In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.

Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed earlier by Dapo Akande at EJIL talk. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda.

The exceptions that in other cases may remove the wrongfulness of arms deliveries do not lead to a different outcome in this particular factual context. There is neither a Security Council Resolution that allows for such deliveries, nor consent of the Assad government (which, to the dismay of many Western governments, still qualifies as the government of Syria). Weapons deliveries cannot be qualified as a lawful countermeasure, also taking into account that the true aim of such deliveries would appear to be the overthrowing of the Assad regime rather than only ending the wrongs. As pointed out by Dapo Akande, nor does the label ‘humanitarian intervention’, which was accepted by both the United Kingdom and the Netherlands as a potentially lawful option, provide a lawful exception. The fact that the US now throws chemical weapons into the equation does not make weapons deliveries lawful. Use of chemical weapons may lead to aggravated moral concerns, but there is no basis in international law for transforming a wrong into a right when chemical weapons are used.

All of this means that States supplying weapons will in principle be responsible for their own acts, quite irrespective of what the opposition does with such weapons.

However, the wrongs may become connected. It has been said (for instance, in Austria’s policy paper) that States that supply weapons to opposition forces may be complicit with the opposition forces. The argument is not an easy one to make. International law does not have a rule that provides for complicity of States for aiding non-state actors (unless perhaps a treaty provision applies, such as the Genocide Convention). The EU safeguards that have been built into the EU Code of Conduct on Arms Exports seek to prevent such complicity. They do not allow for trade in arms when there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law, or where the export of weapons would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Violation of this Code of Conduct does not lead to responsibility under international law.  

However, an assessment of the legal consequences of the supply of arms has to take a more long-term perspective. The ulterior motive would appear to be to secure the demise of the Assad regime and to propel the opposition into power. The Dutch government has outlined this scenario in a letter to the House of Representatives of 4 June. This states that ‘[t]he lack of legitimacy of the Assad regime, and the wide recognition of the [Syrian National Coalition for Opposition and Revolutionary Forces] as a legitimate representative of the Syrian people, has led the government to believe that supplying material to the [Syrian National Coalition for Opposition and Revolutionary Forces] in extraordinary situations and under specific conditions need not be contrary to public international law.’

As a matter of international law, this is a doubtful legal basis for considering the delivery of weapons to be lawful. Neither the legitimacy of a sitting regime nor the recognition of opposition forces as the legitimate representative of the people of Syria are relevant for the assessment of lawfulness of arms deliveries to the opposition (perhaps this may be different in the context of self-determination, as discussed by Dapo Akande).

But the letter does provide an interesting insight into the preferred, and perhaps expected, trajectory. The thought appears to be that in the process of eroding the legitimacy of an incumbent regime, and prior to the rise of a new regime that is considered to be the representative of the State, a grey zone exists in which providing support to rebels need not be contrary to public international law. In the abstract, this is not an unreasonable position. However, a State that concludes that the process has indeed made sufficient progress and supplies weapons faces a double risk.

If the Assad regime does survive, which is increasingly likely, arms deliveries will be considered unlawful. In that case, the argument that the regime was at some moment no longer legitimate will not be a valid one under public international law. Weapons deliveries will then be wrong, aside from how the opposition uses the weapons.

But if the opposition forces do prevail, as is hoped by the States now considering the supply of weapons, another risk presents itself. No one will complain that the supply of arms has breached the principle of non-intervention. But the supply of arms may well result in a shared responsibility. Syria, as a State, can, on the basis of the principle laid down in article 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, be held responsible for wrongful acts committed by the then opposition groups.

This scenario exposes the shared responsibility trap. Driven by moral concerns that lead them to abandon their bystander role, States may start to supply weapons to the opposition, propelling the opposition to victory. But once that victory has been achieved, those States may share the responsibility for the acts of what were once the opposition forces.

