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.