Request for Advisory Opinion by SRFC

• Jurisdiction: Derecho Internacional
• Judge: Kelly,Pawlak,Paik,Nelson,Chandrasekhara,Cot,Yanai,Lucky,Jesus,Kulyk,Rao Akl,Bouguetaia,Attard,Türk,Hoffmann,Wolfrum,Gao,Kateka,Ndiaye,Golitsyn
• Court: International Tribunal for the Law of the Sea
• Date: 02 April 2015

International Tribunal for the Law of the Sea

Advisory Opinion.

(Yanai, President, Hoffmann, Vice-President, Nelson, Chandrasekhara, Rao Akl, Wolfrum, Ndiaye, Jesus, Cot, Lucky, Pawlak, Türk, Kateka, Gao, Bouguetaia, Golitsyn, Paik, Kelly, Attard and Kulyk, Judges)

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC)

International tribunals — International Tribunal for the Law of the Sea — Jurisdiction — Advisory jurisdiction — Whether Tribunal having jurisdiction to give Advisory Opinion requested by Sub-Regional Fisheries Commission — Statute of Tribunal — Article 21 of Statute — Rules of Tribunal — Whether prerequisites for exercise of advisory jurisdiction satisfied — Article 138 of Rules — Advisory opinion

Sea — Treaties — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — Illegal, unreported and unregulated fishing activities within exclusive economic zone — Obligation of flag State — Liability and responsibility — Obligation to take necessary measures — Articles 58(3), 62(4), 92, 94(6) and 192 of UNCLOS — Obligation of due diligence — Obligation of cooperation

International organizations — International fisheries agreements — Fishing licence — Violation of coastal State legislation — Liability of international organization — Request for information on responsible party — Article 6(2) of Annex IX to UNCLOS

Environment — Marine environment — Conservation — Sustainable management of shared stocks and stocks of common interest — Rights and obligations of coastal State — Articles 61(2), 63(1) and 64(1) of UNCLOS — Exchange of scientific information — Due diligence obligations to seek to agree and cooperate

Summary:1The facts:—In accordance with Article 138 of the United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”), the

Sub-Regional Fisheries Commission (“the SRFC”) requested the International Tribunal for the Law of the Sea (“the Tribunal”) to give an advisory opinion on the following 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 (“EEZ”) 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 licence 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 stocks of common interest, especially the small pelagic species and tuna?

The request was made pursuant to a resolution adopted by the Conference of Ministers of the SRFC, which authorized the Permanent Secretary to seek an advisory opinion based on Article 33 of the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission, 1993 (“the MCA Convention”).

Held:—Introductory matters: (1) (unanimously) The Tribunal had jurisdiction to give the advisory opinion requested by the SRFC, limited to the EEZ of the SRFC Member States. The Statute of the Tribunal contained in Annex VI to UNCLOS was an integral part of UNCLOS and was not subordinate to Article 288 of UNCLOS. The Tribunal's jurisdiction over “all matters” under Article 21 of the Statute included its advisory jurisdiction, which was founded upon “any other agreement” which conferred such jurisdiction upon the Tribunal. All the prerequisites for the Tribunal to exercise its advisory jurisdiction set out under Article 138 of the Rules of the Tribunal had been satisfied: the MCA Convention specifically provided for the submission to the Tribunal of a request for an advisory opinion, the request was so transmitted and the questions asked of the Tribunal were legal in nature. The questions asked were not limited to the interpretation or application of the MCA Convention; it sufficed that the questions had a sufficient connection with the purposes and principles of the treaty (paras. 52–69).

(2) (by nineteen votes to one, Judge Cot dissenting) There were no compelling reasons for the Tribunal to exercise its discretion under Article 138 of the Rules not to render an advisory opinion. The questions raised by the SRFC were sufficiently clear and did not require the Tribunal to exercise powers outside its judicial functions. Moreover, in advisory proceedings, the consent of third States not members of the SRFC was not relevant and the issue of State consent had not arisen as the present Request did not involve an underlying dispute (paras. 70–9).

