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.