State Responsibility and Flag State Duties

 Posted by: Telesetsky Anastasia

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

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.

State Responsibility and Flag State Duties – Commentary

 Posted by: Plakokefalos Ilias

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

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.

Is there a major role for the law of responsibility in international fisheries management?

 Posted by: Takei Yoshinobu

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

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.

Is there a major role for the law of responsibility in international fisheries management? – Commentary (1)

 Posted by: Stephens Tim

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

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.

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

 Posted by: Plakokefalos Ilias

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.

Search and Rescue Operations at Sea: Who is in Charge? Who is Responsible?

 Posted by: Trevisanut Seline

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

On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011 (for comments, see here and here). After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. During the 16 days route, survivors told that they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help (see Resolution 1872 of the Parliamentary Assembly of the Council of Europe). The priest alerted the Italian Maritime Regional Coordination Centre, which located the migrants’ vessel and sent out many calls to the ships in the area. Pursuant to survivors’ testimonies, on about the tenth day of their voyage, when half of the passengers were dead, a large aircraft carrier or helicopter-carrying vessel (probably involved in the NATO’s Operation Unified Protector, which was on going at that time off the Libyan shores) sailed near to the boat, close enough for the survivors to see the sailors on board looking at them with binoculars and taking photos. But no one rescued them.

Flag states and coastal states have a duty to render assistance to persons found at sea in the danger of being lost and people in distress (Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS)). This core obligation under both treaty law (see also the 1974 Convention on the Safety of Life at Sea (SOLAS Convention), the 1979 Search and Rescue Convention (SAR Convention) and the 1989 International Convention on Salvage) and customary law applies in any maritime zone and in relation to any activity there performed. While implementing this duty states can either perform directly the search and rescue (SAR) operations, namely through their own SAR services, or ask a vessel, which is located in the proximity of the endangered persons, be it any merchant ship or the state vessel of another country, to perform the rescue operation.

The texts here mentioned expressly refers to states, flag or coastal. Practice however offers more and more examples of police activities performed under the command of an international organization or a supranational body. A question then rises:

• who are the bearers of the obligation? Namely, are those ‘entities’ (such as NATO) bound by the duty to render assistance?

The answer could be affirmative only if we consider that the duty to render assistance under customary international law has a wider scope of application ratione personae, if compared with the same obligation under treaty law. The practice however does not allow yet such a conclusion.

Another question raised by recent practice concerns the recipient of the obligation:

• Is the duty to render assistance a purely inter-state obligation or does it entail a right to be rescued for people in distress at sea?

The law of the sea allocates obligations and rights in different maritime zones among states. However, the multiplication of activities at sea and the increased human presence lead to the question of the protection of the human element, in particular of the application of human rights at sea. Many scholars have already discussed the application of the relevant human rights treaties at sea, pointing out that the law of the sea, specifically UNCLOS, pursues some community interests, among which the protection of human rights (see a.o. here). Some authors have stressed the complementarity of these two fields of international law (see here). The duty to render assistance can then be considered as the corollary obligation of the right to life when applied at sea and, consequently, a right to be rescued for the people in distress at sea can be deduced from the application of human rights instruments at sea.

Pursuant to the case law of the European Court of Human Rights (ECtHR), when the SAR operation consists in taking on board of the rescuing vessel the persons in distress, the latters fall within the jurisdiction of the flag state and the European Convention on Human Rights applies (Hirsi case). This is perfectly in line UNCLOS Article 92, which affirms the exclusive jurisdiction of the flag state on its own vessels on the high seas. The determination of the exercise of jurisdiction might however result more difficult when the rescued persons are not taken on board of the rescuing unit, or when the SAR services are not performed.

In the ECtHR Xhavara case, which did not concern a SAR operation, the ECtHR recognized the exercise of jurisdiction by Italian authorities on two grounds: the activities were performed on the basis of a bilateral agreement; and the fact that there was a collision between the Italian navy vessel and the migrants’ boat. Applying this reasoning by analogy, when the SAR operation is performed on the basis of an international agreement and there is contact between the rescuing unit and the vessel in distress, the ECHR applies.

