Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ

Abstract

Illegal fishing in the Exclusive Economic Zones [EEZs] of developing coastal States is an urgent problem for the marine environment, global food security, and local economies. While past academic debate has predominantly focused on obligations of flag States to tackle so called IUU-fishing in the High Seas, the recent request for an advisory opinion submitted by the Sub-Regional Fisheries Commission to the International Tribunal for the Law of the Sea (ITLOS, Case No. 21) has drawn attention to the fisheries regime of the EEZ. This article argues that the primary responsibility for fisheries management in the EEZ rests on the coastal State and that, so far, flag States have no obligation under customary international law to exercise their jurisdiction and control over vessels flying their flag which fish in the EEZ of other States. The article first gives an account of coastal State regulatory and enforcement jurisdiction. It outlines recent developments of the law by drawing on the jurisprudence of the ITLOS, particularly the recent M/V "Virginia G" Case. Further, the article undertakes to identify potential flag State obligations to combat illegal fishing in the EEZ. To that end, it provides an in-depth analysis of relevant binding and non-binding legal instruments such as the 1982 UN Convention on the Law of the Sea, other multilateral treaties, bilateral fisheries treaties, and relevant soft-law instruments of the Food and Agriculture Organization. The article also discusses the relevance of principles of international environmental law. Next, the article analyzes the nature and scope of potential flag State obligations, qualifying them as obligations of due diligence. Finally, the article concludes that, de lege lata, no persuasive evidence of established flag State obligations exists. The author suggests that the situation should be remedied by a new, fully binding legal instrument.

Interconnected principles of ocean governance through science-policy integration under the judgements of the international dispute settlement bodies

“… 42 International Tribunal for Law of the Sea stated that under the UNCLOS, measures taken in accordance with marine environmental protection provisions should include those necessary ‘to protect and preserve rare or fragile ecosystems that include habitat of depleted, threatened or endangered species and other forms of marine life’, and through this position widens the scope of its own jurisdiction in ocean governance. 49 …”

“…42 International Tribunal for Law of the Sea stated that under the UNCLOS, measures taken in accordance with marine environmental protection provisions should include those necessary 'to protect and preserve rare or fragile ecosystems that include habitat of depleted, threatened or endangered species and other forms of marine life', and through this position widens the scope of its own jurisdiction in ocean governance. 49 Analysis and review of the principles based on judgements of the IDSBs Generally, IDSBs attempt to maintain cardinal legal and policy principles, including transparency, accountability, consensus and the rule of law. 8 From an environmental perspective, the given principles are presented as a set of indicators that is present in all legal orders.…”

Due Diligence in International Law: Cause for Optimism?

“…112 Also, the international court or tribunal faced with a question of due diligence has the flexibility to assess its specific content and, consequently, what conduct is required of the State in a particular context. 113 However, while the exercise of due diligence by States will contribute to a reduction in illegal, unreported and unregulated fishing, the current due diligence requirements alone will not directly revive already heavily depleted fisheries. 114 For example, more needs to be done to combat artisanal fishing that over-extracts marine resources by fishing beyond the maximum sustainable yield for a region.…”

(Un)Blurred Concept of Sovereign Rights at Sea : Implementation Context

“…beneficial for the coastal states as significant economic potential could enable to lift national revenue (Nugraha, & Irman, 2014). Not only to enjoy the benefit, the coastal states also has the authority to apply and enforce its national law in these areas against any actors both domestic and international (Schatz, 2016). The areas with sovereign rights are in almost all locations bordering with other states.…”