29 May 2013

Is there a major role for the law of responsibility in international fisheries management? – Commentary (2)

Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris

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.

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