The non-performance of SAR services is a trickier instance. The main question to be answered here is whether human rights instruments do apply in cases of SAR non-performance, i.e. whether the non-rescued persons do fall within the jurisdiction of any state while they are in distress at sea. It can be argued that the distress call creates a ‘relation’ between the state, which receives it, and the persons who send it. The life of the persons in distress depends on the behaviour of the recipient state. The argument could go further and support the existence of an exclusive long distance de facto control that the state, which received the call, exercises on the lives of those people. Their lives are submitted to the discretion of that state, in the case mentioned above the lives of the migrants depended on the Italian authorities and there capacity to activate SAR services.

This de facto control becomes also de jure when the distress situation is located within the SAR zone of the recipient state, which has an obligation to ‘promote the establishment, operation and maintenance of an adequate and effective search and rescue service’ (UNCLOS Article 98(2), emphasis added). There is then an assumption of authority (ECtHR Al-Skeini and others case) the coastal state exercises in its SAR zone. The coastal state is then bound by an obligation of due diligence. The loss of lives or the risk of losses in its SAR zone may entail a violation of the right to life of the concerned persons, of their ‘right to survival’, and a violation of its obligations under law of the sea instruments.

Search and Rescue Operations at Sea: Who is in Charge? Who is Responsible? – Commentary

 Posted by: Stephens Tim

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

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.

What Responsibility over Iconic Marine Living Resources?

 Posted by: Klein Natalie

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

One of the most successful environmental campaigns was captured by the slogan of ‘Save the Whales’. It was apparently when the Australian Prime Minister’s daughter returned home from school sporting a Save the Whales badge that the initial impetus was provided for Australia to shift from pro-whaling nation to anti-whaling. Over the decades, we have seen a fundamental change in the legal regulation of whaling: from minimal regulation and maximum exploitation to a zero-catch quota (colloquially known as the moratorium) on commercial whaling under the International Convention for the Regulation of Whaling (ICRW). There has been resistance to this moratorium – from those states that never agreed to the imposition of a moratorium and those states that seem to thwart the moratorium by conducting commercial whaling under the guise of legally permissible scientific whaling, as Australia asserts Japan is doing. If we are to maintain legal standards in the conduct of whaling then how can states be held responsible?

In considering the intersection of the law of responsibility in relation to whaling, there is an initial question as to whom the obligation is owed? It should in fact be the whales. Yet whales are clearly in no position to assert their rights; we do not ascribe nationality to non-human animals. The duty to adhere to the zero-catch quota is obviously owed to other states. This reciprocal relationship makes sense in many fishing contexts. For example, it might be that one state’s removal of an excess quantity of a species will jeopardize another state’s fishing rights and particularly its allocations. This dynamic was undoubtedly at play in an earlier dispute between Australia and Japan in relation to southern bluefin tuna.

Is the situation more complicated when there is no clear injury suffered by another state? In the dispute between Australia and Japan, Australia does not own the Antarctic minke whales that are primarily taken, nor does it have internationally recognized rights over the maritime space in which Japan conducts its whaling. As far as I am aware, there is no Australian whale watching industry dependent on these minke whales and losing money as a result of Japan’s activities.

But Japan does owe a treaty obligation to Australia by virtue of the ICRW and the very breach of that obligation is enough to provide Australia with a cause of action. Most particularly, the breach of an international obligation owed to Australia provides it with standing to assert a claim before an international court. As such, Australia’s position is quite distinct to that of Ethiopia and Liberia in the South West Africa cases.

The ICRW thus provides a vehicle for asserting claims under the traditional rules of state responsibility. But we should also pause to consider another icon of the oceans and consider the many species of sharks that are currently under threat. Some species of sharks are as iconic in popular culture as whales but cast as fearsome predators rather than intelligent, communicating creatures.

Irrespective of the public relations, the legal reality is that sharks are not globally protected in the same way as whales. Only a few species are protected under a small number of treaties and even these regimes do not demand a cessation of commercial exploitation as comprehensive as the zero-catch quota under the ICRW. The most comprehensive international agreement on the conservation and management of sharks is a non-binding international plan of action.

