Law of the Sea

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...

Law of the Sea Symposium: Search and Rescue Operations at Sea – Who is in Charge? Who is Responsible?

[Dr Seline Trevisanut is a Marie Curie Fellow and Assistant Professor at the Netherlands Institute for the Law of the Sea (NILOS)] Cross-posted at SHARES Blog. On Sunday, 8 May 2011, the British newspaper The Guardian reported the story of a boat carrying 72 persons, among them asylum seekers, women and children, which left Tripoli (Libya) for the Italian island of Lampedusa at the end of March 2011 (for comments, see here and here). After 16 days at sea, the boat was washed up on the Libyan shore with only 11 survivors. During the 16 days route, survivors told that they used their satellite phone, which later ran out of battery, to call an Eritrean priest in Rome for help (see Resolution 1872 of the Parliamentary Assembly of the Council of Europe). The priest alerted the Italian Maritime Regional Coordination Centre, which located the migrants’ vessel and sent out many calls to the ships in the area. Pursuant to survivors’ testimonies, on about the tenth day of their voyage, when half of the passengers were dead, a large aircraft carrier or helicopter-carrying vessel (probably involved in the NATO’s Operation Unified Protector, which was on going at that time off the Libyan shores) sailed near to the boat, close enough for the survivors to see the sailors on board looking at them with binoculars and taking photos. But no one rescued them. Flag states and coastal states have a duty to render assistance to persons found at sea in the danger of being lost and people in distress (Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS)). This core obligation under both treaty law (see also the 1974 Convention on the Safety of Life at Sea (SOLAS Convention), the 1979 Search and Rescue Convention (SAR Convention) and the 1989 International Convention on Salvage) and customary law applies in any maritime zone and in relation to any activity there performed. While implementing this duty states can either perform directly the search and rescue (SAR) operations, namely through their own SAR services, or ask a vessel, which is located in the proximity of the endangered persons, be it any merchant ship or the state vessel of another country, to perform the rescue operation. The texts here mentioned expressly refers to states, flag or coastal. Practice however offers more and more examples of police activities performed under the command of an international organization or a supranational body. A question then arises:

• who are the bearers of the obligation? Namely, are those ‘entities’ (such as NATO) bound by the duty to render assistance?

The answer could be affirmative only if we consider that the duty to render assistance under customary international law has a wider scope of application ratione personae, if compared with the same obligation under treaty law. The practice however does not allow yet such a conclusion. Another question raised by recent practice concerns the recipient of the obligation:

• Is the duty to render assistance a purely inter-state obligation or does it entail a right to be rescued for people in distress at sea?

Law of the Sea Symposium: Whaling wars, non-state actors and international responsibility

[Dr Irini Papanicolopulu is a Lecturer at the University of Glasgow and Senior Research Fellow at the University of Milano-Bicocca] Cross-posted at SHARES blog. Whaling disputes are multifaceted. While Australia and Japan are confronting each other in The Hague (see the post by Natalie Klein), Sea Shepherd Conservation Society (SSCS), an American NGO, and the Institute of Cetacean Research (ICR), a Japanese research institution, fight strenuously in court and at sea. Following the moratorium on commercial whaling decided by the International Whaling Commission in 1984, Japan has licensed ICR to conduct research projects involving the killing of numerous whales. ICR activities, however, are increasingly physically hampered by SSCS vessels, which harass ICR vessels on the high seas. As already noted on this blog, in February the U.S. Court of Appeals for the Ninth Circuit reversed a lower court and granted ICR a preliminary injunction against SSCS, defining the latter as ‘pirates’. And while ICR is threatening contempt action against them, SSCS for their part have initiated proceedings in front of a Dutch judge for violation of environmental laws by ICR. The fight between SSCS and ICR reserves many dramatic turns and much suspense but ... is there any room for issues of international responsibility in a case that pits one private entity against another private entity? Is not this a matter for domestic jurisdiction or, at most, an issue for conflicts of law? Not entirely: the presence of actors other than States adds complexity to issues of international responsibility and raises a number of questions. Two strands are significant. In the first place, the presence of individuals does not automatically rule out the State. States always act through individuals or other entities, their organs, and they can endorse or support the conduct of subjects other than their own organs. If Japan endorses or supports the acts of ICR, or if Australia supports the activities of SSCS, the States can incur responsibility directly, for breach of international obligations. In the second place, the dispute between SSCS and ICR raises issues relating to the subjectivity of non-state actors at the international level, and the extent to which they may make use of, or be subject to, the rules regulating international responsibility. From among the many issues involving whaling disputes and international responsibility, I will briefly address three.

Law of the Sea Symposium: A Comment on Natalie Klein’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. Natalie Klein has drawn attention to a longstanding weakness in those fields of international law, including international environmental law, devoted to serve collective interests, in matching obligations with rules of responsibility for their breach. The law of...

Law of the Sea Symposium: What Responsibility over Iconic Marine Living Resources?

[Dr Natalie Klein is Professor and Dean of Macquarie Law School, Australia] Cross-posted at SHARES blog. One of the most successful environmental campaigns was captured by the slogan of ‘Save the Whales’. It was apparently when the Australian Prime Minister’s daughter returned home from school sporting a Save the Whales badge that the initial impetus was provided for Australia to shift from pro-whaling nation to anti-whaling. Over the decades, we have seen a fundamental change in the legal regulation of whaling: from minimal regulation and maximum exploitation to a zero-catch quota (colloquially known as the moratorium) on commercial whaling under the International Convention for the Regulation of Whaling (ICRW). There has been resistance to this moratorium – from those states that never agreed to the imposition of a moratorium and those states that seem to thwart the moratorium by conducting commercial whaling under the guise of legally permissible scientific whaling, as Australia asserts Japan is doing.  If we are to maintain legal standards in the conduct of whaling then how can states be held responsible? In considering the intersection of the law of responsibility in relation to whaling, there is an initial question as to whom the obligation is owed?