• On 16 May 2013, legislation passed the Australian Senate to excise the entire Australian mainland from the migration zone. All asylum seekers who arrive in Australia by boat are now eligible to be sent to Nauru or Papua New Guinea for ‘regional processing’. The Australian Government, faced with an increasing number of boats arrivals, calls the legislation a deterrence measure.
• Eight states (Thailand, China, Kenya, Malaysia, the Philippines, Tanzania, Uganda and Viet Nam) that were identified as primary source, import and transit countries in the illegal trade in ivory, have submitted national action plans to the Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), containing specific activities in the areas of international and national enforcement, legislation and regulations, as requested by the CITES Standing Committee in response to the huge rise in the number of elephants that were poached for their ivory.
• An online symposium entitled Symposium on the Law of the Sea and the Law of Responsibility has been held together with Opinio Juris, exploring the intersection between the law of responsibility and the law of the sea. Several blog posts and commentaries have been cross posted on Opinio Juris and the SHARES website.
• The UN Special Rapporteur on the human rights of migrants François Crépeau presented his report on the management of the external borders of the European Union (EU) and the impact on the human rights of migrants to the UN Human Rights Council. He stressed there has been an ‘externalization’ of border control, through which countries of departure or transit bear all the responsibility for preventing irregular migration, and underlined that the EU must share this responsibility among its member states.
• Ethiopian officials said that an independent panel of experts that has considered the effects of the dam Ethiopia has unilaterally constructed on the Nile river concluded that the construction follows international standards and will not significantly affect Egypt and Sudan that have expressed concerns over diminished water shares of the transboundary river and the environmental impact of the dam.
• Mauritanian officials confirmed that Younis al-Mauritani, a prisoner suspected of being a senior Al-Qaeda member, was transferred by the United States (US) from the Bagram military base in Afghanistan to his native Mauritania, an important Western ally against Al-Qaeda in the Sahel region. Al-Mauritani was captured in Pakistan in 2011 in a joint US-Pakistani operation.
• Enemy convergence, the joinder of previously unconnected enemies (e.g. drug cartels and terrorists organisations) for the purpose of joint operations or resource sharing, is one of the principal rising national security concerns of the 21st century, according to James Stavridis, the former NATO supreme commander.
• The UN Deputy Secretary-General Jan Eliasson, speaking at the Global Platform for Disaster Risk Reduction, said disaster risk reduction in a complex world is a shared responsibility between governments, the private sector and local communities with the UN acting as a facilitator.
• The protection of migrants is a shared responsibility between the sending and destination states, stressed the Philippine Foreign Affairs Undersecretary Jesus Yabes in a side meeting held in connection with a meeting of the Global Forum on Migration and Development (GFMD).
• On 6 June 2013, the European Court of Human Rights (ECtHR) found that Austria violated an asylum seeker’s right to an effective remedy (Article 13 of the European Convention on Human Rights) because there was no effective remedy against the decision to be sent back to Hungary under the Dublin regulation.
• Also on 6 June 2013, the Court of Justice of the European Union (CJEU) ruled that unaccompanied children who have applied for asylum in more than one EU Member State, and who do not have relatives legally residing in the EU, shall remain in the country where their most recent asylum application was lodged. It was found to be in the best interest of the child that the country where their most recent asylum application was lodged takes responsibility for the examination of their claim.
• Israel has reached an agreement to send thousands of African migrants to an unidentified country. It was disclosed that Israel is also trying  to reach similar agreements with two other states. Critics of the agreement said it reflects ‘an abdication of responsibility’.
• Documents leaked to the press on the US-run covert intelligence-gathering operation, entitled PRISM, revealed that the UK security agency GCHQ has gathered secret digital information through the program. According to the US National Security Agency (NSA), the service has also been made available to spy organisations from other countries.
• UK Prime Minister David Cameron has made tax avoidance the central theme of next week’s G8 summit. In May, the G7 industrialised nations agreed on the need for collective action against tax avoidance, and the EU followed suit by promising action against aggressive tax planning used by multinationals to minimise their tax payments.
• The White House announced on 13 June that the US is going to provide direct military aid to the Syrian opposition, after having concluded the Syrian government has used chemical weapons. The details of the aid to be provided were not revealed.

First, in explaining human rights duties, Besson outlines that human rights are abstract norms, while duties can only be specified in a given context and in relation to a concrete threat. One right can be the basis for more correlate duties to respect, protect or fulfill and such duties can evolve over time and space. As such, duties need to be localized to be identified and consequently allocated. Moving on to the identification of duty-bearers, Besson defends an institutional account of human rights, with institutions as the primary human rights duty-bearers. She submits that human rights duties ought to be borne by national and regional polities’ institutions because human rights are systematic and egalitarian by nature, strongly linked to democracy and because institutions offer the best platform to allocate duties in practical sense. Which institutions bear duties in a certain case is determined on the basis of which institution has jurisdiction over the right holders, in the sense of effective control or authority and control. In this institutional account of human rights, individuals are subsidiary duty-bearers, whose duties only arise when they are allocated to them by these institutions or when institutions have failed. In the latter case, Besson argues that individuals mainly have duties to create institutions to then be able to secure human rights. International Organizations (IOs) generally do not have human rights duties but only responsibilities for human rights. However, post-national structures like the European Union, which can be said to constitute a polity when governing a group of individuals with equal and interdependent stakes, may have human rights duties.

