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State responsibility for illegal, unreported and unrelated fishing and sustainable fisheries in the EEZ: some reflections on the ITLOS Advisory Opinion of 2015

  • Original Article
  • Published:
Indian Journal of International Law

Abstract

On 2 April 2015, the ITLOS delivered its first-ever Advisory Opinion on a request submitted by the Sub-Regional Fisheries Commission, a regional fisheries organization of seven West African States. The Advisory Opinion has invoked considerable excitement for its elaboration of the concept of ‘due diligence’ obligation in the UNCLOS context and their consideration of the issue of responsibility and the potential liabilities of flag States and their vessels operating in EEZ. This paper reviews and reflects on the Tribunal’s Advisory Opinion with particular focus on the flag States responsibilities and liability for illegal, unreported and unregulated (IUU) fishing by vessels flying its flag, and the obligations of States to secure sustainable management of fisheries resources in EEZ. The Tribunal’s interpretation of the Convention in the Opinion has brought some clarity to the IUU regime that is inadequately addressed in the UNCLOS. The Opinion has the potential to strengthen international norms on IUU fishing and sustainable fisheries resources management.

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Notes

  1. Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, Case No 21 [2015] <https://www.itlos.org/en/cases/list-of-cases/case-no-21/> (hereinafter, Advisory Opinion). The Member countries of SRFC are Guinea, Cape Verde, Gambia, Guinea Bissau, Mauritania, Senegal and Sierra Leone.

  2. United Nations Convention on the Law of the Sea (UNCLOS) 1833 UNTS (1982) 396 (entered into force 16 November 1994).

  3. Article 57, UNCLOS (1982).

  4. Charlotte De Fontaubert & Indrani Lutchma, Achieving Sustainable Fisheries: Implementing the New International Legal Regime (IUCN, Cambridge, 2003) 46. See also, Tafsir Malick Ndiaye, Illegal, Unreported and Unregulated Fishing: Responses in General and in West Africa, 10(2) Chinese J Intl L (2011) 374; RR Churchill, The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net? 22(3) Intl J Marine & Coastal L (2007) 386.

  5. Fighting against Illegal, Unreported and Unregulated (IUU) Fishing: Impacts and Challenges for ACP Countries, Brussels Briefing No 10, Resources on Illegal, Unreported and Unregulated (IUU) Fishing, Brussels (29 April 2009) <https://brusselsbriefings.files.wordpress.com/2012/10/reader-br-10-iuu-fisheries-eng.pdf> (accessed on 25 May 2015).

  6. Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UNGA Res A/RES/69/109 (2014) [56].

  7. FAO, The State of World Fisheries and Aquaculture (FAO 2014) 131 <http://www.fao.org/3/a-i3720e.pdf>.

  8. D Doulman, A General Overview of Some Aspects of Illegal, Unreported and Unregulated Fishing, Report of and Papers Presented at the Expert Consultation on Illegal, Unreported and Unregulated Fishing (FAO 2000) <http://www.fao.org/DOCREP/005/Y3274E/y3274e04.htm#bm04>. See also, Ndiaga Gueye, General Considerations on Illegal, Unreported and Unregulated (IUU) Fisheries, Special Paper Prepared for the Fighting against Illegal, Unreported and Unregulated Fishing, 16th ACP-UE Joint Parliamentary Assembly, Port Moresby (25 November 2008); BL Gallic, The Use of Trade Measures against Illicit Fishing: Economic and Legal Considerations, 64 Ecological Economics (2008) 858–866; OECD, Why Fish Piracy Persists: The Economics of Illegal, Unreported and Unregulated Fishing (2005) <http://www.oecd.org/document/6/0,2340,en_2649_33901_35403462_1_1_1_1,00.html>; DJ Agnew, J Pearce, G Pramod, T Peatman, R Watson, Beddington JR, et al. Estimating the Worldwide Extent of Illegal Fishing, 4(2) PLoS One (2009) 1–8.

  9. UNODC, Transnational Organized Crime in the Fishing Industry (UNODC 2011) <https://www.unodc.org/unodc/en/human-trafficking/2011/issue-paper-transnational-organized-crime-in-thefishing-industry.html> (accessed on 9 June 2015); Anastasia Telesetsky, Laundering Fish in the Global Undercurrents: Illegal, Unreported, and Unregulated Fishing and Transnational Organized Crime, 41 Ecology L Q (2015); FAO 2014 supra note 7, 131.