In the absence of specific regulations directed at the conservation and management of a species, the obligations imposed on states are typically broad. The generality of an obligation may be advantageous as it allows for a range of specific assertions under this umbrella, but it also permits a wide scope of action and makes it more difficult to establish that there has been a violation of an international law norm. If states are to be held responsible for excessive exploitation of marine living resources, then we must still ensure that primary obligations are being established, and with enough specificity to be enforceable. The law of responsibility can then provide useful support in enforcing obligations relating to the conservation and management of marine living resources.

What Responsibility over Iconic Marine Living Resources? – Commentary

 Posted by: Stephens Tim

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

Natalie Klein has drawn attention to a longstanding weakness in those fields of international law, including international environmental law, devoted to serve collective interests, in matching obligations with rules of responsibility for their breach. The law of state responsibility applies in a fairly straightforward way to situations where there is an obligation under a treaty to protect the environment, that is violated by a treaty party, with clear impacts upon another party. However, as Klein points out, when it comes to iconic whale and shark (and indeed other) species found on the high seas the responsibility situation may be far from straightforward, and this can frustrate efforts to enforce conservation rules.

In the Whaling in the Antarctic Case before the ICJ, Australia contends that Japan has breached the International Convention for the Regulation of Whaling (ICRW) because it is engaging in commercial whaling, in contravention of the moratorium adopted under the ICRW. Australia has not made express its arguments on standing, such as by asserting any special interest in Japan’s conduct above and beyond that of any other party to the ICRW. It is difficult to see how there is any such special or defined interest. Were the ICJ to apply the conventional standing approach this would seem to disentitle Australia from raising this complaint in the ICJ. It could also rule out any challenge by any state against Japan’s whaling program. The net effect is that there could be no party at all able to invoke the potential responsibility of Japan under the ICRW.

This is a clearly undesirable situation. As Klein observes, whales may not have their own legal rights (but of course there is a tremendous philosophical literature on precisely this point). But there is a mechanism, set out in Article 48 of the International Law Commission’s Articles on State Responsibility, for states to seek to defend common environmental values. The International Tribunal for the Law of the Sea referred to Article 48 in its Advisory Opinion on the Deep Seabed and concluded that where there is damage to the environment from mining the deep seabed beyond national jurisdiction ‘each…party [to the UN Convention on the Law of the Sea] may…be entitled to claim compensation in light of the erga omnes character of the obligations relating to the preservation of the marine environment of the high seas and in the Area.’ (at [180]). And the ICJ in Questions Relating to the Obligation to Prosecute of Extradite also concluded that any party to the Torture Convention may invoke the failure of another party to comply with the obligations erga omnes partes established by it (see [68]-[69]).

It remains to be seen how the ICJ will approach these issues in the Whaling in the Antarctic Case, however it is to be hope that the Court will refer to and endorse Article 48 of the ASR which provides an important avenue for public interest international environmental claims to be pursued.

Whaling wars, non-state actors and international responsibility

 Posted by: Papanicolopulu Irini

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

Whaling disputes are multifaceted. While Australia and Japan are confronting each other in The Hague (see the post by Natalie Klein), Sea Shepherd Conservation Society (SSCS), an American NGO and the Institute of Cetacean Research (ICR), a Japanese research institution fight strenuously in court and at sea. Following the moratorium on commercial whaling decided by the International Whaling Commission in 1984, Japan has licensed ICR to conduct research projects involving the killing of numerous whales. ICR activities, however, are increasingly physically hampered by SSCS vessels, which harass ICR vessels on the high seas. As already noted on Opinio Juris, in February the U.S. Court of Appeals for the Ninth Circuit reversed a lower court and granted ICR a preliminary injunction against SSCS, defining the latter as ‘pirates’. And while ICR is threatening contempt action against them, SSCS for their part have initiated proceedings in front of a Dutch judge for violation of environmental laws by ICR.