Moving on to responsibilities for human rights, as opposed to duties, these are described as abstract moral requirements which are not necessarily correlate to a right. As examples, Besson mentions the Responsibility to Protect (RtoP) or the United Nations human rights responsibilities. These moral responsibilities are related to and co-existent with human rights duties, but their content is much less specific and there is a lack of institutions with the ability and legitimacy to allocate them. Besson identifies three sets of bearers of responsibilities for human rights. First, responsibilities are borne by individuals, although there is not much they can do in practice because of coordination limitations. Second, institutions other than those of the human rights duty-bearing state may also bear responsibilities, acting as instruments of global justice or as representatives of an aggregate of individual responsibility-bearers. Finally, IOs may bear responsibilities for human rights, primarily in their role as frameworks for state cooperation. The allocation of such responsibilities involves assessments of the fairness of the individual burden of various responsibility-bearers. Six grounds of distribution, identified by David Miller, may be used cumulatively, alternatively or in cascade. These grounds being: outcome, causality, harm, capacity, benefit or special ties. Miller’s proclaimed problem of re-distribution is also paid homage by Besson in the context of allocating responsibilities for human rights. The problem of re-distribution describes that it is difficult to justify global re-distribution of broad and unspecific responsibilities for human rights and the consequences this has for a state’s resources, if allocation of specific human rights duties has already taken place domestically or regionally. This results in a situation where distribution remains largely a matter of judgment of each potential responsibility-bearer in each case.

This theoretical background allows for closer scrutiny of the distribution of shared state duties and responsibilities. First of all, with regard to the distribution of human rights duties, the role of institutions is described as providing a platform for deliberation to set priorities and discuss the distributive principles on the basis of which duties should be allocated. Besson marks jurisdiction as the defining criterion to determine which institution is the platform for deliberation in any particular case. However, the picture may become obfuscated when multiple institutions belonging to different polities have jurisdiction over the same group of rights-holders. Even though different institutions have specific jurisdictional relationships with the right-holders, giving rise to a specific set of duties, additional grounds for distribution could be useful in such cases as a way of ensuring cumulative or at least complementary protection. Besson ventured that there may exist a duty of states in extraterritorial settings to allocate duties among itself and third states, but in the long run this could, for example, hinder self-determination. With regard to the distribution of responsibilities for human rights and the problem of re-distribution, it may be noted that a situation in which each potential responsibility-bearer determines for itself what part of a responsibility it assumes leaves much room for free-riding and buck-passing. Besson agreed that there may be other over-arching principles than the six grounds for distribution identified by Miller which could perhaps offer a framework for the distribution of responsibilities in the area of (different) human rights. An example could be the principle of common but differentiated responsibility (for more background information, see here), which has for instance been used in environmental law to distribute common responsibilities for climate change on a differentiated basis with reference to different actor’s capacities and historical contribution to a problem.

Finally, the duty to make institutional arrangements to secure human rights arguably exists both at the level of human rights duties and that of responsibilities for human rights. At the duties level, Besson argues that individuals have a duty under human rights law to set up institutions to secure human rights. She agreed that a similar construction at the level of responsibilities may be the most effective way forward in terms of operationalization, meaning that states have a moral responsibility to set up institutions to realize responsibilities for human rights. An example is contained in Principle 30 of the Maastricht Principles on the Extraterritorial Applicability of Economic, Social and Cultural Rights, which outlines a responsibility of states to make institutional arrangements to allocate responsibilities for ESC rights (for more background information, see here). Besson did, however, stress that it remains of importance to underwrite the difference between duties and responsibilities for human rights – something which is at times lacking in the Maastricht Principles and Commentary.

After the European Court had declared the intra-EU transfer of an asylum seeker to Greece in violation of the European Convention on Human Rights in January 2011 (the case of M.S.S., see also here), litigation in several Member States shifted to other allegedly unsafe countries for asylum seekers, in particular Italy. Some NGOs highlighted failures in the Italian protection system and advised to refrain from deporting asylum seekers to Italy (see here and here). Information of the Court shows that in 2012, the European Court accepted seven requests for interim measures to the effect of suspending expulsions from the Netherlands to Italy. Presumably, these are all Dublin transfers. The Court also refused 22 of such requests however. The cases in which it did order an interim measure concerned particularly vulnerable asylum seekers, such as minors and mothers with young children. It appears that this is the first case in which the Court substantially deals with a Dublin transfer to Italy.

The complaint was brought by a mother from Somalia with two young children. She arrived by boat from Libya in Italy in 2008 where she stayed for eight months before travelling onwards to the Netherlands (because, so she told the Dutch immigration authorities, she had heard that it was safe there and ‘the people nice’). Her two children were both born during her stay in the Netherlands. After her transfer to Italy was ordered and national remedies exhausted, she applied to the European Court, which issued an interim measure suspending her transfer.

Because Italian reception conditions have been debated for some time now, the Court could rely on much material. It considers on the basis of the reports and the relevant Italian law that the situation in Italy differs considerably from that in Greece. Despite some shortcomings, there is no systemic failure to provide support to asylum seekers or persons with refugee status. The Court finds this corroborated by the story of the mother. After having arrived in Italy, she was placed in a reception facility where her asylum application was processed and indeed granted after five months. She was also provided with medical care once it became known that she was pregnant. Her previous stay in Italy did therefore not attain the minimum level of severity required for treatment to fall within the scope of Article 3 of the European Convention. The Court further concludes that there are no indications that the applicant will not be able to invoke the assistance of the Italian authorities once she returns there with her children.

