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Illegal Fishing and the Law of the Sea

April 9, 2015


International Tribunal for the Law of the Sea (ITLOS), an intergovernmental body with the power to settle disputes related to the UN Convention on the Law of the Sea has put forward a very important legal opinion.

The Advisory Opinion was issued on April 2 in regards to a question on how the West African Sub Regional Fisheries Commission (SRFC) – comprised of Cape Verde, The Gambia, Guinea-Bissau, Mauritania, Senegal and Sierra Leone – might respond to illegal fishing vessels.  This is quite important as, by one estimate, illegal fishing accounts for 37% of total catches in West Africa.

While you can read legalese to your heart’s content (see here), this is one of the special times when the importance of the decision can be put in pretty simple terms:

  1. ITLOS advises that flag states have a legal obligation to ensure that vessels flying their flag go on to comply with the laws and regulations concerning fishing and marine conservation that apply in other countries’ waters.
  2. ITLOS also advises that flag states have a legal duty to cooperate with other countries when their flagged vessels are suspected of illegal fishing.

Now, if you read that, you might think, “Well…what’s the big deal? Isn’t it pretty commonsensical that a government is to take some responsibility for vessels it lets fly its flag?”

If you think that, trust me, you’re not alone. But the “wonder” of international law is that the issue has long been up for debate as how responsible the country itself is over the behavior of its vessels. In fact, because of this, many countries have (and continue to) let vessels fly their flags for nominal fees and then turn a blind eye to their illegal behavior.

To help put this in perspective, here’s a comment shared with me over email by Duncan Currie, an international lawyer who authored an amicus curiae on behalf of the WWF:

The decision is, I have to say, a game changer and frankly even clearer than I had dared hope. In brief, no longer are we restricted to chasing IUU fishing boat by boat: in some circumstances the State itself, or EU,  can be held liable – i.e. pay for damage to the fishery. I emphasise that the liability is only as a result of failure to exercise ‘due diligence – control their boats – not as a result of individual IUU activities.

As for next steps, you can expect some international court cases in the future to compel flag states to pay damages and take action on its vessels that misbehave.

This is definitely a great win for the oceans.

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