ITLOS Advisory Opinion: Coastal and Flag State Duties to Ensure Sustainable Fisheries Management

Introduction

On April 2, 2015 the International Tribunal for the Law of the Sea (ITLOS) rendered its advisory opinion in Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion).[1] The opinion was sought by the Sub-Regional Fisheries Commission (SRFC), a fisheries commission comprising seven West African nations,[2] against the backdrop of the serious problem of illegal, unreported, and unregulated (IUU) fishing in the Exclusive Economic Zones (EEZs) of SRFC members. With most fisheries in the region fully exploited or over-exploited, IUU fishing is undermining the capacity of SRFC members to maintain their fishing industries and provide fish protein for their populations.[3] The SRFC has expressed frustration over a series of violations of fisheries laws in the SRFC area, including the use of bunkering vessels to support IUU fishing.[4]

ITLOS is a judicial body established by the United Nations Convention on the Law of the Sea (UNCLOS)[5] to adjudicate disputes and matters concerning the interpretation and application of UNCLOS and other agreements conferring jurisdiction on ITLOS. This was the first occasion on which the full Tribunal has been requested to provide an advisory opinion,[6] which is significant as it has never been clear whether ITLOS in plenary has advisory jurisdiction. In its opinion, ITLOS confirmed that it does have this jurisdiction, and also provided a detailed examination of the obligations of flag and coastal states in relation to fisheries management. In doing so, ITLOS engaged with several issues of general international law, including the responsibility of states and international organizations for IUU fishing.

Background

The SRFC request for an advisory opinion was made under the Convention on the Definition of the Minimum Access Conditions and Exploitation of Fisheries Resources Within the Maritime Zones under the Jurisdiction of SRFC Member States (MAC Convention), which provides that the SRFC may “bring a given legal matter before [ITLOS] for an advisory opinion.” [7] ITLOS was asked to address four questions:

1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone (EEZ) of third party States?
2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?
3. Where a fishing licence is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?
4. What are 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?[8]

Demonstrating the high level of interest in the proceedings, written statements were submitted by twenty-two states parties to UNCLOS[9] and from the SRFC and six other organisations.[10] Although not a state party to UNCLOS, the United States also submitted a statement, and it was considered part of the case file as the United States is a party to the 1995 Straddling Fish Stocks Agreement, an implementing agreement under UNCLOS. Oral hearings were held in September 2014, at which statements were made by the SRFC, ten states parties to UNCLOS,[11] and two international organizations.[12]

Jurisdiction

The jurisdiction of the full Tribunal to provide an advisory opinion was contested by several states.[13] However, others either raised no questions as to the ITLOS’s jurisdiction, or argued that ITLOS did have competence.[14] Germany, for instance, “welcome[d] the fact that use is being made of the possibility to request advisory opinions from [ITLOS] which will further strengthening [sic] the Tribunal’s comprehensive role in matters concerning the Law of the Sea.”[15]

Article 138(1) of the ITLOS Rules provides that “[t]he Tribunal may give an advisory opinion if an international agreement related to the purposes of [UNCLOS] specifically provides for the submission to the Tribunal of a request for such an opinion.”[16] However, the issue of jurisdiction was contentious because neither UNCLOS nor the ITLOS Statute makes express reference to ITLOS possessing advisory jurisdiction.[17] Indeed, Article 288(1) of UNCLOS only specifies jurisdiction extending to a “dispute concerning the interpretation or application of [UNCLOS].” On the other hand, Article 21 of the ITLOS Statute is cast in more general terms, providing that the jurisdiction of ITLOS “comprises all disputes and applications submitted to it in accordance with [UNCLOS] and all matters specifically provided for in any other agreement which confers jurisdiction on [ITLOS].”