  10. Doulman, supra note 8.

  11. J Roach, Seafood May Be Gone by 2048, Study Says National Geographic News (2 November 2006) <http://news.nationalgeographic.com/news/2006/11/061102-seafood-threat.html>. According to the FAO State of World Fish Resources and Aquaculture (2007), 25 percent of the world’s fish resources were categorized in 2005, as ‘overexploited, depleted and recovering,’ 50 percent as ‘fully exploited’ and 25 percent as ‘underexploited and moderately exploited.’

  12. FAO, Illegal, Unreported and Unregulated (IUU) Fishing <http://www.fao.org/fishery/iuu-fishing/en> (accessed on March 2015).

  13. Ibid.

  14. Kevin Bray, A Global Review of Illegal, Unreported and Unregulated (IUU) Fishing, Expert Consultation on Illegal, Unreported and Unregulated Fishing, FAO Fisheries Report No 666 (2000) Doc AUS:IUU/2000/6 <http://www.fao.org/docrep/005/y3274e/y3274e08.htm> (accessed on 7 June 2015). See also, M Tsamenyi, Mary Ann Palma, B Milligan & K Mfodwo, The European Council Regulation on Illegal, Unreported and Unregulated Fishing: An International Fisheries Law Perspective, 25 Intl J Marine and Coastal L (2010) 5–31; MRAG, Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries (2005). <www.dfid.gov.uk/pubs/files/illegal-fishing-mrag-report.pdf> (accessed on 27 May 2015).

  15. The total surface area of the seven Member States of the SRFC is about 1.6 million km with a coastline that stretches over 3500 km, with 70 percent of the approximately 32 million inhabitants live near the coastal areas. See, Ndiaye, supra note 4, 373. India has a coastline of 8,118 km with an EEZ stretching over 2.02 million km.

  16. Written Statement of the Permanent Secretariat of the SRFC, request for an Advisory Opinion to the International Tribunal for the Law of the Sea, Case No 21 [2013] <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_statements_round1/C21_19_CSRP_orig_Eng_rev.pdf>; Tim Stephens, ITLOS Advisory Opinion: Coastal and Flag State Duties to Ensure Sustainable Fisheries Management, 19 ASIL Insight (16 April 2015) <http://www.asil.org/insights/volume/19/issue/8/itlos-advisory-opinion-coastal-and-flag-state-duties-ensure> (accessed on 25 April 2015).

  17. Ibid.

  18. Twenty-two States parties to UNCLOS and six organizations submitted written statements.

  19. The competence of the full ITLOS to accept requests for Advisory opinion was severely contested and the following member States have submitted detailed written statements to the Tribunal – Argentina, Australia, China, EU, Ireland, Spain, Thailand, the UK and the US (not a party to UNCLOS) <https://www.itlos.org/en/cases/list-of-cases/case-no-21/>.

  20. Advisory Opinion, supra note 1 [40].

  21. Separate opinion of Judge Lucky, Advisory Opinion, supra note 1 [9] <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21_advop_sepop_Lucky_orig_Eng.pdf> (accessed on 25 April 2015).

  22. Advisory Opinion, supra note 1 [63].

  23. Ibid., [62].

  24. Ibid., [64].

  25. UNCLOS 1982, Agreement on Straddling Fish Stocks (1995), the Compliance Agreement (1993) and other instruments developed within the framework of FAO such as the FAO Code for Responsible Fisheries(1995); the FAO’s International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) (2001); Rome Declaration on Illegal, Unreported and Unregulated Fishing (2005); Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009).

  26. UN, The United Nations Convention on the Law of the Sea (A Historical Perspective) <http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm> (accessed on 12 June 2015).

  27. See, Christopher C. Joyner, Compliance and Enforcement in New International Fisheries Law, 12 Temple Intl L & Comp LJ (1998) 271.

  28. Matthew Gianni, IUU Fishing and the Cost of Flag of Convenience Countries, in, OECD Fish Piracy Combating Illegal, Unreported and Unregulated Fishing (OECD, 2004) 285.

  29. DM Sodik, Post-LOSC Legal Instrument and Measures to Address IUU Fishing, 15 Asian Yrbk Intl L (2009) 71 ff.

  30. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 2221 UNTS 91 (1993) (FAO Compliance Agreement 1993).