The fight between SSCS and ICR reserves many dramatic turns and much suspense but … is there any room for issues of international responsibility in a case that pits one private entity against another private entity? Is not this a matter for domestic jurisdiction or, at most, an issue for conflicts of law? Not entirely: the presence of actors other than States adds complexity to issues of international responsibility and raises a number of questions. Two strands are significant. In the first place, the presence of individuals does not automatically rule out the State. States always act through individuals or other entities, their organs, and they can endorse or support the conduct of subjects other than their own organs. If Japan endorses or supports the acts of ICR, or if Australia supports the activities of SSCS, the States can incur responsibility directly, for breach of international obligations. In the second place, the dispute between SSCS and ICR raises issues relating to the subjectivity of non-state actors at the international level, and the extent to which they may make use of, or be subject to, the rules regulating international responsibility.

From among the many issues involving whaling disputes and international responsibility, I will briefly address three. In the first place, can international actors other than States and international organisations incur into international responsibility? In the specific case, can SSCS and ICR be held responsible on their own account? The answer to this question depends on whether international law binds them. Undoubtedly, both SSCS and ICR have a number of legal obligations under national systems, including the national legal system of the state of incorporation and the legal system of the flag state. Furthermore, obligations derive also from the legal system of the state of nationality, to the extent that these operate extraterritorially, as well as from the legal system, of the coastal State, when the SSCS vessels are sailing in the maritime zones of states other than the flag state. It is however more doubtful whether international law imposes obligations directly on SSCS or ICT. In light of their status as non-State actors, they are not subject to the same legal obligations that bind States.

In the second place, can the acts of the two private actors engage the responsibility of a state? While SSCS present themselves as enforcing treaties and other legal instruments adopted by states and within international organisations, this is not sufficient to engage directly the responsibility of states, unless a state endorses the conduct of SSCS. State responsibility might arise, however, also in the case of inaction of states. It is a fact that SSCS has repeatedly violated international standards relating to the safety of navigation and the protection of human life at sea. In cases involving collision or other acts threatening the safety of navigation and endangering human life, the flag state has the obligation to act and to undertake an inquiry as envisaged by Art. 94(7) United Nations Convention on the Law of the Sea. Therefore, lack of enforcement by the flag state against SSCS and its vessels amounts to a breach of the flag State’s positive obligations under law of the sea and maritime law instruments, generating its international responsibility.

The position of ICR, on the other hand, is less clear. According to information provided on its website, ICR ‘is a nonprofit research organization whose legal status is authorized by the Ministry of Agriculture, Forestry and Fisheries, Government of Japan, as a foundational judicial person’. It is therefore not clear whether it can be considered as an organ of Japan or as a distinct entity under international law. Certainly, the fact that it is licensed by Japan to conduct scientific research is not in and of itself sufficient to consider it a state organ as provided under the ILC Draft Articles on State Responsibility.

Finally, and turning to the consequences of international responsibility, who can invoke responsibility at the international level and exercise the rights of the injured subject? And, in particular, who can take countermeasures against whom? Countermeasures are a characteristic feature of the international legal order, which lacks a centralised enforcement authority and may be taken by one state against another state. If it were established that Japan is violating international treaties and other rules on whaling, the acceptance by other States of illegal conduct by SSCS might, for example, be considered as a lawful countermeasure. Such countermeasures, however, should be proportionate and would encounter a limitation in the need to comply with jus cogens. Supporting or tolerating acts that endanger human life, or that constitute a threat to the safety of maritime navigation cannot be considered as lawful countermeasures, since they would be in violation of the right to life.

While state countermeasures that comply with jus cogens are admissible, this is not the case with countermeasures adopted by other actors. There does not appear to be any rule of international law allowing private entities to undertake countermeasures, be they directed at states or at other private entities that have incurred into international responsibility. This is in line with the effort to reduce as much as possible recourse to countermeasures, but also with the absence of any duties that bind private entities under international law to the general respect of norms of international law, including human rights.

