May 2013

Law of the Sea Symposium: Ilias Plakokefalos Comments on Anastasia Telesetsky’s post

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam] Cross-posted at SHARES Blog. 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...

Law of the Sea Symposium: State Responsibility and Flag State Duties

[Anastasia Telesetsky is an Associate Professor of Law at the University of Idaho College of Law] Cross-Posted at SHARES Blog. 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 post 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 violate erga omnes customary international legal duties as well as discrete treaty obligations. 

Law of the Sea Symposium: Ilias Plakokefalos Comments on Yoshinobu Takei’s post

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam] Cross-posted at SHARES Blog. 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.

Law of the Sea Symposium: Tim Stephens Comments on Yoshinobu Takei’s post

[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.] Cross-posted at SHARES Blog. 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...

Law of the Sea Symposium: Is there a major role for the law of responsibility in international fisheries management?

[Dr Yoshinobu Takei is a Research Associate at the Walther Schücking Institute for International Law, University of Kiel] Cross-posted at SHARES Blog. 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.

Law of the Sea Symposium: A Comment on Seline Trevisanut’s post

[Dr Tim Stephens is Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.] Cross-posted at SHARES Blog. 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...