  31. The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3 (1995) (Straddling Fish Stocks Agreement).

  32. Article III (1), FAO Compliance Agreement 1993.

  33. Adopted by the FAO Conference in Resolution 4 of 1995 <http://www.fao.org/docrep/005/v9878e/v9878e00.htm>.

  34. Sodik, supra note 29.

  35. David A Balton & Holly R Koehler, Reviewing the United Nations Fish Stocks Treaty, 7(1) Sustainable Development L & Policy (2006) 5–9, 5. Sodik, supra note 29, 72–73 ff.

  36. See also, FAO Voluntary Guidelines for Flag State Performance, COFI/2014/4.2/Rev.1 (2014).

  37. Blomeyer & Sanz – Mike Beke & Roland Blomeyer, Illegal, Unreported and Unregulated Fishing: Sanctions, The European Parliament, IP/B/PECH/IC/2013-184 (July 2014) 31 <http://www.europarl.europa.eu/RegData/etudes/STUD/2014/529069/IPOL_STU(2014)529069_EN.pdf>.

  38. IPOA-IUU, Part IV, [16].

  39. The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009) was approved by the FAO Conference at its Thirty-sixth Session (Rome, 18–23 November 2009) under paragraph 1 of Article XIV of the FAO Constitution, through Resolution No 12/2009 dated 22 November 2009.

  40. Anastasia Telesetsky, Laundering Fish in the Global Undercurrents: Illegal, Unreported, and Unregulated Fishing and Transnational Organized Crime, 41 Ecology L Q (2015) 962 ff.

  41. India has only ratified the UN Straddling Fish Stocks Agreement 1995.

  42. Telesetsky, supra note 40, 964.

  43. D Agnew & CT Barnes, The Economic and Social Effects of IUU/FOC Fishing: Building a Framework, in, OECD Fish Piracy: Combating Illegal, Unreported and Unregulated Fishing (OECD, 2004) 19–49.

  44. See, CCAMLR Commission, Report of the Sixteenth Meeting of the Commission (27 October–7 November 1997) in Rachel Baird, Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence, 5 Melbourne J Intl L (2004).

  45. Baird, ibid., 300.

  46. IPOA-IUU 2001 [3].

  47. Articles 2 to 4, Council Regulation (EC) No 1005/2008 (29 September 2008) establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing.

  48. Under Article 25(1), MCA Convention, Member States ‘shall commit themselves to take all the necessary measures to prevent, deter and eliminate illegal, unreported and unregulated fishing.’

  49. Article 1(e), Agreement on Port State Measures (2009).

  50. Ndiaye, supra note 4, 395.

  51. MA Palma, Combating IUU Fishing: International Legal Developments, in, Q Hanich & M Tsamenyi (eds) Navigating Pacific Fisheries: Legal and Policy Trends in the Implementation of International Fisheries Instruments in the Western and Central Pacific Region (ANCORS, Wollongong, 2009) 71 ff.

  52. Ibid.

  53. KM Shajahan, The European Union Regulation on IUU Fishing Impact on Developing Countries, Special Article 47(32) EPW (2012) 83 ff.

  54. Ibid.

  55. Section 7, The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act (1976) (India).

  56. R Beckman & T Davenport, The EEZ Regime: Reflections after 30 Years, Papers from the Law of the Sea Institute, UC Berkeley–Korea Institute of Ocean Science and Technology Conference ‘Securing the Ocean for the Next Generation’ held in Seoul, Korea (May 2012) <https://www.law.berkeley.edu/files/Beckman-Davenport-final.pdf > (accessed on 30 May 2015).

  57. SN Nandan, The Exclusive Economic Zone: A Historical Perspective FAO, Essays in Memory of Jean Carroz: The Law and the Sea (FAO, 1987) <http://www.fao.org/docrep/s5280t/s5280t0p.htm#TopOfPage>.

  58. Ibid. JF Caddy & RC Griffiths, Living Marine Resources and Their Sustainable Development: Some Environmental and Institutional Perspectives, FAO Fisheries Technical Paper. No 353. FAO, Rome. (1995) < http://www.fao.org/docrep/003/v5321e/v5321e00.HTM>.

  59. Article 58, UNCLOS (1982). See also, Article 87, UNCLOS (1982). See generally, Ndiaye, supra note 4, 378–381.

  60. T Scovazzi, Coastal State Practice in the Exclusive Economic Zone: The Right of Foreign States to Use This Zone, in, Thomas A Clingan Jr. (ed) The Law of the Sea: What Lies Ahead (The Law of the Sea Institute, Honolulu, 1986) 310–311; A Bardin, Coastal State’s Jurisdiction over Foreign Vessels, 14 Pace Int'l L Rev (2002) 27–40 ff.