ITLOS decided, unanimously, that it had jurisdiction to give the advisory opinion, with that jurisdiction limited to the EEZs of the SRFC member states.[18] ITLOS observed that under Article 318 of UNCLOS, annexes to the Convention, including the ITLOS Statute (contained in Annex VI) constitute “an integral part of [UNCLOS].” Therefore, the Statute has the same legal status as UNCLOS, and Article 21 of the Statute “should not be considered as subordinate to article 288 of the Convention.”[19] Article 21 refers to the Tribunal’s jurisdiction over “disputes,” “applications,” and “matters” provided for in any other agreement. The Tribunal found that “matters” must mean something more than just “disputes” and must include advisory opinions.[20]

The Tribunal observed that Article 21 of the ITLOS Statute does not itself establish its advisory jurisdiction—rather it is an enabling provision allowing other agreements to confer jurisdiction.[21] Article 138 of the ITLOS Rules provides the prerequisites to be satisfied before the jurisdiction can be exercised.[22] In this case these were met: the MCA Convention promotes effective fisheries management and is closely related to the purposes of UNCLOS, and the four questions were framed in legal terms that call for an interpretation and application of the MCA Convention and UNCLOS.[23]

ITLOS also rejected the argument that it should decline to exercise jurisdiction. Article 138 of the ITLOS Statute, which says that the Tribunal “may” give an advisory opinion, means that the Tribunal has discretionary power to decline to do so. However, ITLOS held it is well settled in the jurisprudence of the International Court of Justice (ICJ) that a request for an advisory opinion should not be refused except for “compelling reasons.”[24] There were no such compelling reasons here: the questions were sufficiently clear,[25] the Tribunal would not be exercising a “legislative role” were it to address them,[26] and the Tribunal would not be pronouncing on the rights and obligations of third states not members of the SRFC without their consent.[27] The Tribunal was particularly mindful that its opinion was being sought to assist the SRFC in performing its functions.[28]

The Substantive Issues

Question 1

ITLOS clarified that Question 1 concerned only the obligations of states that are not members of the SRFC when their fishing vessels operate within the EEZs of SRFC members, and not the question of IUU fishing generally. [29]

ITLOS found that in light of the “special rights and responsibilities” of the coastal state in the EEZ, “the primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing rests with the coastal State.”[30] It is the coastal state’s responsibility to adopt necessary laws and regulations, including enforcement procedures, consistent with UNCLOS, to conserve and manage the living resources in the EEZ.[31] The fishing activities that coastal states may regulate, consistent with Article 62 of UNCLOS, and the Tribunal’s decision in M/V Virginia G,[32] must be “directly” connected to fishing.[33]

However, this does not relieve other states of their obligations to combat IUU fishing. Under Articles 58(3), 62(4), and 192 of UNCLOS, and the MCA Convention, flag states have the “responsibility to ensure that vessels flying their flag do not conduct IUU fishing activities within the [EEZs] of SRFC Member States.”[34] The Tribunal explained that the expression “responsibility to ensure” can be informed by the advisory opinion of the Seabed Disputes Chamber in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area.[35] As the Seabed Disputes Chamber found, the obligation of a sponsoring state “to ensure” a contractor complied with obligations under UNCLOS is one of “conduct,” not one of “result,” and is satisfied if sufficient “due diligence” is exercised. Applying this standard here, ITLOS found that the obligation of a flag state not a party to the MCA Convention is a due diligence obligation of conduct to ensure the vessels flying its flag are not involved in IUU fishing.[36]

Question 2

ITLOS noted that neither UNCLOS nor the MCA Convention contain guidance on flag state liability, and so the question falls to be decided by general rules of international law set out in the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ASR).[37] The flag state’s liability does not derive from the fact that vessels flying its flag engage in IUU fishing in breach of SRFC laws and regulations, as the conduct is not attributable to the flag state.[38] Rather, ITLOS held, the liability of a flag state arises only if it fails to meet its due diligence obligations to ensure that vessels flying its flag do not conduct IUU fishing activities in the EEZs of the SRFC member states.[39] Moreover, a flag state may be in breach of its obligation irrespective of the frequency of such activities.[40]

