ICWA National Consultations on 1982 UNCLOS: Issues of Safety, Security and Sustainable Use of Ocean Resources in the Indian Ocean Region, 6 August 2020
IUU fishing and Protection of Marine Environment – Jurisprudence of international Tribunal for the Law of the Sea
Remarks by Justice Neeru Chadha,
Judge, International Tribunal of the Law of the Sea (ITLOS), Hamburg
To begin, I thank ICWA for inviting me to the National Consultations on UNCLOS: Issues of Safety, Security and Sustainable use of Ocean Resources in the Indian Ocean Region.
2. There are several emerging issues in relation to governance of oceans which were highlighted by DG ICWA and Mr. Narinder Singh. Today’s consultations include the theme of IUU fishing and protection of marine environment. I will speak on these two issues in the light of the jurisprudence of International Tribunal of the Law of the Sea. This is, I think essential, because it is useful for States to examine how the courts and tribunals have interpreted the Convention.
3. It has long been recognised that Illegal, Unreported and Unregulated (IUU) Fishing is a serious threat to fisheries and fisheries-dependent communities and marine environment. The continued demand for fish and a lack of effective control over fishing activities both by flag States of the vessels and by the coastal states in whose waters they fish are seen as the main causes of Illegal fishing. Over the years, States have adopted a wide range of measures to improve their level of monitoring, control and surveillance (MCS) to combat IUU fishing. These enhanced MCS activities are particularly important for coastal developing countries who are adversely affected because of capacity constraints in their governance mechanisms.
4. States have taken various steps to combat this problem individually and through various international organisations.
5. The FAO compliance agreement, its code of conduct for responsible fisheries, Agreement on Port State Measures and the proposed WTO agreement on elimination of subsidies that contribute to overcapacity and overfishing, to name a few, is an effort in this regard.
6. It may be recalled that the Sustainable Development Goal (SDG) 14 sets the goal to end IUU fishing (14.4) and eliminate subsidies contributing to IUU fishing (14.6) by 2020. The deadline has approached but the goal is still to be attained.
7. In this regard, I want to draw your attention to the advisory opinion of the International Tribunal on the Law of the Sea on IUU fishing. The Request for an advisory opinion was submitted to the Tribunal by the Sub-Regional Fisheries Commission (“the SRFC”), which is a regional fisheries organization composed of seven West African States. (Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone)
8. The SRFC highlighted the serious problem of Illegal, Unreported, and Unregulated (IUU) fishing in the Exclusive Economic Zones (EEZs) of its members. It submitted that with most fisheries in the region fully exploited or over-exploited, IUU fishing is interalia undermining the capacity of SRFC members to maintain their fishing industries, their food security and harming their economies. The SRFC expressed its concern over violations of fisheries laws in the SRFC area, including the use of bunkering vessels to support IUU fishing.
9. In its Request, the SRFC posed four different questions to the Tribunal concerning illegal, unreported and unregulated fishing (“IUU fishing”) activities in the exclusive economic zone of the SRFC Member States.
10. One of the questions was- 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?
11. The Tribunal in its opinion highlighted both the rights and duties of coastal States in the EEZ and the obligations of the Flag State.
12. The Tribunal recalled that “One of the goals of the Convention, as stated in its preamble, is to establish “a legal order for the seas and oceans which . . . will promote” inter alia “the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment”.
13. Consequently, the Tribunal observed, “laws and regulations adopted by the coastal State in conformity with the provisions of the Convention for the purpose of conserving the living resources and protecting and preserving the marine environment within its exclusive economic zone, constitute part of the legal order for the seas and oceans established by the Convention and therefore must be complied with by other States Parties whose ships are engaged in fishing activities within that zone”.
14. The Tribunal observed that the primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing rests with the coastal State and outlined the various provisions of the Convention on the rights of the coastal State.
15. In this regard The Tribunal recalled the “sovereign rights of the coastal state under Article 56 paragraph 1 for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living. Under article 61, paragraphs 1 and 2, of the Convention, the coastal State is entrusted with the responsibility to determine the allowable catch of the living resources in its exclusive economic zone and to “ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation.”
16. Pursuant to article 62, paragraph 2, of the Convention, “the coastal State is required through agreements or other arrangements to give other States access to the surplus of the allowable catch if it does not have the capacity to harvest the entire allowable catch”.
17. “To meet its responsibilities, in accordance with article 62, paragraph 4, of the Convention, the coastal State is required to adopt the necessary laws and regulations, including enforcement procedures, which must be consistent with the Convention”.
18. It may be recalled that under “article 73, paragraph 1, of the Convention, the coastal State may take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with the Convention”.
19. As regards the obligations of the flag state of the vessels engaged in IUU fishing, The Tribunal was of the view that “article 62, paragraph 4, of the Convention imposes an obligation on States to ensure that their nationals engaged in fishing activities within the exclusive economic zone of a coastal State comply with the conservation measures and with the other terms and conditions established in its laws and regulations”.
20. The Tribunal noted that “under articles 58, paragraph 3, and 62, paragraph 4, of the Convention, the flag State has the obligation to take necessary measures, including those of enforcement, to ensure compliance by vessels flying its flag with the laws and regulations adopted by the SRFC Member States in accordance with the provisions of the Convention”.