  61. Article 56(1) (a), UNCLOS (1982). See also, Denzil GM Miller, Natasha M Slicer & Eugene Sabourenkov, An Action Framework to Address Illegal, Unreported and Unregulated (IUU) Fishing, 6(2) Australian J of Maritime & Ocean Aff (2014) 70–88.

  62. Ibid.

  63. Article 73(1), UNCLOS (1982).

  64. Bardin, supra note 60, 54.

  65. Article 62(2), UNCLOS. Advisory Opinion, supra note 1 [104]. R Hannesson, The Exclusive Economic Zone and Economic Development in the Pacific Island Countries, 32 Marine Policy (2008) 886–897.

  66. See also, Article 56(1), UNCLOS (1982) – The coastal States must ensure conservation and management of the ‘natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation.’

  67. Article 61(1), UNCLOS (1982).

  68. MSY – Maximum Sustainable Yield is the biological criterion used to determine the level of annual fish catch which could be taken from a given stock of fish without harming its growth and reproductive potential and without reducing its abundance beyond certain levels. See, Shajahan, supra note 53, 88 fn 7.

  69. Articles 61(2) and (3), UNCLOS (1982).

  70. Article 192: ‘States have an obligation to protect and preserve the marine environment.’ This is immediately followed by Article 193: ‘States have the sovereign right to exploit their natural resources pursuant to their environmental policies.’

  71. D Hollis, United Nations Convention on Law of the Sea (UNCLOS) 1982, The Encyclopedia of Earth (26 February 2013) <http://www.eoearth.org/view/article/156775/>.

  72. Advisory Opinion, supra note 1 [106]. In the context of the SRFC Member States, this primary responsibility to prevent IUU fishing is also reiterated in the Article 25 of the MCA Convention.

  73. See, Article 61(2), UNCLOS (1982), and Article 2, MCA Convention. Article 9 of the MCA Convention provides that all the SRFC Member States must have in place national management and conservation measures and policies in relation to the fishing resource.

  74. M/V ‘Virginia G’ (Panama/Guinea-Bissau), Judgment, ITLOS Case No 19 [2014] in Advisory Opinion, supra note 1 [98].

  75. Ibid., [212].

  76. Advisory Opinion, supra note 1 [98] citing M/V ‘Virginia G’ supra note 74 [213, 215].

  77. Ibid., [102]

  78. Ndiaye, supra note 4, 376–377.

  79. Bray, supra note 14.

  80. Section 10(b), the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act (1981) provides that any foreign vessel that violates does illegal fishing in EEZ of India shall get a maximum fine of not exceeding Indian Rupees ten lakhs.

  81. Article 73(2) and (3), UNCLOS (1982). See also, Article 292, UNCLOS (1982).

  82. See generally, TA Mensah, The Tribunal and the Prompt Release of Vessels, 22 Intl J Marine and Coastal Law (2007) 425. Of the 19 cases brought before the ITLOS, 13 cases involved prompt release or provisional measures. J Crawford, Brownlie’s Principles of Public International Law, 8th edn (OUP, London, 2012) 737 ff.

  83. The ‘Volga’ Case (Russian Federation v Australia), Prompt Release [2008] [85–89], in, Chester Brown, ‘Reasonableness’ in the Law of the Sea: The Prompt Release of the Volga, 16(3) Leiden J Intl L (2003) 621–630. See also, Md. Saiful Karim, Conflicts over Protection of Marine Living Resources: The ‘Volga Case’ Revisited, 3 Goettingen J Intl L (2011) 101–127.

  84. Chapter 17, Programme Area C of Agenda 21, United Nations Conference on Environment and Development (1992) (UNCED).

  85. Article 63, UNCLOS (1982). The Tribunal noted that the expression ‘shared stocks’ and ‘stocks of common interest’ cover all stocks occurring within the EEZ of two or more coastal States or both within the EEZ and in an area beyond and adjacent to it. The specific expressions ‘shared stocks’and ‘stocks of common interest’ are not found in the UNCLOS. ‘Shared stocks’ is defined in Article 2(12) of the MCA Convention, which has been described in Article 63, UNCLOS (1982).

  86. Advisory Opinion, supra note 1 [191, 192]. See also, Stephens, supra note 16.

  87. Article 63(1), UNCLOS (1982).

  88. Camille Jean Goodman, The Regime for Flag State Responsibility in International Fisheries Law – Effective Fact, Creative Fiction or Further Work Required?, 23(2) Aus & NZ Maritime LJ (2009) 157 ff.

