19 April 2013
The Sub-Regional Fisheries Commission Submits a Request for an Advisory Opinion to ITLOS
On 28 March 2013 the Sub-Regional Fisheries Commission (SRFC), an intergovernmental fisheries management organisation, submitted to the International Tribunal for the Law of the Sea (ITLOS) a request for an Advisory Opinion (see here). The SRFC comprises of seven states (Cape Verde, Guinea, Guinea-Bissau, Mauritania, Senegal, Sierra Leone and Gambia) and it covers an area that corresponds to theses states’ Exclusive Economic Zones (EEZ). The SRFC took this decision at its 14th Extraordinary Session, where it adopted a Resolution under article 22 of the 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 SRFC. The Resolution instructed the Permanent Secretary of the SRFC to refer four questions to the ITLOS:
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 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?
IUU is rather extensive in West Africa. NGO and news reports have highlighted the problem of IUU (see here and here). In this context, the United States has also concluded agreements with SRFC states (Gambia, Senegal and Sierra Leone) seeking to be more actively involved in the suppression of illicit transnational activity off the coast of West Africa. These are ‘shipriders agreements’ designed to provide for co-operation between the parties in a number of activities and their scope covers IUU fishing activities.
At the same time, there have been a number of developments concerning fisheries off the coast of West Africa that may be contributing to the context of this request. The European Union (EU) recently concluded a number of Fisheries Partnership Agreements (FPA) in order to gain access to the waters off West Africa with states parties to the SRFC. In most cases it has subsequently renewed these agreements with additional protocols. The exceptions to this practice have been Guinea and Guinea Bissau. In the case of Guinea the EU repealed the provisionally applicable FPA due to Guinea’s government action to open fire against protesting crowds in 2009. In Guinea-Bissau’s case the EU did not set in force the protocol due to the military coup of April 2012. It has been pointed out that the presence of EU fishing vessels in the waters of West Africa and the FPAs have been rather problematic in a number of respects. The Advisory Opinion could shed light to the relationship between the EU and the SRFC states regarding fisheries.
It is interesting to note that ITLOS Judge Tafsir Malick Ndiaye in a paper that discussed the problem of IUU fishing with an emphasis on West Africa, was hinting that a way to move towards a solution to the problems surrounding the area would be to request for an advisory opinion from the ITLOS.
Given the great interest in fisheries in the area, the request for an Advisory Opinion is extremely timely. First, the question of the responsibility of the flag state in the EEZ needs to be explored. It is true that the LOSC provides for the obligation of the flag state to take measures so as to control the fishing vessels flying its flag in the high seas (arts. 62(4), 87(1), 117). A similar obligation in the EEZ may be inferred from the LOSC provisions that stress the coastal states sovereign rights in the EEZ and impose conservation obligations to those states(arts. 56 (1) (a), 56 (1) (b) (iii), 61, 62, 73). At the same time the LOSC provides that other states shall have due regard of the right and duties of the coastal state (art. 58). This obligation probably forms an adequate legal basis so as to engage the responsibility of the flag state. Besides that, and outside the LOSC framework, it is also true that the EU typically includes in its FPAs a provision to the effect that it undertakes to take all appropriate steps so that its vessels comply with the fisheries legislation of the other party. The obligations undertaken in the FPAs could also serve as legal basis for the responsibility of the flag state. Nevertheless, these obligations are framed in a rather general way and the phrasing employed is vague. Assuming that the ITLOS has jurisdiction over the case, it could seize the opportunity to clarify these obligations.
The ITLOS has also an opportunity to clarify the position of the EU as regards the vessels flying the flag of its member states. Especially with respect to fisheries (the EU has filed a declaration in the LOSC, to the effect that is has exclusive competence on fisheries) it would be illuminating to see how the Tribunal would tackle the issue of the obligations of international organizations and their member states and their possible responsibility for violations of these obligations.
Finally, it would be interesting to see how the Tribunal handles the opportunity to examine obligations of coastal states. If one takes into account the fact that fisheries in the EEZ are an exception to the compulsory dispute settlement provisions of the LOSC (art.297(3)), the opportunity seems even greater.
It is clear that the request presents a number of questions that are of great relevance to the concept of shared responsibility. The connection can be seen from three main perspectives. First, the violations of both flag and coastal states obligations to suppress IUU can be seen as a determining factor of the depletion of fish stocks. Second, the relationship between the EU and its member states also raises issues of shared responsibility vis-à-vis the coastal states and/or the SRFC. Third, the collective failure of the coastal states to sustainably regulate fisheries may also lead to shared responsibility. The way the primary obligations are defined will show the extent to which fisheries in the region will be perceived as what it really is: a shared endeavour and a shared problem.
The request for the Advisory Opinion may be based on a regional treaty but in its preamble it also invokes the UN Convention on the Law of the Sea as well as general international law. It seems that the tribunal will have to reply to the questions taking into account both the LOSC and general international law regarding fisheries. Overall, the request for an Advisory Opinion seems to give the ITLOS the chance to elaborate on a pressing and important issue: fisheries. So far the ITLOS only addressed fisheries issues indirectly (e.g. prompt release proceedings). Given the interest generated by the previous ITLOS Advisory Opinion on the obligations of sponsoring states in the Area, it is reasonable to expect that this will be the case with fisheries as well.
 Willa Kalaidjian ‘Fishing for Solutions: The European Union’s Fisheries Partnership Agreements with West African Coastal States and the Call for Effective Regional Oversight in an Exploited Ocean (2010) 24 Emory International Law Review 389.
 Tafsir Malick Ndiaye ‘Illegal, Unregulated and Unreported Fishing: Responses in General and in West Africa’ (2011) 10 Chinese Journal of International Law 373, 395-6.