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

by Ilias Plakokefalos

[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 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.

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

by Anastasia Telesetsky

[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.  (more…)

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

by Ilias Plakokefalos

[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. (more…)

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

by Tim Stephens

[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 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.

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

by Yoshinobu Takei

[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. (more…)

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

by Tim Stephens

[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 sea. Regrettably, there has been an increase in tragic maritime incidents involving asylum seekers in recent years, not only in the Mediterranean, but also in other oceans seas including the Indian Ocean where several vessels carrying asylum seekers attempting to reach Australia have foundered, and there has been significant loss of life. The death toll from the 20 vessels that have sunk en route to Australia since 2009 now stands at nearly 900. There is an urgent need to clarify the international legal duties upon states to ensure that such tragedies are avoided, and that when sinkings do occur that search and rescue authorities respond promptly and effectively.

As Seline explains, there remains uncertainty, in some situations, as to the chain of responsibility for safeguarding the right to life that persons in distress enjoy. From a human rights perspective, that right can only be enforceable if the relevant individuals are within the jurisdiction of a state, but the jurisdictional status may be uncertain, depending upon where the maritime emergency occurs. Seline makes a compelling argument for treating persons within a Search and Rescue Region (SRR) as within the jurisdiction of the relevant SAR state for the purposes of international human rights law. However, that is often not the end of the enquiry; as not all states are able to discharge their SAR obligations to the same level of diligence, and may not have a system of human rights accountability so that victims and their families can pursue redress.

To illustrate this point by reference to the Australian situation, many asylum seeker vessels become distressed within the Indonesian SRR, and under the SAR Convention it remains Indonesia’s primary responsibility to render assistance. However the situation is somewhat unique in that most of the vessels are usually detected by Australian authorities which then pass the information on to their Indonesian counterparts, who they know have highly constrained capacity to mount a response far from shore, particularly in challenging sea conditions. What this indicates, is that there is a need to clarify (and possibly extend) the search and rescue obligations of parties to the SAR Convention to address such situations where there is a significant mismatch between states in their SAR capacities. Those in peril at sea should not be allowed to be in a ‘legal limbo’, falling between the cracks in the law.

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

by Seline Trevisanut

[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: Maybe Non-State Actors Are More Important than States

by Julian Ku

Irini Papanicolopulu highlights the important and sometimes central role that non-state actors have in the whaling disputes between Japan and Australia.  Invoking the traditional lens of international law, she considers whether the actions of Sea Shepherd Conservation Society (SSCS) or the Institute for Cetacean Research can implicate state responsibility. Her conclusion is properly uncertain given the murky relationships between Australia and Japan and the relevant non-state actors.  But I wonder if she is asking the wrong question.

The problem of individual non-state actors acting as possible proxies for states is hardly a new problem of international law.  One only has to review the long history of U.S. “filibustering” expeditions into the Caribbean and Central America to find historical examples of individual non-state actors effectively advancing the interests of a state like the United States, even as the U.S. carefully avoided direct support or responsibility.  A U.S. citizen named William Walker, for instance, very nearly brought Nicaragua into the United States through his “private” but tacitly U.S. government supported expeditions (Similar efforts were launched against Cuba and Hawaii, with varying success). In these cases, a private actor is advancing a sovereign’s interest, and the case for state responsibility becomes obvious.

What makes the Australia/Sea Shepherd v. Japan/Institute for Cetacean Research dispute so interesting, however, is the possibility that neither SSCS nor ICR are actually acting in a way that would advance their state’s interests.  We then enter a world where private non-state actors are truly engaged in a private war outside the territorial jurisdiction of any nation.   The private actors in question are truly motivated by their individual interests, and, if anything, they are driving sovereign state policy rather than the other way around.  In this situation, the non-state actors are primary players, but because they operate effectively free from domestic regulations or restraints, their clashes are not clearly governed by international or domestic laws. Hence, the U.S. Court of Appeals’ efforts to squeeze the SSCS in the “pirate” category does seem a stretch. But given the paucity of other regulations for purely private actors on the high seas, it seems defensible or at least more understandable.