Because the complaint is declared manifestly ill-founded, the decision seems to bring an end to the debate whether Dublin transfers to Italy are possible. It might be recalled however, that the European Court had also displayed initial restraint in cases concerning Dublin-transfers to Greece (see K.R.S. v the United Kingdom). It was only after a complaint had been brought by an asylum seeker who had actually been transferred to Greece and had not been provided with any assistance whatsoever (as was the case in M.S.S.), that the Court was forced to change its position. It does seem that the chances that that will happen in Italy are much smaller however.

Telesetsky’s highly interesting post highlights the problem of flag state responsibility in the law of the sea. The post identifies two major issues: Illegal Unreported and Unregulated (IUU) fishing and structurally unsafe vessels. Both these issues have been hard to resolve and difficult to regulate, at least from a flag state perspective. This comment seeks to further the debate by raising two questions regarding the role of the flag state in terms of its international responsibility.

First, if we assume that articles 91 and 94 of the Law of the Sea Convention (LOSC) do in fact impose an obligation on flag states to control registration of their ships, the obligation is still rather vague. Article 94 provides that states ‘shall take measures’ to ensure safety at sea, and that these measures shall conform to ‘ international regulations, procedures and practices’. But which regulations are to be followed and which procedures must be adopted is not evident from the LOSC. Even if regulations and procedures are indeed identified (through the International Maritime Organization for example) then the problem of identifying the flag state’s conduct appears. What is the precise conduct that may lead to responsibility? Telesetsky argues that the flag state must exercise due diligence in its authorization procedure. The contents of due diligence obligations are notoriously hard to define in international law. Some guidance might be found in technical standards adopted by international organizations but the problem persists, especially if the role of the classification societies is taken into account (i.e. another non-state actor-besides the shipowner- involved in the process of ensuring the safety of the vessel).

Second, Telesetsky asks in her conclusion (in reference to the Erika and the Prestige incidents) why flag states should not bear responsibility for damage caused by the vessels. She concludes that flag state responsibility could indeed offer a solution to issues of pollution or IUU. It is a fair question and a reasonable conclusion. The fact is that states have opted to resolve claims for oil pollution damage at the national level, through the Civil Liability and Fund Conventions. They have also concluded similar conventions on other areas, covering for example the problem of hazardous and noxious substances (HNS Convention). But is this approach enough? I would answer in the negative. While the oil pollution system works rather efficiently, although not without problems, it seems that states have managed to deflect the discussion from their own responsibility on most other issues. If states had sought to tackle the problem of pollution or IUU directly, they would have to accept a number of obligations, and they seem unwilling to do so.

In any case, I concur that clarification of the obligations of flag states and consequently their more ready exposure to responsibility claims is a step in the right direction.

Sovereign nations have the right to extend their nationality to non-state actors who agree to adhere to national laws. But is there any broader international state responsibility associated with the granting of flag state status to known problematic non-state actors? Take the example of the South Korean flagged F/V Premier. This vessel licensed to the Dongwon company, the parent company of Starkist Tuna, was recently accused by Liberia of illegal fishing in the coastal waters of Liberia. In April, the Dongwon company settled with the government of Liberia for somewhere between one million and two million dollars. An interesting question has arisen over whether the government of Korea now has the obligation to list the F/V Premier as an Illegal, Unreported and Unregulated fishing vessel which would mean that the vessel would not be permitted to operate in regional fishery management areas such as those regulated by the Indian Ocean Tuna Commission. Within the IOTC waters, contracting parties and cooperating non-contracting parties are expected to demonstrate that vessels permitted to fish “have no history of IUU fishing activities or that, if those vessels have such history, the new owners have provided sufficient evidence demonstrating that the previous owners and operators have no legal, beneficial or financial interest in, or control over those vessels…”

Granting the use of the flag and vessel registration are not part of an unconditional sovereign right. While Article 91 permits every State to “fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag”, this right is conditioned by Article 94 which provides that “[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” When read together, Article 91 and Article 94 suggest that among the necessary conditions for granting nationality or issuing registration is a State’s demonstration of effective jurisdiction and control over “technical matters” which would include vessel safety and “social matters” which in addition to labor practices might also include enforcing sustainable fishing practices. Healthy fisheries should be considered today a “social matter” since so many people globally depend on marine fisheries for basic animal protein and employment. A State is, of course, not required to fix structurally unsound ships or to staff fishing vessels with reliable fishing crews who understand conservation practices—but it is required to exercise control over those who might own unsound ships or practice unsound fishing practices. One easy way to exercise effective control over “problem ships” is simply to refuse to grant such vessels nationality or to allow registration of these ships.