  89. Advisory Opinion, supra note 1 [197, 206].

  90. Ibid., [207].

  91. ‘Ecosystem’ means a ‘dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.’ Article 2, Convention on Biodiversity (1993) 1760 UNTS 79 (entered into force on 29 December, 1993).

  92. UN, Fish Stocks Agreement: Overview of What the Agreement Says and Its Impact, Resumed Review Conference on the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (24–28 May 2010) <http://www.un.org/depts/los/convention_agreements/reviewconf/FishStocks_EN_B.pdf>. The CRFM, in their written statement to the ITLSO argued for applying the ‘ecosystem-based approach’ to fisheries for a sustainable management of living resources. See, Written Statement of the Caribbean Regional Fisheries Mechanism, request for Advisory Opinion by SRFC, ITLOS Case No 21 [2015] [24] <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_statements_round1/C21_6_CRFM_orig_Eng.pdf>.

  93. Among the SRFC members, only Guinea and Senegal are party to this agreement.

  94. Advisory Opinion, supra note 1 [208].

  95. See, Sect. 4.2 of this Note for a detailed consideration on the concept of ‘due diligence.’

  96. Advisory Opinion, supra note 1 [210].

  97. See, Articles 58(1) and 87, UNCLOS (1982).

  98. Article 58(3), UNCLOS (1982).

  99. Article 94(1), UNCLOS (1982).

  100. John NK Mansell, Flag State Responsibility: Historical Development and Contemporary Issues (Springer, New York, 2009).

  101. One issue is ‘reflagging’ which involves vessels previously flagged to a state party reregistering with non-member states, which are unable, or unwilling, to enforce fisheries regulations to address conservation considerations. See generally, Baird, supra note 44, 313; Miller et al., supra note 61, 74.

  102. To cite an example, in June 2012, a foreign vessel was intercepted while transhipping illegal fish products in a prohibited area. The vessel refused to obey the orders of the patrol and fled the area where the offence was committed. The flag State of the vessel responded unsatisfactorily to the inquiry of the Member State by seeking to exonerate the offending vessel, despite the evidence that was presented. See, Written Statement of the SRFC, supra note 16.

  103. José Luis Jesus, The Potential of the International Tribunal for the Law of the Sea in the Management and Conservation of Marine Living Resources, Presentation given by the President of the ITLOS to the Meeting of the Friends of the Tribunal at the Permanent Mission of Germany to the UN in New York (21 June 2007) 4 <https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/wolfrum/friends_tribunal_210607_eng.pdf>. Gunther Handl, Flag State Responsibility for Illegal, Unreported and Unrelated Fishing in Foreign EEZs, 44 Env Policy & L (2014) ff.

  104. See, Separate Opinion of Judge Paik, Advisory Opinion, Case No 21 [2015] <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21_advop_sepop_Paik_orig_Eng.pdf>.

  105. Goodman, supra note 89, 157.

  106. Advisory Opinion, supra note 1 [108].

  107. Article 92, UNCLOS (1982).

  108. This provision is found in UNCLOS Part VII: High Seas. However, by virtue of Article 58 of the Convention these provisions are applicable to the EEZ. See, Article 58(2), UNCLOS: Articles 88 to 115 and other pertinent rules of international law apply to the EEZ in so far as they are not incompatible with this Part.

  109. Article 94(1), UNCLOS (1982).

  110. Article 94(2)(a) and (b) UNCLOS (1982): Such exercise of jurisdiction and control include, ‘maintaining a register of ships containing the names and particulars of the ships flying its flag, and taking necessary measures: to ensure safety of navigation and periodical surveying by a qualified surveyor of ships; to ensure that each ship flying its flag is in the charge of a master and officers who possess appropriate qualifications; and to ensure that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship.’ See, Advisory Opinion, supra note 1 [116].

  111. Advisory Opinion, supra note 1 [117].

  112. See, the Tribunal’s conclusion in Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports [1999] [70].

  113. Ibid, [124].

  114. Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, request for Advisory Opinion submitted to the Seabed Disputes Chamber, ITLOS, Case No 17 [2014] 10 <https://www.itlos.org/cases/list-of-cases/case-no-17/>.