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

by Irini Papanicolopulu

[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. (more…)

Law of the Sea Symposium: A Comment on Natalie Klein’s post

by Tim Stephens

[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 state responsibility applies in a fairly straightforward way to situations where there is an obligation under a treaty to protect the environment, that is violated by a treaty party, with clear impacts upon another party. However, as Klein points out, when it comes to iconic whale and shark (and indeed other) species found on the high seas the responsibility situation may be far from straightforward, and this can frustrate efforts to enforce conservation rules.

In the Whaling in the Antarctic Case before the ICJ, Australia contends that Japan has breached the International Convention for the Regulation of Whaling (ICRW) because it is engaging in commercial whaling, in contravention of the moratorium adopted under the ICRW. Australia has not made express its arguments on standing, such as by asserting any special interest in Japan’s conduct above and beyond that of any other party to the ICRW. It is difficult to see how there is any such special or defined interest. Were the ICJ to apply the conventional standing approach this would seem to disentitle Australia from raising this complaint in the ICJ. It could also rule out any challenge by any state against Japan’s whaling program. The net effect is that there could be no party at all able to invoke the potential responsibility of Japan under the ICRW.

This is a clearly undesirable situation. As Klein observes, whales may not have their own legal rights (but of course there is a tremendous philosophical literature on precisely this point). But there is a mechanism, set out in Article 48 of the International Law Commission’s Articles on State Responsibility, for states to seek to defend common environmental values. The International Tribunal for the Law of the Sea referred to Article 48 in its Advisory Opinion on the Deep Seabed and concluded that where there is damage to the environment from mining the deep seabed beyond national jurisdiction ‘each…party [to the UN Convention on the Law of the Sea] may…be entitled to claim compensation in light of the erga omnes character of the obligations relating to the preservation of the marine environment of the high seas and in the Area.’ (at [180]). And the ICJ in Questions Relating to the Obligation to Prosecute of Extradite also concluded that any party to the Torture Convention may invoke the failure of another party to comply with the obligations erga omnes partes established by it (see [68]-[69]).

It remains to be seen how the ICJ will approach these issues in the Whaling in the Antarctic Case, however it is to be hoped that the Court will refer to and endorse Article 48 of the ASR which provides an important avenue for public interest international environmental claims to be pursued.

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

by Natalie Klein

[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? (more…)

Symposium on the Law of the Sea and the Law of Responsibility

by Kristen Boon

This week we are delighted to bring you a symposium exploring the intersection between the law of responsibility and the law of the sea.   The motivation for this symposium is twofold:

First, although there is long interaction between the law of the sea and the law of responsibility, the law of the sea has become an area where the intersection is of increasing importance.  The posts this week will highlight the ways in which the law of responsibility is being invoked in current controversies involving marine species and resources like whales, sharks and fisheries; and examine the role of the law of responsibility in recent cases involving search and rescue operations, flagged ships, and whaling.  The posts will also show that in some instances, there are gaps in the general rules of responsibility that render them inadequate or inappropriate for certain types of disputes with regards to the law of the sea.  A dimension of particular interest in this regard will be instances in which questions of shared responsibility arise; these posts will be cross-posted on the SHARES website at the University of Amsterdam, Faculty of Law.

Although we cover law of the sea issues from time to time here at OJ, its not a field we post on regularly.   The second goal behind this symposium is therefore to engage in a sustained discussion on developments of note with experts in Europe, North America, and Australia.

Our bloggers and commentators this week include:   Natalie Klein, Yoshinobu Takei, Irini Papanicolopulu, Seline Trevisanut, Anastasia Telesetsky, Tim Stephens and Ilias Plakokefalos.

I hope you enjoy the topic, and we look forward to lively exchanges and comments.