This posting argues that States granting their nationality to or providing ship registration for any vessels that are 1) known or suspected IUU fishing vessels or 2) structurally unsafe cargo vessels violates erga omnes customary international legal duties as well as discrete treaty obligations. International law empowers States to issue their flag to an individual merchant ship or fishing vessel. But as part of their responsibilities to other States, each State has the obligation to do adequate due diligence before issuing any registration and must deny or revoke registration to “problem ships”—many of which are repeat offenders. Here “problem ships” are those who are engaged or have been engaged in the internationally prohibited practices of Illegal, Unreported and Unregulated Fishing as well as those that fail to comply with technical safety standards designed to protect the safety of the crew and to prevent catastrophic at sea accidents. Old ships, in particular, can become problematic from years of use and lack of maintenance. In 2011, 25.3% of the merchant ships were 25 years or older carrying about 10% of the world’s cargo (ships are often retired at 25 years of age); 10% of these operating geriatric ships were oil and chemical tankers. Age can lead to problems such as corrosion which led to accidents such as the 25 year old Maltese flagged MV ERIKA sinking off the coast of France spilling 20,000 tons of oil along hundreds of miles of coastline and the 26 year old Bahama flagged Prestige sinking off the coast of Spain spilling 64,000 tons of oil.

No vessel with a history of IUU fishing activity or suspected to have structural faults due to age or poor maintenance should be able to be registered to ply the seas without triggering some review by a State’s registration agency of its own obligations to effectively exercise jurisdiction and control. A State should calculate its own potential risk of being the registration State for a “problem ship.” Because IUU vessels are often repeat offenders and structurally unsound vessels may not be repaired until it is too late because of cost-saving measures, one means of avoiding future claims of State responsibility would be for individual States to either deny registration in the case of an initial application or revoke existing registration for “problem ships”. The State avoids responsibility for the actions of private actors that might otherwise be able to be imputed to the State depending on the State’s knowledge about a given vessel.

Here, South Korea in exercising its flag state responsibility to prevent and prohibit IUU fishing, should not simply list the vessel as an IUU vessel but should also consider removing the Premier’s registration as a South Korean vessel while informing all other States of the reason for its decision. If other countries were to do their due diligence regarding the ship’s history, few other States might be willing to provide registration to the F/V Premier because it could potentially expose their State to future claims of state responsibility unless something materially changes with the operation of the vessel. If States were to exercise zero tolerance for IUU fishing as part of their State responsibilities to protect and conserve marine resources by refusing their nationality to a ship found to be participating in illegal fishing activities, this might result in an IUU fishing vessel becoming stateless and inoperable. It is now the vessel owner who must manage IUU fishing as a primary business risk. Given that IUU fishing is claimed to account for possibly 1 out of every 5 fish landed and assuming that many of these landings are by flagged ships rather than stateless ships, the threat of global deregistration could provide new impetus for improving the corporate governance culture among industrial fishing fleets. Losing registration on a vessel and the possibility of operating the vessel could be an expensive business proposition and negate the current monetary benefits of IUU fishing for fleets.

State responsibility has an exceedingly important role to play in ensuring that the Law of the Sea achieves its objectives to conserve the oceans resource and protect the oceans from threats posed by private operators. We need a State or group of States to take the lead in challenging States whose flagged vessels are identified with IUU fishing practices or who continue to flag dangerous ships for operation. If some key maritime States were willing to demand that other States assume responsibility for natural resources damages alleged to have been caused by their flagged IUU vessels or by their structurally unsound commercial vessels, then some States might think more carefully about their current and future flagging operations.

Take the examples of the old tankers of the Erika and the Prestige, why shouldn’t Malta and the Bahamas have some state responsibility for continuing to flag these vessels without doing their own due diligence regarding the seaworthiness of these ships? Why don’t these flag States owe something to France and Spain for their failure to exercise effective control? Why shouldn’t States who issues flags of convenience also be held responsible for offering their flags to IUU vessels over which they do not effectively exercise control? State responsibility provides an excellent lens for taking a hard look at antiquated admiralty practices that endanger the environmental health of our oceans.

Takei asks whether there is a role for responsibility in international fisheries management, and he proceeds to reply -correctly so- in the affirmative. The blog eloquently presents all possible scenarios, in terms of the law of fisheries, wherein issues of state responsibility might arise. Therefore the purpose of this comment will be to highlight some questions from the viewpoint of the law of responsibility. Two intertwined points merit closer scrutiny. The first relates to the primary rules and the second to the application of the rules on responsibility.