Procurator General of the Dutch Supreme Court concludes to reject appeal against Srebrenica judgment

 Posted by: Nollkaemper André

On 3 May, the Procurator General of the Supreme Court of the Netherlands (mr. P. Vlas) concluded in his so-called ‘advisory opinion’ that the appeal against the Judgment of the Court of Appeal of the Hague, which found that the Netherlands was liable for evicting Bosnian nationals from the compound of Dutchbat in Srebrenica on 12 July 1995, should be rejected. The main task of the Procurator General of the Supreme Court of the Netherlands is to provide independent advice (known as ‘advisory opinion’) to the members of the Supreme Court on how to rule in the cassation proceedings that are before the Court.

The advisory opinion is very rich in legal analysis of questions of shared responsibility. It cites no less than four papers written as part of the SHARES Project, and will be commented upon more fully at a later stage. A few quick points that stand out will be identified below.

The core issue in the advisory opinion is the basis for attribution of conduct to a troop-contributing State and/or the UN. On this point, the Procurator General rejects the argument of the State of the Netherlands (identical to the position of the UN) that attribution of conduct is governed by Article 6 rather than 7 of the Articles on the Responsibility of International Organizations (ARIO). Thus, attribution is governed by the standard of effective control, as stipulated in Article 7 (par. 4.10, par. 5.4).

Critically, Vlas then rejects the argument of the Court of Appeal that Article 7 allows for dual attribution. He cites Crawford and Olleson for the proposition that the purpose of Article 7 ARIO ‘is not to determine whether particular conduct is attributable as such, but rather it addresses the question of to which of two entities (the “borrowing” international organization or the “lending” State (or international organization), the conduct is to be attributed’ (par. 4.12). Vlas thus construes Article 7 as a ground for exclusive responsibility, not allowing for ‘independent responsibility’ of the troop contributing State (par. 4.13).

It can be observed that the analysis of Article 7 is rather thin, and does not address the strong support for the possibility of dual attribution. This observation also sits uneasily with a later part in the advisory opinion (see below), where Vlas does recognise the possibility of shared responsibility.

In any case, this reasoning differs significantly from that of the Court of Appeal. Not only had that Court expressly left open the possibility of dual attribution, but it also held that for determining who is responsible, it needed to be determined whether or not the State exercised effective control. For the Procurator General, the former point is incorrect and the latter question is irrelevant. If the UN exercises effective control, it is exclusively responsible. If it does not exercise effective control, the State retains responsibility, without a need to show effective control. This also means that Vlas did not see a need to discuss in his advisory opinion the (innovative) argument of the Court of Appeal based on the ability to prevent.

Whereas at this stage of the reasoning the fate of the Judgment of the Court of Appeal looks unhappy (and the advisory opinion accepts the relevant ground for cassation), the Procurator General does reject the appeal aimed at annulment of the Judgment of the Court of Appeal.

This rejection is based on two grounds. On the one hand, the Procurator General concludes on the facts that in the critical days of 12 and 13 July 1995, the UN did not actually exercise effective control (par. 5.10). Since the UN did not exercise effective control, the Netherlands ‘resumes’ its own responsibility.

Second, Vlas concludes that in the context of the evacuation of refugees and the withdrawal of the troops after the fall of the safe area, the State had an own, independent authority over Dutchbat, that encompassed command and control. On this point Vlas notes, in a factual account which stays close to the assessment by the Court of Appeal, that the government of the Netherlands actually had taken its responsibility by giving orders.

Significantly, it is then stated in the advisory opinion, with reference to literature published in the context of the SHARES Project, that in such circumstances it can be argued that both the UN and the State exercised parallel control. And, in cases of breaches of obligations, there can be a ‘shared responsibility’, whereby the State is responsible for its own conduct (through Dutchbat), and responsibility would also rest on the UN for the conduct of the organisation (par. 5.14). This reasoning, commendable for its recognition of the possibility of shared responsibility, will be commented upon later in the context of the SHARES Project.

On the questions of wrongfulness, the most interesting point in the advisory opinion is the finding that the presence of the victims on the compound of Dutchbat was sufficient to bring them under the jurisdiction of the Netherlands (par. 5.30).

The Supreme Court is scheduled to deliver its judgment on 6 September 2013.