Question 1 (unanimously): (3) The “flag State”, being a State that was not a member of the SRFC, had the following obligations of due diligence:

(a) The obligation to take necessary measures, including enforcement measures, to ensure that vessels flying its flag complied with the laws and regulations enacted by the SRFC Member States concerning the conservation and management of marine living resources within their EEZs;

(b) Pursuant to Articles 58(3), 62(4) and 192 of UNCLOS, the obligation to take necessary measures to ensure that vessels flying its flag did not engage in IUU fishing activities as defined in the MCA Convention within the EEZs of the SRFC Member States; and

(c) Pursuant to Article 94 of UNCLOS, the obligation to adopt the necessary administrative measures to ensure that fishing vessels flying its flag were not involved in activities in the EEZs of the SRFC Member States which undermined the flag State's responsibility under Article 192 of UNCLOS to protect and preserve the marine environment and conserve the marine living resources (paras. 80–138).

(4) An obligation of due diligence entailed adopting appropriate rules and measures, as well as vigilance in their enforcement and exercise of administrative control in this regard. The standard of due diligence was variable and depended on the specific circumstances (paras. 131–2).

(5) The flag State and the SRFC Member States had an obligation to cooperate in cases related to IUU fishing by vessels of the flag State in the EEZs of the SRFC Member States concerned (para. 140).

(6) In accordance with Article 94(6) of UNCLOS, the flag State had an obligation to investigate reports from SRFC Member States alleging that vessels flying its flag had been involved in IUU fishing within their EEZs. Further, the flag State had an obligation to take any action necessary to remedy the situation if appropriate, and to inform the SRFC Member State of that action (para. 139).

Question 2 (by eighteen votes to two, Judges Cot and Lucky dissenting): (7) The flag State would not be liable for the failure of vessels flying its flag to comply with the laws and regulations of the SRFC Member States concerning IUU fishing activities in their EEZs, as the violation of such laws and regulations by vessels was not per se attributable to the flag State (paras. 140–6).

(8) The flag State's liability in respect of IUU fishing activities by vessels flying its flag would instead arise from its failure to comply with its due diligence obligations referred to in the Tribunal's reply to Question 1. In such cases, the SRFC Member States might hold liable the flag State for a breach, attributable to the flag State, of its international obligations. The flag State would not be liable if it had taken all necessary and appropriate measures to meet its due diligence obligations to ensure that vessels flying its flag did not conduct IUU fishing activities in the EEZs of the SRFC Member States. The frequency of IUU fishing activities was not relevant to the question of whether the flag State had breached its due diligence obligations (paras. 147–50).

Question 3 (unanimously): (9) Since the liability of the flag State in respect of the violation of fisheries legislation of the coastal State by vessels flying its flag had already been addressed by the Tribunal under Question 2, only the liability of international organizations needed to be addressed in Question 3. In particular, only those international organizations referred to in Articles 305(1)(f) and 306 of UNCLOS, and Annex IX to UNCLOS, to which their member States, as parties to UNCLOS, had transferred competence over matters governed by it. The only such international organization was the European Union, where its member States were parties to UNCLOS and had transferred competence with regard to the conservation and management of sea fishing resources (paras. 151–66).

(10) Where an international organization, exercising its exclusive competence in fisheries matters, concluded a fisheries access agreement with an SRFC Member State, the obligations of the flag State became the obligations of the international organization. Therefore, it was the international organization which had a due diligence obligation to ensure that vessels flying the flag of a member State complied with the fisheries laws and regulations of the SRFC Member State and did not conduct IUU fishing activities within the EEZ of that State. Consequently, only the international organization could be held liable for any breach of its obligations arising from the fisheries access agreement, and not its member States, including its failure to prevent the violation of fisheries laws and regulations of SRFC Member States by a vessel flying the flag of a member State of that international organization and fishing in the EEZs of the SRFC Member States within the framework of the fisheries access agreement (paras. 167–73).

(11) Pursuant to Article 6(2) of Annex IX to UNCLOS, SRFC Member States could request an...