First, it is clear that the law of responsibility does not operate in a vacuum. In other words its application hinges upon the primary obligations. In the area of fisheries management these obligations are not very well laid out. This can be readily inferred from Takei’s post but also from a cursory reading of the Law of the Sea Convention (LOSC). While, for example, flag states seem to have a clear obligation to take measures to control their fishing vessels in the high seas (arts. 62(4), 87(1), 117) the obligation to do the same in the Exclusive Economic Zones (EEZ) of third states is not as clear. It has to be inferred from a combined reading of articles 56 (1) (a), 56 (1) (b) (iii), 61, 62, 73 that impose conservation obligations on the coastal states and article 58 that posits that third states shall have due regard of the rights and duties of the coastal state. Then the question becomes what is the nature of this obligation. Surely, it is not an obligation of result. The language employed (take appropriate measures, have due regard etc.) point towards an obligation of due diligence. The last step would be to define what amounts to diligent behavior in this case. The scenario where a coastal state invokes the responsibility of a flag state (e.g.for violations either of its laws in the EEZ) may materialize. This is the point where the recent request for an advisory opinion by the Sub-regional Fisheries Commission (SRFC) from the ITLOS might offer useful insights.

This scenario brings us to the issue of the obligations of the coastal states in their EEZ. Coastal states are bound by the LOSC to ‘promote the objective of optimum utilization of the living resources’ in their EEZ (art.62 (1)), to co-operate with international organizations when determining the total allowable catch (TAC) (art.61) and also give other states access to the surplus of the allowable catch if it cannot harvest it for itself (art.62(2). Moreover, coastal states and states fishing for stocks that occur both in the EEZ and in an area beyond and adjacent to it, must co-operate either directly or through the appropriate organizations (usually Regional Fisheries Management Organizations- RFMOs) to agree upon necessary conservation measures (art.63). An elaboration of the precise content of these rules would be welcomed.

Issues of responsibility will almost certainly arise in two scenarios: first, If we assume that the coastal state cannot harvest the whole of the allowable catch in the EEZ but refuses to allow access to third states. Second, if the coastal state refuses to co-operate with other states for stocks that appear both in the EEZ and in the adjacent high seas area.

Another layer of complexity arises with RFMOs. Takei points out that the responsibility of a high seas fishing state maybe invoked by other members of an RFMO. It may be added that a high seas fishing state may invoke the responsibility of an RFMO (or its members). It is conceivable for instance that a state is being denied membership in an RFMO, at the same time it is prevented from fishing in the RFMO’s area and the stock is being depleted by the RFMO’s members.

Turning to the second point, that is the application of the secondary rules, the main problem seems to lie with the presence of multiple actors that participate in the management of international fisheries. Two issues may be highlighted. First, if a number of vessels overfish in an area that is adjacent to the EEZ of a third state, it may be rather difficult to attribute the wrongful conduct (i.e. the acts leading to the collapse of a stock) to each and every one of them. Things might be even more complicated if the flag states have not breached their obligations, they have indeed exercised due diligence, but their vessels’ conduct, taken cumulatively, brings about the collapse of the stock. In such an instance there is no breach of an international obligation and the rules on responsibility as they stand are not very helpful.

The second issue is more relevant in the cases where international organizations are involved in the fisheries management. One scenario might involve RFMO’s members that either collectively exclude third fishing states from participation or overfish a particular species that also occurs in the EEZ of a non-member state. The state that wishes to invoke the responsibility for the damage it has suffered may encounter problems in terms of identifying the most appropriate respondent. Moreover, it may be hard to establish the breach of an obligation. In some instances it is technical bodies that determine the total allowable catch (see for example the Scientific Committee of the Commission for the Conservation of Southern Bluefin Tuna) and then they are affirmed by the RFMOs member states. In the case the TAC leads to the depletion of a stock, it can be difficult to identify the entity that has breached the obligation. Is it the RFMO or are the member states that must be targeted?

A second scenario relates to the involvement of an international organization in the conclusion of Fisheries Partnerships Agreements (FPA) with coastal states. An example of this would be the European Union (EU), which has concluded a number of this type of agreements. The issue of the responsibility of the international organization in such cases is a part of the request for an advisory opinion by the SRFC. The problem here is that the EU has exclusive competence on fisheries according to its declaration under the LOSC but it cannot fly its flag on a vessel. Therefore, if a vessel flying the flag of an EU member state breaches the obligations that the EU has assumed under an FPA, attribution of conduct becomes problematic.

In conclusion, as Takei argues, it is certain that there is more room for the rules of state responsibility in the management of fisheries. Nonetheless, the application of these rules may not be as easy as it seems. The pending ITLOS advisory opinion in particular will provide invaluable insights.

Yoshinobu Takei’s interesting post charts recent developments in international fisheries law that have attempted to respond to the ongoing ‘tragedy of the commons’ that flows from the dominance of the Grotian vision of the high seas as a domain of freedom (to fish, and to enjoy the other accepted high seas freedoms). Concerted attention from the 1970s onwards has resulted in an extensive body of international fisheries law, built upon the foundations provided by the UN Convention on the Law of the Sea (UNCLOS). UNCLOS sought to deal with the tragedy of the commons primarily by arrogating to coastal states large swathes of ocean space within the EEZ. That left the problem of shared, straddling, migratory, and high seas fisheries.

