New ITLOS Advisory Opinion Sought

by Kristen Boon

The International Tribunal of the Law of the Sea has received a request for an advisory opinion from the Sub Regional Fisheries Commission located in Senegal. The Commission is a treaty based organization founded in 1985, which has seven member states (Senegal, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, and Sierra Leone). Some background information on the Commission is available here.

The Commission’s request asks four questions:

1. What are the obligations of the flag State in cases where illegal, unreported, and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and sticks of common interest, especially the small pelagic species and tuna?

If ITLOS’s approach to this advisory opinion is similar to its Advisory Opinion on the Seabed, we can expect a creative and expansive response.  There, ITLOS affirmed the due diligence principle (which the ICJ recognized in the Pulp Mills case), and gave it content by linking it to the obligations of states.  ITLOS therefore has a trackrecord of “making waves” with regards to linkages between the law of responsibility and the Law of the Sea.

Nonetheless, at present, there is not much information generally available about the background of this request other than general difficulty with IUU fishing in the region.   Has the commission brought this case to try to gain leverage with distant water fishing nations?  Is this ultimately a dispute with the EU?   Some relevant conversations about the law of the sea and responsibility are taking place at the Food and Agriculture Organization that might provide useful background information.  See in particular the draft guidelines on Flag State performance that address questions of flag state responsibility for IUU fishing.

And we at Opinio Juris hope to contribute to this conversation by way of a symposium later this spring on the intersection between the law of the sea and principles of state responsibility.

http://opiniojuris.org/2013/04/10/new-itlos-advisory-opinion-sought/

3 Responses

  1. This is quite a development in more ways than one. I believe this is the first time the full court of ITLOS has been asked to render an advisory opinion. The earlier Advisory Opinion mentioned in this blog post was issued by the Seabed Disputes Chamber of ITLOS, its only advisory opinion issued to date. Indeed, the only explicit authorization in UNCLOS for ITLOS to issue advisory opinions is given to the Seabed Disputes Chamber, in Article 191: “The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities.” But the Assembly and the Council, organs of the International Seabed Authority, have authority only with respect to activities within the Area. The request from the Sub Regional Fisheries Commission for an Advisory Opinion addresses fishing within the EEZ of states, not the Area. Although neither UNCLOS nor the ITLOS Statute expressly provide the ITLOS full court with advisory opinion jurisdiction, the Rules of the Tribunal do, in Article 138. In the extensive Commentary on the Rules of the Tribunal, published in 2006 and contributed to by a number of ITLOS members, two views are presented: One, that there is no legal basis for Rule 138 since UNCLOS expressly confers advisory jurisdiction only on the Seabed Disputes Chamber, and the opposing view, that nothing in UNCLOS would preclude the ITLOS full court from exercising advisory jurisdiction. It seems highly unlikely that ITLOS would decline to exercise the advisory jurisdiction requested of it by the Sub Regional Fisheries Commission.  In which case this will be the first Advisory Opinion issued by the ITLOS full court. (Deep thanks to my superb student Allison Cameron for her research on this matter.)
     

  2. Question for readers: Does anyone know of any other treaty besides the MCA Convention (relied on by the Sub-Regional Fisheries Commission for its recent request to ITLOS) that specifically provides for submission to ITLOS of a request for an advisory opinion?   
    Judge Ndiaye of the Tribunal wrote in 2010 that no treaty with such a provision existed at that time (The Advisory Function of the International Tribunal for the Law of the Sea, para. 79).  He remarked that this was “either because the agreements existed prior to the establishment of the Rules of the Tribunal, or because States could not foresee that the advisory jurisdiction clause would be introduced by an organ they established.”  In her research, Allison Cameron found that amendments to the MCA Convention adopted in 2012 included the provision for requesting an advisory opinion from ITLOS.  Do OJ readers know of any other treaties out there, either amended or new, with such a provision? 
     

  3. Kristen, congrats again for bringing our attention to another important development. I’ve been wondering for a while what resources you use to stay up to date with all that’s happening in the IL world. Your net seems to be cast widely–is it just lots of subscriptions to the press releases of various organizations or do you use some sort of aggregator? Perhaps a post on how you stay up to date might be helpful for readers?

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