New ITLOS Advisory Opinion Sought
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.