None of these have received the same regulatory attention until relatively recently, and since the UN Fish Stocks Agreement was adopted in 1995 there has been many initiatives to strengthen the hand of responsible states in combating unsustainable and irresponsible fishing practices, particularly on the high seas. The main arena of activity (with some notable exceptions, such as the Southern Bluefin Tuna Case) has not been the in the context of state responsibility, but has instead been in the establishment and strengthening of fisheries regimes. These have been sites of considerable international legal innovation, as seen in the adoption of various ‘hard’ (e.g. enhanced port state jurisdiction) and ‘soft’ (e.g. naming and shaming flag of convenience states lending registration to IUU vessels) measures to combat IUU fishing.

The recently requested ITLOS Advisory Opinion may signal a renewed turn to international judicial fora in an effort to enforce international fisheries law. This is a welcome development, given the continued decline in abundance of most major fish-stocks.

First of all, I wish to thank Opinio Juris and SHARES for inviting me to participate in this highly interesting symposium. In my post, I will analyze the relevance of the law of responsibility in a fisheries context, describe some of the recent developments in this field and highlight some points for discussion.

On 9 May 2013, a Taiwanese fishing boat was shot by a Philippine government vessel and the incident resulted in the death of a crew member onboard the fishing boat as well as serious damage to the boat. The Taiwanese government demanded the Philippine government “to respond to four demands: a formal apology; compensation; an expeditious investigation followed by the severe punishment of the perpetrators, and the speedy arrangement of negotiations on fishery matters” (Taiwanese Ministry of Foreign Affairs), although the Philippine government claimed that their law enforcement was obstructed by the attempted attack by the boat in question and they were therefore forced to open fire. This sad incident again testifies that state responsibility plays an important role in a fisheries context.

After several decades of uncertainty over the jurisdictional framework for marine capture fisheries, during which states focused on multilateral treaty negotiations rather than invoking state responsibility with a few notable exceptions such as the Fisheries Jurisdiction cases brought against Iceland before the International Court of Justice (ICJ), the issue of state responsibility has gained momentum in contemporary discussions on international fisheries management. In particular, with the increasing awareness of the importance of the conservation of fisheries resources as well as the protection of marine ecosystems, state responsibility has been invoked (1) in relation to coastal states which sought to prevent the adverse impacts on their fisheries resources of fishing activities by distant water fishing nations on the high seas adjacent to their maritime zones (see, e.g., the Fisheries Jurisdiction case (Spain v. Canada) at the ICJ and the Swordfish dispute between the European Community and Chile) and (2) in relation to a high seas fishing state by other members of a regional fisheries management organization (RFMO) (see, e.g., the Southern Bluefin Tuna case). Furthermore, without directly referring to state responsibility, some RFMOs have adopted sanctions against non-cooperating non-members whose fishing vessels were engaged in fishing activities which adversely affected the resources managed by these RFMOs. In other words, the invocation of state responsibility is on the rise in relation to fisheries and the way in which this is done is more diverse than before.

Nowadays, one of the most imminent threats to fisheries resources and marine ecosystems is illegal, unreported and unregulated (IUU) fishing. To address IUU fishing, there have been a number of initiatives that target one or more states at the same time which do not fulfil their responsibilities under international law in relation to such fishing. In addition to RFMO actions against flag states mentioned above, there are three initiatives of note that involve state responsibility, explicitly or implicitly: unilateral actions, multilateral normative development at an international organization and advisory proceedings before an international tribunal.

First, the United States (US) and the European Union (EU) adopted new fisheries legislation, partly or exclusively, to address IUU fishing (see the US Magnuson-Stevens Reauthorization Act of 2006 (MSRA) and EU Council Regulation (EC) No. 1005/2008 on IUU fishing). The legislation provides for the identification of states whose vessels are engaged in IUU fishing, consultations with these states and, if their behaviour is not rectified, sanctions against them such as port access denial and importation restrictions. The EU Council Regulation and, to some extent, the MSRA cover fishing activities which do not necessarily relate to their coastal areas or fisheries resources therein and therefore they would deserve legal discussion on the extent to which they can adopt confrontational measures against identified states. In relation to the MSRA, the Secretary of Commerce identified a number of nations for their fishing vessels’ engagement in IUU fishing in reports submitted to Congress in 2009, 2011 and 2013; for the EU, the first decision of the European Commission for notifying third countries of possibly being identified as non-cooperating third countries was published in 2012. The consultations with nations identified by the US in 2009 and 2011 led to positive changes on the part of these states and, so far, no sanctions were triggered within the framework of this legislation (note, however, that the EU is threatening to adopt sanctions against the Faroe Islands on the basis of another Council Regulation on unsustainable fishing; see its press release). The EU Council Regulation is more ambitious than the MSRA in various respects: the scope of IUU fishing, the range of targeted states (not only flag states but also coastal states and port states) and the wide scope of potential sanctions. It remains to be seen how these two processes will be coordinated and will shape the global fight against IUU fishing together. On the one hand, there appears to be a synergy between these processes: the European Commission noted that it considered the reports by the US Secretary of Commerce in developing the above-mentioned decision; the US National Oceanic and Atmospheric Administration amended relevant regulations with a view to addressing IUU fishing more comprehensively by identifying a nation based on the nation’s actions or inactions (similar to the EU Council Regulation). On the other hand, the identification processes by the US and the EU so far appears to have resulted in quite different outcomes: only one state (Panama) was identified by both processes.