21. The aforementioned provisions of the Convention, the Tribunal observed, also impose the obligation on the flag State to adopt the necessary measures prohibiting its vessels from fishing in the exclusive economic zones of the SRFC Member States, unless so authorized by the SRFC Member States.
22. Further, Pursuant to articles 192 and 193 of the Convention, the flag State has the obligation to take the necessary measures to ensure that vessels flying its flag comply with the protection and preservation measures adopted by the SRFC Member States.
23. The Tribunal was of the view that – “while the nature of the laws, regulations and measures that are to be adopted by the flag State is left to be determined by each flag State in accordance with its legal system, the flag State nevertheless has the obligation to include in them enforcement mechanisms to monitor and secure compliance with these laws and regulations. Sanctions applicable to involvement in IUU fishing activities must be sufficient to deter violations and to deprive offenders of the benefits accruing from their IUU fishing activities”.
24. The Tribunal also clarified that on report by a coastal State regarding a ship’s involvement in IUU fishing, the flag State is under an obligation to investigate the matter and, if appropriate, take any action necessary to remedy the situation as well as inform the reporting State of that action. The action to be taken by the flag State is, of course, without prejudice to the rights of the coastal State to take measures pursuant to article 73 of the Convention (Article 94(6)).
25. As regards liability of the flag state, the Tribunal clarified that the flag state’s liability does not derive from the fact that vessels flying its flag engage in IUU fishing in breach of SRFC laws and regulations, as the conduct is not attributable to the flag state. The liability of a flag state arises only if it fails to meet its due diligence obligations to ensure that vessels flying its flag do not conduct IUU fishing activities in the EEZs of the SRFC member states. This due diligence obligation is an obligation of conduct.
26. The opinion of the Tribunal though given in the context of SRFC Member States provides an important template for all IOR Member States to assess whether their domestic laws are compliant with the rights and duties elaborated under the Convention and highlighted by the Tribunal.
27. I now turn to Tribunal’s jurisprudence on protection and preservation of marine environment.
28. The Tribunal has been requested in several cases to order provisional measures under Article 290 of the Convention to preserve the respective rights of the parties to the dispute at hand as well as to prevent serious harm to the marine environment. In taking these decisions, the Tribunal has provided a number of important clarifications regarding the obligations of States under the Convention.
29. In the Southern Bluefin Tuna cases, brought by Australia and New Zealand against Japan, it referred to the duty of States to cooperate in the conservation of living resources, emphasizing that they constitute an integral part of the marine environment. In that decision, the Tribunal took an innovative step by declaring that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment”. It highlighted that States Parties to the Convention have a duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation of highly migratory species. It was also the first instance of an international judgment using the notion of precaution albeit indirectly.
30. In the Mox Plant Case, between Ireland and United Kingdom, the Tribunal described the duty to cooperate in the protection and preservation of the marine environment as a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law. This duty was again highlighted in the case of Land Reclamation in and around the Straits of Johor, as well as in the dispute between Ghana and Côte d’Ivoire.
31. The Tribunal has in its jurisprudence developed its understanding of the precautionary approach, having referred to “prudence and caution” in its earlier decisions. In the Mox Plant Case, it found that prudence and caution required cooperation between the Parties in exchanging information, thereby linking precaution with the duty to cooperate. The Seabed Disputes Chamber of the Tribunal further elaborated on its understanding of the precautionary approach in the Advisory Opinion concerning Responsibilities and obligations of States with respect to activities in the Area.
32. The Chamber acknowledged the developing customary legal status of the precautionary approach when it observed that the precautionary approach “has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration”. In the view of the Chamber, “this has initiated a trend towards making this approach part of customary international law”.
33. Another aspect of international environmental law to which the Tribunal has paid particular attention is the duty of States to monitor and assess the risks, resulting from activities undertaken by them, on the marine environment. Thus, in MOX Plant and in Land Reclamation, the Tribunal ordered the respective Parties inter alia to cooperate in order to monitor or assess risks or effects of the activities in question, namely the operation of the MOX plant or the conduct of land reclamation works.
34. The Seabed Disputes Chamber, in its Advisory Opinion emphasized that the obligation to conduct an environmental impact assessment is a direct obligation under the Convention, as enshrined in its article 206, as well as “a general obligation under customary international law”. The Seabed Disputes Chamber also provided important clarification in respect of the notion of “responsibility to ensure” and “due diligence”, concepts which were later further developed by the Tribunal in its advisory opinion requested by the SRFC.
35. A brief exposition of the relevant rulings of the Tribunal and its Chamber demonstrates that they have played a significant role in promoting the preservation and protection of marine environment and ocean sustainability by emphasizing the importance and legal obligation to apply precautionary approach and best environment practices. That include prudence and caution, Environment Impact Assessment and duty to cooperate between the Parties.
36. In The SRFC Advisory Opinion the Tribunal provided a thorough analysis of duties of coastal and flag state to ensure sustainable fisheries management. In this case, the Tribunal also once again emphasised the connection between managing marine living resources and marine environmental protection, reiterating its statement in the Southern Bluefin Tuna cases that “the conservation of the living resource of the sea is an element in the protection and preservation of the marine environment.” The Tribunal also emphasised that the duty to cooperate elucidated by it in the Mox Plant case is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law and this obligation extends also to cases of alleged IUU fishing activities.