Question 3

ITLOS observed that the third question relates to the liability of flag states on the one hand and international organizations on the other, and that as the jurisdiction of the Tribunal is limited to the EEZs of SRFC member states the scope of the question is limited to flag states or international organizations that have concluded a fisheries access agreement with a state party to the MCA Convention.[41]

The Tribunal reiterated that when it comes to flag state liability, its conclusions in relation to Question 2 would apply. As regards international organizations, the question was concerned not with international organizations in general but only those referred to in Article 305 and 306 of UNCLOS to which parties to UNCLOS have transferred competence in fisheries or other matters.[42] There is only one such organization, the European Union (EU), which has assumed exclusive competence from its members in relation to the conservation and management of sea fishing resources.

During the oral proceedings, the EU submitted that it was the only contracting party with the SRFC member states and exercised exclusive competence in respect of EU member states with regard to EU fishing vessels. The Tribunal considered that the liability of an international organization for the violation of fisheries laws of a coastal state by a vessel flying the flag of a member state of the organization depended on whether the agreement between the organization and the coastal state contains specific provisions regarding liability.[43] The international organization, as the only contracting party, must ensure that vessels flying the flag of one of its member states comply with fisheries laws and regulations of the SRFC member state and do not engage in IUU fishing.[44] It further follows that only the international organization can be held liable for any breach of obligations arising from the fisheries access agreement, and not its member states.[45]

Question 4

This was the most general of the four questions, and ITLOS responded at length in setting out the responsibilities of SRFC member states in cooperatively managing SRFC fisheries.

ITLOS observed that Article 61(2) of UNCLOS provides that coastal states, taking into account the best scientific evidence, must ensure through proper conservation and management measures the maintenance of the living resources of the EEZ. Such measures are to be designed to maintain or restore fish stocks at levels which can produce the maximum sustainable yield (Article 61(3)), and coastal states shall take into consideration effects of measures on associated and dependent species (Article 61(4)). ITLOS considered that the ultimate goal of sustainable management of fisheries “is to conserve and develop them as a viable and sustainable resources,” and that therefore “sustainable management” meant “conservation and development” as referred to in Article 63(1) of UNCLOS.[46]

ITLOS then set out the various obligations on SRFC member states to ensure the sustainable management of shared stocks as including obligations: to cooperate through competent international organizations (see Article 61(2), UNCLOS), to seek agreement on measures to coordinate and ensure the conservation and development of such stocks (see Article 61(3), UNCLOS), and in relation to tuna species, the obligation to cooperate directly or through the SRFC to ensure conservation and promoting the objective of optimum utilization of such species.[47]  ITLOS noted that conservation and management measures should be based on the best scientific evidence available and, when such evidence is insufficient, the precautionary approach should apply.[48]

Conclusion

The majority of cases submitted to ITLOS have related to fishing or fisheries enforcement, and the SRFC Advisory Opinion provides the Tribunal’s most comprehensive analysis to date of coastal and flag state duties to ensure sustainable fisheries management. Significantly, the Tribunal reemphasised the connections between managing marine living resources and marine environmental protection, repeating its statement in the Southern Bluefin Tuna cases that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.”[49]

In concluding that it does have a general advisory jurisdiction, ITLOS has firmly established its capacity not only to resolve contentious disputes but also to provide guidance on the interpretation and application of UNCLOS and agreements designed to advance its objects and purposes. The other highly significant aspects of the opinion relate to flag state duties to combat IUU fishing and flag state liability where these due diligence obligations are not discharged. Together these may allow SRFC member states, and other states affected by IUU fishing, to exert greater pressure on flag states, particularly flag states of convenience, that do not live up to their responsibilities under UNCLOS. Somewhat less obvious, however, is the value of the Tribunal’s examination of coastal state responsibilities for fisheries management, which is set out in quite general and abstract terms.    

About the Author:

Tim Stephens, an ASIL member, is Professor of International Law and Australian Research Council Future Fellow at the Faculty of Law, University of Sydney.

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