Second, the work of the Food and Agriculture Organization of the United Nations (FAO) has some relevance to state responsibility in the context of fisheries. It was engaged in the development of criteria for assessing flag state performance for several years, a work which culminated in the adoption of the Voluntary Guidelines for Flag State Performance this February. Despite their name, the Guidelines aim to influence the behaviour of flag states and, to some extent, coastal states (via fisheries access agreements). While paragraph 47 on measures to be taken in the light of the result of an assessment does not add much to the existing range of possible measures, the criteria for assessing flag state performance undoubtedly contribute to the clarification of the content of the obligations assumed by flag states, which are arguably due diligence obligations more often than not.

Third, another development which may shed some light on the law of responsibility in a fisheries context is the recent request by the Sub-Regional Fisheries Commission (SRFC) for an advisory opinion of the International Tribunal for the Law of the Sea (see Kristen Boon’s posting here). In this request, an advisory opinion was sought to clarify the obligations and liability of flag states and international organizations as well as the rights and obligations of coastal states. The wording of the request of the Advisory Opinion is phrased in a general manner and the SRFC seems to seek clarifications on the rights and obligations created by global fisheries instruments, although it is clearly the IUU fishing activities taking place in the coastal areas covered by the SRFC in West Africa that prompted the members of the SRFC to bring this issue to the attention of the international community (see the SRFC’s Technical Note). It is interesting to see how the Tribunal addresses procedural and substantive issues associated with these proceedings and which entities participate in the proceedings and what implications they have for global fisheries governance.

Is there a major role for the law of responsibility in international fisheries management? Overall, there are various circumstances where the law of responsibility can play an increasingly important role in the context of fisheries. Not only the interests of an individual state, but also those of a group of states and collective interests of the international community as a whole are aimed to be protected in the above examples. The fora and ways in which state responsibility is invoked are expanding, as seen in recent trends in invoking state responsibility in regional fora and on the basis of domestic regulatory frameworks in relation to IUU fishing. But it remains to be seen to what extent these approaches will succeed in achieving their objectives in a coordinated and effective manner in the future.

Seline Trevisanut provides a very helpful analysis of some of the significant gaps in the system (if we can call it that) of responsibility in international law for the welfare of those who find themselves in distress at sea. Regrettably, there has been an increase in tragic maritime incidents involving asylum seekers in recent years, not only in the Mediterranean, but also in other oceans seas including the Indian Ocean where several vessels carrying asylum seekers attempting to reach Australia have foundered, and there has been significant loss of life. The death toll from the 20 vessels that have sunk en route to Australia since 2009 now stands at nearly 900. There is an urgent need to clarify the international legal duties upon states to ensure that such tragedies are avoided, and that when sinkings do occur that search and rescue authorities respond promptly and effectively.

As Seline explains, there remains uncertainty, in some situations, as to the chain of responsibility for safeguarding the right to life that persons in distress enjoy. From a human rights perspective, that right can only be enforceable if the relevant individuals are within the jurisdiction of a state, but the jurisdictional status may be uncertain, depending upon where the maritime emergency occurs. Seline makes a compelling argument for treating persons within a Search and Rescue Region (SRR) as within the jurisdiction of the relevant SAR state for the purposes of international human rights law. However, that is often not the end of the enquiry; as not all states are able to discharge their SAR obligations to the same level of diligence, and may not have a system of human rights accountability so that victims and their families can pursue redress.

To illustrate this point by reference to the Australian situation, many asylum seeker vessels become distressed within the Indonesian SRR, and under the SAR Convention it remains Indonesia’s primary responsibility to render assistance. However the situation is somewhat unique in that most of the vessels are usually detected by Australian authorities which then pass the information on to their Indonesian counterparts, who they know have highly constrained capacity to mount a response far from shore, particularly in challenging sea conditions. What this indicates, is that there is a need to clarify (and possibly extend) the search and rescue obligations of parties to the SAR Convention to address such situations where there is a significant mismatch between states in their SAR capacities. Those in peril at sea should not be allowed to be in a ‘legal limbo’, falling between the cracks in the law.