ has consistently held that the exercise of its advisory jurisdiction does not require the consent of states that may be affected, even when the advisory opinion (unlike the present one) relates to an actual dispute; but nonconsent may bear on whether a request should be declined. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, 157–59, paras. 46 –50 (July 9).

18 Declaration of Judge Cot, supra note 15, para. 7. Regrettably, no prominent open registry flag state (e.g., the Bahamas, Liberia, Panama) made a submission in the case. Such states, which register high numbers of foreign-owned vessels, might have provided relevant perspectives on existing practice and the level of oversight that can reasonably be expected of flag states.

19 Id., paras. 9–12.

20 See, e.g., ICJ Statute Art. 59.

21 A notable exception is question 3 on liability under an international agreement. Most participants argued that in the absence of specific rules to the contrary, the flag state and the international organization could each face liability.

22 Judge Paik criticized the failure to consider these materials, many of which the SRFC had specifically invoked in its submissions. See Separate Opinion of Judge Paik, SRFC Opinion, paras. 5, 22–29.

23 The ICJ has discussed this type of approach in another context. See Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), 2010 ICJ Rep. 639, 660–61, paras. 54–56 (Nov. 30).

24 Written Statement of the United States, supra note 6, para. 38.