  115. Ibid., [108].

  116. Ibid., [129].

  117. In SS Lotus Case (France v Turkey) [1927] PCIJ (Ser. A) No 10, Justice Moore observed ‘[i]t is well settled that a State is bound to use due diligence to prevent the commission within its dominions of criminal acts against another nation or its people.’ See also, Alabama Claims Arbitration (US/Great Britain) 29 RIAA 125 [1872] 129, wherein the Tribunal set out an international ‘due diligence’ standard for neutral States in meeting their obligation of neutrality, in, ILA, First Report of the ILA Study Group on Due Diligence in International Law (7 March 2014) <http://www.ila-hq.org/download.cfm/docid/8AC4DFA1-4AB6-4687-A265FF9C0137A699>.

  118. Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] ICJ Rep 14 [79, 197] in ITLOS Case 17, supra note 114 [110–117].

  119. Jianjun Gao, The Responsibilities and Obligations of the Sponsoring States Advisory Opinion, 12(4) Chinese J Intl L (2013) 771–786.

  120. ITLOS Case 17, supra note 114 [117], in, Advisory Opinion, supra note 1 [132]. See also, Article 3, Responsibility and Liability under International Law for Environmental Damage adopted by the International Law Institute in 1997 which provides that: ‘When due diligence is utilized as a test for engaging responsibility it is appropriate that it be measured in accordance with objective standards relating to the conduct to be expected from a good government and detached from subjectivity. Generally accepted international rules and standards further provide an objective measurement for the due diligence test’ <http://www.idiiil.org/idiE/resolutionsE/1997_str_03_en.PDF>.

  121. Advisory Opinion, supra note 1 [133].

  122. For a detailed consideration of the measures, see, Ibid., [134–140].

  123. Ibid., [138].

  124. Article 94(6), UNCLOS (1982). See also, Mary Ann E Palma, Martin Tsamenyi, William R Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework for Combating Illegal, Unreported and Unregulated Fishing (Martinus Nijhoff, Leiden, 2010) 263 ff.

  125. Ibid., 264.

  126. Advisory Opinion, supra note 1 [118].

  127. S Sucharitkul, State Responsibility and International Liability under International Law, 18 Loyola of Los Angeles Intl & Comp LJ (1996) 882.

  128. Article 35, UN Fish Stocks Agreement (1995) provides ‘States Parties to the Agreement are liable in accordance with international law for damage or loss attributable to them in regard to this Agreement.’

  129. The Tribunal had in this case reiterated the well-established rule of international law that ‘a State which suffers damage as a result of an internationally wrongful act by another State is entitled to obtain reparation for the damage suffered from the State which committed the wrongful act’ and that ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’ Factory at Chorzów, Merits [1928] PCIJ, Series A, No 17 [47]. See, M/V ‘SAIGA’ (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment [1999] ITLOS Rep 10 [170] <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_2/merits/Judgment.01.07.99.E.pdf>.

  130. Declaration of Judge R Wolfrum, Advisory Opinion, ITLOS Case No 21 (2015) [4], <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21_advop_decl_Wolfrum_orig_Eng.pdf>.

  131. Advisory Opinion, supra note 1 [146]. Judge Cot and Judge Lucky dissenting on this point.

  132. Ibid.

  133. Ibid., [147].

  134. See, Sect. 4.2 above.

  135. Advisory Opinion, supra note 1 [150].

  136. Stephens, supra note 16.

  137. For instance, if a vessel was operating under an MoU signed with the EU and the owner of such vessel did not pay the fine imposed on that vessel for breaching the fisheries legislation of a coastal State, can the EU be held liable to take appropriate measures to pay the outstanding fine to the coastal State?

  138. Advisory Opinion, supra note 1 [168].

  139. Ibid., [172].

  140. Ibid., [173].

  141. Ibid., [170].

  142. FAO, supra note 7.

  143. ITLOS Case 17, supra note 123.

  144. Handl, supra note 63.

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    R. Rajesh Babu

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Correspondence to R. Rajesh Babu.

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R. Rajesh Babu is Associate Professor of Law at the Indian Institute of Management Calcutta, Kolkata, India.

I am grateful to Dr. M. Gandhi, Editors of IJIL and the anonymous reviewers for their valuable comments and inputs.

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Rajesh Babu, R. State responsibility for illegal, unreported and unrelated fishing and sustainable fisheries in the EEZ: some reflections on the ITLOS Advisory Opinion of 2015 . Indian Journal of International Law 55, 239–264 (2015). https://doi.org/10.1007/s40901-015-0012-1

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