The International Tribunal for the Law of the Sea (ITLOS) received a request from the West African Sub-Regional Fisheries Commission (SRFC) – whose members are Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra-Leone – to give an Advisory Opinion (AO) on the respective obligations of flag states and coastal states in the fight against illegal, unreported and unregulated (IUU) fishing.
The SRFC took the decision to send this request at its 14th Extraordinary Session, where it adopted a Resolution under 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 SRFC” – i.e. the EEZs and territorial waters.
SRFC’s request to ITLOS includes questions of particular interest for the EU and EU member states (as flag states), and West African coastal states fisheries relations, including:
- To what extent shall the flag state be held liable for IUU fishing activities conducted by vessels sailing under its flag, including vessels operating in the framework of international agreements?
- 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?
Experts commented in an article that a number of developments concerning fisheries off the coast of West Africa may have been triggering this request, “including the conclusion of FPAs between countries of the region and the EU”.
The article comments on what aspects could be looked into in the ITLOS AO. “First, the question of the responsibility of the flag state in the EEZ needs to be explored.” The Law of the Sea Convention (LOSC) provides that flag states shall have due regard of the right and duties of the coastal state: “this obligation probably forms an adequate legal basis so as to engage the responsibility of the flag state.” The article underlines that the obligations undertaken in the EU FPAs could serve as a legal basis for articulating the responsibility of the flag state. Already, the EU includes in its FPAs a provision to ensure its vessels comply with the fisheries legislation of the other party. “Nevertheless, these obligations are framed in a rather general way and the phrasing employed is vague. Assuming that the ITLOS has jurisdiction over the case, it could seize the opportunity to clarify these obligations.”
Finally, experts underline that it would be interesting to see how ITLOS handles the opportunity to examine obligations and responsibilities of coastal states, when it comes to the management of shared stocks such as small pelagics, and stocks of common interest such as tuna: “the collective failure of the coastal states to sustainably regulate fisheries may also lead to shared responsibility.”
It will be important for ITLOS to ensure that clarifying flag state and coastal state responsibilities goes beyond examining EU–West African countries’ FPAs. The EU is only one of the distant water fishing nations targeting tuna and small pelagics in the region, and only part of the EU fleets’ activities takes place under FPAs. In its communication on the future external dimension, the EC emphasised that the fight against IUU fishing will be strengthened in the future Common Fisheries Policy (CFP) external dimension, including, but not limited to, specific initiatives developed in the FPAs. The main EU tool to fight against IUU fishing remains the EU IUU regulation which foresees that all stages should discharge their duties incumbent upon them under international law as flag, port, coastal or market states . In any case, the SRFC’s request to ITLOS shows that the fight against IUU fishing is considered a key concern by SRFC members, including Guinea, which is currently in dialogue with the EU after having been notified, on the basis of this EU IUU regulation, of the possibility of being identified as a non-cooperating country in the fight against IUU fishing.